There’s nothing smart about sentencing children harshly  

Posted by NAYJ on Jun 23, 2021

The Police, Crime, Sentencing and Courts (PCSC) Bill began life as a white paper entitled “a smarter approach to sentencing”.  The paper promised to keep “dangerous offenders off the streets for longer to protect the public”. 
But it also promised to provide the “opportunity and support to reform for those who truly want to turn their backs on crime” and it promoted the now well-established “child-first” ethos in a number of ways.

The introduction to the PCSC was emphatic:
Our approach to youth sentencing is already distinct and targeted. It focuses on the statutory aim of preventing offending by children and on the welfare of the child. We want a youth justice system that recognises the unique needs of children, tackles the underlying reasons why children offend, and intervenes early to provide support and to divert them where possible. There are areas where we can do more to ensure this, and if we deliver more effective community sentences, we will ensure that fewer children end up requiring custodial sentences.
As the word “require” indicates in this last sentence, it was also contradictory from the outset. 
Both the white paper and the resulting Bill draw a sharp dichotomy between how the law should deal with “low level” offending and “serious dangerous” offending. Both are clear that for those children who really transgress, the response will be punitive, akin to the treatment of adults and certainly not based on prevention or welfare:
Where children commit the most serious and dangerous offences we must, as with the adult framework, ensure that the courts can pass appropriate sentences that properly reflect the seriousness of their crimes.
Under the heading “youth sentencing” the white paper clearly carves out a different approach for children convicted of serious offences:
The approach to youth sentencing is distinct from that for adults and focuses on the statutory aim of preventing offending by children and on the welfare of the child, but for the very small number of children for whom custody is necessary, it is important that custodial sentences reflect the seriousness of their offending.
The result is a Bill that will see a reverse in the trend in the number of children in prison at any one time and children serving long term sentences in prison for a lot longer (The Alliance for Youth Justice PCSC Bill Committee Stage Briefing contains the full range of provisions in the Bill affecting children in conflict with the law). Taken together, these provisions raise a number of questions about what the Bill will mean for children in prison.
What is government attempting to achieve by more prison time for children and what is the evidence for it?
The Bill will see both children and adults convicted of more serious offences spending a lot longer in prison, putting increased pressure on a prison population that is already projected to reach 100,000 within five years.
Yet the assumption that more jail time for anyone, let alone children, will keep the public safe is not backed up by evidence.
Even justice minister Chris Phelps MP admitted (albeit in answer to a question about pet theft) that evidence shows harsher sentencing has ‘limited or no general deterrent effect’ (Phelps, 2021). The Impact Assessment for the Bill concludes that there is “limited evidence that the combined set of measures will deter offenders’ long term or reduce overall crime” (Ministry of Justice, 2021).
There is no evidence that harsher sentences deter offending for anyone, and especially not children.
The Institute of Criminology (Cambridge University) conducted a comprehensive analysis of large studies on deterrence for adults and found that “…the studies reviewed do not provide a basis for inferring that increasing the severity of sentences generally is capable of enhancing deterrent effects” (Von Hirsch, 1999). A further Home Office-commissioned study found that “…(i) it is the prospect of getting caught that has the deterrence value, rather than alterations to the ‘going rate’ for severity of sentences” (Halliday et al, 2001). In relation to children, there is no conclusive evidence that deterrence works. One survey of children highlighted that they often have scant knowledge about penalties and tend to think about the penalties only after the event (Nacro, 2020). This is in line with what we know about children and their maturation and development.
What impact will that have on children and what message does that send?

We are the only country in the council of Europe to have children on life sentences.  And we have a lot of them: One-hundred and seventeen children in the England and Wales received mandatory life sentences for murder between 2008 and 2015. 
The impact of what we do when we sentence children to indeterminate sentences is illustrated by two case studies of young people sentenced to IPPs (DPPs) when they were 14 or 15 years old, who are both now in their mid-twenties and who were both recently recalled to prison and are waiting to get back out through the parole system. 
One is a white young man from the North of England with learning difficulties – I will call him Sam; the other is a young black man from London- I will call him Peter.  I have worked with both since they were children.  It is, frankly, distressing to watch them, both having matured in line with what we know about young adult maturation, come to terms with their lot.  When they were children, they were resilient, hopeful and positive for their futures. They were excited about building new lives for themselves in the community. 
But in the words of Peter “I thought it would be easy to get back to normal life but it took me a good year to feel a bit normal” and even when good things happened, like meeting a girlfriend, at first he found that hard: “I am not used to being liked or loved”.  In the words of Sam, he quite simply told me “everyone knows you stay the age you come in at” and life for him on licence was characterised by him behaving like a 15 year old in a young adult body, never quite living up to the expectations of a young adult.
Both committed some of those lower level transgressions that would either have resulted in a fine or suspended sentence had they not been subject to life long recall.  Back in custody both have come to realise the enormity of the IPP life licence as they have matured and feel its injustice acutely now where they did not before.
As their lawyer, I can only advise them to keep their heads down, and comply, comply, comply - even though I share their sense of injustice and I can see the very real harm done to them by their lost years, stunted development, institutionalisation and the pains of imprisonment. The very real harms of custody for children that are well established and accepted, as illustrated by the recent Urgent Notification in respect of Rainsbrook Secure Training Centre (Ministry of Justice, 2021).
This Bill will create more Sams and Peters.
The message is clear: it is punitive.  Worse still, it removes hope, crushing the natural resilience that we see in children and interfering with the natural pattern of desistance that shows most children grow out of crime.
The proposals in the paper that will keep children in prison for longer should be considered with Sam and Peter’s stories in mind.
What is proposed in terms of sentencing children to prison for longer?

Clause 103: Starting points for murder committed when under 18

The proposed “sliding scale” of starting points for children who commit murder will give older children sentences closely approximating those for adults.  The current starting point for a child convicted of murder is 12 years.  The Bill will see different scales for different grades of murder for different age groups.
The Bill will see starting points from 8 years for murders by children under 14 that are neither “particularly high” in culpability nor “sufficiently serious” to 27 years for 16 and 17 year olds where the culpability is particularly high, more than double the current starting point. In short the tariffs for murder by children are set to rise considerably.
The sliding scale implies that older children are less vulnerable and more culpable and that a 17 year old is on the cusp of fully-grown adulthood. However, scientific evidence suggests that adolescence is best understood as a phase of life which extends from around age 10 to age 24 and that young people continue to develop rapidly throughout this period, including in ways which affect their culpability for offences (Sawyer et al, 2018). Members of this audience will be aware that the lack of service provision for 16 and 17 year olds can leave them especially vulnerable: for example, they may fall through the gaps of social care and housing provision and are at particular risk of exploitation (Murphy and Williams, 2020; Pona et al, 2015).
The increase in starting points will increase the number of children who transfer to the adult estate (currently at over 300 each year) and reduce the number of children who can benefit from leaving care services in the community as young adults (Answer to FOI 200118002).
Clause 104: Sentences of detention during Her Majesty’s pleasure: review of minimum terms

The sentence of detention during Her Majesty’s pleasure reflects the lesser culpability of children who commit murder and their greater capacity for change. As Baroness Hale explained in R v Secretary of State for the Home Department ex parte Smith [2002] UKHL 51, children who have committed murder are treated differently from adults both because they are less blameworthy and in order to “promote the process of maturation, the development of a sense of responsibility, and the growth of a healthy adult personality and identity” (§25).
The clause amends the process so that minimum term reviews are based on age at sentencing, rather than age when the offence was committed. This approach was rejected in R v Smith as contrary to the purpose and rationale of the sentence. As Lord Bingham stated in his judgment:

The requirement to impose a sentence of HMP detention is based not on the age of the offender when sentenced but on the age of the offender when the murder was committed, and it reflects the humane principle that an offender deemed by statute to be not fully mature when committing his crime should not be punished as if he were. As he grows into maturity a more reliable judgment may be made, perhaps of what punishment he deserves and certainly of what period of detention will best promote his rehabilitation. (§12)

In its legal work, the Howard League has found that minimum term reviews are infrequent but important: they offer a rare source of hope and can powerfully motivate young people to make and maintain positive change.  The Bill will remove this for those children who happen to be sentenced post 18.
Clause 105: Discretionary life sentences

This clause amends the minimum term to two thirds rather than one half the notional determinate term of the appropriate sentence for both children and adults.  The apparent rationale for this appears to be to bring it in line with the later release dates in respect of certain offences attracting four years or more for adults and seven years or more for adults, as well as the parole eligibility date for those serving extended determinate sentences.  However, this ignores the extent to which the nature of the discretionary life sentence differs from determinate sentences.  In contrast with the determinate serious sentences, a person serving a discretionary life sentence will be liable to detention until the day he or she dies and there is no automatic release date.  The blanket increase in the punitive period therefore cannot be grounded in protecting the public as that is covered by the jurisdiction of the Parole Board: it is simply a hike in the punitive term and there is no evidence to justify this in terms of reducing long-term harm or increasing public safety.
Clause 106: Increase in requisite custodial period for children sentenced to seven years of more for certain offences

This clause extends custodial term for children who commit certain violent, terrorist or sexual offences and are sentenced to seven years or more so that they will not be released until to two-thirds rather than half of their sentence. This brings them in line with existing adult provisions and will reduce the amount of time they spend under the supervision in the community.
Clause 108: Power to refer high-risk offenders to Parole Board in place of automatic release

This clause allows the Secretary of State to refer people who are eligible for automatic release on or after their 18th birthday to the Parole Board if the Secretary of State believes that they will pose a significant risk in the community.  Contrary to all other referrals to the Parole Board to determine initial release, the referral will no longer be based on the sentence which they have been given which includes an assessment of risk by a court.  Due to delays inherent in the system, the increase in automatic release dates and the general shift towards children in prison being older, there is a real risk that a number of young people who commit offences as children but turn 18 before their automatic release will end up being caught by this provision.  The concerns are many but ultimately the risk is of release with no supervision at all.
Clause 126: Curfew requirements and conditions

Clause 126, which allows responsible officers to vary electronically monitored curfew conditions without going to court, increases the already significant power which probation and Youth Offending Team staff have over people under their supervision without the safeguards afforded by the court process.  As ever, there is a risk that increased community requirements that are implemented without due process will suck more children into prison.
Clauses 132, 133 and 134: Detention and Training Orders

DTO lengths are to be changed to enable sentencers to take into account real time spent on remand rather than being restricted to sentences of particular lengths of four, six, eight, ten, 12, 18 and 24 months.  However, the current system allows sentences to factor time spent on remand into the overall decision on sentence, which should result in the time being rounded down to reflect the distinct approach to children and the need to restrict custody to the shortest appropriate period for children. In line with this, a small amendment to require sentences to round down to take into account time on remand would be more effective in achieving these objectives.

The proposed changes to Detention and Training Order are predicted to increase the steady state of children in custody by up to 50 children by 2023/24, costing the government between £38.6m and £61.4m (Ministry of Justice, 2021). The Howard League has previously raised doubts about the effectiveness of the Detention and Training Order, which vastly increased the number of children coming into custody when it was introduced (Howard League, 2015).  There is a real risk that the progress in reducing the number of children in prison over the last ten years will be reversed by this provision. 
Where does that leave us with our legal obligations toward children in conflict with the law?
Deterrent sentencing of children is almost certainly incompatible with the United Nations 1989 Convention on the Rights of the Child (“the Convention”).
Article 3 of the Convention requires courts of law to ensure that in all decisions concerning children, “the best interests of the child shall be a primary consideration” and Article 37(d) requires detention should be for the shortest appropriate period of time (United Nations, 1989).

The Committee on the Rights of the Child (“CRC”) (the treaty body responsible for interpreting the Convention) produced an updated General Comment in 2019 to reflect “developments that have occurred since 2007 as a result of the promulgation of international and regional standards, the Committee's jurisprudence, new knowledge about child and adolescent development, and evidence of effective practices, including those relating to restorative justice” (Committee on the Rights of the Child, 2019).

The 2019 Comment explains that “(c)hildren differ from adults in their physical and psychological development. Such differences constitute the basis for the recognition of lesser culpability, and for a separate system with a differentiated, individualized approach. Exposure to the criminal justice system has been demonstrated to cause harm to children, limiting their chances of becoming responsible adults (Committee on the Rights of the Child, 2019)”.

If implemented, this Bill will align the treatment of children who commit serious offences with the treatment of adults, in breach of both our own legal requirements that the youth justice system should be based on prevention and welfare, and our international obligations.

Reference not hyperlinked: 

Von Hirsch, A. et al (1999), Criminal Deterrence and Sentence Severity: An Analysis of Recent Research, London: Bloomsbury.