Age Is More Than A Number: Sentencing Adults For Offences Committed As A Child

This blog builds on my earlier blog ‘Sentencing Youths: the theory and the practice’ and addresses the correct approach to be taken when sentencing an adult for an offence committed when they were under 18 as recently confirmed in the case of R v Ahmed & Others [2023] EWCA Crime 281.

A very different approach is taken in relation to the sentencing of those who are under 18. This is because the law reflects that children and young people are still developing and their level of ‘culpability’ will be less.

When sentencing children and young people the Court must have regard for the welfare of the child in accordance with section 44(1) of the Children and Young Persons Act 1933. The principle aim of the youth justice system is to prevent offending by children and young people (section 37 of the Crime and Disorder Act 1998). There will be a greater focus on rehabilitation and less focus on retribution and deterrence when sentencing children and young people.

To reflect the different approach to sentencing, there are specific sentences available to those under 18 which would not generally be available to adults, designed to reflect the different approach to sentencing.

Where things become more complicated is when the Court has to sentence for offences committed when someone was under 18 but which they have been convicted of after turning 18.

The Correct approach

In R v Ahmed & others, the Court of Appeal set out the following principles to be followed in relation to the sentencing adults for offences committed under 18:

• Whatever age the offender is at the date of conviction and sentence, where an offence is committed when someone is under 18 years old, the Overarching Guidelines for the Sentencing of Children and Young People must be followed unless it would not be in the interests of justice to do so.

• The Court must have regard to the maximum sentence available at the time of the offence being committed (although the Court can impose a higher sentence than this where justified).

• The starting point for the sentence should be the sentence likely to have been imposed if the child offender had been sentenced shortly after the offence.

• If someone could not have been sentenced to any form of custody at the time the offence was committed, then no custodial sentence may be imposed when they are sentenced as an adult.

• The Court can impose more than the maximum available for a child offender but should only do so where there is good reason to do so.

• Although the starting point will be the sentence that would have been imposed at the time of the offence, the Court can move up or down from this starting point if there is good reason. Things that have happened since the offence may lower or increase culpability. For example, if there were further related offences, this may show that there was a course of conduct or pattern of offending rather than an isolated incident.

Notification requirements

Although this approach will apply for all types of offences, the Appellants in Ahmed & others were all charged with sexual offences. This raises another significant consideration for sentencing.

In most cases, where someone is convicted of a sexual offence they will become subject to notification requirements under the Sexual Offences Act 2023. Notification requirements include notifying the police of person information such as bank accounts details and foreign travel.

For some sexual offences, whether notification requirements must be imposed will depend on the age of the offender at the time of the offence and the sentence imposed. For example, in relation to an offence of possessing indecent images of children, notification requirements will only apply where the offender was under 18 at the time of the offence if a sentence of 12 months imprisonment or more.

Aside from being hugely intrusive, where notification requirements are imposed, a conviction cannot be ‘spent’ for the purposes of a criminal record check before the end of the notification requirements. This demonstrates the far reaching impact a sentence imposed for offences committed when under 18 can have and how important it is to approach the complex sentencing exercise correctly.

Unfortunately, it is all too common for children and young people to be arrested while under 18 but have to wait years for a decision to be reached in relation to their case. Being charged as an adult means the case will not be dealt with in the Youth Court and many of the protections available for those under 18 are no longer available (for example anonymity). Despite this, the Court will need to take a sentencing approach that reflects the age of the offender at the time of the offence and the aims of the youth justice system.

Sentencing adults for offences committed as a child requires a careful approach and a detailed understanding of the youth sentencing provisions. At Hodge Jones and Allen, we have a specialist Youth Team. One of our youth justice specialists would be happy to assist or call us on 0330 822 3451.