Sentencing Youths: the Theory and the Practice
Posted on 7th March 2019
The main aims of the youth justice system1 is to prevent offending by children and young people, to encourage them to take responsibility for their own actions and to promote re-integration rather than punish. When sentencing the Court must consider these aims as well as the welfare of children and young people. In short, the aim should be on avoiding criminalisation and supporting rehabilitation.
The Overarching Guidelines for the Sentencing of Youths and Young People are published by the Sentencing Council and are derived from international as well as domestic law. Save in those circumstances where the sentence is set in law, the Court must only impose a custodial sentence as a last resort and if other sentencing options cannot be justified.
The guidelines outline the 10 types of sentences that the Court has as its disposal. This includes: an absolute or conditional discharge (where the Court feels that attendance at Court has been punishment enough); a referral order (where the young person will need to report, for a period of three months to 12 months, to a Referral Order Panel, which includes two volunteers from the community and one representative from the Youth Offending Team); and a financial order (where a fine will be imposed). Or the court can decide on a Youth Rehabilitation Order, which will be overseen by the Youth Offending Team and where the Court may impose one or more of a range of requirements be completed within a specified timeframe. For example, it could include restrictions of where the child or young person lives and/or travels, electronic monitoring or a curfew.
Alternatively the Court could impose a Youth Rehabilitation Order with Intensive Supervision and Surveillance or with fostering, or a Detention and Training Order (which can be imposed for a minimum of four months and a maximum of 24 months). As with adult custodial sentences, half of the sentence is spent in custody and half in the community. However, these sentences can only be applied when the young person is 12 or over. When a child or young person is considered to be suffering from a mental disorder requirement detention for medical treatment a hospital order can be made. For more serious offences sentenced in the Crown Court it could include a longer term of detention for “grave crimes”, an extended term of imprisonment where the child or young person is assessed as dangerous or a life sentence for murder.
When a child or young person has been convicted of an offence for the first time having pleaded guilty to an imprisonable offence, the Court must impose a referral order unless the Court thinks that a custodial sentence, an absolute or conditional discharge or a hospital order is more appropriate or when the offence is one where the sentence is fixed in law (such as murder).
The Court decides how long a referral order will be. The Referral Order Panel will decide what requirements should be included. The child or young person will be asked to attend a meeting with the panel along with their parents or carers. The panel will review the offence and its consequences and will then decide on a contract with which the defendant will have to comply. This should be focused on: reparation/restoration to the victim and/or the wider community; a programme of interventions/activities towards goals that support the child to move forwards towards a positive and productive life.
If a child or young person comes before the Court again for another offence and has pleaded guilty, the Court can choose to impose a further referral order.
How does this work in practice?
The Sentencing Guidelines say that the Court must be alert to a range of factors that may impact on the child or young person’s welfare, including any: mental health problems or learning difficulties/disabilities; experiences of brain injury or traumatic life experience (including exposure to drug and alcohol abuse) and the developmental impact this may have had; speech and language difficulties and the effect this may have on the ability of the child or young person (or any accompanying adult) to communicate with the Court, to understand the sanction imposed or to fulfil the obligations resulting from that sanction. In addition, the Court must consider the vulnerability to self-harm, particularly within a custodial environment and the effect of experiences of loss and neglect and/or abuse. The Court should be provided with a full background on the child or young person they are sentencing.
Having the right information before the Court can make the difference between a custodial sentence and a non-custodial sentence.
As lawyers it is our role to speak on our client’s behalf and lend them a voice but this must be done without making them passive subjects. And this is where things can be complicated; children and young people can be their own worst witness, often reluctant to admit or accept learning difficulties or other psychiatric or psychological vulnerabilities. They may not recognise or be willing to admit abuse or trauma.
Children and young people also tend to be more compliant and suggestible than those who are significantly older or more mature than them. We need to make sure we discuss the legal process wherever possible and to keep listening. Young defendants – particularly if they do not understand the process – may feel that what is happening is deeply unfair but they may well not verbalise this unless asked (if at all). This matters: feelings of being misunderstood or of being treated unfairly will not help with the rehabilitation process.
Wider relationships and deeper insights
Luckily, defence lawyers do not practice in isolation; we rely on a range of other individuals and organisations that have had contact with the defendant to fulfil our duties to our clients. Doing this well helps us, and ultimately the Court, gain a deeper insight to their story and to tailor the sentence to the circumstances of the child or young person.
Despite being accused of criminal behaviour, children and young people may defer to those perceived as senior to them. Older peers or peers perceived as having seniority can have a powerful influence. The lawyer’s job is to try to protect the positive connections and influences that children and young people have (which come under huge pressure if a custodial sentence is imposed) as well as addressing negative influences. Positive connections may include family and friends but may also include mentors and professionals such as youth workers. Too often we overlook parents or carers who (with the client’s consent) can bring unique insights into the child or young person.
Schools can be a useful source of information in relation to any special educational needs and behavioural issues. The Children and Adolescent Mental Health Service (CAMHS) may hold important knowledge if they have had previous contact with the child or young person. And where social services have been involved, they will usually have a wealth of information about the individual and their family background.
However, there may well be children or young people who have not come into contact with any support agencies. Where Legal Aid is in place (it will almost certainly be granted for children and young people in criminal proceedings), it can be extended to cover a psychiatric or psychological assessment or other types of expert reports. Where there is any suggestions of behavioural concerns, learning difficulties or communication difficulties, careful consideration should be given to securing an expert report. Where properly instructed, these experts may be able to comment on the impact a custodial sentence would have on the child or young person, and what support is needed to reduce the risk of reoffending. The harsh reality is that for some young people this will be the first time that they have been able to access this expert support.
The probable is not inevitable
While we have an adversarial legal system, this must not be confused with a zero sum game, especially in the context of the youth justice system. An out of court disposal or sentence that properly reflects the circumstances in which a youth has committed an offence and which is properly tailored to address the underlying causes of the offending is better for the public in general. It is right that we should not lose sight of victims and the impact on their loved ones and the wider community.
But we must also remember that many defendants are victims themselves or are at serious risk of becoming victims in the future. We may have limited powers as lawyers to prevent youths from coming into contact with the criminal justice but we can and do fight to minimise the impact on our clients of any contact with the criminal justice system. This is done by pushing for diversion from arrest and police detention, diversion from prosecution and diversion from custodial sentences. We will continue to fight against measures that criminalise our children and young people unnecessarily.
It also means avoiding fatalism, becoming complacent or assuming the probable is inevitable. A referral order may not be a ‘bad’ outcome but should the decision to prosecute be challenged before sentence is passed? Should we be pushing for an out of Court disposal rather than just accepting that a referral order is the most likely outcome. In other cases, a Youth Rehabilitation Order may not be a ‘bad’ outcome, but we should still be pushing for a second referral order where appropriate. While these outcomes may not be ‘bad’ outcomes that does not mean they should be accepted without the Court being first asked to carefully consider other options.
There is a human instinct to protect our young and vulnerable. This instinct may be overridden when our children are demonised but children remain children regardless of their actions. Recognising that children and young people should be treated differently to adults does not excuse breaking the law or fail to recognise the harm to others. It does recognise that children and young people are still developing and have a greater capacity for change and rehabilitation. It acknowledges the need to protect those who are less able to defend themselves.
1 Section 37 Crime and Disorder Act 1998
Laura O’Brien is a solicitor in the Criminal Litigation, Financial Crime and Regulatory Department. She is a Higher Rights Advocate, who specialises in offences involving Children and Young People and Serious and Complex Crime. She recently represented “D”, a young person in a multi-handed murder case.