Draft Sentencing Guideline: overarching principles-sentencing youths - Justice Committee Contents



The Justice Committee welcomes the opportunity to consider the draft sentencing guideline on the overarching principles for youth sentencing. We heard during our evidence how important the definitive guideline will be, filling in the crucial gap whereby youth courts have previously not had sentencing guidelines. Generally our witnesses were very positive about the draft guideline, drawing attention for example to how it is based on evidence.

A key outcome sought from the sentencing guideline is consistency in approach. According to Government policy, custody should be used exclusively as a sentence of last resort for young people but our evidence shows that this is not what happens in practice. Our witnesses suggested that there was not a common understanding of 'last resort', as demonstrated by, for example, regional variations in the use of custody, and they hoped that the guideline will go some way to developing a common understanding. Sentencing decisions are not necessarily the only factors that affect whether custody is a sentence of last resort. In particular we heard evidence about the impact of whether resources were available locally to deliver community based sentences, or to provide accommodation whilst a young person is on a community sentence. This is clearly an area which will need monitoring, not least to determine whether the sentencing guideline is effective in its part of ensuring that custody is a sentence of last resort for young people, and to identify issues which affect its implementation or need to be addressed through other mechanisms.

Whilst seeking consistency of approach, our witnesses also emphasised the need to deal with the individual youth to be sentenced. The Magistrates' Association said: "One sentences individually … and one hopes to come up with an appropriate sentence that prevents further offending in the future". Many of our witnesses discussed how young people develop differently, and pointed out that there would be differences in capacity, capability and culpability between children of the same age, or different ages. We welcome the emphasis in the draft guideline on the individualistic nature of sentencing young people.

We are not convinced that the draft guideline has the right approach to the definition of 'persistence'. Barnardo's and the Youth Justice Board drew attention to the different definitions of 'persistence' that are in general use and questioned the creation in the guideline of a further, new, definition. Witnesses also expressed concerns that the guideline defines persistence to include pre-court disposals (with reference to the use of custody for 12-14 year olds). With regard to persistent breach of Youth Rehabilitation Order, the Youth Justice Board were concerned that a lack of clarity in the guideline could mean that 'three breaches' was interpreted as including warnings from a Youth Offending Team rather than three appearances in court for breach.

The guideline states that Parliament expects custody to be imposed only rarely on those aged 14 or less. There is a danger that the guideline, as drafted, will result in an almost automatic designation of a young person as persistent (which opens up further custodial options) after three, possibly pre-court, disposals or three breaches of a Youth Rehabilitation Order, regardless of the circumstances. One option, to balance consistency of approach with allowing discretion in sentencing the individual youth, would be to use a definition in the guideline as a lower threshold, below which persistence would be very unlikely to be demonstrated rather than a threshold above which the test for custodial sentencing is considered to be met.

The Youth Justice Board emphasised that the new Youth Rehabilitation Order is a real opportunity to look at how young people learn. They commented that young people make mistakes and must be allowed to learn from these rather than end up in custody, where they would learn a very different and undesirable type of lesson. They said that the potential for repeating the use of the new order, tailoring the menu of requirements to meet needs, should be fully used where appropriate. In places the guideline does not necessarily reflect this approach, for example stating that sentencing should seek to ensure that young people "never repeat the wrongdoing". This is unrealistic and could encourage an inflexible approach to repeat offending or breach of a community sentence, even where there has been a reduction in the frequency or seriousness of the offending behaviour.

Many organisations had concerns about the Youth Justice Board's 'scaled approach'. The pre-sentence report drawn up by the Youth Offending Team using this tool could propose sentences that are disproportionate to the offence because the team is seeking to match interventions to the risk of re-offending. Nacro commented that if something is imposed by the court following offending behaviour, and failure to comply can result in a return to court and potentially a custodial sentence, it is likely to be perceived by the child as a punitive measure in contrast to something that is presented as a voluntary option for the child's benefit. We note that the guideline states that the sentence must remain proportionate to the offence, and highlights the need for care in situations where there is a less serious offence but a high risk of re-offending. Nevertheless this is an area which requires greater clarity and careful monitoring.

The interaction between the 'scaled approach' and sentencing also highlights the importance of a flexible response to the breach of a Youth Rehabilitation Order. Witnesses drew to our attention the potential for the most deprived children to be almost "set up to fail" by this approach. For example a higher risk of re-offending could require them to attend more supervision sessions and therefore give them more occasions to miss an appointment and get a warning for breach. We believe that young people are much more likely to comply with the terms of the sentence if they are given the support to achieve its requirements. Barnardo's described a young person with a chaotic lifestyle and drug abusing parents, who were not the sort of parents to post appointments on the fridge with a magnet, and the work a Youth Offending Team could do to help them turn up to appointments such as using texting or collecting them in person. Completing their sentence, rather than spending a period in custody for its breach, is more likely to reduce re-offending. The Magistrates' Association highlighted the importance of magistrates and Youth Offending Teams (YOTs) having a constructive dialogue over issues such as the approach to breach of Youth Rehabilitation Orders to ensure a flexible response that was best suited to encouraging the individual young person to comply with his or her order.

You raised two particular issues in your letter accompanying the draft guideline. Firstly, how the guideline approaches the difference between the aims of sentencing for adults and for young people (the omission of the aim of reducing crime, including its reduction by deterrence, in the aims for young people). Secondly, the definition of 'homicide' with regard to matters that must be committed to Crown Court for trial. We did not receive any evidence on this second point and do not therefore wish to comment on it.

We discussed with many of our witnesses the differences in the aims of sentencing for young people. The Magistrates' Association stated that pre-meditation was rarely a factor in crime committed by young people, meaning that deterrent sentencing was not effective. Barnardo's said that there was a growing body of evidence about the way young people's brains develop supporting the contention that offending is opportunistic rather than pre-meditated. They stated that there is no evidence that deterrent sentencing works with young people. The Youth Justice Board noted that confidentiality requirements in relation to reporting sentences imposed on young people would further reduce any potential deterrent effect. They also reported on some of their research which showed that some sentencers believe that sentencing a young person to custody makes an example of them and deters others. It is important to provide further information in the guideline on why deterrence is not an aim of sentencing for young people by including evidence as to the ineffectiveness of deterrent sentencing on young people.

The crucial role of the Youth Offending Team, particularly in providing pre-sentence reports and in taking action with regard to potential breach of a Youth Rehabilitation Order, was emphasised to us throughout. We welcome the statements in the guideline that sentencers must ensure that they have sufficient information to understand why a Youth Rehabilitation Order has been breached and the steps that have been taken by the Youth Offending Team and other local authority services to give the young person appropriate support and encouragement to comply with the order. We find that a court must ensure that it has access to information about issues such as mental health, learning difficulties and communication difficulties to enable the most appropriate sentence to be imposed, and this point should be strengthened in the guideline and courts required to pursue such points urgently.

Another issue that was raised with us was the shortage of programmes designed for young women. Barnardo's told us that intensive supervision and surveillance programmes, which should present an alternative to custody, are male-oriented. The Annex to the draft guideline does mention some issues with relation to young women (such as the higher proportion at risk of self-harm or suicide). If community programmes are male-orientated this may be a factor in breach of community sentence by young women.

A number of key issues beyond the scope of the guideline arose in our evidence. The most serious was the availability of resources at a local level to deliver community sentences. Other questions included how 18-24 year olds are dealt with in the justice system and whether a fresh focus on that specific age group is now needed. We intend to continue to pursue these issues in our scrutiny of justice issues beyond sentencing guidelines.

We will be publishing the oral and written evidence we received as part of this inquiry as a report to the House and will provide you with a copy.

16 July 2009

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