The Sentencing Council have highlighted a number of new forward-thinking factors to be taken into account when assessing the welfare of children and young people being sentenced. The recently published Definitive Guideline to Sentencing Children and Young People will apply to all children and young people sentenced on or after 1 June 2017 and aims to encourage the court to take into account the social and ethnic background of young offenders. This article considers two particularly interesting aspects that are addressed.
Ministry of Justice research suggests that black and minority ethnic (BAME) children and young people are over-represented in the justice system; from arrest and prison experiences to rates of reoffending. The Guideline rightly recognises that the factors contributing to this are complex. One factor however, may be the experience BAME young people have had of discrimination and negative experiences of authority.
There is a statutory obligation under section 44 of the Children and Young Persons Act 1933 for courts to have regard to the welfare of a child or young person. In considering a child or young person’s welfare, the Guideline now requires the court to take experience of discrimination and other “particular factors which arise in the case of black and minority ethnic children and young people” into account when sentencing.
This guidance goes considerably further than the previous guidance on sentencing young people published by the Sentencing Guidelines Council in 2009. These acknowledged that discrimination from those in authority may impact on a young person’s behaviour but only recommended that courts consider this when dealing with the way a young person may conduct themselves during court proceedings.
It is not clear whether the new Guideline envisages defendants providing specific instances and/or evidence of discrimination or whether this factor should be taken into account for all BAME children and young people. For example, would citing the fact that 67% of those stopped by the Metropolitan Police under a section 60 stop and search were non-white (s60 CJPOA 1994 allows the police to stop and search without suspicion), have an impact on the sentencing of a young person who comes from a BAME background? It would seem unlikely but the situation is not necessarily clear.
The second particularly interesting aspect to this Guideline is the emphasis it places on the need to consider the social background of young offenders. It lists common factors seen in young people coming before the court including “deprived homes”, “poor parental employment records”, “low education attainment”, “early experience of offending by other family members” and “negative influences from peer associates”. Once again, these factors should be included in considerations about the welfare of the child or young person in question. Crucially, it places the responsibility on the court to seek out access to information about how best to identify and respond to these factors to ensure that the most appropriate sentence is imposed. The Guideline also stipulates that the court should bear in mind the additional complex vulnerabilities that are likely to be present in what it describes as “looked after” children and young people (for instance those in foster homes, care homes and independent accommodation). The Guideline also helpfully identifies a number of significant factors to be taken into account such as: the fact that looked after young people are likely to have accessed the care system as a result of abuse, neglect or parental absence due to bereavement, imprisonment or desertion; that looked after young people may be heavily exposed to peers who have committed crime; and that they may have special educational needs and/or emotional and behavioural problems.
How much weight courts are likely to attribute to the factors outlined above is very difficult to predict and something that will become clearer in time. It will be important going forward that courts concentrate not just on the issues of racial discrimination and young people from “deprived homes” generally, but on the particular causes and issues involved in each individual set of facts. However, the fact that these issues have been codified as legitimate factors that must be taken into account when passing sentence should be seen as a positive step forwards in understanding the complex issues involved in offending by and the sentencing of young people.