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The Sentencing Council’s Sentencing Children and Young People Definitive Guideline – has it achieved its aims?

Assessing the impact and implementation of the Sentencing Council’s Sentencing Children and Young People Definitive Guideline

The Sentencing Council recently published a report assessing the impact of the Sentencing Children and Young People Definitive Guideline (“the Guideline”). The Guideline came into force on 1 June 2017 to replace the previous guidance, Overarching Principles: Sentencing Youths. The Guideline also incorporated specific guidelines for sentencing defendants under the age of 18 convicted of robbery and sexual offences.

Details

The report concludes that the Guideline has met its aim of being comprehensive and accessible, but that in terms of consistency of approach, analysis suggests that there are still higher proportions of Black and Asian children and young people receiving sentences of immediate custody compared with White children and young people. The report also found that there was some evidence to suggest that sentencing for robbery offences for defendants in the 15 to 17 age range may have decreased in severity.

The conclusion of the Sentencing Council is that the Guideline is “fit for purpose and working as intended[1]. There are therefore no immediate plans to revisit the Guideline.

The stated aims of the Guideline were set out as follows:

  • To provide a comprehensive and accessible document on the general principles to be applied when sentencing children and young people;
  • To promote a more consistent approach to sentencing

The Guideline also consolidated and updated the previous guidance for sentencing children and young people convicted of robbery and sexual offences.

The aims were identified in recognition that the previous guidelines for sentencing children and young people had become piecemeal and their terminology was dated. The extent to which these aims were achieved is considered below.

Comprehensive and Accessible

The report considered the findings from survey research which explored the views of sentencers within the magistracy and judiciary about sentencing guidelines in general. The analysis of this survey and interview data found that the Guideline was the most popular guideline among district judges and deputy district judges, who stated that it was presented with “clarity and conciseness, helpfulness and ease of use.[2]. The Guideline was also identified as being one of the most helpful guidelines by Crown Court and High Court judges who sentence young people less often.

Consistent Approach

Quantitative and qualitative analysis was undertaken in order to understand the extent to which the Guideline has promoted consistency in sentencing outcomes.  This identified the types of disposals imposed and the average custodial sentence length in the 12 month period before the guideline came into effect and in the 12 months after its implementation.

The report found that whilst the total number of children and young people sentenced decreased significantly between 2008 and 2018, from 88,400 to 20,300[3], sentence severity remained at similar levels. When considering robbery offences in particular, there was some tentative evidence that the Guideline may have decreased sentencing severity for defendants aged 15-17.

Analysis was conducted to understand whether there were changes in sentencing outcomes for children and young people of different ethnicities. Analysis of the data demonstrated that both before and after implementation of the Guideline white children and young people received a discharge more frequently, and received immediate custody less frequently. After the introduction of the Guideline the proportion of children and young people receiving each sentencing outcome did not appear to change for white children and young people, however, after the introduction of the Guideline there was a small increase in the proportion of black children and young people sentenced to immediate custody. For Asian children and young people there was a small decrease in sentencing severity, with a shift from community orders to discharges. For children and young people of other ethnicities the volume of data was too low to draw any conclusions.

The Sentencing Council is considering what further research it could do to better understand these disparities in sentencing outcomes and will continue to monitor the data.

Commentary

Whilst it is commendable that the Sentencing Council has produced a comprehensive and useful guideline which is greatly relied upon by sentencers, it is worrying that the report states that the Guideline is “working as intended” when deeply concerning disparities in the outcomes for children and young people of BAME origin have been identified.

Before the Guideline’s implementation, 15% of White children and young people received a discharge on sentencing, compared to 12% of Black children and young people and 10% of Asian children and young people. After the Guideline came into place the proportions were 14%, 12% and 14% respectively.  When considering immediate custodial sentences, before the Guideline was implemented 5% of White children and young people received immediate custody, compared to 9% of Black children and young people and 9% of Asian children and young people. The implementation of the guideline has done little to change the position, with the later proportions reported as 6%, 10% and 9% respectively. It is of extreme concern that Black children and young people are almost twice as likely to receive immediate custodial sentences than White children and young people.

It is equally concerning, as footnote 24 to the report notes, that the figures “exclude children and young people with unknown ethnicity, who made up 18% of the total pre-guideline and 26% post-guideline”. It is therefore possible that these disparities could be understated in the current data.

A comprehensive and consistently applied sentencing guideline should mean that stark differences in outcomes for children and young people of different ethnic backgrounds does not exist. The report notes that it is not currently possible to identify whether some ethnicities are more represented in certain offences, particularly more serious types of offences. If this is indeed a factor contributing to the disparity, it is a matter of priority to conduct further research in order to confirm this, or otherwise explain why the current disparity exists. Until this happens we cannot be confident that children and young people of differing ethnic backgrounds have equal access to justice.

Written by Vivien Cochrane, Associate, Kingsley Napley

[1] Page 2, Sentencing Children and Young People Guideline Assessment

[2] Page 11, Sentencing Children and Young People Guideline Assessment

[3] Page 7, Sentencing Children and Young People Guideline Assessment