In a recent article for Youth Justice, Dr Enys Delmage, Prof Thomas Crofts and I argued that deterrent sentencing for children is contrary to children’s rights and criminological and neuroscientific evidence. Our article is summarised by Russell Webster in a short blog post.
The UN Convention on the Rights of the Child makes it clear that children in conflict with the law should be treated in a way that takes account of their age and best interests. Sentencing a child to stop others following in their footsteps cannot be about the best interests of the child facing sentence. Further, there is little evidence that deterrence is effective at preventing offending by other children. Studies show that the liklihood of being caught has a much greater impact, especially for children. The reason for this is that children’s brains are still developing. While this process continues, they are more impulsive, lack consequential thinking and are more likely to be influenced by their peers.
Yet, we still hear of courts passing deterrent sentences on children.
In England and Wales, there can be no doubt that deterrent sentencing is legitimate for adults. The Sentencing Act 2020 provides that “reduction of crime (including its reduction by deterrence)” is an express purpose of sentencing for adults (section 57(2) (b)). By contrast, the equivalent provision for children states that the purposes of sentencing for children are their welfare and the prevention of crime (section 58, Sentencing Act 2020).
The overarching guideline for sentencing children and young people has also moved away from the idea of deterrent sentencing for children. This is significant as the Sentencing Council’s guidance should be followed by courts unless it is contrary to the interests of justice to depart from it (section 59 (1), Sentencing Act 2020).
In the first iteration of its overarching guideline on sentencing children in 2017, the Sentencing Council for England and Wales stated that:
“deterrence can be a factor in sentencing children and young people although normally it should be restricted to serious offences and can, and often will, be outweighed by considerations of the child or young person’s welfare” (Paragraph 1.10).
The good news is that in December 2020, the Sentencing Council updated its guideline on children and young people online and removed all references to deterrence as a principle applicable to sentencing children (Sentencing Council, 2020).
The changes are noted in a document referred to as ‘Schedule of changes made to sentencing guidelines and related materials’ on the Council’s website.
Better still, the Sentencing Council published research in 2022, that considers the effectiveness of sentencing. The research considers deterrent sentencing in some detail and concludes that the “evidence does not suggest that using more severe sentences (particularly sentences of immediate imprisonment over other disposals) has significant deterrent effects on the person sentenced or the general population.” In respect of young people, the research concludes that “specific deterrence for young persons is problematic and more severe punishment may be criminogenic.”
The fact that the concept of deterrence has been removed from the official guidance and there is no evidence to support its effectiveness for children is significant. Practitioners should draw attention to this fact if courts attempt to apply the principles of deterrence to children being sentenced.
Written by Dr Laura Janes, Solicitor, GT Stewarts