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Sentencing white paper: A smarter approach or lacking in positive change for children?

Earlier this month the Ministry of Justice (“MoJ”) published its Sentencing Reforms White Paper: “A Smarter Approach to Sentencing” (the “White Paper”). Despite the MoJ’s open acknowledgment of a need for radical reform in the criminal justice system, there remains too great a focus on punishment over rehabilitation. With regard to children, positive steps are being considered, but there is a real concern that the suggested reforms do not seek to understand the genesis of youth crime.

A Smarter Approach to Sentencing 

Details

The White Paper identifies three fundamental problems in the existing sentencing framework:

  1. Automatic release resulting in scrutiny over the paucity of time offenders eventually spend in custody;
  2. Confidence in non-custodial sentences; and
  3. Failure to address the root causes of offending.

The White Paper rightly makes clear that the approach to youth sentencing is and should be “distinct and targeted”, with the considerations of the child upheld front and centre.  The MoJ proposes legislative change in three keys areas for children, as discussed below.

(i) Serious offences

Positively, as the White Paper comments, children sentenced to custody has fallen by 76% in the period 2008/09 to 2018/19, and it is right that custodial sentences for children should be reserved for the most serious of offences and as a last resort 1, whilst all the while taking into consideration the age and culpability of the child in question. The MoJ propose the following key changes with regard to serious offences:

  1. Modernisation of the Detention and Training Order – the most common child custodial sentence – where the sentence is split between custody and being under the supervision of a Youth Offending Team (“YOT”). The proposal includes: reducing just the custodial segment of the sentence by time spent on remand or electronically monitored bail; and, making the sentencing regime more flexible to cater for the specific situation of each child.
  2. Increasing the minimum release point from custody for the most serious offences from half-way through the sentence, to two thirds.
  3. Updating the discretionary life sentence (“DLS”) tariff calculation such that those serving a DLS will not be eligible for Parole Board consideration earlier than those serving an extended determinate sentence or “EDS”.
  4. Updating the minimum sentences for murder to take into consideration the gravity of the offence (in a manner more aligned with the adult regime) and also to reduce the unfairness on those offenders who have recently turned 18.
  5. Amending tariff reviews for murder, such that those sentenced before the age of 18 are only entitled to one tariff review at the halfway point of their sentence. Those who have turned 18 will not be eligible for a subsequent review.

(ii) Community Sentences

In keeping with the White Paper’s fundamental objectives, it proposes tougher community sentences.

In particular, the proposals look to enhance Youth Rehabilitation Orders (“YROs”) by introducing: flexible curfews which mean a judge is not restricted to the maximum of 16 hours’ curfew per day (but still subject to a maximum of 112 hours per week); and electronic monitoring.

The White Paper also proposes piloting augmented intensive supervision and surveillance (“ISS”) schemes to be attached to YROs, as well as mandatory location monitoring on each ISS.

(iii) Reforms to Remand Tests

The YJLC’s article published last week – concerning increased custody time limits during the pandemic – commented on the high incidence of defendant children being held in custody on remand, which as a proportion of all children in custody is at its highest for a decade. It is perhaps more worrying, as both the YJLC’s article and the White Paper highlight, that 66% of children remanded in custody do not receive a custodial sentence. The bail system is evidently flawed, and the White Paper seeks to address this by proposing amendments to the tests for refusing bail, as set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

(iv) Criminal records reform

The White Paper seeks to reduce rehabilitation periods for past offenders – a promising step – in order to prevent punishment being a deterrent to future development.  In particular for youth offenders, a YRO will be spent when the order itself expires, and save for the most serious offences, the longest rehabilitation period is reduced from “conviction is never spent” to 3.5 years.

Commentary

It is perhaps telling that of the MoJ’s five key principles of sentencing, it is “punishment” that appears first 2: the resonant takeaway from the Paper is one of increased punitive measures.

The broad objectives in respect of youth sentencing are encouraging 3, but the Paper does not convincingly set out how the proposed reforms will in fact bring about the radical changes that are required. It is equally promising that reform has been proposed to the criminal records system, but this is a very outdated system that will require more than the odd tweak.

As a final comment, the White Paper includes fleeting references to the racial disparities endemic in the UK criminal justice system. With regard to children, it is recognised that “BAME children are over-represented at every stage, which remains a real concern”.  Whilst the sentiment is clear, there is very little in the White Paper to suggest how the proposed reforms seek to counter these systemic issues. Sadly, an annex just over a page in length setting out intentions to explore this issue, appears no more than supplementary thought as opposed to a central feature of the MoJ’s thinking.  This is absolutely something that needs to be addressed for children and adults alike.

  1. United Nations Convention on the Rights of the Child, Article 37(b), September 1990  (back)
  2. The White Paper, page 6  (back)
  3. The White Paper, paragraph 278 to 280  (back)