34.Section 1 introduces a new power for magistrates’ courts of making referral orders in respect of first time offenders under the age of 18. These orders will refer young offenders to youth offender panels. This section sets out when the new sentencing power will be available. A referral order is intended to be the main disposal for young offenders who have not previously been convicted, but there are certain circumstances in which it would not be appropriate. These circumstances include cases where a custodial sentence is appropriate to reflect the seriousness of the offence or to protect the public. It is also recognised that there will be cases where it will be appropriate for the courts to order an absolute discharge. The new power does not replace sentences which are already fixed by law. Nor does it preclude courts from ordering hospital admission in respect of mentally ill offenders. The circumstances that take precedence over the making of a referral order are set out insubsection (1).
35.The effect of the new order is to refer a young offender to a youth offender panel to be set up and administered by the local youth offending team. Multi-agency youth offending teams are provided for by the Crime and Disorder Act 1998 and are responsible for co-ordinating the delivery of local youth justice services. The availability of the new disposal will depend on whether a local youth offending team has been established to set up the youth offender panel. Accordingly subsection (4) limits the availability of the new order to those courts that have been notified by the Secretary of State that arrangements are in place for a youth offending team to implement referral orders.
36.The order-making power is available in the youth court and the adult magistrates’ court. It is not available in the Crown Court, although, where the Crown Court is dealing with a young offender who may be suitable for a referral order, the case may be remitted to the youth court for sentencing. However, the Crown Court will have the same powers to award punishment as the lower court appealed against when sitting in its appellate jurisdiction (section 48(4) of the Supreme Court Act 1981) and so may make referral orders in cases where it allows an appeal against the sentencing of the youth court or adult magistrates’ court.
Commentary on Sections Part I: Referrals to youth offender panels Section 1: Referral of young offender to youth offender panel