Children are treated differently to adults when they are sentenced.
Children are given special youth sentences:
- Reparation Order
- Referral Order
- Youth Rehabilitation Order (YRO)
- Youth Rehabilitation Order with Intensive Supervision and Surveillance (YRO with ISS)
- Youth Rehabilitation Order with Intensive Fostering (YRO with IF)
- Detention and Training Order (DTO) (12-17 year olds)
- Section 91 – custodial sentences for children
Purpose of youth sentencing
“If children are tried and convicted, they then have to be sentenced; but it will not be appropriate to sentence them in the same way as an adult, if their immaturity has the consequence that they were less culpable or that reformative measures are more likely to be effective.”(T and V. v United Kingdom (2000) 30 EHRR 121, Lord Reed 191))
When sentencing a child, the court considers the main aim of the youth justice system – the prevention of offending by children and young people.1 It must also consider the welfare of the child, this includes removing a child from undesirable surroundings, and ensuring that proper provision is made for their education and training.2 The best interests of the child should always be a primary consideration.3
The Overarching Principles – Sentencing Youths have been update, the new Overarching Principles came into force on 1 June.
“[Any court]..sentencing a young offender must be aware of obligations under a range of international conventions which emphasise the importance of avoiding “criminalisation” of young people whilst ensuring that they are held responsible for their actions and, where possible, take part in repairing the damage that they have caused. … [T]he intention is to establish responsibility and, at the same time, to promote re‑integration rather than to impose retribution.”4 [Bold added]
“In determining the sentence, the key elements are:
- the age of the offender (chronological and emotional),
- the seriousness of the offence,
- the likelihood of further offences being committed, and
- the extent of harm likely to result from those further offences.
The approach to sentence will be individualistic.
Proper regard should be had to the mental health and capability of the young person, and to any learning disability, learning difficulty, speech and language difficulty or other disorder, any of which is likely to affect the likelihood of those purposes being achieved.”5
The importance of age for sentencing
Children should receive lower sentences than adults, they should be considered less culpable than adults because they act impulsively and lack maturity so they are unlikely to understand the impact of their offending.6 A child who turns 18 during a criminal case can continue to have their case heard in a youth court and can receive youth sentences.7
If a child turns 18 after they plead guilty or are convicted, but before they are sentenced, they are entitled to receive youth sentences even though there can be practical issues in relation to supervision of Referral Orders and Youth Rehabilitation Orders by the Youth Offending Team.8 If a child turns 18 before they plead guilty or are convicted, they cannot receive youth sentences but the child’s age at the time of the offence must be taken into consideration.9 Courts must follow any sentencing guideline unless it would be contrary to the interests of justice to do so.10
It can therefore be very important to avoid delay if a child is approaching their 18th birthday in a criminal case.
- Section 37 Crime and Disorder Act 1998 (back)
- Section 44 Children and Young Persons Act 1933 (back)
- Article 3(1) United Nations Convention on the Rights of the Child 1989 (back)
- Paragraph 1.3, Overarching Principles – Sentencing Youths, Sentencing Guidelines Council, November 2009 (back)
- Paragraph 4.1, Overarching Principles – Sentencing Youths, Sentencing Guidelines Council, November 2009 (back)
- Paragraphs 3.1-3.7, Overarching Principles – Sentencing Youths, Sentencing Guidelines Council, November 2009 (back)
- Section 29 Children and Young Persons Act 1963. Where the court has accepted jurisdiction for a grave crime before the defendant attains 18, the court may proceed to trial and sentence, including a Detention and Training Order (DTO), even though the defendant is 18 at the time of trial or sentence: R v Aldis v DPP  EWHC Admin 403. (back)
- R v Danga (Harbeer Singh)  QB 1996, R v Dennis Obasi  EWCA Crim 581 (back)
- Paragraph 5, Overarching Principles – Sentencing Youths, Sentencing Guidelines Council, November 2009, R v Ghafoor  EWCA Crim 1857. (back)
- Section 125(1) of the Coroners and Justice Act 2009. (back)