L, R. v

A detention and training order may be imposed on a 14-year-old only where the offender is properly characterised as a persistent offender. The expression is to be applied in its ordinary sense, with appropriate latitude for the particular facts. Previous reprimands or cautions may be relevant, and an offending spree may sometimes suffice. Seriousness alone does not establish persistence.

Two reprimands for dissimilar conduct, together with several robberies committed during one short incident, did not amount to persistent offending. The same finding prevented the making of a youth rehabilitation order with intensive supervision and surveillance under Criminal Justice and Immigration Act 2009.

The applicant, aged 14, pleaded guilty at Liverpool Crown Court to three robberies and one attempted robbery committed with two co-accused. His plea was on the basis that he had aided and abetted the offences by his presence rather than by direct verbal or physical participation.

The Crown Court imposed a ten-month detention and training order. Although the offences were serious, the applicant had no convictions and only two reprimands for different offending. The pre-sentence report assessed him as vulnerable, remorseful and at low risk, and proposed a youth rehabilitation order.

On the appeal against sentence, the central issue was whether the applicant could lawfully be treated as a persistent offender, as required for the custodial order and for an intensive youth rehabilitation order.

1. Appeal allowed. The ten-month detention and training order was unlawful because the applicant, who was 14, was not a persistent offender. It was quashed and replaced with a 12-month youth rehabilitation order comprising supervision for 12 months and an electronically monitored curfew for three months, from 7 pm to 7 am.

2. The court applied the ordinary meaning of persistent offending. Previous cautions or reprimands may be considered, and persistence may in some cases be established by a short offending spree. However, the statutory condition requires more than grave current offending.

3. The applicant’s two reprimands concerned conduct different from the robberies. The three robberies occurred on one occasion within about a minute. In line with R v G(TT) [2004] EWCA Crim 3086 and the earlier decision in D, those matters could not properly be characterised as persistent offending.

4. Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 was correctly not considered for this applicant. The sentencing judge’s consideration of that provision for the principal offender concerned a separate armed robbery in which the applicant had not been charged.

5. By section 1 of the Criminal Justice and Immigration Act 2009, an intensive supervision and surveillance youth rehabilitation order for a person under 15 also required persistent offending. That order was therefore unavailable. The court considered that ordinary supervision could include many of the proposed activities and took account of the month already spent in custody.

• Court of Appeal (Criminal Division): Leave was granted and the appeal against sentence was allowed in [2012] EWCA Crim 1336. The detention and training order was quashed and a youth rehabilitation order was substituted.

• Liverpool Crown Court: On 30 April 2012, following guilty pleas to three robberies and attempted robbery, the applicant received concurrent ten-month detention and training orders for the robberies.