The Sentencing Council has published a new guideline for sentencing children and young people. The guideline will be used in courts in England and Wales on 1 June 2017.
The guideline is the result of nearly four years of research and consultation by the Sentencing Council. It seeks to provide an updated, more comprehensive and more accessible guide to sentencing children and young people; the new guideline is longer than its predecessor, more detailed in its guidance and includes flow charts to make the guideline easier to use.
Key changes in the new guideline are:
- Increased focus on the background, circumstances and vulnerability of children in the youth justice system, with attention drawn to the importance of considering developmental age as well as chronological age.
- Important changes to terminology: ‘youth’ and ‘young offender’ have been replaced with ‘children and young people’. This is accompanied by a new emphasis which puts the child before the offence and focuses attention on the welfare consideration (paragraph 1.2, 1.11-1.15).
- Stronger emphasis on children’s rights, “a custodial sentence should always be a measure of last resort for children and young people”1 (paragraph 1.3) and “avoid “criminalising” children and young people unnecessarily … promote re-integration into society rather than to punish”2 (paragraph 1.4).
- A new requirement to consider the over-representation of BAME children in the youth justice system and to take into account particular factors which arise in the case of children in this group (paragraph 1.18).
- Increased focus on the issues facing looked-after children, including acknowledgement that looked after children may appear in court for low level offences that the police would not have been involved in if they had taken place in an ordinary family setting; a requirement to consider the impact a custodial sentence could have on leaving care rights; and instruction to consider the effect leaving care transitions might have had on a young person’s behaviour (paragraph 1.16 & 1.17).
- Guilty pleas – the new rules aim to encourage defendants who are going to plead guilty to do so as early in the court process as possible. Defendants must plead guilty at the first hearing to qualify for the maximum level of reduction (one third). There are exceptions: the guidance does not apply to referral orders as they are only available when defendants plead guilty (paragraph 5.15). Another important safeguard is that the full one third reduction may still be applied “where there are particular circumstances which significantly reduced the child or young person’s ability to understand what was alleged, or otherwise made it unreasonable to expect the child or young person to indicate a guilty plea sooner than was done” (paragraph 5.16).
- Offence specific guidelines have been incorporated for sexual offences and robbery (Parts 2 and 3 of the new guideline).
- The guideline reflects changes in offending that have occurred since the previous guideline was produced. This includes for example, ensuring that sentencing takes into account the use of technology and social media in offending. Offences may be filmed or photographed on smartphones and circulated via social media, which can have a great effect on victims.
Lord Treacy, Sentencing Council chairman, said, ‘Our guideline on the sentencing of children and young people has the prevention of reoffending at its heart. No one wants children who commit offences going on to become adult criminals. The guideline therefore looks with far greater detail at what kind of sentence would prevent this based on the age, background and circumstances of each child or young person, so that it can help them reintegrate instead of becoming alienated further’.
The new guidelines will replace the following documents published by the Sentencing Guidelines Council (the predecessor body of the Sentencing Council):
- Overarching Principles – Sentencing Youths guideline (2009)
- Robbery. Definitive Guideline (2006)
- Sexual Offences. Definitive Guideline (2007)
The definitive guideline will apply to all under 18s sentenced on or after 1 June 2017, regardless of the date of the offence. The guilty plea section applies to all under 18s when the first hearing is on or after 1 June 2017. It applies equally in youth courts, magistrates’ courts and the Crown Court.
The new guideline is to be greatly welcomed for its welfare focus and the emphasis it places on the the vulnerabilities of the children who come into contact with the youth justice system. The recognition of the over-representation of BAME children is hugely significant as is the attention given to the special circumstances of looked-after children and care leavers.
The change in terminology is an important one. It is interesting to note the reasons given by the Sentencing Council behind this particular change: one charity argued that use of ‘youth’ and ‘young offender’ contradicted welfare principles; the Law Society was critical of the fact that these terms had no statutory definition; in his recent review of the youth justice system, Charlie Taylor referred to ‘children’; and the Ministry of Justice used the word ‘children’ rather than ‘youths’ when submitting its response to the consultation.
The new section on guilty pleas has been criticised for the pressure it might place on children to plead guilty. The Sentencing Council were keen to pre-empt such criticism, stating that it provides for exceptions to ensure that vulnerable defendants are not penalised if they need more information or advice before they plead. The guideline is, the Council said in its press release, directed only at defendants wishing to enter a guilty plea and it does not place pressure on defendants to plead guilty if they do not want to.
The guideline represents a very significant shift towards a welfare focus within the youth justice system. However, it applies only to children and young people who have come before the courts. If it’s purported aims of recognising the vulnerabilities of these young people and preventing their criminalisation are to be realised more needs to be done to prevent children from coming into contact with the police and the courts in the first place.
- Article 37(b) UNCRC – No child shall be deprived of liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time. (back)
- Article 40(1) UNCRC – The right of every child to be “treated in a manner consistent with the promotion of the child’s sense of dignity and worth…which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.” (back)