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09 June 2023

The treatment of children and young people in the criminal justice system: the correct approach

5 mins

Sentencing children and young people is a challenging exercise that requires careful consideration.

The courts must balance the principal aim of the youth justice system (i.e. to prevent offending by children and young people) with a consideration of the welfare of the young person. In the words of Gandhi, ‘the true measure of any society can be found in how it treats its most vulnerable members’.

ZA [2023] EWCA 596 concerned the correct approach to sentencing children and young people, especially when they are tried together with older co-accused.

The following checklist was provided by the judges:
  1. The court listing should ensure that there is sufficient time for the judge to read and consider all reports and prepare sentencing remarks in language that is age-appropriate
  2. Consideration should be given to listing separately, and as a priority, the sentence of any child or young person jointly convicted with adult co-defendants
  3. The courtroom itself should be set up to ensure that the child or young person is treated appropriately (i.e. as a vulnerable defendant entitled to proper support). If possible, the judge should be seated at a level with the child or young person, who should be able to sit near to counsel, with their guardian or other support seated next to them
  4. Counsel must expect to submit (and upload to the case management system well in advance of the sentencing hearing) full sentencing notes identifying all relevant sentencing guidelines, in particular any youth-specific ones. Material considerations should be addressed in an individualistic way for each defendant separately
  5. The contents of the pre-sentence report and any expert reports are crucial. Courts should consider these reports bearing in mind the general principles at section 1 of the overarching youth guidelines, together with any youth-specific offence guideline, carefully working through each
  6. It will generally be unhelpful to go straight to paragraph 6.46 of the overarching youth guideline (which suggests that an appropriate custodial sentence for a youth may be half to two-thirds of the adult sentence) without having first directed the court to general principles canvassed earlier in that guideline, as well as to any youth-specific guideline. The stepped approach in the relevant guideline should be followed
  7. If the court considers that the custody threshold has been passed, the court must consider whether a Youth Referral Order with Intensive Supervision and Surveillance could be imposed instead. The court must explain why if it cannot

It might be helpful to remind the court of certain matters that must be addressed when sentencing children or young people in the Crown Court. These may include considerations that help facilitate the effective participation of the child or young person, such as having their presence in court in person or over a video link, having a parent or key worker present, court dress, use of first names, familiarisation, positioning in court, adequate breaks during the hearing and the use of age-appropriate language.

Many may feel such guidance is long overdue, and this case demonstrates the court’s acknowledgment of the fact that children and young people are vulnerable, and cases involving them require special care.

This has recently been reinforced by the courts in their ruling about the way a child was treated by the police. The court in ST v The Chief Constable of Nottinghamshire Police [2022] EWHC 1280 confirmed that the duty to consider the vulnerabilities of children and young people extends to the police. The appellant, in this case, was 14 years old and was arrested at home at 5.30am, and then held in an adult cell in the police station for six hours before being interviewed and released on bail. He was never charged with an offence and the allegation related to a relatively old matter that had already been investigated by the school, so there was clearly no requirement for a ‘dawn raid’ and arrest. The court criticised the police’s ‘reprehensible and lamentable’ conduct and set out the following principles:

  1. The use of the power of arrest must be fully justified and the police, before exercising it, must consider whether their necessary objectives could be met using less intrusive means
  2. The best interests of the child must be factored into the police’s assessment of the necessity of arrest. The power of arrest must only be exercised after adequate consideration of the welfare of the child
  3. The arrest must be necessary and not merely convenient
  4. The welfare of the child is a material consideration when assessing whether the arrest of a child is necessary at a particular time
  5. The timing and place of arrest are not matters of police discretion and are relevant when assessing the necessity of arrest
  6. Where there exists a need to search a child’s home address, this does not automatically mean that arrest is necessary. Officers should consider alternatives like a search warrant, or asking for the permission of the owner of the arrest (i.e. a parent) to carry out a voluntary search

There appears to be a risk that as soon as a child becomes an ‘accused’, those involved in the criminal justice system lose sight of the fact that they are dealing with a vulnerable young person and require all the protections available. This ‘guidance’ from the court and strong words in ST are welcome but long overdue. The youth of an accused person must always be in the forefront of everyone’s mind when dealing with them in this stressful and complicated environment.

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