Major changes are being made to the way that courts may sentence young offenders. On 27 April, provisions were brought into force to increase the use of ­referral orders. These are manda­tory if the offence is imprisonable and a first-time offender admits the offence and all connected offences, and the court does not deal with the matter by way of an absolute ­discharge, hospital order or custodial sentence.

However, a discretionary referral order may now be made if there is a guilty plea to at least one offence and one of the ­following ­circumstances is applicable (section 17 of the Powers of Criminal Courts (Sentencing) Act 2000 as amended by section 35 of the Criminal Justice and Immigration Act (CJIA) 2008): Further amendments are made by sections 36 and 37 of CJIA. There is now power to revoke a referral order if it is in the interests of justice by reason of events since the contract was signed. The court may either revoke or resentence on the grounds of good progress being made.

  • there are no previous convictions; or
  • there is one previous conviction which was not made subject to a referral order; or
  • there are any number of previous convictions but only one previous referral order, and the Youth Offending Team recommends the defendant as suitable for referral and there are exceptional circumstances.

Under section 37 it is possible for the court to extend the period of the contract in the interests of justice for up to two months or a maximum of 12 months in all, having regard to the ­history of compliance at that point.

Youth rehabilitation ordersOn 30 November 2009, for offences committed on or after that date, youth rehabilitation orders (YROs) were brought into effect, rationalising the community orders available for young offenders. These mirror the adult court provision, in that there is a single ­community order to which relevant requirements are attached. The order imposes one or more of the following requirements: activity; supervision; unpaid work (for those who are 16 or 17 years old on the date of conviction); programmes; attendance centre; prohibited activity; curfew; exclusion; residence order; local authority residence order; mental health treatment; drug treatment; drug testing; intoxicating substance treatment; education requirement; electronic monitoring, which must be used for curfew; or exclusion requirements unless the court is prevented from doing so or considers it inappropriate.

The act also introduces two forms of YRO to be used for those who would otherwise have faced custodial sentences, so that custody becomes a penalty of last resort. Formally, these are available when the court is:The first of these orders is a YRO with intensive supervision and surveillance. Such an order comprises at least an activity requirement of between 90 and 180 days, a supervision requirement and a curfew requirement. Alternatively, once arrangements have been made in the local area, the court may impose a YRO with fostering. Such an order comprises, at the least, a fostering requirement with supervision.

  • dealing with an imprisonable offence;
  • is of the opinion the offence(s) is so serious that, but for these provisions, custody would be appropriate; and
  • if the offender is under 15 years old at the date of conviction, and that offender is a persistent offender.

Overarching guidelineThe Sentencing Guidelines Council has published a definitive guideline containing the overarching principles of sentencing for youths. This came into force for all hearings on or after 30 November 2009 and for YROs as they come available in individual cases. This is of far wider application than the new statutory provisions. It emphasises that, for youths, the approach to sentence will be ­individualistic. The maturity of an offender will be at least as important as their age. Only exceptionally will more information on maturity be required than can be provided by the advocate and any pre-sentence report. When sentencing youths the court must have regard to:Within a system that provides for both the acknowledgement of guilt and sanctions that rehabilitate, the intention is to establish responsibility and, at the same time, to promote reintegration rather than to impose retribution.

  • the principal aim of the youth ­justice system to prevent offending by children and young persons ­(section 37 of the Crime and Disorder Act 1998); and
  • the welfare of the offender (section 44 of the Children and Young Persons Act 1933).

Sentences must be proportionate to the seriousness of the particular offence and should not impose greater restrictions on liberty than the seriousness of the offence justifies, simply to deal with the risk of reoffending. A sentence which follows reoffending does not need to be more severe than the previous sentence solely because there has been a previous conviction. Even where the custody threshold has been crossed, a court is not required to impose the custodial sentence. This applies similarly for the community sentence threshold.

In considering the welfare of young persons, the court must ensure that it is alert to the high incidences of mental health issues, learning difficulties and disabilities, speech and language difficulties and the extent to which young people anticipate that they will be discriminated against. Also relevant are: the vulnerability of young people to self-harm, particularly within a ­custodial environment; the extent to which changes taking place during adolescence can lead to experimentation; and the effect on young people of experiences of loss or of abuse.

It is anticipated that a young person will be dealt with less severely than an adult offender, at least in part because they have less experience and capacity to appreciate the pain and stress caused to others, and because a young person is likely to be less able to resist temptation, especially where peer pressure is exerted. Young persons are likely to benefit from being given the opportunity to learn from mistakes without undue penalty or stigma, especially as a court sanction might have a significant effect on the prospects and opportunities of the young person and on the likelihood of an effective ­integration into society. Individual sanctions are likely to have a greater impact on a youth than on an adult, especially lengths of time spent in a custodial establishment.

When an offender crosses a significant age threshold between the commission of an offence and conviction, the court should take as its starting point the sentence likely to have been imposed on the date on which the offence was committed.

Persistent offendersCertain sentences are available only where the offender is a persistent offender. Additional powers are also available to the court where a YRO has been breached wilfully and persistently. In determining whether an offender is a persistent offender, a court should consider the simple test of whether the young person is one who persists in offending. In those circumstances, the normal expectation is that the offender will have had some contact with authority in which the offending conduct was challenged before being classed as persistent.

A young offender is certainly likely to be found to be persistent (and in relation to a custodial sentence the test of being a measure of last resort is most likely to be satisfied) when they have been convicted of, or made subject to, a pre-court disposal that involves an admission or finding of guilt in relation to imprisonable offences on at least three occasions in the past 12 months.

Conduct will have been challenged when dealt with by a court appearance, reprimand, final warning, restorative justice disposals or conditional ­cautions as each of those requires an admission. Penalty notices for ­disorder are unlikely to be sufficiently reliable.

Even where a young person is found to be a persistent offender the court is not obliged to impose a custodial ­sentence or YRO with the intensive supervision surveillance or fostering.

Guidance on YROsThe guideline emphasises the ­importance of proportionality and suitability of the relevant ­requirements. YROs may be used for non-imprisonable offences. The key factors are the seriousness of the offence, the purposes of sentencing, the risk of reoffending, the ability of the offender to comply, and the ­availability of the requirements in the local area. There will be three levels of intervention: However, it must be remembered that all restrictions on liberty must remain commensurate with the ­seriousness of the offence.

  • the standard level for those who show a low likelihood of reoffending and a low risk of serious harm;
  • an enhanced level for those who show a medium likelihood of re-offending or a medium risk of serious harm; and
  • an intensive level for those with a high likelihood of reoffending or a high or very high risk of serious harm.

For youths, there is no obligation on breach for the court to make an order more onerous. The court has the power to impose a fine, amend the terms of the order, or revoke the order and resentence. The primary objective when sentencing for breach of YRO is to ensure that the young person ­completes the requirements imposed by the court. The guideline assists in the identification of those who wilfully and persistently breach an order.

Custodial sentences and Crown court proceedingsThe statutory presumption is that in relation to custodial sentences young offenders will be dealt with in the youth court. Custodial sentences must be imposed only as a measure of last resort. The custody threshold is higher in the case of a young offender than in the case of an adult. A ­custodial sentence is most likely to be unavoidable where it is necessary to protect the public from serious harm. Guidance is given on the likely length of sentences, but existing guidelines (such as that on robbery) continue unaffected. In general terms, where an offender is aged 15, 16 or 17, the court will need to consider the ­maturity of the offender as well as age. Where there is no offence-specific guideline, it may be appropriate to consider a starting point from half to three-quarters of that which would have been identified for an adult offender.

The power to commit for trial in relation to grave crimes should be used rarely, since it is the general policy of parliament that those under 18 should be tried in the youth court. Trial in the Crown court should be reserved for the most serious cases, recognising the greater formality of the proceedings and the greatly increased number of people involved. Offenders aged under 15 will rarely attract a period of detention under this provision, and those under 12 even more rarely. A young person aged 10 or 11 should be committed to the Crown court only where the charge is for an offence of such exceptional gravity that an order under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 is required. A young person aged 12-17 (for whom a detention or training order could be imposed) should be committed for trial for a ‘grave crime’ only when charged with an offence of such seriousness that a sentence ­substantially beyond the two-year maximum for a detention and training order is a realistic possibility, taking into account any guilty plea and ­undisputed personal mitigation.

Where a youth is jointly charged with an adult, the court will need to consider carefully whether it is in the interests of justice that the youth be committed to the higher court. Any presumption in favour of sending a youth to the Crown court must be balanced with the general presumption that young offenders should be dealt with in a youth court. The court must consider the age of the offender, the maturity and intellect of the youth, the relative culpability of the defendants and any lack of previous convictions on the part of the youth compared with the adult offender. However, a very significant factor will be whether the trial of the adult and youth could be severed without inconvenience to witnesses or ­injustice to the case as a whole.

However, where a young person is convicted before the Crown court for an offence other than homicide there is an obligation to remit the young person to a youth court for sentence unless it is undesirable. In considering whether a remittal is undesirable, the court should balance the need for expertise in the sentencing of young offenders (as exists in the youth court) with the benefits of sentence being imposed by the court that had determined guilt.