Special sentencing powers

It begins with the sentencing of young offenders under the age of 18, dealsbriefly with young adult offenders aged from 18 to 21, and then concludes withthe various powers for dealing wi

CHAPTER 12

Special sentencing powers

This chapter deals with three sets of sentencing powers for particular groups ofoffender It begins with the sentencing of young offenders under the age of 18, dealsbriefly with young adult offenders aged from 18 to 21, and then concludes withthe various powers for dealing with mentally disordered offenders In respect ofeach group, we will consider the justifications for separate sentencing powers, andthe extent to which the rationale for special powers carries through into sentencingpractice

12.1 Young offenders

For almost the whole of the last century there were different sentencing proceduresfor younger offenders Those aged under 17 (after the Criminal Justice Act 1991,under 18) were dealt with in different courts, formerly called juvenile courts and thenrenamed ‘youth courts’ There is a considerable literature about the development

of sentencing policy in respect of young offenders,1whereas the discussion here isnecessarily briefer

12.1.1 A short history of juvenile justice

Ever since 1933, the law has laid down that, in dealing with a juvenile offender, acourt ‘shall have regard to the welfare of the child or young person’.2This welfareideology reached its apotheosis in the Children and Young Persons Act 1969, whichsought to ‘decriminalize’ the juvenile court by regarding the commission of anoffence as merely one way in which the court’s powers to intervene for the welfare

of the child could be activated The legislation contemplated that children under 14would be dealt with outside the criminal courts, and those aged 14–16 would onlyrarely be taken to court.3The 1969 Act failed, however, to resolve the long-standingtension between the welfare ideology and the tougher, punitive approach In 1970

1 The leading legal text is Ball, McCormac and Stone ( 2001 ) For surveys see Newburn ( 2002 ), Ball ( 2004 ) and Bottoms and Dignan ( 2004 ).

2 Children and Young Persons Act 1933, s 44(1) 3 Bottoms ( 1974 ).

359

there was a change of government, and some sections of the 1969 Act were neverimplemented Much of its welfare ideology remained largely at the level of rhetoric:its foundations had lain in the belief that juvenile courts should work throughand with the family, and should be seen chiefly as welfare-providing agencies Butsome magistrates were unhappy with the greater power and discretion it bestowedupon social workers, and campaigned vigorously against the changes The 1970ssaw an expansion in the cautioning rather than prosecution of juveniles, but it alsosaw an unprecedented increase in the imposition of custodial sentences on youngoffenders The struggle between welfare and punishment, between local authoritysocial work departments and the magistracy, was joined in 1980 by the government,which issued a White Paper proclaiming a tougher approach Tougher regimes wereintroduced into some detention centres, on an ‘experimental basis’, and the CriminalJustice Act 1982 restored to the magistracy some of the powers taken away by the

1969 Act

Perhaps the most significant provision in the 1982 Act was the introduction

of restrictions on custodial sentences for young offenders, introduced by way ofbackbench amendment rather than government policy This, together with theexpansion of cautioning for young offenders, meant that the 1980s turned out to be

a decade of decreasing severity in the approach to young offenders.4The cautioningrate rose steeply, prompted by a Home Office circular of 1985 The number ofrecorded juvenile offenders began to fall significantly, and not merely because therewere fewer young people in the population Thus, between 1979 and 1989 thenumber of juveniles in the population fell by 25 per cent, whereas the number ofrecorded juvenile offenders declined by 40 per cent A government-funded initiative

to expand schemes of ‘intermediate treatment’ gathered momentum, and seems

to have been reasonably successful in dealing with young offenders who mightformerly have been sent into custody And the number of juveniles sentenced tocustody, which had risen steeply in the 1970s, fell spectacularly in the 1980s, from apeak of 7,900 in 1981 to merely 1,600 in 1991 These trends suggested a considerablemomentum towards diversion from the courts and diversion from custody, but inthe early 1990s the tide began to turn

The Criminal Justice Act 1991 replaced the juvenile court with the youth court,and expanded its jurisdiction to cover all defendants aged under 18 New forms

of community sentence were made available for young offenders, and, in line withthose for adults, they were somewhat tougher But the real changes of directioncame around 1993 and 1994 The then Home Secretary announced that the highuse of cautioning should be restrained, especially in respect of fairly serious offencesand repeat offenders.5This seemed to go against the United Nations Convention

on the Rights of the Child, but that fact was suppressed amid the growing mediaferment about ‘law and order’, particularly in respect of young offenders The moodcontinued after the election of 1997 The new government proposed wide-ranging

4 See further Harris and Webb ( 1987 ) 5 Home Office circular 18/1994.

and significant reforms of the youth justice system In the preface to the White Paper

No More Excuses, the then Home Secretary, Jack Straw, explained the government’s

approach in these terms:

For too long we have assumed that young offenders will grow out of their offending ifleft to themselves The research evidence shows this does not happen An excuse culturehas developed within the youth justice system It excuses itself for its inefficiency, andtoo often excuses the young offenders before it, implying that they cannot help theirbehaviour because of their social circumstances Rarely are they confronted with theirbehaviour and helped to take more personal responsibility for their actions ThisWhite Paper seeks to draw a line under the past and sets out a new approach to tacklingyouth crime.6

Although parts of this are contestable – what ‘the research evidence’ shows aboutpolicies of minimum formal intervention, how often the courts have ‘excused’young offenders – its drift is clear, and the change of language from governmentpronouncements in earlier decades is clear The White Paper was followed by two sets

of statutory changes, in the Crime and Disorder Act 1998 and the Youth Justice andCriminal Evidence Act 1999, some of the powers (but not others) being consolidated

in the PCCS Act 2000, and their broad structure must now be analysed

12.1.2 The structure of the youth justice system

The principal agency is the Youth Justice Board, created by s 41 of the 1998 Act,with the tasks of monitoring the operation of the youth justice system, advising theHome Secretary on how the aims of the system might be pursued most effectively,for example promoting good practice and commissioning research In practicethe Board has achieved some success in steering youth justice policy in respect

of matters such as reducing the use of custody, expanding forms of communitysentence and creating initiatives in respect of (for example) ethnic minority youngpeople and those placed on anti-social behaviour orders.7Beneath the Board, eachlocal authority must establish a youth offending team (s 39 of the 1998 Act).These teams (or YOTs, as they are known) draw from at least five local agencies:probation, social work, police, health and education Their main tasks are to co-ordinate youth justice services, to carry out functions assigned to them under localyouth justice plans and to arrange youth offender panels (YOPs) for individualoffenders referred to them under the 1999 Act (see below) The third and fourthagencies to be mentioned are the police, who retain the decision to prosecute (underthe usual arrangements with the Crown Prosecution Service), and the youth courtsthemselves

Turning to the aims of the new youth justice system, the official rationale is to

be found in s 37 of the 1998 Act:

6 Home Office ( 1997 ), Preface.

7 For its annual reports, see www.youth-justice-board.gov.uk.

(1)It shall be the principal aim of the youth justice system to prevent offending bychildren and young persons.

(2)In addition to any other duty to which they are subject, it shall be the duty of allpersons and bodies carrying out functions in relation to the youth justice system

to have regard to that aim

The system relies quite heavily on the idea of expert diagnosis (by a youth offenderpanel) of a young offender’s predicament, for which an assessment tool known asAsset has been developed.8The assessment should lead the YOP to propose a con-tract, making certain requirements of the offender, of which ‘the aim (or principalaim) is the prevention of reoffending by the offender’.9There is a potential problemhere with the multiplicity of aims: although the five new ‘purposes of sentenc-ing’ set out by the Criminal Justice Act 2003 do not apply in respect of youngoffenders under 18,10the youth justice legislation alludes to two aims of punish-ment, prevention and restorative justice These potential conflicts are not merelyacademic or theoretical, nor do they suggest that all elements of the new schemeare open to attack Many will agree with the emphasis on bringing offenders (ofall ages) to recognize what they have done by ‘confronting’ them with their crimeand its consequences, even if they do not agree with the implication in some gov-ernment statements that all young offenders must take (full?) responsibility fortheir crimes But the difficulty is that the scheme also draws elements of repa-ration and even restorative justice into the response to young offenders, as weshall see below, and there are questions about their role in an essentially punitiveframework

Before considering the youth court stage, however, it is important to emphasizethe place of diversion in youth justice Sections 65 and 66 of the Crime and DisorderAct 1998 created a system of reprimands and warnings Section 65(1) is addressed

to ‘a constable [who] has evidence that a child or young person has committed anoffence’, and therefore replaces all the informal warnings and more formal cautionsgiven by the police to persons under 18 However, the system is strongly prescriptive

No young offender should receive more than one reprimand and one warning; and, ifthe offence is too serious for a mere reprimand, the police must proceed straight to awarning In cases where a warning is given, the constable must refer the offender to aYOT, and the YOT must assess the offender and, ‘unless they think it inappropriate

to do so, shall arrange for him to participate in a rehabilitation programme’.11Although the Youth Justice Board set a target of 80 per cent of final warnings tohave an intervention programme by the end of 2004, the Audit Commission haswarned against imposing too many requirements at an early stage, so as to avoid arapid escalation towards custody.12

8 See Baker ( 2004 ) 9 S 8(1) of the 1999 Act 10 Criminal Justice Act 2003, s 142(2)(a).

11 S 66(2)(b) of the 1998 Act See more fully Ball, McCormac and Stone ( 2001 ), ch 4.

12 See Mair ( 2004 ), p 153, for further argument.

Table 14 Cautioning rate for young offenders, given

as a percentage of offenders found guilty or cautioned

Source: Criminal Statistics 2002, Table 2.3

Although the rate of diversion (formerly by cautions, now by reprimands andwarnings) remains high for young offenders, it has continued to decline in the lastfew years, as Table14shows While the Youth Justice Board writes of reprimandsand warnings as ‘light-touch, minimal interventions’,13critics have pointed out thatthe implications of diversion for young offenders are more onerous than for olderoffenders, who may receive a simple caution.14The introduction of conditionalcautions will alter the balance somewhat, but not entirely There is some evidencethat reconviction rates are some 7 to 10 per cent lower than the predicted rate, butthose estimates require confirmation.15

There is evidence to suggest that there may be some unfair treatment at thediversion stage in respect of racial origin Feilzer and Hood found that ‘the odds of

a case involving a mixed-parentage youth being prosecuted was 2.7 times that of awhite youth with similar case characteristics’, whereas the odds for a black youthwere only slightly higher than for a white youth.16

If a young defendant is taken to court, the youth court is required (subject to anexception mentioned below) to make a referral order wherever a young offender whohas not previously been convicted by a court pleads guilty to an offence.17The ordermay be for a period, to be specified, between 3 and 12 months The referral is to thelocal YOT, which is then bound to establish a youth offender panel for the offender,with a view to drawing up a programme of behaviour to which the offender is invited

to agree This procedure must involve the offender’s parent or guardian, but may notinvolve a legal representative The programme may involve the payment of financialcompensation to the victim, attendance at mediation sessions with the victim, theperformance of unpaid work in the community, participation in certain activitiesand so forth If the offender agrees, this becomes a ‘youth offender contract’, withprovisions for a return to court in the event of breach If the offender does notagree, the case is returned to the youth court and it is supposed to proceed to dealwith the offender as normal This whole procedure is framed in contractual terms,

13 Youth Justice Board ( 2004 ), p 3 14 Ball ( 2004 ), p 37.

15 Audit Commission ( 2004 ); but cf the questions raised by Bottoms ( 2004 ), pp 72–3.

16 Feilzer and Hood ( 2003 ), p ix 17 S 16 of the PCCS Act 2000.

but it is suffused with coercion, and that which is being coerced derives from largeelements of expert diagnosis and discretion.18However, the study of referral orders

by Newburn, Crawford and others showed that the new system was welcomed byall groups of participants:

Within a relatively short period of time the panels have established themselves asconstructive, deliberative and participatory forums in which to address young people’soffending behaviour The informal setting of youth offender panels would appear toallow young people, their parents/carers, victims (where they attend), community panelmembers and YOT advisers opportunities to discuss the nature and consequences of ayoung person’s offending, as well as how to respond to this in ways which seek to repairthe harm done and to address the causes of the young person’s offending behaviour.This view is echoed by all participants in panels 19

The same study reported that apology and reparation were recurrent features

of the contracts resulting from the panel meetings However, the involvement ofvictims was lower than expected, with only 13 per cent of panel meetings attended

by a victim and some 28 per cent overall in which a victim had some input (e.g

by written statement).20One substantial criticism of the referral order system wasthat its mandatory nature meant that many relatively minor cases were receivingundue attention National figures for 2002, the year in which referral orders weremade available to all courts, show that of some 19,000 referral orders made, thelargest group was for summary non-motoring offences (5,800), followed by theftand handling (4,200), followed by summary motoring offences (3,000).21The lawwas amended by Order in 2003 by giving the youth court a discretion not to make

a referral order in minor cases

Apart from referral orders, the youth court’s powers remain broadly unchanged,save for the introduction of some new powers and requirements by the CriminalJustice Act 2003

12.1.3 The youth court and non-custodial sentences

The framework of sentencing is somewhat similar to that for adults, in the sensethat the power to make an absolute discharge, conditional discharge, bind-over,compensation order and fine remain available in most cases.22If a financial penalty

is imposed, the parents may be ordered to pay if the offender is aged 16 or 17, andthey must be ordered to pay if the offender is aged under 16 The parents have aright to be heard before being ordered to pay, and it is their means that should betaken into account Although fining is not a common response to juvenile offend-ing, reconviction figures suggest that it is relatively effective, as is the conditionaldischarge.23

18 See Ball ( 2000 ) 19 Newburn, Crawford et al ( 2002 ), p 62.

20 Newburn, Crawford et al ( 2002 ), ch 8 21 Criminal Statistics 2002 , Table 4F.

22 For further discussion of these measures see ch 10 above.

23 Mair ( 2004 ), p 151, with qualifications.

Indeed, when dealing with offenders under 16, the youth court’s powers andduties extend to the parents of the offender Thus, a youth court is required toorder parents to attend court if their child is being prosecuted, unless it would beunreasonable to require this There is also a presumption that a court should bindover the parents of a child aged under 16 to exercise proper care and control overthe child: if it declines to do so, it should state its reasons There is a further power tobind over the parents of a child who is placed on a community sentence, requiringthem to ensure that the child completes it The general theme of encouraging greaterparental responsibility is undoubtedly right, insofar as family units are critical tomuch social behaviour But a more constructive approach than court orders, threatsand coercion would be to provide greater support for parents through local authoritysocial workers and parental support groups Thus the Children Act 1989 provides forlocal authorities to provide support and assistance to parents based on assessment ofthe needs of the child, without resort to care proceedings and without any attribution

of blame However, parents may have other duties imposed on them, such as that

of attending all meetings of a young offender panel relating to their child, where

a referral order has been made Indeed, ss 8–10 of the Crime and Disorder Act

1998 also empower a court to make a parenting order, requiring a parent to attendguidance sessions and so on as specified The questions of the appropriate degree

of coercion on parents of offending children remains controversial.24

Where a youth court is contemplating making a community order, it must complywith all the statutory requirements applicable to such orders (see Chapter 10.6above) However, the 2003 Act is not yet in force for offenders aged 16 and 17, so theold community sentences apply Where a youth court is dealing with an offenderaged 10–15, it is empowered to make a youth community order, and that may takeone of five forms:

a curfew order,

an exclusion order,

an attendance centre order,

a supervision order, or

an action plan order

The appropriate statutory provisions for these five orders are to be found in thePowers of Criminal Courts (Sentencing) Act 2000, and not in the Criminal JusticeAct 2003 Nothing more needs to be said here about curfew orders and exclu-

sion orders Attendance centres operate for three hours on a Saturday afternoon,

and involve the offenders in physical training and constructive work, among otherthings The maximum number of hours that can be ordered is 24 for offenders under

16 (36 for those aged 16 and under 25) Supervision orders involve supervision of the

offender by a local authority social worker They may include additional ments, similar to those included in activity requirements, programme requirements

require-24 See Zedner ( 1998 ), pp 176–81.

and other requirements for adults The action plan order involves supervision for

three months, during which the offender may be ordered to do one or more of awhole range of things found in other orders (e.g participate in specified activities,attend an attendance centre, report at certain times and places, make non-financialreparation to the victim or the community)

A major objective of the Youth Justice Board has been to tackle persistent youngoffenders, and one prominent initiative has been the development of the IntensiveSupervision and Surveillance Programme (ISSP) aimed at this group As the namesuggests, this programme attempted to combine the supervision of this difficult andoften troubled group of offenders with surveillance of them The Audit Commissioncommended ISSPs as ‘a more constructive and cheaper option for persistent youngoffenders than a spell in custody’.25An evaluation of the ISSP by an Oxford Universityteam showed that there was some reduction in reoffending in the short term, whichmay or may not have been attributable to ISSP, but a proper follow-up study isawaited The research also showed that ISSP was largely successful in ensuring thatunderlying needs, such as education, were tackled However, the study showed somevariation in the delivery of ISSP, with standards not uniformly high.26These findingsare sufficient to justify further development of ISSP, but they counsel caution inmaking claims about its effectiveness

The youth court may also make certain ancillary orders, of which the anti-social

behaviour order is the most prominent We have seen that ASBOs may be made in civil

proceedings or, alternatively, after sentence; we have also noted that around half ofall ASBOs are made against persons under 18 – even though the government statedduring the parliamentary debates that ASBOs were not intended for the young.Accepting the reality that young people are going to become subject to ASBOs inconsiderable numbers, the Youth Justice Board has pressed for greater involvement

of Youth Offending Teams with these young people.27This is now facilitated by

s 292 of the Criminal Justice Act 2003, which inserts into the legislative frameworkfor ASBOs a new power to make an ‘individual support order’, assigning the youngperson to a ‘responsible officer’ and requiring the young person to comply withdirections for a period of up to six months This promises to furnish some support

to young people on ASBOs, although the maximum of six months is well below theminimum period of two years for the ASBO

As we saw in Table6in Chapter1, the proportionate use of community sentenceshas increased considerably between 1992 and 2002, from 39 to 64 per cent of boysaged 10–17 and from 27 to 71 per cent of girls Discharges are now little used,and instead the youth court is more frequently imposing a community sentence –sometimes, it may be argued, on offenders whose crimes are not serious enough

to warrant this degree of intervention There appears to be much local variation inyouth justice: the study of some 17,000 cases by Feilzer and Hood found considerableevidence of ‘justice by geography’ in the disposal of cases by youth courts Looking

25 Audit Commission ( 2004 ) 26 Moore et al ( 2004 ) 27 Youth Justice Board ( 2004 ), p 7.

at ethnic origin in relation to community sentences, they found that Asian youthsand mixed-parentage youths were more likely to receive one of the more restrictivecommunity penalties than could be explained by their case characteristics.28

12.1.4 Custodial sentences

In Chapter9above we noted the sharp increase in the use of custody in Englishsentencing However, the sentencing of young offenders is an exception to this, atleast in respect of boys Thus as Table6in Chapter1demonstrates, the proportionateuse of custody for boys aged 10–17 increased from 10 per cent in 1992 to 14 per cent

in 1997 and then fell back to 13 per cent in 2002 For girls, however, the trajectoryhas been upwards – from 2 per cent in 1992 to 5 per cent in 1997 and to 7 per cent in

2002 These are increases, but not of the same magnitude as for adult offenders TheYouth Justice Board has endeavoured to generate a movement of young offendersaway from custodial sentences to community sentences, and 2003 saw a downturn inthe numbers of sentenced young offenders in custody, from 9,079 in November 2002

to 8,330 in November 2003.29The Audit Commission’s report in2004advocates

a reduction of the use of custodial sentences in favour of the more demandingcommunity orders, by means of greater emphasis on and information about ‘thecosts and the effectiveness of custody and community alternatives’.30

The custodial sentence for offenders aged 10–17 is the detention and trainingorder (DTO), the statutory provisions on which are to be found in the Powers ofCriminal Courts (Sentencing) Act 2000 Section 100 provides that no such order may

be made unless the provisions on the custody threshold are satisfied.31If the court issatisfied that the case passes the custody threshold, it may only impose a DTO on anoffender aged under 15 if it is of the opinion that he is a ‘persistent offender’, which

is not defined.32Also, a court may only impose a DTO on an offender aged 10 or

11 if of the opinion ‘that only a custodial sentence would be adequate to protect thepublic from further offending by him’ Section 101 provides that a DTO may only

be for one of the specified lengths – 4, 6, 8, 10, 12, 18 or 24 months Not surprisingly,this restriction has been criticized for playing havoc with courts’ attempts to reflectdifferences in culpability between offenders, and mitigating factors such as a plea ofguilty Under a DTO the young offender serves half the sentence in a young offenderinstitution and is then released under supervision for the remainder of the sentence

To some extent, therefore, the order already incorporates some of the elements to

be introduced as ‘custody plus’ for older offenders under the Criminal Justice Act

2003.33The new measures for adults, including custody plus, suspended sentencesand intermittent custody, are not available for offenders under 18

28 Feilzer and Hood (2004), p xi 29 Lewis ( 2004 ), pp 49–50.

30 Audit Commission ( 2004 ) 31 See ch 9.4.1 above.

32 It appears that a young offender with no previous convictions who is convicted of multiple offences

on his first court appearance may be classed as a ‘persistent offender’: AS [2001] 1 Cr App R (S)

62.

33 See ch 9.4.4 above.

Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 provides forthe long-term detention of young offenders for serious offences The power mayonly be exercised where the offender is convicted of an offence with a maximumpenalty of 14 years, or of a few listed offences Guidelines on the proper use of the

s 91 power were laid down in Mills (1998).34Whereas previously it had been heldthat the power should only be used in cases of exceptional gravity, this guidancemakes it clear that s 91 simply authorizes the use of that part of the tariff whichlies above the range of ordinary sentences of detention Thus, if a court concludesthat a particular case warrants a sentence longer than two years, it may use the

s 91 power so long as the offence falls within the purview of that power In Mills

Lord Bingham CJ emphasized that no young offender should be given a custodialsentence unless absolutely necessary, and then for no longer than is necessary And,

of course, the length of sentence should be calculated in a way that makes allowancefor the offender’s youth and for any plea of guilty Severe sentences are imposed onvery young offenders from time to time, such as the three-year sentence of long-termdetention imposed on a boy of 11 for causing grievous bodily harm to a youngerboy when he was 10.35

However, the power under s 91 is now joined by the much more severe powerunder part12of the Criminal Justice Act 2003 dealing with ‘dangerous offenders’.Part12of the new Act was discussed in some detail in Chapter6.9above, and ittherefore suffices here to repeat that there are three new forms of sentence Detentionfor life must be imposed in certain cases, where the offence is one to which s 91

of the 2000 Act applies (above) and where the court considers that the seriousness

of the offence justifies detention for life (s 226) Detention for public protectionmust be imposed in a case where the court believes that there is a serious risk to thepublic from which an extended sentence would not provide adequate protection(s 226(3)) And an extended sentence must be imposed if a young offender standsconvicted of a specified offence and the court believes that there is a significantrisk of serious harm otherwise (s 228) These are very severe sentences for youngoffenders, and it is to be hoped that the courts will use them restrictively

12.2 Young adult offenders

Offenders aged 18, 19 and 20 are tried and sentenced in adult courts, but there is somedifference in the orders available to the court There is a lengthy tradition of separatecustodial institutions for offenders aged under 21 – borstals, detention centres,youth custody centres and now young offender institutions The reasoning is partly

to prevent the ‘contamination’ of young offenders by older and more experiencedcriminals, and partly to enable more constructive regimes with a greater emphasis oneducation and on industrial training The Younger report justified special attention

to this group thus:

34 [1998] 1 Cr App R (S) 128. 35 Jamie Craig W [2003] 1 Cr App R (S) 502.