Conclusions and recommendations
Custodial sentences and remand for children
1.Clause 101 would allow a court to diverge from imposing a minimum custodial sentence for certain crimes involving weapons committed by those aged 16 and 17 only where there were “exceptional circumstances”. This increase in the limitation on judicial discretion conflicts with the need for sentencing decisions to be individualised and for the welfare of the child to be a primary consideration. Custody must remain a measure of last resort. Clause 101 of the Bill should be amended so that no children will be affected by its provisions. (Paragraph 27)
2.Life sentences for children have been criticised by the Committee on the Rights of the Child, whose interpretation of the UNCRC, while not legally binding, is authoritative. Increasing the length of time children must spend in custody before they can be considered for release can only be seen as making DHMP even less aligned to the rights in the UNCRC. The Bill should be amended to remove any tariff starting points above the current 12 years. (Paragraph 38)
3.Courts already have discretion to consider the different developmental ages of children and reflect this in the tariffs they hand down for DHMP. Mandating courts in legislation to treat older and younger children differently focuses too much on age, and not enough on maturity or circumstance. It brings tariffs for older children so close to those faced by adults that the distinction between a child and an adult risks being lost. However, we accept the imposition of shorter tariff periods for the youngest offenders as a step towards the recommendations of the UNCRC. The increases to tariff starting points based on age should be removed from the Bill. (Paragraph 39)
4.The Government should seek to identify changes in the process of DHMP tariff reviews that could lessen the distress caused to the families of victims. A child who commits an offence was still a child when they did so, even if they reach the age of 18 whilst awaiting sentence or in custody. DHMP sentences should remain under continuing review. The Government should return to permitting the possibility of a reduction in the tariff at the half-way stage and beyond for those who committed relevant crimes as children. (Paragraph 45)
5.It is particularly important that for serious child offenders, there is a clear focus on rehabilitation and reintegration into society. Clause 107 is likely to shift the focus towards punishment. This may well be counter-productive in reducing reoffending. Children sentenced to detention under section 250 of the Sentencing Act 2020 should, as they do now, spend half the sentence in custody and half being monitored in the community to support their reintegration into the community. (Paragraph 56)
6.We welcome the changes to remand made under Clause 132. They aim to divert children from custody where possible and 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. (Paragraph 61)
7.The Government is right that the existing racial disproportionality in the youth justice system is a serious issue that must be addressed. In this context, 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. (Paragraph 70)
8.We welcome the Lord Chancellor’s undertaking to look at how recordings in youth courts could be taken forward. This would allow for remand, prosecution, and sentencing decisions that raise concerns of racial discrimination to be challenged more effectively. The Government should introduce mandatory recording of proceedings in the youth courts so that decisions can be effectively scrutinised and challenged where necessary. (Paragraph 73)
9.Measures intended to reduce the use of remand should reduce the number of children from all ethnic backgrounds being unnecessarily placed in 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. (Paragraph 75)
Whole life orders
10.While the ECtHR has concluded that whole life orders for offenders aged 21 and over do not violate Article 3 ECHR, we are concerned about the implications of extending these sentences to offenders aged 18 to 20. The courts and the Justice Committee have accepted that turning 18 is not a cliff-edge. Young offenders aged between 18 and 20 are still maturing and have significant potential to change. Extending to this age group a sentence that makes the prospect of ever being released vanishingly unlikely comes perilously close to the Article 3 threshold. It also runs counter to positive recent recognition of the need to treat young adult offenders as a category distinct from older offenders. The minimum age for imposing a whole life order, even in exceptional circumstances, should not be dropped below 21. (Paragraph 82)
Incorporation of the UNCRC
11.We recommend that the UNCRC be incorporated into UK law. (Paragraph 88)
Published: 23 September 2021 Site information Accessibility statement