This guideline should be read alongside Sentencing children and young people – overarching principles definitive guideline, which provides comprehensive guidance on the sentencing principles and welfare considerations that the court should have in mind when sentencing children and young people.
Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.
The Sentencing Council issues this definitive guideline in accordance with section 120 of the Coroners and Justice Act 2009. It applies to all children or young people, who are sentenced on or after 1 June 2017, regardless of the date of the offence.
Section 59(1) of the Sentencing Code provides that:
“Every court –
- must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and
- 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.”
Guidance for sentencing children and young people set out in the 2006 robbery guideline and the 2007 sexual offences guideline, both produced by the Sentencing Guidelines Council, are replaced by this guideline. See also:
- Sentencing children and young people - robbery
- Sentencing children and young people - sexual offences
Guilty plea section only
Section 73 of the Sentencing Code provides: (1) This section applies where a court is determining what sentence to pass on an offender who has pleaded guilty to an offence in proceedings before that or another court. (2) The court must take into account the following matters—
(a) the stage in the proceedings for the offence at which the offender indicated the intention to plead guilty, and
(b) the circumstances in which the indication was given.
This section of the guideline applies regardless of the date of the offence to all children or young people where the first hearing is on or after 1 June 2017. It applies equally in youth courts, magistrates’ courts and the Crown Court.
1 ‘Offence’ includes breach of an order where this constitutes a separate criminal offence but not breach of terms of a sentence or licence.
Sentencing a child or young person for sexual offences involves a number of different considerations from adults. The primary difference is the age and level of maturity. Children and young people are less emotionally developed than adults; offending can arise through inappropriate sexual experimentation; gang or peer group pressure to engage in sexual activity; or a lack of understanding regarding consent, exploitation, coercion and appropriate sexual behaviour.
Below is a non-exhaustive list of factors that illustrate the type of background factors that may have played a part in leading a child or young person to commit an offence of this kind.
- Victim of neglect or abuse (sexual, physical or emotional) or has witnessed the neglect or abuse of another.
- Exposure to pornography or materials which are age inappropriate.
- Involvement in gangs.
- Associated with child sexual exploitation.
- Unstable living or educational arrangements.
- Communication or learning disabilities or mental health concerns.
- Part of a peer group, school or neighbourhood where harmful sexual norms and attitudes go unchallenged.
- A trigger event such as the death of a close relative or a family breakdown.
The first step in determining the sentence is to assess the seriousness of the offence. This assessment is made by considering the nature of the offence and any aggravating and mitigating factors relating to the offence itself. The fact that a sentence threshold is crossed does not necessarily mean that that sentence should be imposed.
Step 1 – Offence seriousness: nature of the offence
The boxes below give examples of the type of culpability and harm factors that may indicate that a particular threshold of sentence has been crossed.
A non-custodial sentence* may be the most suitable disposal where one or more of the following factors apply
- Any form of non-penetrative sexual activity
- Any form of sexual activity (including penetration) without coercion, exploitation or pressure except where there is a significant disparity in age or maturity
- Minimal psychological or physical harm caused to the victim
A custodial sentence or youth rehabilitation order with intensive supervision and surveillance* or fostering* may be justified where one or more of the following factors apply
- Any penetrative activity involving coercion, exploitation or pressure
- Use or threats of violence against the victim or someone known to the victim
- Prolonged detention/sustained incident
- Severe psychological or physical harm caused to the victim
* Where the child or young person appears in the magistrates’ court, and the conditions for a compulsory referral order apply, a referral order must be imposed unless the court is considering imposing a discharge, hospital order or custody.
Step 2 – Offence Seriousness: aggravating and mitigating factors
To complete the assessment of seriousness the court should consider the aggravating and mitigating factors relevant to the offence.
Aggravating factors
Statutory aggravating factors
- Previous findings of guilt, having regard to a) the nature of the offence to which the finding of guilt relates and its relevance to the current offence; and b) the time that has elapsed since the finding of guilt
- Offence committed whilst on bail
- Offence motivated by, or demonstrating hostility based on any of the following characteristics or presumed characteristics of the victim: religion, race, disability, sexual orientation or transgender identity
Other aggravating factors (non-exhaustive)
- Significant degree of planning
- Child or young person acts together with others to commit the offence
- Use of alcohol/drugs on victim to facilitate the offence
- Abuse of trust
- Deliberate humiliation of victim, including but not limited to filming of the offence, deliberately committing the offence before a group of peers with the intention of causing additional distress or circulating details/photos/videos etc of the offence on social media or within peer groups
- Grooming
- Significant disparity of age between the child or young person and the victim (measured chronologically or with reference to level of maturity) (where not taken into account at step one)
- Victim is particularly vulnerable due to factors including but not limited to age, mental or physical disability
- Any steps taken to prevent reporting the incident/seeking assistance
- Pregnancy or STI as a consequence of offence
- Blackmail
- Use of weapon
Mitigating factors (non-exhaustive)
- No previous findings of guilt or no relevant/recent findings of guilt
- Good character and/or exemplary conduct
- Participated in offence due to bullying, peer pressure, coercion or manipulation
- Genuine belief that activity was lawful
Step 3 – Personal mitigation
Having assessed the offence seriousness, the court should then consider the mitigation personal to the child or young person to determine whether a custodial sentence or a community sentence is necessary. The effect of personal mitigation may reduce what would otherwise be a custodial sentence to a non‑custodial one, or a community sentence to a different means of disposal.
Personal mitigating factors (non-exhaustive)
- Particularly young or immature child or young person (where it affects their responsibility)
- Communication or learning disabilities or mental health concerns
- Unstable upbringing including but not limited to:
- time spent looked after
- lack of familial presence or support
- disrupted experiences in accommodation or education
- exposure to drug/alcohol abuse, familial criminal behaviour or domestic abuse
- exposure by others to pornography or sexually explicit materials
- victim of neglect or abuse, or exposure to neglect or abuse of others
- experiences of trauma or loss
- Determination and/or demonstration of steps taken to address offending behaviour
- Strong prospect of rehabilitation
- Child or young person in education, training or employment
Step 4 – Reduction for guilty plea
The court should take account of any potential reduction for a guilty plea in accordance with section 73 of the Sentencing Code and part one, section five of the Sentencing children and young people – overarching principles definitive guideline.
The reduction in sentence for a guilty plea can be taken into account by imposing one type of sentence rather than another; for example:
- by reducing a custodial sentence to a community sentence; or
- by reducing a community sentence to a different means of disposal.
Alternatively the court could reduce the length or severity of any punitive requirements attached to a community sentence. See the Sentencing children and young people – overarching principles definitive guideline for details of other available sentences including Referral Orders and Reparation Orders.
Step 5 – Review the sentence
The court must now review the sentence to ensure it is the most appropriate one for the child or young person. This will include an assessment of the likelihood of reoffending and the risk of causing serious harm. See the Sentencing children and young people – overarching principles definitive guideline for comprehensive guidance on the sentencing principles and welfare considerations that the court should have in mind when sentencing children and young people, and for the full range of the sentences available to the court.
Referral Orders
In cases where children or young people have offended for the first time and have pleaded guilty to committing an offence which is on the cusp of the custody threshold, YOTs should be encouraged to convene a Youth Offender Panel prior to sentence (sometimes referred to as a “pseudo-panel” or “pre-panel”) where the child or young person is asked to attend before a panel and agree an intensive contract. If that contract is placed before the sentencing youth court, the court can then decide whether it is sufficient to move below custody on this occasion. The proposed contract is not something the court can alter in any way; the court will still have to make a decision between referral order and custody but can do so on the basis that if it makes a referral order it can have confidence in what that will entail in the particular case.
The court determines the length of the order but a Referral Order Panel determines the requirements of the order.
| Offence seriousness | Suggested length of referral order |
|---|---|
| Low | 3 – 5 months |
| Medium | 5 – 7 months |
| High | 7 – 9 months |
| Very high | 10 – 12 months |
The YOT may propose certain requirements and the length of these requirements may not correspond to the above table; if the court feels these requirements will best achieve the aims of the youth justice system then they may still be imposed.
Youth Rehabilitation Order (YRO)
The following table sets out the different levels of intensity that are available under a Youth Rehabilitation Order. The level of intensity and the content of the order will depend upon the court’s assessment of seriousness.
| Requirements of order | ||
|---|---|---|
| Standard | Low likelihood of re‑offending and a low risk of serious harm | Primarily seek to repair harm caused through, for example:
|
| Enhanced | Medium likelihood of re-offending or a medium risk of serious harm | Seek to repair harm caused and to enable help or change through, for example:
|
| Intensive | High likelihood of re-offending or a very high risk of serious harm | Seek to ensure the control of and enable help or change for the child or young person through, for example:
|
YRO with Intensive Supervision and Surveillance (ISS) or YRO with Fostering
A YRO with an ISS or fostering requirement can only be imposed where the court is of the opinion that the offence has crossed the custody threshold and custody is merited.
The YRO with ISS includes an extended activity requirement, a supervision requirement and curfew. The YRO with fostering requires the child or young person to reside with a local authority foster parent for a specified period of up to 12 months.
Custodial Sentences
If a custodial sentence is imposed, the court must state its reasons for being satisfied that the offence is so serious that no other sanction would be appropriate and, in particular, why a YRO with ISS or fostering could not be justified.
Where a custodial sentence is unavoidable the length of custody imposed must be the shortest commensurate with the seriousness of the offence. The court may want to consider the equivalent adult guideline in order to determine the appropriate length of the sentence.
If considering the adult guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the appropriate adult sentence for those aged 15 – 17 and allow a greater reduction for those aged under 15. This is only a rough guide and must not be applied mechanistically. The individual factors relating to the offence and the child or young person are of the greatest importance and may present good reason to impose a sentence outside of this range.
Step 5 – Ancillary
| May be made by | A youth court or a magistrates’ court |
| Relevant legislation | Sentencing Act 2020, part 11, Chapter 4 |
| Availability |
If the child is aged under 16 at the time of conviction, the court must make a parenting order in respect of a parent or guardian of the child if it is satisfied that the order would be desirable in the interests of preventing the commission of any further offence by the child. If the child is aged 16 or 17 at the time of conviction, the court may make a parenting order in respect of a parent or guardian of the child if it is satisfied that the order would be desirable in the interests of preventing the commission of any further offence by the child.
|
| Content of the order |
the court may provide in the order that a counselling or guidance programme which the parent or guardian is required to attend by virtue of the requirement may be or include a residential course.
|
| Considerations |
|
| Reasons | Where the child is under 16 at the time of conviction and the court does not make a parenting order in respect of their parent or guardian, the court must state its reasons. This does not apply if the court makes a referral order in respect of the child. |
| Length of the order | The term of the order must not exceed 12 months. |
| Consequences of Breach | Breach of a parenting order is a criminal offence, maximum penalty level 3 fine. |
| May be made by | A magistrates’ court or the Crown Court |
| Relevant legislation | Sentencing Act 2020, part 11, Chapter 2 |
|
Availability
|
Where a person is convicted of an offence listed in Schedule 3 or Schedule 5 to the Sexual Offences Act 2003 the court dealing with the offender in respect of the offence may make an SHPO if satisfied that it is necessary to do so for the purpose of—
No application is necessary for the court to make a SHPO at the point of sentence although the prosecutor may wish to invite the court to consider making an order in appropriate cases. The court may ask pre-sentence report writers to consider the suitability of a SHPO on a non-prejudicial basis. Sentencing Act 2020, s344(2) provides that any conditions in Sch. 3 SOA 2003 relating to the age of the offender or the victim, or the sentence imposed on the offender may be disregarded in determining whether the offence is listed in schedule 3. |
| Considerations | The details of the offence are likely to be a key factor in the court’s decision, together with the offender’s previous convictions and the assessment of risk presented by the Probation Service in any pre-sentence report. The court may take into consideration the range of other options available to it in respect of protecting the public. The court may want to consider:
|
| Content of the order | The order may prohibit the offender from doing anything described in the order or require the offender to do anything described in the order.
The prohibitions or requirements which are imposed must, so far as practicable, be such as to avoid—
A SHPO that imposes a requirement (other than an electronic monitoring requirement) to do something must specify a person who is to be responsible for supervising compliance with the requirement. The person may be an individual or organisation. The court must receive evidence about the requirements suitability and enforceability from the individual who will enforce it or from an individual representing the organisation who will enforce it. |
| Length of the order
|
Within the SHPO the Court must specify the period for which each prohibition or requirement is to have effect (the specified period).
The specified period must either be a fixed period of not less than 5 years or an indefinite period (so that the prohibition or requirement has effect until further order). The order may specify different periods for different prohibitions or requirements. As a guide, the specified period would normally be the same length as the statutory notification period. Where the specified period is longer than the statutory notification period, the offender will remain subject to the notification requirements for the full duration of the sexual harm prevention order. |
| Effect on earlier orders | Where an order is made in respect of an offender who is already subject to an SHPO, the earlier SHPO ceases to have effect. If the offender is already subject to a Sexual Offences Prevention Order or Foreign Travel Order made in Scotland or Northern Ireland, that order ceases to have effect unless the court orders otherwise. |
| Consequences of breach | Breach of a SHPO is a criminal offence, maximum penalty five years’ custody. |