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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1Introduction

The Police, Crime, Sentencing and Courts Bill 2021–22

1.This report considers the changes that will be made to sentencing and remand for children and young people under Parts 7 and 8 of the Police, Crime, Sentencing and Courts Bill (the Bill). The provisions in the Bill extend and apply to England and Wales only, apart from a few exceptions.1 The measures discussed here apply only to England and Wales. While Part 7 of the Bill also addresses the sentencing of adults, children and their rights, including in the criminal justice context, are protected separately under the United Nations Convention on the Rights of the Child (UNCRC). We are concerned here with the Bill’s compatibility with the UNCRC and the Human Rights Act 1998, which incorporates the European Convention on Human Rights into UK law.

2.The Explanatory Notes accompanying the Bill explain that the purpose of the provisions on sentencing is to:

“- ensure that the most serious violent and sexual offenders spend time in prison that matches the severity of their crimes, protects victims and gives the public confidence;

- tackle repeat and prolific offenders through robust community sentences which punish and also address offenders’ needs.”2

Sentencing of children and young people

3.The UK has long recognised that children should be treated differently to adults in the justice system.3 Both the Children Act 1989 and the UNCRC define a child as anyone who has not yet reached the age of 18.4 The age of criminal responsibility in England, Wales, and Northern Ireland is 10, while in Scotland it is 8.5

4.When sentencing, judges must follow the guidance issued by the Sentencing Council unless it is in the interests of justice not to do so. The Sentencing Council is an independent, non-departmental public body which produces the sentencing guidelines, in consultation with the Lord Chancellor, the Justice Select Committee and others. The Council released Guidance on Sentencing Children and Young People in 2017.6 While “punishment” is one of five considerations guidelines require a court to factor into a sentencing decision when dealing with an adult, it is not explicitly mentioned in the guidelines on sentencing a child.7 The emphasis is instead placed on preventing offending by children and, expressly, on the welfare of the child. The Sentencing Council Guidance explains why children should be treated differently to adults by the criminal justice system:

“Children and young people are not fully developed and they have not attained full maturity. As such, this can impact on their decision making and risk taking behaviour. It is important to consider the extent to which the child or young person has been acting impulsively and whether their conduct has been affected by inexperience, emotional volatility or negative influences. They may not fully appreciate the effect their actions can have on other people and may not be capable of fully understanding the distress and pain they cause to the victims of their crimes. Children and young people are also likely to be susceptible to peer pressure and other external influences and changes taking place during adolescence can lead to experimentation, resulting in criminal behaviour.”8

The youth justice context

5.The systemic response to offending by children has undergone significant change over the past decade. The number of proven offences committed by children has fallen by around 75%, from 198,400 in 2009–10 to 49,100 in 2019–2020 (years ending March).9 The 49,100 proven offences in 2019–20 were committed by just over 19,000 individual children, 82% fewer than 10 years previously. The most common category of proven offence children now commit is “violence against the person”. Knife and offensive weapons offences committed by children fell substantially between 2009–10 and 2013–14 but have since risen by 46%, resulting in an overall decrease of 5% since 2009–10.10 97% of offences committed by children involving a knife or offensive weapon were for possession, while 3% were for threatening with a knife or offensive weapon.11 Over recent years, there has been significant attention paid to youth knife crime and calls for a policy response.12 Some measures in this Bill are aimed at offences involving weapons, including blades.

6.There has been a reduction in the number of children in custody over the last decade. The average number of children in custody at any one time over 2019 -2020 was 68% lower than 10 years before.13

Sentencing children and human rights

The United Nations Convention on the Rights of the Child

7.The United Nations Convention on the Rights of the Child (UNCRC) was adopted by the General Assembly of the United Nations in 1989 and ratified by the UK Government in 1991. Its 54 articles cover the civil, political, economic, social, and cultural rights of children. It has been ratified by more countries across the world than any other human rights treaty in history. Successive UK governments, including the current one, have made clear their commitment to the UNCRC.14

8.The UNCRC is binding on the UK as a matter of international law, but it has not been incorporated into domestic law.15 This means that children whose rights under the UNCRC are violated cannot bring a claim in a domestic court to enforce those rights or obtain a remedy. Neither does the UNCRC framework provide an international court to which claims can be brought. The third optional protocol to the Convention does provide for a right to make a complaint to the UN Committee on the Rights of the Child, the expert body that oversees the operation of the Convention.16 Despite a recommendation to do so from the Joint Committee on Human Rights in 2015, the UK has not ratified this protocol.17

9.The following articles of the UNCRC are particularly relevant to the issues raised by youth justice and sentencing child offenders:

a)Article 3 embodies one of the four core principles of the UNCRC. It requires the best interests of the child be “a primary consideration” in any actions taken by state and private bodies whose work and decisions impact on children and the realisation of their rights, including the courts.

b)Article 37 concerns criminal justice. It requires that “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed”. It also states that every child should be treated “in a manner which takes into account the needs of persons of his or her age”. It requires that detention of a child “be used only as a measure of last resort and for the shortest appropriate period of time”.

c)Article 40 also concerns criminal justice. It requires that every child “be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society”.18

10.Alongside the UNCRC itself, the UN Committee on the Rights of the Child issues documents known as General Comments to assist signatories in their implementation and interpretation of the UNCRC. These are not legally binding, but they are authoritative interpretations of the obligations and standards in the UNCRC. General comment No. 24 (2019) addresses children’s rights in the justice system.19

The European Convention on Human Rights

11.The European Convention on Human Rights (ECHR), incorporated into domestic law through the Human Rights Act 1998, guarantees rights for adults and children alike. The vast majority of its provisions do not contain specific protections, or limitations on rights, in respect of children.20 However, the case law of the European Court of Human Rights (ECtHR), drawing on international and European human rights treaties, has underlined children’s need for special protection due to their vulnerability. The ECtHR also seeks to interpret the rights under the ECHR compatibly with the rights guaranteed under the UN Convention on the Rights of the Child.

12.The following Articles of the ECHR, in particular, are potentially engaged when sentencing a child:

• Article 5 - the right to liberty and security - prohibits arbitrary detention but permits the lawful detention of a person after conviction by a competent court. The ECHR does not prohibit States from subjecting children convicted of a criminal offence to imprisonment, but the ECtHR has recognised that the imprisonment of children should be a measure of last resort and for the shortest appropriate period of time, consistent with the UNCRC.
• Article 14–the right not to be discriminated against in the enjoyment of other Convention rights (including Article 5 and 8) - prohibits discrimination in respect of imprisonment, including on grounds of race or ethnicity. 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.21

13.In a case in which a difference in treatment between adult and child offenders was challenged, the ECtHR stated that it “considers that when young offenders are held accountable for their deeds, however serious, this must be done with due regard for their presumed immaturity, both mental and emotional, as well as the greater malleability of their personality and their capacity for rehabilitation and reformation.”22

Our inquiry

14.The Bill was introduced to the House of Commons on 9 March 2021. We launched our inquiry on 15 March 2021. The Bill has passed its House of Commons stages and had its second reading in the House of Lords on 14 September. We received a large number of submissions in response to our call for evidence, covering a variety of different aspects of the Bill including its provisions on youth justice. We are grateful to the witnesses who have provided oral and written evidence to the Committee on the Bill.

15.We have previously reported on other matters in relation to the Bill:

• Children of mothers in prison and the right to family life (May 2021);
• Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill, Part 3 (Public Order) (June 2021) and
• Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill (Part 4): The criminalisation of unauthorised encampments (June 2021).23

We have also written to the Secretary of State regarding the provisions on the bill related to access to electronic communications.24