The Scottish Sentencing Council’s new guideline on sentencing young people, its highest profile guideline to date, comes into effect on 26 January. Following extensive research and engagement, the guideline was submitted to the High Court and was approved on 9 November 2021. This marked what Lady Dorrian, Lord Justice Clerk and chair of the Council, called a “significant milestone which will help to increase understanding and awareness of this complex and challenging area”.
There certainly appears to be a need for this. An independent analysis of responses to a public consultation on the draft guideline revealed overwhelming support from organisations with experience of the criminal justice system; but it also showed that many individuals disagreed with aspects of the guideline and appeared to lack understanding of the law surrounding young offenders and the factors relevant when sentencing them.
This may not come as any great surprise to those who work within the system. Criminal justice has always provoked a great deal of interest from those outwith the profession, many of whom hold strong opinions on how we should be tackling crime and improving the protection of the public. Defence solicitors will have had to defend their vocation a hundred times. Now there is a new matter to justify: “Why should the criminal justice system treat under 25s differently?”
As a defence lawyer for more than 25 years, I joined the Council as its solicitor member in 2018 and was appointed to the committee leading on the guideline’s development shortly thereafter. Naturally, I have an interest in how the guideline has been received and I am keen to address any misunderstandings around it. The Council’s consultation report does this in depth, so I will focus here only on a few of the key objections that surfaced.
Let’s start with the decision to define a young person for the purposes of the guideline as someone under 25. While organisations overwhelmingly agreed with this proposal, a significant majority of the individuals responding to the consultation did not.
As any experienced defence lawyer will tell you, and studies have shown, many young people begin to desist from offending by their mid-20s. A comprehensive review of the latest neurological, neuropsychological, and psychological evidence on cognitive maturity – which provided the evidential basis for the guideline’s definition of a young person – explains why.
It found that the brain does not fully develop until at least 25, and that cognitive development can be delayed or hindered by experiences of trauma and adversity in childhood. In particular, the areas of the brain governing emotion develop before those which assist with self-control. This imbalance explains the risk-taking, emotionally-driven behaviour commonly attributed to young people. We might even recognise that as eloquent of the behaviour of young adults dear to us, or dare I say, of our younger self! Research also explains why this behaviour, which can contribute to criminality, tails off in the mid-20s.
All of this is, of course, directly relevant to sentencing. It means a young person lacking maturity will generally have a lower level of culpability than an older person for a similar offence.
Without citing any research calling into question the evidence drawn on by the Council, some who disagreed with this did so on the basis of assumptions such as that the Council was suggesting under 25s should be treated as children, or that they do not know right from wrong.
It is important in this specific context to emphasise that neither the research nor the guideline states that all under 25s necessarily have immature brains. That is why the guideline requires an assessment of the individual’s maturity when under 25, taking into account, among other things, the impact of any trauma or adverse childhood experiences.
It also needs to be stressed that the research does not suggest that under 25s do not know right from wrong, but rather that they may have more difficulty acting appropriately or controlling their emotions and impulses despite knowing that what they are doing may be wrong or have negative consequences.
Another common dissenting argument was that young people can vote, marry, join the armed forces or learn to drive at earlier ages so the guideline should align with these. But reaching full maturity is a process, not an event, and it does not arrive on a particular birthday.
The decision on the age threshold aligns with developments elsewhere. For example: the new youth justice vision and priorities prepared by the Scottish Government and the Youth Justice Improvement Board proposes to extend the Whole System Approach to those up to age 26 where possible and appropriate; the Probation Service in England & Wales assesses the maturity of offenders up to age 25 in pre-sentence reports; and the Irish Government has announced that it will look at increasing the age limit for its youth diversion scheme from 18 to 24.
Selecting the disposal
Two further themes emerged during consultation: first, how the guideline should address victims’ issues; and secondly, the role of community-based options as opposed to custody.
In respect of the first issue, the Council takes the impact of crime on victims very seriously and carried out direct engagement with victims’ and survivors’ organisations during the consultation. Based on these discussions, and its consideration of consultation responses, the Council amended the guideline. This was to make it clearer that the assessment of seriousness – which requires the evaluation of the level of culpability and harm – includes the impact on any victim or victims; and, critically, that the guideline does not affect the assessment of harm. That is to say, although lack of maturity affects culpability, it does not have any bearing on the consideration of the impact on the victim.
With regard to community sentences, the Council recognises that these can provide an effective – and challenging – sentencing option. Indeed, research suggests community-based sentences are more successful in reducing reoffending than short custodial sentences.
As the Council has noted elsewhere, community payback orders can impose severe restrictions on offenders, and can last months or years. They can include elements of punishment, such as deprivation of liberty or unpaid work, and rehabilitation, such as programmes to help stop further offending behaviour. And confronting and moving away from the causes of one’s offending behaviour can sometimes be one of the hardest things for any offender to do.
Practitioners know that community sentences can be anything but a “soft option”. It is also worth bearing in mind that while the guideline states that a period of custody should usually be shorter for a younger person than an older person, in recognition that a young person might be in need of a more interventionist approach it allows for a more challenging community sentence for a young person than might otherwise be selected.
It can be a hard sell to the public, but in terms of their longer term protection, a community sentence must surely be more effective than a short period of custody, especially when such an order can effect lasting change and successful rehabilitation of a young person.
And in respect of one of the guideline’s key themes – rehabilitation, which it states should be a primary consideration – the consultation results were similar to the findings of a nationally representative study carried out on the Council’s behalf by Ipsos MORI. This revealed that a majority of the public believe that rehabilitation is the single most important thing Scottish courts should be trying to achieve when sentencing young people.
As well as the final guideline receiving the High Court’s approval in November last year, it has been gratifying to note it has met with a largely positive reaction.
The work does not end there, however. The complexities involved in sentencing young people are not, generally speaking, well understood by those outwith the criminal justice system. The guideline will play a part in addressing this, but it will not be enough in and of itself, and the Council will be undertaking specific educational activity in the days and weeks ahead in furtherance of its statutory duty to increase public awareness and understanding of sentencing. The profession can help spread the word, too.
We all have an interest in increasing public confidence in sentencing, and this is especially important as the Council enters a new phase of its work, where its focus will be on offence guidelines involving a number of matters of significant public concern. These include guidelines on death by driving, rape, sexual assault, indecent images of children, and domestic abuse offences. These are also offences in which children or young people can, sadly, be involved: either as perpetrator or victim or as witnesses. It is therefore imperative that the development of these guidelines is informed by research and engagement involving children and young people and those who work with and represent them.
I look forward to hearing practitioners regularly refer to the guideline in court. Those of us already familiar with it will note that the guideline refers to young people having a greater capacity for change and rehabilitation than older people. So too is there a capacity for change in people’s attitudes to sentencing and to how we treat young people who offend. The efficacy of the guideline depends upon us all helping to achieve that goal.
Krista Johnston is a solicitor advocate, a director of Martin Johnston & Socha, and a member of the Scottish Sentencing Council