Recordings from past eventsTurning 18
25 Jun 2020Legal updatesAge Turning 18
This guide deals with the impact of turning 18 on young people in the criminal justice system where they are dealt with for offences committed as a child, and where they offend during young adulthood (18 to 25).
Published June 2020
Partially updated March 2021
The law considers those who turn 18 between the commission of an offence and the start of criminal proceedings to be adults. Even if they were technically adults at the time of the offence, it is increasingly recognised that young people do not gain full maturity on their 18th birthdays.1 The challenge practitioners face is to ensure that there is as much recognition as possible of the young person’s age at the time they offended, and their age and maturity at each significant stage of a case.
In this guide you will find help in navigating through the different regimes, rules and principles.
For a child suspect, there is what is commonly regarded as a ‘presumption’ in favour of diverting from prosecution by offering an Out of Court Disposal (OOCD).
The emphasis on diversion is the product of recognition that diverting children from prosecution is more likely to prevent offending. Criminalising children should be avoided due to the likely detrimental impact.2
As a result, a number of informal and formal OOCDs are routinely made available for children as an alternative to prosecution. Informal OOCDs, such as Triage, can involve informal engagement with the Youth Offending Team (YOT). Formal diversion refers to youth cautions and youth conditional cautions. When a person engages with an informal OOCD the police record the outcome as No Further Action (NFA). This is not automatically disclosed on a standard or enhanced Criminal Record Certificate.
For a suspect who has offended as a child, having turned 18 when the decision to divert is made has particular consequences:
For a suspect who is a young adult when they offend, having turned 18 has the following consequences.
The exceptional circumstances provisions make it possible for an adult suspect to be offered a caution when, due to the seriousness of the offence, this disposal ordinarily would not be available. Under these provisions, the police are entitled to consider mitigating factors such as:
A suspect who has turned 18 at the time a decision to charge is made will be regarded as an adult in the eyes of the law.
However, the public interest considerations of the Full Code Test require the reviewing lawyer to consider the suspect’s age and maturity at the time of the offence in any decision to prosecute.9
Guidance exists for various disposals such as OOCDs and sentence, and is referred to throughout this guide. The guidance suggests that young adults being dealt with after turning 18 should be dealt with similarly to how they would have been if still a child.
If there are concerns that the defendant’s age and maturity has not been properly considered by the Crown, practitioners should invite the court to adjourn the allocation hearing, for a sufficient period of time to allow such representations to be made. If evidence relevant to age and maturity comes to light after the allocation hearing this should be provided to the Crown so that the prosecution may be reviewed in the light of it.
The public interest considerations of the Full Code Test require prosecutors to consider:
‘…the suspect’s maturity, as well as their chronological age, as young adults will continue to mature into their mid-twenties. As a starting point, the younger the suspect, the less likely it is that a prosecution is required.’10
*Please note that the footnotes in this table are visible in the table image and do not appear in the footnotes at the end of the document.
*Please note that the footnote in this graphic is visible in the image and does not appear in the footnotes at the end of the document.
Despite the general rule, the youth court may retain the sentence of a child who turns 18 before conviction if crossing the age threshold occurs during the proceedings. Alternatively, the court may exercise a discretionary power to remit sentence to the adult magistrates’ court.21
Where a sentence is retained, the youth court may give a youth sentence.22 This means that a defendant may receive a Referral Order, Youth Rehabilitation Order or Detention and Training Order, despite the defendant turning 18 before conviction.23 However, this will often be met with resistance from the YOT, for whom supervision of the order will be complicated. Practitioners aiming for this outcome will need to liaise closely with the YOT and are likely to need to persuade them that exceptional circumstances apply.
Where a case is remitted to the adult magistrates’ court, the following rules apply:
A defendant who turns 18 after conviction and before sentence will receive a youth sentence.
Ensure that the sentencing court is provided with information relating to:
Consider mitigating on the following issues:
Issues of youth, developmental age, and immaturity are now recognised as factors that may:45
In the leading case of Clarke,46 the Court of Appeal recognised that:
'Reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purposes of sentencing. So much has long been clear. The discussion in R v Peters47 is an example of its application. Full maturity and all the attributes of adulthood are not magically conferred on young people on their 18th birthdays. The youth and maturity of an offender will be factors that inform any sentencing decision, even if an offender has passed his or her 18th birthday.’46
Clarke has been considered in subsequent cases. In R v Balogun48 the court held that the factors relevant to sentencing a child do not cease to have relevance just because the offender was 18 when they offended. In R v Daniels49 the court held that factors in the guideline for sentencing children can have weight when considering the appropriate sentence in cases involving young adults who are not fully mature.
In 2019 the Sentencing Council issued new guidance for ‘Age and/or Lack of Maturity’ as a mitigating factor. This appears online within the Sentencing Council’s ‘General Guideline: Overarching Principles’ guidance and can be found in a drop down box when this mitigating factor is selected by the user. In summary, the guidance draws on the reasoning of the decision in Clarke and sets out the following principles:
Young adults are still developing neurologically and consequently may be less able to: evaluate the consequences of their actions; and limit impulsivity and limit risk-taking, particularly when exposed to peer pressure, to which they are more likely to be susceptible.
A young person’s environment, including factors such as adverse childhood experiences, abuse and deprivation, may affect their neurological development.
Immature offenders may find it particularly difficult to cope with custody and the requirements of a community order without appropriate support.
Immature offenders have a greater capacity for change, are more responsive to rehabilitation, and either stop committing crime, or begin a process of stopping, in their late teens and early twenties.
When considering a custodial or community sentence for a young adult the National Probation Service should address these issues in a PSR.
The key principle to have emerged from Court of Appeal decisions following Clarke46 is that age alone may be insufficient a factor from which to infer immaturity.
Factors which have been treated as illustrative of a young adult’s immaturity include:
Factors which have been treated as illustrative of a young adult’s maturity include:
Evidence that may support a finding of immaturity includes:
The YOT has the power to either retain supervision of a young adult or transfer to adult services, that is, the Probation Service. Transition will be conducted in accordance with transition guidance, taking into account a young adult’s circumstances.61
If a young adult is 18 by the date of a first appearance for any breach proceedings, the case will be dealt with in the adult magistrates’ court. If the Youth Rehabilitation Order (YRO) is revoked and the young adult resentenced, the court’s sentencing powers are limited to those available at the date of conviction for the original offence.62
A young adult who turns 18 at the half-way point of a DTO shorter than 24 months will be subject to an extended period of supervision.63
Where a defendant breaches a DTO by failing to comply with their supervision requirements, breach proceedings must be dealt with in the youth court.64 If the breach is proved the court has the following options:
If a further period of custody or supervision is imposed, the extended period will be either up to three months or the length of time from the date the breach was committed until the end of the order, whichever is shorter.68
If a child is sentenced to custody and is going to turn 18 while there, they may want to challenge decisions regarding early release or transfer to the adult custodial estate. In closing letters, solicitors can direct these children to the Howard League’s advice line for children in custody.69
Written by Claire Mawer in collaboration with Katya Moran and Laura Cooper at the Youth Justice Legal Centre.
This guide was produced by the Youth Justice Legal Centre, part of Just for Kids Law, and funded by Barrow Cadbury Trust as part of its Transition to Adulthood (T2A) Alliance initiative.