The Continuing Chronology of Confusion

Abstract

International human rights law states that child well-being must be paramount. The aims of the Youth Justice System in England and Wales should reflect this, but the present system fails to do so as its aims are various and lack coherence. This article argues that this incoherence emanates from an apparent conflict between welfare and crime prevention. The authors argue that this dichotomy is false if one recognises that crime will only be prevented by prioritising the welfare and well-being of the child offender. Adopting this approach would satisfy international obligations and reduce the risk of offending and reoffending.

Keywords

Youth justice children’s rights sentencing aims crime prevention welfare

Introduction

Until the start of the 19th century, little distinction was made between adult and child offenders. A separate approach to non-adult offenders emerged gradually throughout the 19th century. The Children Act 1908 formalised a separate court for those under the age of 16. In the same year, legislation was introduced to ensure ‘better provision for the prevention of crime and for that purpose to provide for the reformation of young offenders’.¹ The 20th century witnessed a continuing struggle between ‘prevention’ and ‘reformation’ as child welfare and crime prevention alternated as the primary purpose of youth justice.

Concerns over the rising crime rates during the First World War recognised by the Maloney Committee² led to the Children and Young Persons Act 1933. The 1933 Act stipulates that the welfare of the child is paramount when any court, including a criminal court, deals with a child. As Gelsthorpe and Morris point out, ‘This marked a departure from the ideas of “criminal justice,” “crime control” and full criminal responsibility for behaviour towards a focus on welfare and treatment to suit the needs of each individual child’.³

This welfare approach chimed with the emergence of the post-war welfare state. As youth crime increased during the 1950s, the immediate post-war consensus on crime and punishment issues remained intact until the 1960s. In 1960, the Ingleby Committee recommended that the age of criminal responsibility be raised from 8 to 12. A compromise was reached with the Children and Young Persons Act 1963 which provided that the age should be raised to 10. More radical proposals for youth justice were made in the Labour Party Study Group’s report in 1964 (Crime: A Challenge to Us All). Two White Papers followed The Child, the Family and the Young Offender in 1965 and the revised, less radical Children in Trouble 1965. The legislative outcome was the Children and Young Persons Act 1969.

The Act represented ‘the most developed application of welfare principles to criminal justice ever seen in an English statute’.⁴ It was, however, only partially implemented and arguably represents a lost opportunity to revolutionise the Youth Justice System. Downes and Morgan refer to the 1970 General Election as the ‘real watershed’ in the politics of ‘law and order’. Rising crime rates, the ending of full employment and the post-war economic boom, and a sense of growing political, social and economic crisis led to the collapse of the consensus on law and order and a move by all political parties away from a welfare approach to youth justice. By the 1979 General Election, law and order was one of the primary political battlegrounds. According to the Conservative manifesto of 1979, children who offended need a ‘short, sharp shock’. By the early 1990s, the two main parties were competing to appear the toughest on crime.⁵

The 1997 ‘No More Excuses’ report stated that

In the past, the youth justice system has suffered from changing policy priorities and a lack of consistent direction. The Government believes that there has been confusion about the purpose of the youth justice system and the principles that should govern the way in which young people are dealt with by youth justice agencies. Concerns about the welfare of the young person have too often been seen as in conflict with the aims of protecting the public, punishing offences and preventing offending. This confusion creates real practical difficulties for practitioners and has contributed to the loss of public confidence in the youth justice system.⁶

It then proceeded to discuss the obligations that the UK has under the International Convention on Children’s Rights rejecting the notion that there is ‘any conflict between protecting the welfare of a young offender and preventing that individual from offending again’.⁷ The White Paper, although recognising the paramountcy of the welfare principle under international obligations, suggested resolving any problems by arguing that prioritising crime prevention would inevitably promote welfare. Such evidence as exists over the last 20 years suggests that crime prevention is a consequence of the welfare approach and not vice versa. This article will argue that the confusion identified has continued and public confidence remains low. The article argues the need for a genuinely clear, coherent and principled approach to youth justice in compliance with the agreed obligations for the protection of the rights of young offenders.

‘Non-Adults’

Traditionally, a child has been defined as a comparative negative: A child is an individual who is not yet an adult.⁸ Before considering the current system of youth justice, it may be useful to give some consideration to the terminology employed. As Livingstone and Bovill point out, there is no single term in the English language to cover people aged between infancy and adulthood.⁹ A range of terms such as child, youth, adolescent, juvenile, young person and teenager are used. There is often little clear distinction made between them although the choice of any particular term can convey significant meaning. The concept of the child itself can carry both negative (the demonised child that needs redemption) and positive meanings (childhood as an age of innocence). It can be easy to perceive children as victims and young people as offenders.¹⁰ Section 131 of the Children Act 1908 defined ‘child’ as a person under the age of 14 years and a ‘young person’ as a person ‘who is 14 years of age or upwards and under the age of sixteen years’. The main significance of the distinction was that s. 102 of the Act abolished a sentence of imprisonment or penal servitude for children and abolished only sentences of penal servitude for young persons. Section 107 of the Children and Young Persons Act 1933 extended the definition of young persons to include those who had attained 14 years but were under 17. This categorisation was retained in the Crime and Disorder Act 1998. Under the common law, the age of criminal responsibility was seven. It was increased to eight by s. 50 of the Children and Young Persons Act 1933 and fixed at the current age of 10 by s. 16 the Children and Young Persons Act 1963. Those aged between 10 and 17 are currently subject to the jurisdiction of the Youth Court and other than in respect of the serving of custodial sentences there is little distinction made in practice between a ‘child’ and a ‘young person’.

This terminological confusion and lack of coherence is not confined to procedural aspects of the criminal justice system. In 2000, the Home Office published Setting the Boundaries which reported on a comprehensive review of sexual offences.¹¹ The Report called for a modernisation of the law and was followed by a White Paper in 2002¹² and the Sexual Offences Act 2003. The Act provides a good example of the confused approach to the definition of ‘non-adults’. Section 9 defines ‘child’ in relation to the offence of sexual activity with a child as those under 16. In regard to the regulation of indecent images of ‘children’, the relevant age is under 18. The Child Abduction Act 1984 protects those under 16. Sections 5–8 of the Sexual Offences Act 2003 provide that those under 13 are incapable of giving valid consent to sexual activity. All of the offences can be committed by those above the age of criminal responsibility although s. 13 SOA 2003 does provide for reduced sentencing powers when it comes to those under 18 convicted of offences involving sexual activity with a child. Card et al. provide an example of the current confusion:

If A and B, aged between 10 and 13, consensually experiment together and A intentionally penetrates B with his penis, it follows that he is guilty of raping a child, even if he is younger and less experienced or knowledgeable than B, and acts in accordance with B’s instructions. B, who in reality is the instigator, becomes in law the victim. B cannot even be prosecuted for aiding and abetting the ‘rape’. B may, however, be guilty of committing other offences against A, notably under SOA 2003, s. 7 or s. 13.¹³

Card et al. accept that ‘many of the more absurd consequences of the modern law’ are avoided by the exercise of prosecutorial discretion. Such discretion would not need to be employed were a more reasoned and coherent approach to the definition of non-adults to be adopted. Given that both the International Convention on the Rights of the Child and the Children Act 2008 provide that anyone under the age of 18 is to be considered a child it is perhaps time for a consistent approach. This is the approach taken in this article.

English law has long recognised that there is an age below which children may lack criminal responsibility. A specific minimum age was not fixed with any degree of certainty until a systematic approach to the registration of births was introduced in the 17th century. It appears to have been generally accepted that there was an age below which a child was too young to be punished at all ‘and that later, until the age of puberty, special dolus had to be proved’.¹⁴ Kean finds that the ages of seven and 14 were set down by Coke and Hale. Seven remained as the lower limit of criminal responsibility until it was raised to eight by the Children and Young Persons Act 1933. The presumption of doli incapax until the age of 14 remained law until it was abolished by the Crime and Disorder Act 1998. Until the 19th century, little account was taken of age when it came to the punishment of offenders. Those above the age of criminal responsibility could be hanged, imprisoned or transported and prisons did little to separate children from older criminals. The Select Committee on Laws relating to Penitentiary Houses, which reported in 1811, observed ‘It is highly inadvisable…to expose young persons of twelve or thirteen years of age to the instructions of those who can initiate them in all the mysteries of fraud and villainy’.¹⁵

Surprisingly, the rationale for the differentiation in treatment of adults and non-adults is rarely discussed. A distinction is usually drawn between intentional and unintentional wrongdoing. Kean, quoting Holmes, nicely summarises the point: ‘Even a dog…distinguishes between being stumbled over and being kicked’.¹⁶ The assumption, therefore, is that below the age of 10 a child lacks the capacity to form the necessary criminal intention. There is little scientific justification for the assumption; however, there is considerable variation in the age when individuals acquire the ability to distinguish right from wrong and in the complexity of individual criminal offences. As Cross has pointed out ‘It is…reasonable to suppose that a child’s knowledge of the wrongfulness of some acts, such as homicide, precedes its knowledge of the wrongfulness of other acts such as handling stolen goods’.¹⁷ The current Sentencing Guidelines acknowledge that the appropriate disposition will differ depending upon whether the child is ‘at the lower end of the age bracket, in the middle or towards the top end’.¹⁸ While chronological age can dictate the sentences available, ‘the developmental and emotional age of the child or young person should always be considered and it is of at least equal importance as their chronological age’.¹⁹ Developmental and emotional maturity may inform an assessment of culpability and hence a decision as to how serious the instant offence was. There is a clear implication from the above-mentioned that sentencers should be mindful that many children coming before the courts have little culpability for their actions and that this must limit the sentence imposed. This should act as a significant brake on the imposition of the more serious dispositions available and, especially, on the use of custody.

The Current System

Two statutory principles govern the treatment of children by a criminal court. The Children and Young Persons Act 1933 provides the generic duty in s. 44(1):

Every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person, and shall in a proper case take steps for removing him from undesirable surroundings, and for securing that proper provision is made for his education and training.

This has to be read in conjunction with s. 37(1) of the Crime and Disorder Act 1998 which stipulates that ‘the principal aim of the youth justice system is to prevent offending by children and young persons’.

When it comes to sentencing adults, the courts are given clear, although not necessarily coherent, aims. The Criminal Justice Act 2003, s. 142 stipulates the purposes of sentencing adults thus

any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing:

the punishment of offenders,

the reduction of crime (including its reduction by deterrence),

the reform and rehabilitation of offenders,

the protection of the public and

the making of reparation by offenders to persons affected by their offences.

The Act provided no such guidance in relation to those under 18. Section 9 Criminal Justice and Immigration Act 2008 provides for the insertion of a new s. 142A into the 2003 Act. Section 142A contains a near-identical list of sentencing purposes in relation to offenders aged under 18 but is not yet in force.²⁰ The effect would have been to direct courts to put crime prevention above welfare. The purposes for sentencing adult offenders, drawn largely from the Halliday Review,²¹ can be criticised on the basis that it lacks coherence and a sense of priority. Inconsistency is all but guaranteed. These criticisms could be equally validly applied to s. 142A.

The statutory aims for both adults and children have to be read in conjunction with any sentencing guidelines which, after the Coroners and Justice Act 2009, courts have an obligation to follow.²² Guidelines take two forms. Most provide guidance on sentencing particular offences²³ or category of offences.²⁴ Others provide guidance on an overarching sentencing concern, such as rewarding guilty pleas²⁵ or determining the seriousness of an offence.²⁶ The practice of issuing offence-specific guidelines has resulted in a situation where sentencers have different levels of advice depending on the offence that they are dealing with – in some cases, detailed principles are available, for others, the court must draw on more general principles. All guidelines should be subjected to rigorous analysis. However, because of their general and residual importance, this is particularly vital in the case of guidelines which deal with generic sentencing principles.

Overarching Principles

Sentencing guidelines by definition should inform a sentencing decision so it comes as a surprise that the Sentencing Council warn sentencers of the need to:

[Avoid] ‘criminalising’ children and young people unnecessarily; the primary purpose of the youth justice system is to encourage children and young people to take responsibility for their own actions and promote re-integration into society rather than to punish. Restorative justice disposals may be of particular value for children and young people as they can encourage them to take responsibility for their actions and understand the impact their offence might have had on others.²⁷

By the time the child offender appears in court, the opportunity to avoid criminalisation is arguably already lost. The warning is not unwelcome, however, and the point worthy of note. Research has consistently demonstrated that the consequences of drawing juveniles into the criminal justice system can be highly detrimental to their life-chances and can entrench criminal behaviour.²⁸ This is linked to stigmatisation and the risk that this may threaten future life opportunities:

[Children] should, if possible, be given the opportunity to learn from their mistakes without undue penalisation or stigma, especially as a court sanction might have a significant effect on the prospects and opportunities of the child or young person and hinder their re-integration into society.²⁹

This use of the phrase ‘undue penalisation’ here is perhaps more realistic as it emphasises that punishment may be necessary but that it must be as limited as possible given the inherent risk of jeopardising the child’s future prospects. The earlier statement makes another interesting claim. Encouraging children to take responsibility and enabling re-integration is the stated primary aim of youth justice,³⁰ yet neither features in the statutory aims of ensuring the welfare of the child³¹ and preventing offending by children.³² Later, the guidelines state that sentencers can also regard deterrence as a sentencing aim even though, again, there is no statutory basis for this.³³ With respect, the logic for this is wholly unconvincing. The Council recognise that there is a difference between s. 142 of the Criminal Justice Act 2003, which lists the relevant factors that a court should consider when sentencing an adult offender, and s. 142A which set out the principles for sentencing children. The distinction is that s. 142A did not include ‘the reduction of crime (including its reduction by deterrence)’. As s. 142A has not been enacted, the Council reasoned, deterrence could be taken into account. This neglects the fact that, even if reliance cannot be made to s. 142A, reliance must be made to the existing statutory principles, neither of which make explicit mention of deterrence although, arguably, it could be relevant to the aim of preventing offending by children.

Both of the existing statutory principles suggest a test that concentrates on what could be regarded as utilitarian concerns; the intervention is justified on a future benefit to the child or to society more broadly. The Sentencing Council expand on this:

While the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person, as opposed to offence focused. For a child or young person the sentence should focus on rehabilitation where possible. A court should also consider the effect the sentence is likely to have on the child or young person (both positive and negative) as well as any underlying factors contributing to the offending behaviour.³⁴

Offence-severity becomes the initial concern though not the overall determinant of the sentence. The means of assessing the seriousness of the offence are articulated in the guidelines and correspond to the statutory test for determining offence-seriousness found in s. 142(3) of the Criminal Justice Act 2003.³⁵ A recognition that offence-severity should restrict the court’s ability to impose restrictions based on other factors in the child’s life demonstrates a commitment to limiting retributivism and is consistent with the belief that involvement with the criminal justice system is inherently harmful and should be minimised.³⁶

There is nothing inherently objectionable to the principle that punishment should be proportionate to the seriousness of the offence and the corresponding notion that excessive punishment infringes a child’s rights appears compelling. Difficulties arise though in attempting to quantify the seriousness of an offence, even if one can agree that both the offender’s culpability and harm realised, intended or likely, are relevant. Offence-specific guidelines undertake this task in some detail though there is a risk that definitive statements about severity mask the reality that arbitrary assessments have to be made. The Sentencing Council and its predecessor the Sentencing Guidelines Council have both issued more general guidelines on determining offence-severity.³⁷ Particular issues though arise with regard to the culpability of children which the guidelines deal with at length:

In assessing culpability the court will wish to consider the extent to which the offence was planned, the role of the child or young person (if the offence was committed as part of a group), the level of force that was used in the commission of the offence and the awareness that the child or young person had of their actions and its possible consequences. There is an expectation that in general a child or young person will be dealt with less severely than an adult offender. In part, this is because children and young people are unlikely to have the same experience and capacity as an adult to understand the effect of their actions on other people or to appreciate the pain and distress caused and because a child or young person may be less able to resist temptation, especially where peer pressure is exerted. Children and young people are inherently more vulnerable than adults due to their age and the court will need to consider any mental health problems and/or learning disabilities they may have, as well as their emotional and developmental age. Any external factors that may have affected the child or young person’s behaviour should be taken into account.³⁸

It may be useful at this point to consider briefly the reasons for the separate approach to children and adults. Cross offers a number of possible justifications.³⁹ Up to some age, children do not know the difference between right and wrong and therefore cannot be said to be deserving of punishment. Cross accepts that such an argument can only apply to very young children and that the age at which knowledge and understanding is acquired will vary between individual children and according to the complexity of the criminal offence. Cross also suggests justifications based on deterrence are less valid in the case of very young children. Others have argued that children are inherently less culpable than adults:

Early to mid-adolescence is a period during which the domains that control and co-ordinate thoughts, behaviours and emotional responses undergo significant development. In particular, the likelihood of impulsive, sensation-seeking and risk-taking actions is greatly increased…This does not mean that children bear no responsibility for their behaviour, but that they may be less responsible.⁴⁰

In Roper v Simmons,⁴¹ the US Supreme Court recognised that ‘the case for retribution is not as strong with a minor as with an adult’. It could be argued that the criminalisation of children has more to do with allocating blame and identifying scapegoats than with principles of either child welfare or crime prevention.⁴² The position adopted by English criminal law was contrasted with that of international criminal law. Principle 3.6 of the Paris Principles provides that ‘children who are accused of crimes under international law…should be considered primarily as victims of offences against international law, not only as perpetrators’.⁴³

Custodial Sentences

Domestic law and international human rights obligations stipulate that custody must be a measure of last resort or, to quote the Sentencing Council, ‘a custodial sentence may only be imposed when the offence is so serious that no other sanction is appropriate’.⁴⁴ The statutory tests for imposing custody on children make express reliance on the adult threshold contained in s. 152(2) Criminal Justice Act 2003: A court must not pass a custodial sentence unless it is of the opinion that the offence or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone nor a community sentence can be justified for the offence.⁴⁵ The Sentencing Council offer further guidance on the factors that should determine whether the custodial threshold has been crossed if the offender is a child:

In determining whether an offence has crossed the custody threshold the court will need to assess the seriousness of the offence, in particular the level of harm that was caused, or was likely to have been caused, by the offence. The risk of serious harm in the future must also be assessed. The pre-sentence report will assess this criterion and must be considered before a custodial sentence is imposed. A custodial sentence is most likely to be unavoidable where it is necessary to protect the public from serious harm.⁴⁶

There are several forms of detention which can be imposed on children.⁴⁷ The detention and training order is by far the most common means of imposing custody on offenders aged under 18 and the only custodial sentence that can be imposed by the Youth Court.⁴⁸ Section 100(1)(b) Powers of Criminal Courts (Sentencing) Act 2000 stipulates that, if the offender is convicted of an offence which is punishable with imprisonment in the case of a person aged 21 or over, the court is to pass a detention and training order if the test in s. 152(2) Criminal Justice Act 2003 is met. Additional criteria exist for offenders aged under 15 at the time of the conviction. A detention and training order cannot be imposed on an offender under the age of 15 at the time of the conviction unless the court is of the opinion that he is a persistent offender.⁴⁹ Section 100(2)(b) provides conditions relating to offenders under the age of 12 at the time of conviction – namely that a custodial sentence is the only means to protect the public from future offending by him – but this section has not yet been enacted by the Secretary of State. Section 100(2) distinguishes between ‘dangerous’ offenders and ‘persistent’ offenders. Persistence is seen in the Criminal Justice Act 2003 as a relevant concern when determining the seriousness of an offence for sentencing purposes.⁵⁰ In the context of s. 100(2), persistence would also appear to relate to culpability as public protection is not a stated objective. The guidelines provide useful comment on the circumstances where a child can⁵¹ or cannot⁵² be viewed as a persistent offender.

An alternative means of imprisoning children is contained in s. 91 Powers of Criminal Courts (Sentencing) Act 2000. Long-term detention applies when an offender under the age of 18 is convicted on indictment of an offence punishable in the case of a person aged 21 or over with imprisonment for 14 years or more⁵³ and ‘[if] the court is of the opinion that neither a youth rehabilitation order nor a detention and training order is suitable’. Long-term detention allows the court to impose a custodial term not exceeding the maximum term of imprisonment with which the offence is punishable in the case of a person aged 21 or over.⁵⁴ Again, specific reference is made to the adult test for determining the seriousness of an offence contained in s. 152(2) of the Criminal Justice Act 2003.⁵⁵ The section makes no reference to public protection as a relevant concern, suggesting that offence-severity is the key determinant.⁵⁶ Long-term detention can be imposed on those under the age of 15 if they are not a persistent offender, unlike a detention and training order. An example is provided in S J-R and DG ⁵⁷ where two 14-year-olds convicted of robbery were sentenced to 15 months and 30 months’ detention even though neither was a persistent offender.

Section 226 of the Criminal Justice Act 2003 provides for detention for life for serious offences committed by those aged under 18. The offender has to have been convicted of a serious offence and the court has to be of the opinion that the offender poses ‘a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences’.⁵⁸ Assuming these requirements are met, and the offence is one in respect of which the offender would be liable to a sentence of detention for life under s. 91 of the Powers of the Criminal Courts (Sentencing) Act 2000, the court must impose a sentence of detention for life if it considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of detention for life.⁵⁹ Courts are also compelled to impose detention at her Majesty’s pleasure for murder committed by an offender who was aged under 18 at the time of the offence.⁶⁰

Finally, extended sentences for certain violent or sexual offences provide a means of imprisoning offenders who are seen as posing a particular risk. It is important to note that the section permits, but does not require, the imposition of such a sentence unlike detention for life for serious offences.⁶¹ The stipulations are listed in s. 226B Criminal Justice Act 2003:

This section applies, where

a person aged under 18 is convicted of a specified offence⁶² (whether the offence was committed before or after this section comes into force),

the court considers that there is a significant risk to members of the public of serious harm occasioned by the offender of further specified offences,⁶³

the court is not required by s. 226(2) to impose a sentence of detention for life under s. 91 of the Sentencing Act and

If the court were to impose an extended sentence of detention, the term that it would specify as the appropriate custodial term would be at least four years.

An extended sentence comprises of the term of detention that would otherwise have been imposed plus an extension period for which the offender is subject to a licence.⁶⁴ The extension period cannot exceed five years in the case of a specified violent offence⁶⁵ or eight years in the case of a specified sexual offence⁶⁶ and must be the period deemed necessary to protect the public from serious harm occasioned by the commission by the offender of further specified offences.⁶⁷ Despite the requirement of ‘dangerousness’,⁶⁸ the seriousness of the current offence is also determinative. An extended sentence cannot be imposed unless the appropriate custodial term would be at least four years.⁶⁹ This is welcome as it ensures that those who commit offences of comparatively minor gravity do not serve lengthy terms of imprisonment solely on the basis of perceived risk. Only 20 extended sentences were imposed in the year ending 31 March 2017.⁷⁰

There is little in the guidelines directing sentencers about which form of detention is most appropriate in a given case. The exception is with regard to determining whether to impose a sentence of detention for life or an extended detention for public protection. It is evident that a sentence of detention for life should be reserved for cases where the child poses an extreme on-going threat to public safety:

A sentence of detention for life should be used as a last resort when an extended sentence is not able to provide the level of public protection that is necessary. In order to determine this, the court should consider the following factors in the order given:

the seriousness of the offence,

the child or young person’s previous findings of guilt,

the level of danger posed to the public and whether there is a reliable estimate of the length of time the child or young person will remain a danger and

the alternative sentences available.⁷¹

Detention for life is, therefore, the sentence of last resort once it has been decided that detention – itself a sentence of last resort – is appropriate. How relevant is the age of the child in determining whether this test is met? As a general principle, the guidelines stipulate:

Even within the category of child or young person the response of a court to an offence is likely to be very different depending on whether the child or young person is at the lower end of the age bracket, in the middle or towards the top end.⁷²

This statement suggests that what constitutes a ‘measure of last resort’ is age-dependent. Initially, this may appear a compelling argument. Someone with greater maturity is more culpable for their actions. It is widely accepted that the seriousness of an offence is determined with reference to both the harm caused (or intended to be caused or which could foreseeably have been caused) and the culpability of the offender. Following this logic, an increase in the offender’s culpability makes the offence more serious and this, in turn, justifies a more severe penalty. There are two flaws in the argument: First, the argument is exclusively retributive and the guidelines make it clear that other sentencing justifications are at least as pertinent when sentencing children; and, even if retribution were paramount, a sentence of last resort remains a sentence that can only be justified when no other sentence can suffice.

Non-Custodial Sentences

Other than custody, the Youth Court has the following disposals available: absolute and conditional discharges, reparation orders, financial orders, youth referral orders and the youth rehabilitation order. The emphasis here will be on the stated aims of each disposal and the circumstances in which it is appropriate to impose them.

An absolute discharge is appropriate ‘in the least serious cases’ when it is considered that ‘no punishment should be imposed’.⁷³ Although the test is phrased slightly differently, a conditional discharge should be imposed where ‘the offence is not serious enough to warrant an immediate punishment’.⁷⁴ Reparation orders are designed to provide an opportunity to make amends to the victim of the offence, if so desired, or to the community.⁷⁵ Despite this, the order must be commensurate with the seriousness of the offence, thereby using notions of desert to ensure that a disproportionate order is not imposed.

Fines are by far the most common punishment for adult offenders.⁷⁶ Financial orders allow the court to fine offenders aged under 18 though this option appears of limited use, as the guidelines tacitly admit: ‘In practice, many children and young people will have limited financial resources and the court will need to determine whether imposing a fine will be the most effective disposal’.⁷⁷

Referral orders are the most distinctive sentence for children and have no adult equivalent.⁷⁸ An order is mandatory in the majority of cases where the child has committed an imprisonable offence for the first time and has pleaded guilty.⁷⁹ It is discretionary if the child pleads guilty but has offended before. There is a natural hierarchy in sentences for adult offenders as community sentences are generally perceived as more punitive than financial penalties. For children, this hierarchy is less apparent due to the limited use of fines. The Sentencing Council caution that referral orders ‘are not community orders and in general terms may be regarded as orders which fall between community disposals and fines’.⁸⁰ What is unique about referral orders is the role that the child plays in determining ‘his’ or ‘her’ sentence. The court determines the length of the sentence, based on the seriousness of the offence,⁸¹ while a Referral Order Panel determines a ‘contract’ with the child. This suggests that the welfare needs expressed by the child would be of considerable importance but the Sentencing Council stress that the ‘principle aim’ of the youth justice system is to prevent children offending.⁸² The context though is illuminating as it precedes guidance on the limited circumstances when it would be appropriate to impose a second or subsequent referral order. Two situations, both provided in statute, are detailed. First, if the offence is not serious enough for a youth rehabilitation order but the child does appear in need of intervention.⁸³ Secondly, where the offence is serious enough for a youth rehabilitation order, but it is felt that a referral order would be the best way to prevent subsequent offending.⁸⁴ In both cases, it is arguable that considerations of both welfare and crime prevention are present.

The final non-custodial disposition is the youth rehabilitation order, the equivalent of a community sentence for adults. An order comprises of one or more specified requirements,⁸⁵ designed to provide for ‘punishment, protection of the public, reducing re-offending and reparation’.⁸⁶ There is an irony that the only sentencing aim not listed is that in the title of the order. Offence-severity determines both the potential for imposing a youth rehabilitation order⁸⁷ and the restrictions imposed must be proportionate with the seriousness of the offence.⁸⁸ A number of factors should be considered by a court when deciding on the requirements to impose:

When determining the nature and extent of the requirements the court should primarily consider the likelihood of the child or young person re-offending and the risk of the child or young person causing serious harm. A higher risk of re-offending does not in itself justify a greater restriction on liberty than is warranted by the seriousness of the offence; any requirement should still be commensurate with the seriousness of the offence and regard must still be had for the welfare of the child or young person.⁸⁹

Risk is measured not only in terms of likelihood of reoffending but with regard to the potential seriousness of potential future offending. The ‘profile’ of the child effectively determines the rationale for the requirements.⁹⁰ If there is a perception that there is a low likelihood of reoffending and a low risk of serious harm, the requirements should seek to repair the harm caused. A medium risk of reoffending or a medium risk of serious harm justifies requirements which seek to repair the harm caused and which ‘enable help or change’. Finally, where there is a high likelihood of reoffending or a very high risk of serious harm, the requirements should ‘enable help or change’ and ‘ensure the control’ of the child. It should be noted that in each case an alternative is presented – either the risk of reoffending or the risk of harm can suffice. What is more complicated is where the court determines either that an individual presents a considerable risk but the offence for which he or she is being sentenced is relatively minor, or where the instant offence is serious but the offender is adjudged to present a low risk of reoffending. The guidelines address both scenarios, citing alternative justifications for determining which requirements are relevant. In cases where the offence was of relatively low seriousness but the risk is adjudged to be high, the appropriate requirements are likely to be ‘primarily rehabilitative’ or for the ‘protection of the public’.⁹¹ The requirements should be ‘primarily punitive’ where the child has committed a relatively serious offence but is assessed as presenting a low risk of reoffending or causing serious harm.⁹²

It is apparent that courts have a wide range of non-custodial options when it comes to sentencing child offenders. This should allow an approach which focuses on the welfare needs of any given child. However, it is clear that, as with custody, a range of competing concerns should inform which disposition is appropriate. Retribution, to take one example, limits the circumstances in which the more severe penalties can be imposed and is the sole justification for a discharge. Perceived risk of reoffending, particularly if the risk relates to serious harm, is highly relevant to youth rehabilitation orders. There may be bona fide reasons why retribution should limit the punishment imposed – an enduring worry is that a focus on rehabilitation (or, indeed, incapacitation or deterrence) can justify disproportionate punishment. But what is beyond dispute is that the welfare of the child is but one concern when determining which non-custodial sentence is appropriate.

International Obligations

The Universal Declaration of Human Rights (UDHR) proclaimed by the General Assembly of the United Nations on 10 December 1948 recognised the right to a fair and public trial for those facing criminal charges.⁹³ Article 11 enshrines the presumption of innocence. The UDHR makes no distinction according to age; indeed article 1 confirms that ‘All human beings are born free and equal in dignity and rights’ (emphasis added). At the time, the UDHR was more a statement of aspiration than a set of binding legal obligations. Over the years, however, the provisions contained in the Declaration have come to be accepted as binding rules of customary international law. The provisions relevant to criminal law and procedure have been incorporated into the International Covenant on Civil and Political Rights (ICCPR) articles 9, 10, 14 and 15. The UK signed the ICCPR on 16 September 1968 and ratified it on 20 May 1976. The ICCPR does recognise that those under 18 require a difference in approach. All the basic rights accorded to adults (fair trial, presumption of innocence, etc.) apply equally to children but there is recognition that ‘in the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation’.⁹⁴ Article 10 requires children to be detained separately from adults. It further requires that the essential aim of the ‘penitentiary system’ shall be the reform and social rehabilitation of prisoners. Child prisoners shall be accorded treatment ‘appropriate to their age and legal status’.⁹⁵

The human rights obligations of the UK in relation specifically to juvenile justice derive from the European Convention on Human Rights, the EU Charter of Fundamental Rights and the Convention on the Rights of the Child, which includes certain of the provisions of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) making them legally binding. Similar guidelines are offered by the Council of Europe through the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice and the Handbook on European Law relating to the rights of the child.⁹⁶

The Committee of Ministers of the Council of Europe on child-friendly justice observed that although there are a number of international, regional and national instruments that provide for the protection of young offenders’ interests and rights, there are certain legal lacunae which create the need to provide guidance to States and legal professionals.⁹⁷ This was evident from the much-reported case of V. and T. v the United Kingdom where the European Court of Human Rights observed that the judicial proceedings, in which the two boys were tried, were incomprehensible to them, leading to a violation of the Right to a Fair Trial.⁹⁸ Such gaps between international obligations, regional instruments and national law are clearly observed in the Sentencing Guidelines and the relevant law on sentencing young offenders. In addition, the lack of any mention of ‘rights’ and the alternative use of welfare rather than ‘best interests of the child’ or ‘well-being’ as international instruments suggest, could be enhancing these.

The Beijing Rules specifically provide that the aim of the juvenile justice system is to meet the needs of children while also protecting their human rights and meeting the needs of society.⁹⁹ The needs of the latter could be interpreted to require both public safety (for both adults and children) and also a welfare state that protects the rights of children.

The protection of children in criminal proceedings mainly focuses on the Right to a Fair Trial including the presumption of innocence, the right to access to court and legal representation. These rights, already protected for adults, cannot be limited under ‘the pretext of the child’s best interests’.¹⁰⁰ All in all, international instruments provide for a consideration of the child’s ‘personal situation, well-being and specific needs, and with full respect for their physical and psychological integrity’.¹⁰¹ Within these frameworks, there is uniformity in relation to a few key principles:

The Beijing Rules suggest that the use of the Criminal Justice System itself should be a measure of last resort. Rule 11 requires consideration to be given to dealing with children who offend without resort to formal trial.

Thus, diversion at the outset and without referral to alternative (social) services may be the optimal response. This is especially the case where the offence is of a non-serious nature and where the family, the school or other informal social control institutions have already reacted, or are likely to react, in an appropriate and constructive manner.¹⁰²

If formal trial is deemed necessary, such adjudication and any disposition should be proportionate to both the gravity of the offence and the personal circumstances of the child and needs of society.¹⁰³ Assessing the best interests of the child, according to the European Guidelines for Child Friendly Justice, should take into consideration inter alia the offence committed, the child’s background and family surroundings, among other considerations. These ‘best interests’ are not examined solely on the seriousness of the offence or dangerousness of the offender as domestic law and the sentencing guidelines suggest.

Institutionalisation should be a measure of last resort and for the minimum possible time.¹⁰⁴ Alternatives suggested should serve the child’s best interests and could include mediation and diversion without obstructing the child’s access to justice.¹⁰⁵

According to the Beijing Rules, any difference of approach in national implementation of international guidelines may be justified by different philosophical approaches: ‘rehabilitation versus just desert; assistance versus repression and punishment; reaction according to the singular merits of an individual case versus reaction according to the protection of the society in general; general deterrence versus individual incapacitation’.¹⁰⁶ The Sentencing Guidelines make absolutely no reference to children’s rights or compatibility with international obligations. The conclusion that must be drawn is that the Guidelines favour just desert, repression and punishment, protection of society and individual incapacitation.

Under these obligations, the State has a duty as the guardian of a child to promote the well-being of a child.¹⁰⁷ Accordingly, institutionalisation is only appropriate when it is in the best interests of the child. And then, if the child is in custody, they have a duty to protect the well-being of the child. In terms of human rights obligations, ensuring the well-being of a child is a duty of the State under these circumstances. This obligation is not just manifested during the sentencing process but also during the custodial sentence. Once a decision is made on the sentence that will be carried out, the circumstances in which the child is held should be compliant with the international obligations that the UK has accepted and ratified. The image of the Youth Secure Estate reflected in the OFSTED reports and the statement of the HM Chief Inspector of Prisons who said ‘There was not a single establishment that we inspected in England and Wales in which it was safe to hold children and young people’ show a Youth Secure Estate in crisis and in serious breach of children’s rights.¹⁰⁸ In addition, the latest Concluding Observations for UK of the Committee for the Rights of the Child, expressed concern that the increased use of physical restrictive intervention in Youth Training Centres, is a challenge to the state’s obligation to protect children from violence as provided by the Convention on Children’s Rights.¹⁰⁹ On top of these, the statistical information in relation to the Youth Justice System show some sentencing trends that could indicate racial discrimination against BAME young offenders.¹¹⁰

The Reports of the Committee covering the past 20 years show a consistent concern towards the protection of the rights of children in conflict with the law. The report on the UK by the Committee on the Rights of the Child (February 1995) suggested a reform that will ensure that the Youth Justice System should be ‘child-oriented’.¹¹¹ The statement suggests that potential reliance on the administration of youth justice based on adult standards was disproportionate to the aims of the Youth Justice System. The latest Concluding Observations of the Committee on the Rights of the Child (2016) suggested that more consideration should be given to General Comment 14 on the right of the child to have his or her best interests taken as a primary consideration. According to General Comment 14, a child’s best interests include an obligation to protect the accompanying substantive right:

The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3, paragraph 1, creates an intrinsic obligation for states, is directly applicable (self-executing) and can be invoked before a court.¹¹²

The Beijing Rules suggest that the gravity of the offence is considered alongside personal circumstances.¹¹³ In the case of V. v the United Kingdom, the claimant alleged that the sentence of detention during Her Majesty’s pleasure was a violation of Article 5 – Right to Liberty of the European Convention on Human Rights and the decision of Secretary of State, rather than a judge, on the duration of his sentence, was a violation of Article 6 – Right to a Fair Trial under the European Convention on Human Rights. The Court in deciding considered the Beijing principle that any sentence imposed should be as short as possible.¹¹⁴

For children, the principles of nullum crimen sine lege and nulla poena sine lege are just as valid as they are for adults and are a cornerstone of a democracy’s criminal law system (ECHR, Article 7; UNCRC, article 40, 2a). However, when dealing with anti-social – although not criminal – behaviour of children, there has been a trend in some member states to apply far-reaching interventions, including deprivation of liberty. Under the pretext of the protection of society from antisocial behaviour, children are drawn into intervention schemes in a manner that would not be tolerated if applied to adults. Standard legal guarantees, such as the burden of proof attributable to the state and the right to a fair trial, are not always present. In many countries, the basic principles of law in criminal matters are not applied as fully for children as they are for adults. Children are still punished for so called ‘status’ offences (acts that are not defined as crimes in law and would go unpunished when committed by an adult).¹¹⁵

Conclusion

The Commentary to the Beijing Rules acknowledges that ‘[the] conflict between these [philosophical approaches to punishment] is more pronounced in juvenile cases than in adult cases. With the variety of causes and reactions characterizing juvenile cases, these alternatives become intricately interwoven’.¹¹⁶ The confusion that results from this conflict has been discussed in the context of adult offenders by a number of writers.¹¹⁷ In the Youth Justice System, the paradox of more pronounced conflict yet greater interweaving is compounded by the welfare/crime prevention dichotomy. We have argued that the route out of the resulting impasse lies in generally recognising the paramountcy of child well-being.

This would be consistent with the Riyadh Guidelines which provide that the ‘successful prevention of juvenile delinquency requires efforts on the part of the entire society to ensure the harmonious development of adolescents, with respect for and promotion of their personality from early childhood’.¹¹⁸ The Riyadh Guidelines ask for a coherent implementation of the UN human rights frameworks including the Convention on the Rights of the Child and the Beijing Rules.¹¹⁹ While some jurisdictions in the UK have moved or are moving to align themselves with the plethora of international human rights obligations, England and Wales are still stuck on a path which prioritises prevention above welfare.¹²⁰ Although the Riyadh Guidelines specifically refer to the need for the mass media to ‘portray the positive contribution of young persons to society’,¹²¹ the approach to Youth Justice in England and Wales continues to be driven by a hawkish mass media too ready to demonise children.

It is now over 20 years since the Government last looked seriously at youth justice. The 1997 White Paper and the subsequent Crime and Disorder Act 1998 made clear that crime prevention should be the priority and child welfare would follow. The intervening years have provided little evidence that this view is correct. Although the Sentencing Council has twice considered the sentencing of children, it has endorsed the 1997 approach and had only limited regard for the UK’s international obligations.

The reality of youth justice today is that children convicted for the most serious offences end up incarcerated in a system damned by the HM Chief Inspector of Prisons.¹²² Our contention is that the lack of regard for the welfare of children in custody is symptomatic of a much wider malaise reflected in recent accounts of growing levels of child involvement in gang violence, knife violence, sexualised behaviour and drugs. The solution to these social problems lies not in a focus on crime prevention, but rather in the adoption of an approach which prioritises the ‘best interests of children’ and takes into account their ‘holistic development’.¹²³

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.