Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill (Parts 7 and 8): Sentencing and Remand of Children and Young People Contents

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Summary

The Police, Crime, Sentencing and Courts Bill includes provisions which would change how children and young people are sentenced by the courts when found guilty of some serious offences, including some offences involving weapons such as knives. The overall effect of the provisions is likely to be an increase in the length of time children who commit serious crimes will spend in prison. However, new provisions on remand should reduce the number of children who are held in custody whilst awaiting trial or sentencing.

The Government says that their legislation aims to ensure that the most serious violent offenders spend time in prison that matches the severity of their crimes, protects victims and the public from harm, will give the public confidence, and will tackle repeat and prolific offenders. The UK’s human rights commitments to children under the United Nations Convention on the Rights of the Child (UNCRC), however, emphasise the importance of children’s prison sentences being “used as a measure of last resort and for the shortest appropriate period of time”. Sentences should be individualised to their circumstances, with the focus on rehabilitation and the welfare of the child rather than on punishment. We are concerned that some of the measures in the Bill are difficult to reconcile with these commitments. In particular, we recommend:

• the provisions of the Bill which limit judicial discretion to deviate from mandatory minimum sentences for certain crimes involving weapons committed by those aged 16 and 17, to only where there are “exceptional circumstances” that “would justify not doing so” instead of “particular circumstances” that “would make it unjust”, should be removed from the Bill;
• that the provisions that would introduce gradients for tariff starting points for sentences to Detention during Her Majesty’s Pleasure depending on age and seriousness of the offence be amended so that no tariff is longer than the current 12-year period; the only changes should be towards shorter tariffs for the youngest children in some limited circumstances;
• that the Government should seek to identify changes in the process of Detention during Her Majesty’s Pleasure tariff reviews that could lessen the distress caused to the families of victims. They should not remove the possibility of a reduction in the tariff beyond the half-way point for those who committed relevant crimes as children.

The Government have themselves identified that there is a likelihood the provisions will have a disproportionate impact on Black and minority ethnic children, who are already disproportionately represented in the youth justice system. Article 14 of the European Convention on Human Rights, incorporated into UK law through the Human Rights Act 1998, provides a right not to be discriminated against in the enjoyment of other convention rights, including the right to liberty and security under Article 5 ECHR. Discrimination may be justified, but only where the difference of treatment pursues a legitimate aim and where there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Government’s aim as identified in their ECHR memorandum, to protect the public, is a legitimate one. But the extent to which the measures will achieve this was contested by witnesses, leaving questions about its compatibility with the ECHR. It is unfortunate that the Government have noted the unequal effect the measures in the Bill will have without providing any measures to mitigate it. One action could be to introduce recording of proceedings in the Youth Court to better allow sentencing decisions to be reviewed and, if necessary, challenged on the grounds of discrimination.

The Bill proposes extending whole life orders, in exceptional circumstances, to offenders aged 18 to 20 at the time of the offence. Whole life orders are the most severe sentences that can be handed down by the criminal courts. They are reserved for the most heinous murders and to offenders aged over 21. The current system, relying on the Secretary of State to interpret ‘exceptional circumstances’ and ‘compassionate grounds’ compatibly with Article 3 offers only the tiniest possibility of release and incentive to reform. The Government should not seek to extend these sentences to 18 to 20 year olds.

Other changes in the Bill are, however, welcome. In particular the changes to the use of remand in Clause 132 which aim to encourage courts to impose custodial remand only where absolutely necessary, while ensuring the public remains safe, will have a positive effect. They are in keeping with the principle in the UNCRC that custody be a measure of last resort and for the shortest appropriate period of time. The introduction of a statutory duty to consider the welfare and best interests of the child is particularly welcome, as is the requirement for courts to provide reasons when they remand a child to custody. The Government should carefully monitor the remand of children from different ethnic backgrounds to ensure that the intended reduction in the use of remand benefits them equally.

The UK has ratified the UNCRC but has not incorporated its provisions into UK law. We recommend that the Government should now do this to make these rights more accessible and enforceable for children in the UK.