Sentencing adults for crimes committed when under 18

The Court of Appeal provided helpful guidance in the case of Ahmed [2023] EWCA Crim 281, confirming the correct approach to be applied when sentencing an adult who offended as a minor.

Their Lordships helpfully set out the applicable legal framework when sentencing minors:

By section 44(1) of the Children and Young Persons Act 1933: “Every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person and shall in a proper case take steps for removing him from undesirable surroundings, and for securing that proper provision is made for his education and training.” 5.

By section 37 of the Crime and Disorder Act 1998: “(1) It shall be the principal aim of the youth justice system to prevent offending by children and young persons. (2) In addition to any other duty to which they are subject, it shall be the duty of all persons and bodies carrying out functions in relation to the youth justice system to have regard to that aim.” 6.

By section 59(1) of the Sentencing Code (which reproduced a provision previously contained in section 125 of the Coroners and Justice Act 2009) – “(1) Every court- (a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and (b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so.

Reference was also made to guidance contained withing the Sentencing Council’s ‘Sentencing Children and Young People’ – Overarching Principles (“the Children guideline”) with regards to sentencing offenders who cross a significant age threshold between the date of committing the offence and the date of sentence:

“6.1 There will be occasions when an increase in the age of a child or young person will result in the maximum sentence on the date of the finding of guilt being greater than that available on which the offence was committed (primarily turning 12, 15 or 18 years old)

6.2 In such situations the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed. This includes young people who attain the age of 18 between the commission and the finding of guilt of the offence but when this occurs the purpose of sentencing adult offenders has to be taken into account, which is: • the punishment of offenders. • the reduction of crime (including its reduction by deterrence). • the reform and rehabilitation of offenders. • the protection of the public; and • the making of reparation by offenders to persons affected by their offences

6.3 When any significant age threshold is passed it will rarely be appropriate that a more severe sentence than the maximum that the court could have imposed at the time the offence was committed should be imposed. However, a sentence at or close to that maximum may be appropriate”

Picking up where R v Limon [2022] EWCA Crim 39 left off, the Court of Appeal held that the following approach should be applied when sentencing an adult offender for an offence(s) committed when under 18:

1. Whatever may be the offender’s age at the time of conviction and sentence, the Children guideline is relevant and must be followed unless the court is satisfied that it would be contrary to the interests of justice to do so

1. The court must have regard to (though is not necessarily restricted by: see (v) below) the maximum sentence which was available in the case of the offender at or shortly after the time of his offending. Depending on the nature of the offending and the age of the offender, that maximum may be (a) the same as would have applied to an adult offender; (b) limited by statutory provisions setting a different maximum for an offender who had not attained a particular age; or (c) limited by statutory provisions restricting the availability of different types or lengths of custodial sentence according to the age of the offender

1. The court must take as its starting point the sentence which it considers was likely to have been imposed if the child offender had been sentenced shortly after the offence

1. If in all the circumstances of the case the child offender could not in law have been sentenced (at the time of his offending) to any form of custody, then no custodial sentence may be imposed

• Where some form of custody was available, the court is not necessarily bound by the maximum applicable to the child offender. The court should, however, only exceed that maximum where there is good reason to do so. In this regard, the mere fact that the offender has now attained adulthood is not in itself a good reason. We would add that we find it very difficult to think of circumstances in which a good reason could properly be found, and we respectfully doubt the decision in Forbes in this respect. However, the point was not specifically argued before us, and a decision about it must therefore await a case in which it is directly raised

• The starting point taken in accordance with (iii) above will not necessarily be the end point. Subsequent events may enable the court to be sure that the culpability of the child offender was higher, or lower, than would likely have been apparent at the time of the offending. They may show that an offence was not, as it might have seemed at the time, an isolated lapse by a child, but rather a part of a continuing course of conduct. The passage of time may enable the court to be sure that the harm caused by the offending was greater than would likely have been apparent at that time. Because the court is sentencing an adult, it must have regard to the purposes of sentencing set out in section 57 of the Sentencing Code. In each case, the issue for the court to resolve will be whether there is good reason to impose on the adult a sentence more severe than he would have been likely to have received if he had been sentenced soon after the offence as a child

For further details:

R v Ahmed (Nazir) and others (judiciary.uk)

R v Ahmed & Ors: New Guideline Sentencing Case for Defendants Sentenced as Adults for Offences Committed as Children (yjlc.uk)