New sentencing guidelines aim to level the playing field for looked after and BAME children and young people, say Laura Cooper and Claire Sands
The Sentencing Council has published new guidance on sentencing children and young people, which represents an important shift in the role of the criminal court. Courts are now required to look at the child’s background and, in particular, whether they are a looked after child or from a black, Asian or minority ethnic (BAME) background when considering the appropriate sentence. Recognising the disparity in their treatment in the criminal justice system, sentencers are being asked to redress the over criminalisation and incarceration of looked after children and BAME children and young people.
Children have always had a special status before the criminal courts and special considerations apply when sentencing. The purpose of the youth justice system is to prevent re-offending and marks itself as distinct from the adult criminal justice system. The new guideline puts a welcome focus on welfare and emphasises the vulnerabilities of the children who come into contact with the youth justice system. Background has always, or should always, have been a relevant factor when it comes to sentencing children, but Sentencing Children and Young People: Definitive Guideline, which comes into effect on the 1st June 2017, will put renewed emphasis on the importance of considering the child’s background when it comes to sentencing.
For the first time, the Sentencing Council gives clear recognition of the underlying principles set out in the UN Convention on the Rights of the Child, emphasising the importance of avoiding ‘criminalising’ children and young people unnecessarily, and to promote re-integration into society rather than to punish. It states that ‘a custodial sentence should always be a measure of last resort for children and young people’. This follows criticism by UNCRC in June 2016 that this last resort stipulation was not recognised in UK legislation or guidance.
The guidance gives an increased focus to the issues facing looked-after children, including an acknowledgement that they may appear in court for low level offences, which would not have involved the police had the behaviour taken place in an ordinary family home; a requirement to consider the impact of a custodial sentence on leaving care rights; and a requirement to consider the effect leaving care transitions might have had on a young person’s behaviour.
The most notable change is the new requirement for sentencers to consider the over-representation of BAME children in the youth justice system. We know that those sentencing children in the youth court and adult courts are sending far more BAME children to prison and for longer than white children. This has been getting worse not better and the statistics speak for themselves. The Lammy Review’s emerging findings published late last year confirmed that 41 per cent of youth prisoners are from BAME backgrounds, compared with 25 per cent 10 years ago, despite prisoner numbers falling by 66 per cent during that time.
Only last month a young black boy, Ryan, 16, living in a children’s home was arrested for pushing a member of staff following a verbal disagreement over what he was going to eat for dinner. He was arrested, held overnight in a police cell and interviewed. The police wanted to charge him and take him to court. They were insisting that he wasn’t suitable for an out of court disposal. Charging him and taking him to court was the only alternative. Luckily his solicitor contacted the Youth Justice Legal Centre (YJLC) and was then able to provide the police with specific CPS guidance on children offending in children’s homes, as well as data on the overrepresentation of looked after children in the criminal justice system. The police finally agreed to deal with him informally by way of ‘triage’ and not take the matter to court.
Evidence suggests that many other children in a similar position to Ryan would not have made admissions in police interview, perhaps because of their distrust of the police or authority, or other pressures not to admit their guilt, when it is in their best interests to do so. Like Omar, a 15-year-old boy, found in a car with a cannabis joint. He could never admit to his Bengali parents he’d been smoking cannabis and so the matter was escalated to court. When he was next stopped by the police, officers alleged he’d discarded a knife that was discovered nearby, an allegation he also denied. He ended up being convicted and receiving a community sentence. Both matters could have been dealt with using out of court disposals, but it already feels like he is on the path to prison.
As lawyers, we must question why Omar was not advised to admit possession of cannabis, or why his lawyer was unable to persuade the police that it wasn’t in the public interest to prosecute him? Was it because he wasn’t a middle class white kid with vociferous parents? The current disparities in the treatment of BAME and looked after children speak for themselves, and, for the first time, the Sentencing Council is asking the courts to re-level the playing field in their favour.
The Youth Justice Legal Centre, founded by the charity Just for Kids Law, has long argued that it is important for lawyers to understand a child’s background. The council guidance recognises that the majority of children in the criminal justice system have similar characteristics: “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.” In doing so, the guidelines recognise that many of these children should not be further punished but offered appropriate support.
Children deserve access to the best possible opportunities in life, regardless of race, poverty, or whether they are under the care of the state. Many children who are given custodial sentences have suffered significant trauma. These children need support, not punishment. The new guidelines, with their shift towards a more welfare-based approach, are a small step in recognising that. However, it applies only to children and young people who have come before the courts. If its purported aims of recognising the vulnerabilities of these children and young people and preventing their criminalisation are to be realised, more needs to be done to prevent children from coming into contact with the police and the courts in the first place.
YJLC is holding a youth justice legal summit on 12 May, which will include sessions on the new sentencing guidance. Discount ticket prices apply until 31 March 2017 (here)