YOUTH SENTENCING: A NEW APPROACH
It has long been recognised that youths in the criminal justice system require a different approach to their adult counterparts. It is increasingly common for youth courts to retain jurisdiction of cases, ground rules to be adopted and intermediaries employed as courts seek to make the trial process as accommodating to young people as possible.
This approach has also been seen in the way youths are sentenced with youth specific sentencing guidelines, tailored sentences focused on the welfare and rehabilitation of the child and, where custody is unavoidable, significantly reduced starting points from those adopted for adults.
In 2023 the Court of Appeal issued two key decisions which shed light on the correct approach to sentencing children and adults who committed offences when under 18 in an effort to resolve a “suggested tension” between previous decisions.
The previous approach
Until 2023 the approach was that set out in Forbes [2016] EWCA Crim 1388 in which the Court of Appeal held an offender must be sentenced in accordance with the regime applicable at the date of sentencing and not the regime which was in force at the time of the offending. The Court made clear that sentencing courts should not seek to ascertain what sentence would have been passed had the case been tried shortly after the offence was committed. Instead, the relevance of the sentencing regime at the time of the offence was limited to whether some form of custodial sentence would have been available.
This approach was endorsed in Lickorish [2017] EWCA Crim 43 in which the Court of Appeal indicated that provided custody was available at the time the offence was committed the offender’s age at the time would be relevant only to the assessment of culpability.
The Children Guideline
In 2017 the Sentencing Council published the definitive guideline on “Sentencing Children and Young People” (“the Children Guideline”) which gave detailed guidance into the approach and principles to be applied when sentencing young people. The key principles provide:
- When sentencing children or young people a court must have regard to the principal aim of the youth justice system (to prevent offending by children and young people) and the welfare of the child or young person;
- While the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person, as opposed to offence focused. For a child or young person the sentence should focus on rehabilitation where possible.
- When an increase in the age of a young person will result in the maximum sentence on the date of the finding of guilt being greater than that available on the date on which the offence was committed (primarily turning 12, 15 or 18 years old), the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed. This includes young people who attain the age of 18 between the commission and the finding of guilt of the offence but when this occurs the purpose of sentencing adult offenders has to be taken into account. It will rarely be appropriate that a more severe sentence than the maximum that the court could have imposed at the time the offence was committed should be imposed.
- A custodial sentence should always be used as a last resort. If offence specific guidelines for children and young people are available then the court should consult them in the first instance to assess whether custody is the most appropriate disposal. If a custodial sentence is imposed, a court must state its reasons for being satisfied that the offence is so serious that no other sanction would be appropriate.
- Only if the court is satisfied that the offence crosses the custody threshold, and that no other sentence is appropriate, the court may, as a preliminary consideration, consult the equivalent adult guideline in order to decide upon the appropriate length of the sentence andmay feel it appropriate to apply a sentence of half to two thirds of the adult sentence for those aged 15 – 17 and allow a greater reduction for those aged under 15. This is only a rough guide and must not be applied mechanistically. When considering the appropriate reduction from the adult sentence the emotional and developmental age and maturity of the child or young person is of at least equal importance as their chronological age.
Notwithstanding the detailed guidance provided in the Children Guideline many courts adopted the approach of simply consulting the adult sentencing guidelines in order to decide upon the appropriate starting point and then applying an appropriate reduction to reflect the Offender’s age.
Clarification and a new approach
In Limon [2022] EWCA Crim 39, the Court of Appeal observed that youth sentencing principles would apply most often in a scenario in which the offender is a young adult, convicted of offences committed a comparatively short time earlier as a child. The Court could, however, see “no reason in principle or logic not to apply them also to a case in which many years have passed between the offending and the conviction and sentence” as “the passage of time does not imbue the appellant with any greater culpability or moral responsibility than he had at the time of the offence.” The Court highlighted Parliament’s clear intention that child offenders be treated differently than adults and indicated that however many years had passed between commission and conviction, the principles in the Children Guideline remained relevant.
This approach developed in 2023 in Ahmed [2023] EWCA Crim 281 where the Court of Appeal considered whether the approach in Forbes or Limon was correct. The Court of Appeal emphasised children require a “different approach to sentencing and are not to be treated as if they were just cut-down versions of adult offenders”. Contrary to Forbes, there was “no reason why the distinction in levels of culpability should be lost merely because there has been an elapse of time which means that the offender is an adult when sentenced for offences committed as a child.”. It was noted s.59 of the Sentencing Code requires every court when sentencing an offender who was under 18 at the time of the offending to follow the Children Guideline except in the rare case where it would be contrary to the interests of justice to do so.
The Court of Appeal made clear that courts must take as their starting point the sentence that would have been imposed if the child offender had been sentenced shortly after the commission of the offence. This will not necessarily be the end point – subsequent events may enable the court to be sure that the culpability of the offender was higher, or lower, than would likely have been apparent at the time of the offending or that the harm caused by the offending was greater than would likely have been apparent at the time. In each case, the sentencing judge must consider whether there is a good reason to impose on the adult a more severe sentence that they would have received had they been sentenced shortly after the offence.
ZA [2023] EWCA Crim 596 was heard two months after Ahmed and dealt more generally with the approach to sentencing children. The Court highlighted that “very particular considerations apply to sentencing children and young people who commit offences” and it was categorically wrong to sentence them as if they were mini-adults – an entirely different approach was required. The Court of Appeal emphasised the importance of sentencing youths in accordance with the Children Guideline and that it will “generally be unhelpful for the prosecution to start by directing the court straight to paragraph 6.46… which contains a suggestion that an appropriate custodial sentence for a youth may be “half to two-thirds of the adult sentence” as such an approach ignores the previous sections of the Guideline, which emphasise the need for an individualistic approach.
These principles have since been affirmed in a number of Attorney General’s references making clear that this individualistic approach with custody as a last resort are key considerations when sentencing children or adult offenders who committed offences as a child. At the conclusion of the ZA judgement the Court provided a checklist for counsel and courts undertaking the “invariably complex and difficult sentencing exercises” in relation to young people – it is crucial that those prosecuting and defending in such cases familiarise themselves with this checklist, the authorities of Ahmed and ZA, the Children Guideline and any youth offence specific guidelines before embarking on any sentencing hearing.
Fiona Robertson & Eleanor Lucas
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