Reaching Maturity has many legal consequences

Background

Clarke, Andrews & Thompson [2018] EWCA Crim 185

The offending in this matter was extremely serious and included kidnapping. The impact on the victim and his family was significant. It occurred in early 2017.
For contextual purposes, it is helpful to set out the age of the defendants:

• Clarke was born on 11th December 1998 and so was just 18 at the time of the offending.
• Thompson was born on 26th August 1997 and so was 19.
• Andrews was born on 3rd December 1999 and so was 17 at the time and the youngest of the three.

Sentencing

The three defendants pleaded guilty to all the offences in circumstances which entitled them to a full discount of one-third. Andrews had no previous convictions, cautions or reprimands.

Given their ages at the time of the sentencing exercise by HHJ Goddard QC in Manchester, Clarke and Thomson received sentences of 7 years detention in a young offender institution. Andrews was sentenced to 5 years and 6 months detention, pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.

Had the defendants been mature adults, it is clear that their sentences would have been significantly longer. There was explicit reference to the guideline relating to young offenders in the course of argument before the sentencing judge who took a long time to listen to all the material presented on their behalf. All three defendants came from the most extreme and desperately sad familial backgrounds.

Appeal Court

The Court of Appeal delivered an important judgment in this case after the Attorney-General applied for leave pursuant to s.36 of the Criminal Justice Act 1988 to refer their sentences as unduly lenient suggesting that only Andrews, the youngest and still 17 at the time of offending, should have received a discount by virtue of his ‘youth’.

In a second application, Andrews appealed against his sentence on the ground it was manifestly excessive, relying on similar arguments. In the course of oral submissions on behalf of the Attorney General, it was accepted that there was no stark cut-off point that applies in sentencing an offender aged 18. Counsel for Andrews accepted the same proposition.

The Lord Chief Justice made these important observations:

“Reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purposes of sentencing. So much has long been clear. The discussion in R v Peters [2005] EWCA Crim 605, [2005] 2 Cr App R(S) 101 is an example of its application: See paras [10]-[12]. Full maturity and all the attributes of adulthood are not magically conferred on young people on their 18th birthdays. Experience of life reflected in scientific research (e.g. The Age of Adolescence: thelancet.com/child-adolescent; 17 January 2018) is that young people continue to mature, albeit at different rates, for some time beyond their 18th birthdays. The youth and maturity of an offender will be factors that inform any sentencing decision, even if an offender has passed his or her 18th birthday. The ages of these offenders illustrate the point. The youth and immaturity of Clarke and Thompson were appropriate factors for the judge to take into account in these cases event though both were over 18 when they offended. It is apparent that the Judge did so, not only in the case of Andrews.

Leave was refused both to appeal and for leave to refer as unduly lenient. The CA rejected the AG’s submission that the circumstances underpinning this case should have led to the conclusion that any notional reduction in the sentences to reflect the youth of Andrews, or the relative youth of both Clarke and Thompson, should have been minimal. The LCJ said that, “such a feature may be a potent factor in determining the eventual sentence. It is quite clear from the totality of the hearing and then the sentencing remarks that this experienced judge was sensitive to the questions of youth and immaturity”.

Advice for Advocates

This is a pioneering judgment where the LCJ acknowledges that young adults should be treated differently within the criminal justice system as a result of their continuing lack of maturity and culpability. In spite of the extreme seriousness of the offending in this matter, it was right and proper to take an approach that was ‘child centred’ leaving scope for rehabilitation of these a number of troubled young adults.