New youth sentencing guideline begs more questions than answers

The new sentencing guideline for young people published recently and due to come into effect on 1 June, introduces a shorter sentence for children who plead guilty earlier in criminal proceedings. It also takes account of their vulnerability and background. While this is to be welcomed more generally, the strict guideline raises some questions.

The aim is to encourage defendants who are going to plead guilty to do so as early in the court process as possible. However, it will more likely put pressure on young people to plead guilty at a magistrates’ court quite often before they have obtained legal advice and, crucially, before they have been appraised of the evidence against them.

Appearing in court is a daunting experience for anyone and young people require more time to provide an account of an incident to a magistrate than the ten minutes that most are afforded. It is simply too rushed and will force some to plead guilty when in fact, they need help to determine their defence.

An ongoing concern remains the lack of information provided by the Crown Prosecution Service (CPS) at the first appearance in criminal cases. It is often the reason for delays in proceedings and where early pleas are concerned, this clock should not be ticking until the CPS sorts out its house. This means that where a case is dealt with in the youth court, the defence advocate should have all statements and any other evidence ready for the first appearance to ensure that all appropriate evidence is offered and deliberated upon. It is still down to the police and the CPS to prepare the case fully and not just do the minimal, which is often the case. The CPS need to be more considerate to the fact that they are dealing with young people as well. A certain amount of time is needed to prepare a young person to make sure they know what they are going to do, and they won’t always understand that a case can’t progress due to the lack of papers needed.

There is an important safeguard included in the guideline that says the full one third reduction may still be applied “where there are particular circumstances which significantly reduced the child or young person’s ability to understand what was alleged, or otherwise made it unreasonable to expect the child or young person to indicate a guilty plea sooner than was done”. I suspect this will be argued by defence advocates on a regular basis.

For many criminal defence lawyers and their clients, it will be very difficult to know when to enter a plea where a young person has a number of cases against them and in instances where the police decide to bring each one separately.

In one of my recent cases, a young client pleaded guilty two weeks before trial in three separate trials. The judge was very considerate in their approach and made clear that credit should be received in full as the young person had taken a sensible approach to these matters, adding that the sentence should reflect that in full. However, the new guideline is strict and I fear that judges will be less likely, or indeed be able, to make such statements in future.

When he was launching the new guideline, Lord Justice Treacy, chairman of the Sentencing Council, commented: ‘Taking a third off the maximum sentence when a young person pleads guilty at the earliest opportunity will help ensure that those who are going to plead guilty do so as early in the court process as possible. It will also save victims and witnesses the stress of a trial and means that police, prosecutors and courts can put their resources into those cases that do go to trial.’

While this has always been in the minds of those drafting such guidelines, it’s also essential that all involved in the youth criminal justice system keep focused on how best to allow the young person facing charges to make amends for any wrongdoing and move on with their lives.

Unfortunately some young people who come into the court system have very difficult childhoods and some just make mistakes and it’s important that this is recognised through the system.

Consideration of a young person’s background and welfare is now formally introduced as part of the guideline, and there is a stronger emphasis on children’s rights. For example, the guideline now states that ‘a custodial sentence should always be a measure of last resort for children and young people’ (see paragraph 1.3 of the guideline), and it should ‘avoid “criminalising” children and young people unnecessarily… promote re-integration into society rather than to punish’ (see paragraph 1.4 of the guideline). Considering this point further, there may be an increase in judicial reviews in cases where a child’s background, circumstances and vulnerability are not taken into consideration.

All of us involved in youth justice would hope that this was already a part of the sentencing procedure before the new guideline came in. Otherwise, what is the point of the system and of reforms?

This article first appeared in The Justice Gap in March 2017.