Custody for under-25s should be last resort, Council proposes

Custody should only be imposed on offenders below age 25 where the court is satisfied that no other sentence is appropriate, the Scottish Sentencing Council proposes today in a draft guideline issued for public consultation.

Having published research last week indicating that the human brain does not fully mature until age 25 (click here for news report), the Council believes that placing an emphasis on young people's potential for change will bring long-term social and economic benefits, by promoting reduced reoffending through rehabilitation and increased use of the children’s hearings system. It estimates that this could lead to an extra 1,000 referrals each year.

The research also found that imbalances in brain development explain the risk-taking, emotionally driven behaviour commonly attributed to young people, which may include illegal activity.

The guideline accordingly sets out what makes young people different from fully mature adults and how this should affect the selection of the most appropriate sentence for the 17,000 under-25s sentenced each year.

It requires sentencers to take account of a young person’s maturity when assessing their blameworthiness for an offence, and highlights the need to take into account factors common to many young people who commit offences, including adverse childhood experiences such as trauma or bereavement. The guideline recognises that young people have a greater capacity for change, hence the emphasis on rehabilitation.

Under the guideline, the full range of sentencing options, including custodial sentences, will remain open to courts when sentencing a young person. However, the guideline makes it clear that a custodial sentence should only be imposed on a young person when the judge is satisfied that no other sentence is appropriate. The guideline also suggests that judges should refer cases to a children’s hearing for advice where it is competent to do so.

The guideline will only apply to those who are young people at the point of sentencing. The sentencing of older people who were young at the time of the offence is expected to be addressed in the Council's second guideline, "The sentencing process", which is awaiting approval by the High Court. Its first guideline, "The Principles and Process of Sentencing", was approved in late 2019.

Lord Turnbull, senator member of the Scottish Sentencing Council, commented: "The sentencing of young people is a complex and challenging exercise which requires a more individualistic approach, with a need to take the unique personal circumstances of the young person into account. This guideline aims to increase public knowledge and confidence by explaining the process of sentencing a young person.

"We are satisfied, having commissioned independent research, that there is sufficient evidence to adopt a different approach to sentencing for those who are under 25."

He added: "To ensure our guidelines are of use to the courts, court users, and to the public in general we consider it vital to get the widest possible range of views on our guidelines. I would urge people to take this opportunity to help shape the development of this important sentencing guideline."

Welcoming the draft guideline, Claire Lightowler, director of the Centre for Youth and Criminal Justice, said: "The considered way this takes into account the complexities of sentencing young people is very encouraging. 

"Too many children and young people are still being tried in adult courts in Scotland, where they often cannot understand, let alone participate, in proceedings. Therefore, we are pleased to see the guideline encourages the courts to make more use of the children’s hearings system and for all options to be considered before imposing a custodial sentence on a young person, which we know has significant negative consequences for individuals and society.

"This work by the Scottish Sentencing Council is a valuable contribution to the discussion in Scotland about how we build a rights-respecting approach for children and young people in conflict with the law, which acknowledges the harm they can cause and respects the rights of those they harm."

Click here to access the consultation. The deadline for responding  is Friday 22 May 2020.

Further work by the Council is underway on guidelines relating to specific offences, including causing death by driving, indecent images of children, rape, and sexual assault.