Overarching Sentencing Guideline

13. Children and Young People

 
Youth Court

Part 33 of the Criminal Procedure and Evidence Ordinance 2014 governs the approach to young offenders.  When sitting for the purpose of hearing any charge against a child or young person (those aged under 18 at the date of the finding of guilt), the Summary Court and the Magistrate’s Court sit as the Youth Court.

General approach

When sentencing children or young people the court must have regard to:

  • the principal aim of the youth justice system (to prevent offending by children and young people); and
  • the welfare of the child or young person (including taking steps for removing the youth from undesirable surroundings, and for securing that proper provision is made for his or her education and training).[1]

While the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person, as opposed to offence focused. For a child or young person the sentence should focus on rehabilitation where possible. A court should also consider the effect the sentence is likely to have on the child or young person (both positive and negative) as well as any underlying factors contributing to the offending behaviour.

Domestic and international laws dictate that a custodial sentence should always be a measure of last resort for children and young people, and statute provides that a custodial sentence may only be imposed when the offence is so serious that no other sanction is appropriate[2].

It is important to avoid “criminalising” children and young people unnecessarily; the primary purpose of the youth justice system is to encourage children and young people to take responsibility for their own actions and promote re-integration into society rather than to punish. Restorative justice disposals may be of particular value for children and young people as they can encourage them to take responsibility for their actions and understand the impact their offence may have had on others.

It is important to bear in mind any factors that may diminish the culpability of a child or young person. 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 his or her conduct has been affected by inexperience, emotional volatility or negative influences. The child or young person may not fully appreciate the effect his or her 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. When considering a child or young person’s age, his or her emotional and developmental age is of at least equal importance to their chronological age (if not greater).

For these reasons, children and young people are likely to benefit from being given an opportunity to address their behaviour, and may be receptive to changing their conduct. They should, if possible, be given the opportunity to learn from their mistakes without undue penalisation or stigma, especially as a court sanction might have a significant effect on the prospects and opportunities of the child or young person and hinder their re-integration into society.

Offending by a child or young person is often a phase which passes fairly rapidly, and so the sentence should not result in the alienation of the child or young person from society if that can be avoided.

The impact of punishment is likely to be felt more heavily by a child or young person in comparison to an adult, as any sentence will seem longer due to his or her young age. In addition, penal interventions may interfere with a child or young person’s education, and this should be considered by a court at sentencing.

Any restriction on liberty must be commensurate with the seriousness of the offence. In considering the seriousness of any offence, the court must consider the child or young person’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.

Welfare

The statutory obligation to have regard to the welfare of a child or young person includes the obligation to secure proper provision for education and training, to remove the child or young person from undesirable surroundings where appropriate, and the need to choose the best option for the child or young person taking account of the circumstances of the offence[3].

In having regard to the welfare of the child or young person, a court should ensure that it is alert to:

  • any mental health problems or learning difficulties/disabilities;
  • any experiences of brain injury or traumatic life experience (including exposure to drug and alcohol abuse) and the developmental impact this may have had;
  • any speech and language difficulties and the effect this may have on the ability of the child or young person (or any accompanying adult) to communicate with the court, to understand the sanction imposed, or to fulfil the obligations resulting from that sanction;
  • the vulnerability of children and young people to self-harm, particularly within a custodial environment; and
  • the effect on children and young people of experiences of loss and neglect and/or abuse.

Factors regularly present in the background of children and young people that come before the court include deprived homes, poor parental employment records, low educational attainment, early experience of offending by other family members, experience of abuse and/or neglect, negative influences from peer associates and the misuse of drugs and/or alcohol.

The court should always seek to ensure that it has access to information about how best to identify and respond to these factors and, where necessary, that a proper assessment has taken place in order to enable the most appropriate sentence to be imposed.

The court should consider the reasons why, on some occasions, a child or young person may conduct themselves inappropriately in court (e.g. due to nervousness, a lack of understanding of the system, a belief that he or she will be discriminated against, peer pressure to behave in a certain way because of others present, a lack of maturity etc) and take this into account.

When dealing with a child or young person who is looked after by the Government, the court should also bear in mind the additional complex vulnerabilities that are likely to be present in his or her background. For example, looked after children and young people may have no or little contact with their family and/or friends, they may have special educational needs and/or emotional and behavioural problems, they may be heavily exposed to peers who have committed crime and they are likely to have accessed the care system as a result of abuse, neglect or parental absence due to bereavement, imprisonment or desertion. The court should also bear in mind that the level of parental-type support that a looked after child or young person receives throughout the criminal justice process may vary, and may be limited. For example, while parents are required to attend court hearings, this is not the case for social workers responsible for looked after children and young people.

In some instances, a looked after child or young person (including those placed in foster homes and independent accommodation, as well as in care homes) may be before the court for a low-level offence that the police would not have been involved in, if it had occurred in an ordinary family setting.

For looked after children and young people who have committed an offence that crosses the custody threshold, sentencers will need to consider any impact a custodial sentence may have on their care arrangements, and whether this impact is proportionate to the seriousness of the offence. For other young people who are in the process of leaving care or have recently left care, sentencers should bear in mind any effect this often-difficult transition may have had on the young person’s behaviour.

Black and minority ethnic children and young people can be over-represented in the youth justice system. The factors contributing to this are complex. One factor may be the experience of such children and young people in terms of discrimination and negative experiences of authority. When having regard to the welfare of the child or young person to be sentenced, the particular factors which arise in the case of black and minority ethnic children and young people need to be taken into account.

The requirement to have regard to the welfare of a child or young person is subject to the obligation to impose only those restrictions on liberty that are commensurate with the seriousness of the offence; accordingly, a court should not impose greater restrictions because of other factors in the child or young person’s life.

When considering a child or young person who may be particularly vulnerable, sentencers should consider which available disposal is best able to support the child or young person and which disposals could potentially exacerbate any underlying issues. This is particularly important when considering custodial sentences as there are concerns about the effect on vulnerable children and young people of being in closed conditions, with significant risks of self harm, including suicide.

The vulnerability factors that are often present in the background of children and young people should also be considered in light of the offending behaviour itself. Although they do not alone cause offending behaviour – there are many children and young people who have experienced these circumstances but do not commit crime – there is a correlation and any response to criminal activity amongst children and young people will need to recognise the presence of such factors in order to be effective.

These principles do not undermine the fact that the sentence should reflect the seriousness of the offence.

Parental responsibilities

For any child or young person aged under 16 appearing before court there is a statutory requirement that parents/guardians attend during all stages of proceedings, unless the court is satisfied that this would be unreasonable having regard to the circumstances of the case. The court may also enforce this requirement for a young person aged 16 and above if it deems it desirable to do so[4].

Although this requirement can cause a delay in the case before the court it is important it is adhered to. If a court does find exception to proceed in the absence of a parent or guardian then extra care must be taken to ensure the outcomes are clearly communicated to and understood by the child or young person.

In addition to this responsibility there are also orders that can be imposed on parents and guardians:

  • Parent or guardian to pay fine, costs or compensation[5]
  • Binding over of a parent or guardian[6]
  • Attendance of parent or guardian at court[7]

If the child or young person is aged under 16 then the court has a duty to make appropriate parental orders, if it would be desirable in the interest of preventing the commission of further offences. There is a discretionary power to make these orders where the young person is aged 16 or 17.  If the court chooses not to impose a parental order then it must state its reasons for not doing so in open court[8].

Determining the sentence

 In determining the sentence, the key elements to consider are:

  • the principal aim of the youth justice system (to prevent re-offending by children and young people);
  • the welfare of the child or young person;
  • the age of the child or young person (chronological, developmental and emotional);
  • the seriousness of the offence;
  • the likelihood of further offences being committed; and
  • the extent of harm likely to result from those further offences.

The seriousness of the offence

The seriousness of the offence is the starting point for determining the appropriate sentence; the sentence imposed and any restriction on liberty must be commensurate with the seriousness of the offence.

The approach to sentencing children and young people should always be individualistic and the court should always have in mind the principal aims of the youth justice system.

In order to determine the seriousness of the offence the court should assess the culpability of the child or young person and the harm that was caused, intended to be caused or could foreseeably have been caused.

In assessing culpability, the court will wish to consider the extent to which the offence was planned, the role of the child or young person (if the offence was committed as part of a group), the level of force that was used in the commission of the offence, and the awareness that the child or young person had of his or her actions and its possible consequences. There is an expectation that in general a child or young person will be dealt with less severely than an adult offender. In part, this is because children and young people are unlikely to have the same experience and capacity as an adult to understand the effect of his or her actions on other people or to appreciate the pain and distress caused, and because a child or young person may be less able to resist temptation, especially where peer pressure is exerted.

Children and young people are inherently more vulnerable than adults due to their age, and the court will need to consider any mental health problems and/or learning disabilities they may have, as well as their emotional and developmental age. Any external factors that may have affected the child or young person’s behaviour should be taken into account.

In assessing harm the court should consider the level of physical and psychological harm caused to the victim, the degree of any loss caused to the victim and the extent of any damage caused to property. (This assessment should also include a consideration of any harm that was intended to be caused or could foreseeably have been caused in the committal of the offence.)

The court should also consider any aggravating or mitigating factors that may increase or reduce the overall seriousness of the offence. If any of these factors are included in the definition of the committed offence they should not be taken into account when considering the relative seriousness of the offence before the court.

 

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Age and maturity of the child or young person

There is a statutory presumption that no child under the age of 10 can be guilty of an offence.

With a child or young person, the consideration of age requires a different approach to that which would be adopted in relation to the age of an adult. Even within the category of child or young person the response of a court to an offence is likely to be very different depending on whether the child or young person is at the lower end of the age bracket, in the middle or towards the top end.

The developmental and emotional age of the child or young person should always be considered and it is of at least equal importance as his or her chronological age. It is important to consider whether the child or young person has the necessary maturity to appreciate fully the consequences of his or her conduct, the extent to which the child or young person has been acting on an impulsive basis, and whether his or her conduct has been affected by inexperience, emotional volatility or negative influences.

Attaining the age of 18 during the proceedings

The Youth Court has the power to remit a defendant to the adult court if the defendant attains the age of 18 at any time after conviction and before sentence.

It is intended that the Youth Court will deal with all offenders who are under the age of 18 at the time of the finding of guilt. The Youth Court should therefore retain jurisdiction even in cases where the defendant reaches the age of 18 before sentence is passed. The reason for this is that the defendant will only just have attained the age of 18 and the Youth Court will remain the appropriate court to hear the case.   

Absolute or conditional discharge

An absolute discharge is appropriate in the least serious cases when, despite a finding of guilt, the court considers that no punishment should be imposed.

A conditional discharge is appropriate when, despite a finding of guilt, the offence is not serious enough to warrant an immediate punishment. The fixed period of conditional discharge must not exceed three years.

Financial order

Sentencers should avoid imposing financial penalties directly on children and young people unless there is a clearly identified income or sum of money available to the child or young person that is not relied upon to meet basic needs or for educational purposes.

Where the child or young person is under the age of 16 the court must order that any fine, compensation or costs be paid by the parent or guardian of the youth instead of by the youth, unless the court is satisfied that the parent or guardian cannot be found or it would be unreasonable to make an order for payment, having regard to the circumstances of the case.

Where a young person is aged 16 or over the court may order that the parent or guardian of the young person pay the fine, compensation or costs instead of the young person[9].

Reparation orders

Reparation orders can be made in relation to a person or persons identified by the court as a victim of the offence, or a person otherwise affected by it, or to the community at large.

Reparation orders cannot be combined with a custodial sentence or a youth rehabilitation order.

Before making a reparation order a court must obtain and consider a written report by the probation officer indicating the type of work that is suitable for the offender and the attitude of the victim or victims to the requirements proposed to be included in the order.

Youth rehabilitation orders (YRO)

A YRO is a community sentence within which a court may include one or more requirements designed to provide for punishment, protection of the public, reducing re-offending and reparation.

When imposing a YRO, the court must fix a period within which the requirements of the order are to be completed; this must not be more than three years from the date on which the order comes into effect.

The offence must be ‘serious enough’ in order to impose a YRO. Even if an offence is deemed ‘serious enough’ the court is not obliged to make a YRO.

The requirements included within the order (and the subsequent restriction on liberty) and the length of the order must be proportionate to the seriousness of the offence and suitable for the child or young person. The court should take care to ensure that the requirements imposed are not too onerous so as to make breach of the order almost inevitable.

When determining the nature and extent of the requirements the court should primarily consider the likelihood of the child or young person re-offending and the risk of the child or young person causing serious harm. A higher risk of re-offending does not in itself justify a greater restriction on liberty than is warranted by the seriousness of the offence; any requirements should still be commensurate with the seriousness of the offence and regard must still be had for the welfare of the child or young person.

The probation service will assess the child or young person as part of their report and recommend an intervention level to the court for consideration. It is possible for the court to ask the probation service to consider a particular requirement.

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If a child or young person is assessed as presenting a high risk of re-offending or of causing serious harm but the offence that was committed is of relatively low seriousness then the appropriate requirements are likely to be primarily rehabilitative or for the protection of the public.

Likewise, if a child or young person is assessed as presenting a low risk of re-offending or of causing serious harm but the offence was of relatively high seriousness then the appropriate requirements are likely to be primarily punitive.

Custodial sentence          

A custodial sentence should always be used as a last resort. The court will need to assess whether custody is the most appropriate disposal. A custodial sentence must only be imposed as a measure of last resort.

A court must not impose a custodial sentence unless it is satisfied that the circumstances, including the nature and gravity of the offence, are such that if the offender were aged 21 or over the court would pass a sentence of imprisonment.

The court must also be satisfied that the child or young person is a qualifying offender. A child or young person is a qualifying offender if:

  • he or she has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them; or
  • only a custodial sentence would be adequate to protect the public from serious harm from the offender; or
  • the offence of which the offender has been convicted or found guilty was so serious that a non-custodial sentence for it cannot be justified.

The term of a custodial sentence must be the shortest commensurate with the seriousness of the offence. The court should take account of the circumstances, age and maturity of the child or young person.

In determining whether an offence has crossed the custody threshold the court will need to assess the seriousness of the offence, in particular the level of harm that was caused, or was likely to have been caused, by the offence. The risk of serious harm in the future must also be assessed. The pre-sentence report will assess this criterion and must be considered before a custodial sentence is imposed. A custodial sentence is most likely to be unavoidable where it is necessary to protect the public from serious harm.

If the court is satisfied that the offence crosses the custody threshold, and that no other sentence is appropriate, the court may, as a preliminary consideration, consult the equivalent adult guideline in order to decide upon the appropriate length of the sentence.

When considering the relevant adult guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the adult sentence for those aged 15 – 17 and allow a greater reduction for those aged under 15. This is only a rough guide and must not be applied mechanistically. In most cases when considering the appropriate reduction from the adult sentence the emotional and developmental age and maturity of the child or young person is of at least equal importance as his or her chronological age.

The individual factors relating to the offence and the child or young person are of the greatest importance, and may present good reason to impose a sentence outside of this range. The court should bear in mind the negative effects a short custodial sentence can have; short sentences disrupt education and/or training and family relationships and support which are crucial stabilising factors to prevent re-offending.

There is an expectation that custodial sentences will be particularly rare for a child or young person aged 14 or under.

The welfare of the child or young person must be considered when imposing any sentence, but is especially important when a custodial sentence is being considered. A custodial sentence could have a significant effect on the prospects and opportunities of the child or young person, and a child or young person is likely to be more susceptible than an adult to the contaminating influences that can be expected within a custodial setting.

There is a high reconviction rate for children and young people that have had custodial sentences. There have been many studies profiling the effect on vulnerable children and young people, particularly the risk of self-harm and suicide, and so it is of utmost importance that custody is a last resort.

Breaches and the commission of further offences

If a child or young person is found guilty of breaching an order, or commits a further offence during the period of an order, the primary aim of the court should be to encourage compliance and seek to support the rehabilitation of the child or young person.

 

[1] Section 720 Criminal Procedure and Evidence Ordinance 2014

[2] Section 726 Criminal Procedure and Evidence Ordinance 2014

[3] Section 720 Criminal Procedure and Evidence Ordinance 2014

[4] Section 738 Criminal Procedure and Evidence Ordinance 2014

[5] Section 734 Criminal Procedure and Evidence Ordinance 2014

[6] Section 737 Criminal Procedure and Evidence Ordinance 2014

[7] Section 738 Criminal Procedure and Evidence Ordinance 2014

[8] Section 737 Criminal Procedure and Evidence Ordinance 2014

[9] Section 734 Criminal Procedure and Evidence Ordinance 2014

 

 

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Mental Disorders & Impairments

Overarching Sentencing Guideline 

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General Principles Guideline

 

 

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13. Children and Young People
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