Sentencing Principles for Young Adults – Howard League for Penal Reform

On 24 June 2020, Dr Laura Janes, Legal Director of the Howard League for Penal Reform (HLPR) joined a panel of distinguished speakers including Dr Enys Delmage, Consultant in Adolescent Forensic Psychiatry to discuss ‘Timely Justice: Turning 18’, an event presented by the Youth Justice Legal Centre (YJLC). The panel examined the inequities which arise for those who have committed offences as children but who turn 18 before being cautioned or prosecuted. The impact can be devastating; those who offend as children do not benefit from the protections afforded to children. YJLC says ‘the cause of the problem is often system delay and the delays arising out of the coronavirus crisis mean this is likely to be a growing problem.’

The Howard League published research in 2017, which looked at the extent to which maturity was considered when sentencing young adults. It was often not considered at all and even when it was, understanding was variable. In 2019, HLPR went on to publish Sentencing Principles for Young Adults to be applied to young adults who fall to be sentenced for any offence. The principles are in line with developments in case law, science and social studies, references to which are to be found in the Principles document.

The ICCA has long campaigned for youth justice to be a specialism and this year we embark on a programme to develop a national course which will include important aspects of sentencing, adolescent brain development and reference to some of the case law which has been pivotal in this area, including the case of In R v Clarke [2018] EWCA Crim 185 to which the ICCA referred in their news updates. Lynda Gibbs QC (Hon), Dean of the ICCA has accepted an invitation to join the Howard League for Penal Reform (HLPR) Advisory Board for developing sentencing principles for young adults.

It is imperative that advocates fully understand and appreciate the sentencing principles affecting this distinct age group of 18-25 year olds, especially now that coronavirus further affects delays in bringing cases to court for young adults who may have turned 18 since committing an offence.

The statistics

• 1000’s of children turn 18 before they are sentenced, a figure which is increasing because of Covid-19.
• Too many young adults are transferred to adult prison on reaching 18.
• Custodial sentences on young adults cause serious psychological harm.
• A custodial sentence impacts detrimentally on a care-leaver’s settled status.
• Between 2006 and 2015, 134 young adults in custody committed suicide.
• 40% of young adult offenders spend 22 hours a day in their cells.
• In 2019, the number of self-harm incidents increased by 3%, to around 1,800 – the highest number of incidents in the last five years.

What is distinct about the neurological development within this age group?

At the age of 20, the frontal lobes of the brain, which are involved in motor function, problem solving, spontaneity, memory, language, initiation, judgement, impulse control, and social and sexual behaviour, are still immature. This is a feature in ‘neurologically average’ young adults, not in those who have suffered trauma.

The development of this area of the brain is worse for a young adult who is ‘conduct-disordered’, a young adult, for example, who is in contact with the criminal justice system. It is very likely that these young adults have been impacted by trauma. Trauma can be exposure to drugs, violence or pornography; it can involve being moved from place to place; the death of a primary carer; forcible removal from home; poverty and hunger or neglect.  According to the Taylor Review in 2016, many of the children and young adults in the youth justice system come from “dysfunctional and chaotic families where drug and alcohol abuse, physical and emotional abuse and offending is common. Often they are victims of crimes themselves.”

What do advocates need to be aware of when young adults fall to be sentenced and how can they do better?

Persuade the court to treat young adults aged 18 to 25 as a distinct category for the purposes of sentencing. According to the Royal College of Psychiatrists, 2015, they are still developing physically and psychologically until their mid-twenties.

Use the caselaw. In the key case of R v Clarke [2018] EWCA Crim 185 the Lord Chief Justice observed: “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… 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.”

In the case of R v Balogun [2018] EWCA Crim 2933, the Court of Appeal stated: “the fact that the appellant had attained the age of 18 before he committed the offences does not of itself mean that the factors relevant to the sentencing of a young offender had necessarily ceased to have any relevance. He had not been invested overnight with all the understanding and self-control of a fully mature adult.” The ICCA has previously commented on this decision.

Remind the court that young adults have a greater capacity for change in a shorter period of time than older adults and it is reported that they often retain the vulnerabilities of childhood.

Given what is known about the impact of custodial sentences; the trauma that it can bring and the extended hours in solitary confinement, they should be a last resort for young adults who have the capacity to change and who are more likely to respond to and benefit from more rehabilitative disposals.

It is now possible for advocates to ask for maturity screening. The MOJ has published a psychosocial maturity screening tool for young adult men convicted of crime to be used by probation and custody officers. This can be crucial in the assessment of impact.

It is clear from the Lammy Report that there is a disproportionate number of BAME young adults and children in the criminal justice system. Advocates should ward against discrimination.

Advocates should not accept a fast-track PSR, they are not sufficiently full or informative. The impact on life-chances should be a factor to be addressed and taken into account.

Remind the court of the impacts for care leavers. 23C(1) of the Children Act 1989 provides that young adults may be entitled to additional support from social services as care leavers. All care leavers aged between 21 and 24 are entitled to leaving care support if they request it regardless of whether or not they are or wish to be in education. Care leavers in education when they turn 25 are entitled to support until the course is completed. Please refer to the HLPR Sentencing Principles for full details.

It should not be lost on anyone involved at the sentencing stage that the passing of an immediate custodial sentence imposes the potential for life-changing and detrimental impacts on a young adult.

Custody has a poor record for reducing reoffending. 47% of adults are reconvicted within one year of being released. For petty offenders, serving sentences of less than 12 months, this increases to 60%. For children and young people in custody the rate of reoffending rises to 75%.

The number of suicides, incidents of self-harm and violent outburst among young adults in custody are a key indicator of the negative impact it has. Specialist reports are vital.

Advocates should bring to the court’s attention the potential impact of custody on a young adult’s future prospects especially in relation to education, employment and any dependent children. Custody removes opportunities for self-development and growth and denies valuable support.

Those over 18 receive the same rehabilitation periods as older adults. This has a huge impact on their ability to gain employment and often leads to reoffending.

The period of any custodial term should be less than that imposed on an older adult.

HLPR has produced a table of mitigating factors which can be adapted for young adults.

For more guidance about this field of work, please access the ICCA’s Youth Justice Advocacy materials.