Youth Sentencing

Offenders between 10-17 are classed as youth offenders. The sentencing has posed a dilemma for a number of reasons:

• Children are less responsible for their actions than adults
• Desire to steer children away from further crime
• Sentencing should reform aswell as/instead of punishment
• Possessing a criminal record can have a disproportionate effect on a young person.

Legislation and sentencing policy has consistently swung between the rehabilitation and retribution approach.

Rehabilitation-should such offenders be seen as a product of their upbringing and have their problems treated as there will be no change in offending unless the underlying causes of that behaviour are addressed.

Retribution-should offenders be regarded as bad and have their actions punished on the basis that punishment is necessary to send a strong clear message to the perpetrators that their actions are unacceptable.

s.44 Children and Young Person Act 1933 established the special ethos that every court dealing with a young person shall have regard to their welfare.

Children and Young Person Act 1969Instead of criminal proceedings, they would handed to the social services.

However the magistracy constantly fought against this approach and when a Conservative government was elected in 1970, they declined to bring much of the Act into force and the order provisions were repealed.

CJA 1982 reflected a move towards a more justice based model, introducing the sentence of youth custody. This led to UK having a higher number of young people incapacitated than any other European country and reconviction rates of 75-80%.

CJA 1991 -imprisoment could be an "expensive way of making bad people worse"

1998 Crime and Disorder Act 1998 required each local authority to co-ordinate the provision of multi-agency youth justice through youth offending teams (YOTs) and the offender board (YOB) which was to devise interventions for most first time offenders rather than their being sentenced by a youth court. s.40 CDA 1998 imposed local authorities to establish youth offending teams to co-ordinate the provision of youth justice services.

2002 Youth re-offending had dropped by 25% probably due in part to the multi-agency approach.

2008 Criminal Justice and Immigration Act 2008 sets down current framework for addressing youth offending. s.9 CJIA 2008 introduced a new s.142A Criminal Justice Act 2003 and provides that, when sentencing a young offender, the courts must have regard to:

• the principal aim of youth justice is to prevent reoffending
• the welfare of the offender

s.142 CJA 2003 also lays down punishment, reform/rehab, public protection and reparation sentencing aims.

 Most young offenders aged 10-17 are tried in the Youth Court. (Those aged 18+ will be tried in the adult magistrates/Crown.) However, a person under 18 can be tried in an adult magistrate's court or if jointly tried with an adult or being tried for their involvement in an incident for which adults are also being separately tried. 

The PRINCIPAL AIM of youth justice is to prevent re-offending, therefore, when dealing with a child (10- 14 years) or young person (14-17 years) the court must have regard for their WELFARE. In addition, the Youth Justice Board identified six key objectives of youth justice:

• 1. Swift administration of justice (ARTICLE 6 ECHR implications)
• 2. Confronting young offenders with their offending behaviour
• 3. Intervention that tackles particular factors that lead youths to offend
• 4. Punishment proportionate to the offending
• 5. Encouraging reparation
• 6. Reinforcing the responsibility of parents/guardians 

• This is a branch of the magistrates' court which is just over 100 years old; established by the CHILDREN ACT 1908. The current youth court procedures date from the CRIMINAL JUSTICE ACT 1991 and states that the court will deal with young defendants (10-17 years of age) charged with all but the most serious offences.
• The court is separate from the adult magistrates' court. The magistrates hearing the case are specially nominated and receive special training. They must be under 65 and sit as a mixed gender bench. Hearings are far less formal than those in an adult court as magistrates normally sit at the same level as other people.Parents/guardians should sit next to their child.
• The hearings are held in private and there are reporting restrictions preventing the press from identifying the youth by name or photograph, even if convicted, unless the court allows it. Those under 16 must have a parent/guardian with them in court, unless the court thinks it unreasonable. Those aged 16+ may be accompanied. This is to encourage parents/guardians to take responsibility. In addition, certain court orders and sentences may be made against the parent/guardian.
•  Youth Court has following sentencing powers: • Child (10-14), £250 max fine. • Young person (14-17), £1000 max fine. • Community orders. • Compensation orders. • Custodial sentence: Detention and Training Order (DTO) of up to 2 years but only where an adult in the same circumstances could have been sentenced to imprisonment. Where D is under 15, DTO only imposed if he is a "persistent" offender.

Powers of the Criminal Courts (Sentencing) Act 2000 will, depending on circumstances, oblige and sometimes allow a discretionary REFERRAL ORDER to be made: this refers the young offender to a youth offender panel who will agree with him/her and family a course of action to tackle the offending and its causes— e.g. reparation, counselling etc. 

CRIMINAL JUSTICE AND IMMIGRATION ACT 2008 introduces Youth Rehabilitation Orders (YROs)which combine existing community sentences into a new generic community sentence for children and young people (just like adult sentencing.) 

The idea underlying a special youth court with an informal approach and reporting restrictions is to keep young offenders SEPARATE from adult offenders and maximise the possibility that EARLY, SENSITIVE AND APPROPRIATE INTERVENTION will prevent the individual becoming trapped in a cycle of offending. 

This accords with the general emphasis on WELFARE and REHABILITATION. However, there have been moves to alter the ban on reporting restrictions in relation to persistent young offenders to enable a "naming and shaming" strategy; however, this has been criticised by NACRO (National Association for the Care and Resettlement of Offenders) a crime reduction charity as it may well stigmatise such offenders and make rehabilitation more difficult. 

APPEAL:  Young offenders can appeal against conviction/sentence to the Crown Court where a judge and 2 youth court magistrates rehear and determine the case afresh. 

CROWN COURT: Some offences are deemed SO SERIOUS that young people have to be tried in the adult Crown Court. Set out in 519 POWERS OF CRIMINAL COURT (SENTENCING) ACT 2000 they are as follows: • Homicide (murder, manslaughter, suicide pact, infanticide (killing of the very young)); * Offences carrying custodial sentence of at least 14 years and offences of indecent assault. 

A young person will also be tried in the Crown if jointly indicted with an adult or, if over 14 and being tried for causing death by dangerous driving under the influence of drink or drugs. 

The way in which young offenders have been tried by British courts has been subjected to a great deal of criticism. However, adult courts have improved their approach since T v UK [2000] and V v UK [2000], subsequent to which trial procedures for young offenders have been reformed.

Jon Venables and Robert Thompson did not have a fair trial under ARTICLE 6 ECHR as the court procedures did not allow them to participate in a meaningful manner. No concessions were made for their ages and vulnerability.  Following this, LORD CHIEF JUSTICE (Lord Woolf) provided a PRACTICE DIRECTION laying down guidance on HOW YOUNG OFFENDERS SHOULD BE TRIED IN THE CROWN COURT:

• • The trial judge must decide what special measures are required by the particular case, taking into account the "age, maturity and development (intellectual and emotional) of the young defendant on trial".
• • Police and trial process should AVOID intimidation, humiliation, abuse or distress to the young offender.
• • All possible steps to be taken to assist 0 to understand and participate in proceedings; this includes undertaking familiarisation visits to court before trial. 

As regards the trial itself, it was recommended that: • Wigs and gowns should NOT be worn. • Public access should be limited. Only those with a direct interest should be permitted inside the courtroom. • Courtroom should be adapted: everyone sits on same level to avoid D believing that everyone is looking at him/her. • Young Ds should sit next to their families or an "appropriate adult" and near their lawyers rather than stand in the dock. • Frequent breaks. 

 Both were sentenced, as required under 553 (1) of the Children & Young Persons Act (CYPA) 1933, to be detained at Her Majesty's pleasure. 

The trial judge recommended a tariff of 8 years as an appropriate period for retribution and deterrence, although, on review Lord Chief Justice Taylor recommended an increase to 10 years. However, the ultimate decision as to the length of the tariff lay with the then Home Secretary, Michael Howard who was quite notoriously 'pro prison'. (In 1994, John Major, Prime Minister, declared it was time for "society to condemn a little more and understand a little less.") 

Given the particularly brutal manner of the killing, there was considerable public interest in the case and the sentencing. The Sun newspaper organised a public petition to the effect that they should be "locked up for life" or serve at least 25 years. Some 306,000 people signed and submitted petitions to the Home Secretary who decided that the tariff should be set at 15 years. 

Doubts were raised as to whether, in ignoring judicial recommendations, the Home Secretary had taken a political rather than quasi-judicial decision to moderate the concerns of potential voters by demonstrating a willingness to be tough on crime and criminals. 

Lawyers for T&V successfully sought judicial review of the Home Secretary's decision. On final appeal to HL, it was held he had not taken into account the welfare of the children as required by 544 CYPA 1933 and that, as Lord Steyn stated: "in fixing a tariff, the Home Secretary is carrying out, contrary to the constitutional principle of the separation of powers between the executive and the judiciary, a classic judicial function". 

However, the HL could not remove Home Secretary's general power and could not replace the tariff with one of their own. Thus, lawyers appealed to the ECtHR who held that the fixing of the tariff was tantamount to a sentencing procedure and should have been exercised by an impartial judge, rather than a member of the executive as the Home Secretary clearly was. 

After that decision, the Home Secretary announced that legislation would be introduced to provide that tariffs for juveniles should be set by trial judges, in open court, in the same way as for adults. In July 2000, LCJ WOOLF issued a PRACTICE STATEMENT setting out criteria for establishing the tariff for juvenile offenders and set the tariff for both T&V at 8 years which meant that they were immediately open to the operation of the normal parole system. 

Lord Woolf's decision was challenged both in the media and unsuccessfully by way of judicial review but perhaps the last words on the matter should remain with him: 

"...However grave their crime, the fact remains that if that crime had been committed a few months earlier, when they were under 10, the boys could not have been tried or punished by the courts."

In June 2001, the Parole Board agreed to the release on life licence of T&V, aged 18, who had been granted new identities under the backing of Dame Butler-Sloss in order to protect their rights under ARTICLE 2 (LIFE) and ARTICLE 8 (PRIVACY) ECHR. 

They had spent their sentences in separate secure units and neither had entered an adult prison. They were told that they could not attempt to contact each other, or return to Merseyside, and that they could be sent to an adult prison if their behaviour deteriorated or they started using drugs and that if they were convicted of another crime they could face a life sentence. 

In March 2010, however, Jon Venables breached his life licence and was returned to custody (rumours of drugs and child *********** charges); possibly making us question whether a custodial sentence can ever truly rehabilitate a young offender. 

In most other European countries, it appears that children aged 14 and under who commit offences do not appear before criminal courts but are dealt with by civil family courts as "children in need compulsory measures of care."

If the UK youth court had powers to transfer cases with overwhelming welfare needs to the family proceedings court, where family issues could be addressed, we might solve some problems. Some argue for the joining of the youth and family jurisdictions to from a family justice court, dealing with children, with care and crime handled together. This is how the Scottish system has operated for over 40 years.

2007:  Approximately 51,000 aged 10-17 were found guilty of indictable offences and further 75,000 were cautioned.  However, NACRO (National Association for the Care and Resettlement of Offenders) in "Some Facts about Children and Young People who Offend" 2007 indicates that crimes committed by young people make up less than 20% of total crime figures, not most of it. 

2007/2008:  British Crime Survey and police figures show overall crime fell in 2007/08 by 10% and that the chance of being a victim is lower now than since BCS surveys began in 1981. Two thirds of young people coming into contact with the Youth Justice System (YJS) fall within the 15-17 year age group. 

GIRLS:  Although historically girls have been less likely to offend than boys, according to data from Youth Justice Board (YJB) in 2008, offences by girls aged 11-17 had risen by 25% since 2005 to 59,000 per year. 

BLACK AND ETHNIC MINORITIES:  Criminal justice system generally has regularly seen an over-representation from black and minority ethnic backgrounds and this is reflected in the youth system. While black young people made up 3% of the general 10-17 population, they accounted for 7% of those coming to the attention of the YJS and 14% of those receiving a custodial sentence. 

OFFENCES: Theft, handling stolen goods, burglary, fraud and criminal damage accounted for 62% of serious offences committed by young people. 

Violent offending is less common and accounts for less than 17% of offences committed by children and young people. 

NACRO 2007 indicate that violent offences by children and young people saw the largest fall of any offence type between 2006-07. 

However, one area of ongoing concern is that of gun and knife crime. In London alone there were 16 fatal stabbings of teenagers in 2007 and 22 in 2008. Research by a governor of Pentonville Prison, Nicola Marlfeet, indicates that children in London carry weapons from as young as 11 years old, for protection and out of fear of being attacked and victimised. Gangs with strong social ties offer protection where there might be inadequate protection by parents, police or teachers. Moreover, the risk of serving long prison sentences was no deterrent. Nonetheless, NACRO 2007 indicate maintains a 'fall' in this type of offending in 2006/07. 

Research by YouGov October 2008 showed the general public holds a negative view of children, with 49% of people agreeing that children are a danger to each other and adults. 

The Columbine style massacre case in Manchester in 2009 is one such example. It was alleged that the two defendants had "planned" a Columbine style massacre at their secondary school to coincide with the anniversary of that event in the US. They were acquitted after the father of one of them, a police officer, gave evidence that his son regularly fantasised about something or other. In short, it is those closest to young people who often have a more accurate take on their behaviour. 

Many disagree with the statement that children who get into trouble are often misunderstood and in need of professional help. But public perceptions of youth crime are not necessarily reliable indicators of the true facts. 

Although there is no single factor that can be identified as the cause of anti-social behaviour or criminal offending, research from the Youth Justice Board 2005 classifies factors into four domains: 

FAMILY:  Poor parental supervision, harsh or neglectful parenting, poor housing and low incomes all correlate with a higher risk of involvement in youth crime, e.g. in the Edlington case, the father battered their mother in front of his children, allowed them to watch horror films and *********** and the mother allowed the children to be abused and gave them cannabis so that she could have quiet nights in. 

EDUCATION DEPRIVATION: YJB statistics 2003 indicate that 84% of those referred to YOTs have been excluded from school on at least one occasion and 50% report frequent truanting. Truants are 3 times more likely to offend as those attending school regularly. 

COMMUNITY DISADVANTAGES: Wedlock E (2006) Crime and cohesive communities, online report 19/06, Home Office 2006 indicates that the prevalence of gangs in a neighbourhood and gang membership correlated with an increased risk of criminality. 

INDIVIDUAL:  Drug and alcohol use among young people who offend has consistently been found to be higher than in the general population. Hagell 2002 highlighted that the prevalence of mental health problems in young people in contact with the YJS is between 2-7 times higher than what would be expected for that age group. In addition, more than half of young people who offend have also been victims of offences. 

REASONS FOR TREATING CHILDREN DIFFERENTLY:  

• 1. A belief that children are less responsible for their actions than adults.
• 2. A wish to steer them away from further involvement in crime and the criminal justice system
• 3. The feeling that sentencing can be used to reform as well as, or instead of, punishing them.
• 4. Possession of a criminal record can have a disproportionate effect on youths, especially in their attempts to find employment.