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This Nacro briefing paper provides information on the sentencing framework for children and young people in trouble with the law.

Title:  The sentencing framework for children and young people  
Author: Nacro
Series: Information Briefing - Youth Crime
Date published: December 2003
Number of pages: 8 

Both adult and youth crime frameworks are based upon the principle of proportionality, introduced by the Criminal Justice Act 1991, but this principle is modified within the youth justice system.

When sentencing the court takes the following principles into consideration:

• Regard to the prevention of offending

• Regard to the welfare of the child

• Sentencing must reflect the seriousness of the offending

Tensions can arise between these principles, as a sentence that concentrates heavily on prevention of offences by imposing greater penalties will not necessarily be best for the welfare of the child or reflect the seriousness of the crime.

Principle aim of the youth justice system Section 37 of the Criminal Justice Act 1998 introduced 2 statutory aims:

• To prevent offending by children and young persons

• It is the duty of all persons and bodies carrying out functions for the youth justice system to have regard to aim 1.

Achieving this statutory aim is not straight forward. There are 3 main points:

• A severe sentence can not be given to prevent offending where it does not reflect the seriousness of the crime.

• Judicial Studies Board points out intervention designed to prevent offending and help the child grow into a responsible adult is in fact promoting that young persons welfare.

• Severe sentencing such as custodial sentences, effectively prevents crime in the short run, but in the long run will increase the chances of the child relapsing into crime.
  

The Welfare principle

Section 44 of the Children and Young persons Act 1933 states that:

• 'Every court… shall have regard to the welfare of the child or young person…'

This is reinforced more recently by the United Nations' "Convention on the Rights of the Child".

The welfare principle may consider the interference with a young persons educational or work commitments and to be consistent with his or her religious beliefs.

The principle of proportionality

The sentencing framework introduced by the Criminal Justice Act 1991 – now contained in the Powers of Criminal Courts (Sentencing) Act 2000 (PCC(S)A) - is based on the notion of 'just deserts '. It depends on the idea that:

'the sentence for a given offence should reflect primarily the seriousness of the offence which has been committed'

Legislation to achieve this establishes thresholds that must be reached before certain penalties are deployed, known as the '3 sentencing bands', shown below:

1. Custodial sentence

'(a) that the offence, or the combination of the offence and one or more offences associated with it, was so serious that only such a sentence can be justified for the offence; or

(b) where the offence is a violent or sexual offence, that only such a sentence would be adequate to protect the public from serious harm from him '.

A custodial sentence may also be imposed if a young person refuses to co-operate with a community sentence.

2. Community sentence

'offence, or the combination of the offence and one or more offence associated with it, was serious enough to warrant such a sentence '.

3. Lower-level order

When neither the custody or community penalty thresholds are met. This composes of a discharge, financial penalty or reparation order.

Before determining the sentence the court takes into consideration the seriousness of the offence or offences and any mitigating factors associated with the offence or personal to the young person.

Mitigating factors may include:

• Positive achievements or good behaviour unrelated to the offence

• Promising recent developments

• Previous good character

• Admission of the offence at an early stage and co-operation with the police

• Readiness to seek help with issues - E.g. Drugs

• Social or educational disadvantage, including a poor upbringing

To assess the seriousness of the offence all information available about the offence or offences associated with it should be taken into account. Any aggravated factors (E.g. Racial, Religious) or mitigating factors (E.g. Provocation, personal circumstances) must also be taken into consideration and may lead to a more lenient penalty. 

A range of other factors which might routinely impact upon the seriousness of a crime are:

• Nature of the offence - amount of violence involved, use of weaponry, value of property lost, whether offence is committed by a group or individually, and whether it fits into the pattern of offending making previous convictions relevant.

• Impact upon the victim - whether targeted, level of vulnerability, whether a public servant, abuse of trust, extent and nature of loss and whether any property has been recovered, physical or psychological injury.

• Intention and motivation – whether the offence was premeditated or spontaneous, whether the offence was provoked or committed under provocation, the young person's awareness of the impact of his or behavior upon the victim.

• Role in the offence - whether the young person was a ringleader or played a minor role.

• Attitude to the offence - whether the young person exhibits remorse or concern for the victim, preparedness to make amends.

There are many views on suitable intervention and sentencing a young person. The 'Youth court bench book ', which provides guidance for sentences in the youth court suggests, that a curfew order might be appropriate for offences at a medium level of seriousness, where there is a high risk of re-offending, but not otherwise.

The use of custodial sentencing for children and young people has increased rapidly in the recent past, by around 90% between 1992 and 2001. The reasons for this are:

• Rates of reconviction following custody are extremely high, with 80% of young offenders between 14-17 years old being reconvicted within 2 years of release
  

• Custody is not good for the welfare of young persons as it is a negative and damaging experience, that will increase the probability of reconvicting
  

• The quality of pre-sentence reports, in a particular geographic area, can have a significant impact upon the local rate of custody meaning Young offender teams (Yot) can influence the sentencing in borderline cases. Reports should therefore be clear and make credible arguments for an alternative punishment than custodial sentences.

Conclusion

The sentencing process for children and young people involves a complex interplay between 3 principles: proportionality; the prevention of offending; and the welfare of the child. While there is potential for these elements to clash, a sensitive balance can be achieved which gives an appropriate weighting to each. In general terms, the principle of proportionality establishes the appropriate programme to be imposed on a young offender.

Providing that the prevention of youth crime is treated as a longer-term aim, welfare, proportionality and the reduction of offending will be the likely outcome.