“A tale as old as time”: crossing the significant age threshold into adulthood

In reviewing the case of R v T [2020] EWCA Crim 822, Chloe Birch sets out the considerations for those who turn 18 between commission of an offence, date of conviction, and sentence.

Sentencing in the Youth Court is governed by Youth Sentencing Principles, which are – for understandable reasons – different to those which govern the adult sentencing regime. When sentencing young people in the criminal courts, tribunals must have regard to the principal aim of youth justice: to prevent offending by children and young people. The focus is on rehabilitation where possible – so say the Overarching Principles of the Sentencing Children and Young People Definitive Guideline.

But, what about those who commit an offence as a young person of 16 or 17 years old and are 18 by the time of conviction? Should they be sentenced as the adult they have become, by virtue of their numerical age, or as the child they were when the offence was committed?

What about co-defendants who are still 16 or 17 years old, or younger? Is it right that they are sentenced principally considering their rehabilitation and the prevention of re-offending, whilst their friend is dealt with as an adult?

What if the delays in the case which mean a defendant has turned 18 years old before sentence, are through no fault of theirs?

R v T [2020] EWCA Crim 822

In the recent case of R v T [2020] EWCA Crim 822, the Court of Appeal considered the disparity in sentence between defendants who had taken part in committing the same offence but were dealt with separately for sentence in the Youth Court and the Crown Court.     

The case began as an allegation of section 18 GBH with intent against six youth defendants – all of varying ages: the youngest being 14, and the oldest being the appellant, T (who was 17 at the time of the offence). The six youths appeared before the Youth Court for their first appearance on 27^th August 2019, when their case was sent to the Crown Court. The first hearing – as per the normal timescales – at the Crown Court, was 24^th September 2019, which happened to be T’s 18^th birthday. The Crown indicated that if the defendants who had caused the complainant’s fractured cheekbone, and produced the knife and committed the stabbing, were to plead guilty to the GBH offences, pleas to s4 Public Order would be available for, and acceptable from, the remaining defendants – including T. T had no control over the pleas of the others.

The two leading offenders did plead guilty to the GBH offences, but not until November 2019 – by which time T was 18 years and 2 months old. Once these pleas were formally entered, pleas to s4 public order were accepted from the remaining defendants, all of whom – apart from T – were remitted to the Youth Court for sentence. Even the two who had pleaded guilty to GBH. Because T had entered his guilty plea as an adult, he remained in the Crown Court for sentence. He was the only one over 18 years old at the date of the pleas being entered.

T was sentenced to an 18-month Community Order with what the Court of Appeal called “substantial requirements”.

The remaining co-defendants were all sentenced at the Youth Court. Under the youth sentencing principles, because they had pleaded guilty to a first time offence, they were all entitled to a Referral Order – which all of them received – even the two who had pleaded guilty to fracturing a cheekbone and stabbing. T’s role was far less serious than either of these, and yet his sentence was more onerous. The other offenders who, like T, had pleaded guilty to section 4 Public Order received Referral Orders of 3 months in length. Of note, the stabber had since also turned 18 years old – after the case had been remitted to the Youth Court for sentence.

T appealed his sentence on the grounds that it was manifestly excessive compared to the sentences imposed on the co-defendants.

Authority indicates that turning 18 is not a “cliff edge” in sentencing. In R v Clarke [2018] EWCA Crim 185, the Court of Appeal said that “reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purpose of sentencing” [paragraph 5] and that youth and maturity can be “potent factors” [paragraph 39] in determining sentence. But T’s case is a vivid example of how unjust disparity still features – particularly in multi-handed youth/young adult cases.  

Sentencing Council Definitive Guideline

The important date is that at which there is a “finding of guilt”, whether by plea or conviction. At paragraph 6.1 of the Overarching Principles, it is noted that “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 the date on which the offence was committed.”

In such situations, continues the Guideline, 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 have not merely increased in childhood age, but who attain the age of 18between the commission of the offence and the finding of guilt. When this occurs, the purposes of sentencing adult offenders have to be taken into account, which are:

• 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.

The case of R v Ghafoor (Imran Hussain) [2002] EWCA Crim 1857 sets out these points which are reflected ins142 Criminal Justice Act 2003.

Paragraph 6.3 of the Definitive Guideline states that 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 – the maximum may be appropriate.

In the case of R v Amin [2019] EWCA Crim 1583, the Court of Appeal considered the case of Amin who was 17 at the time of commission of the offence but 18 at the time of conviction. Allowing the appeal, they quashed a sentence of 4 years’ detention for a Detention and Training Order of 24 months. In that case, assessing the line of authority on this point and with reference specifically to section 6 of the Definitive Guideline, the Court reiterated that although it is not the sole factor, the age at the time of commission of the offence is a significant factor to take into account and remains the starting point for the sentencing tribunal.

Similarly, in R v Obasi [2014] EWCA Crim 581 [paragraph 6] the Court observed: “with respect to an offender who has crossed a relevant age threshold between the date of the offence and the date of conviction, culpability is generally to be judged by reference to the offender’s age at the time of committing the offence”.

Court of Appeal – R v T

Turning then to the judgment of the Court of Appeal in the case of T, setting out the considerations of disparity [paragraph 18] they remarked, adapting the well-known test of Lawton LJ in Fawcett [1983] 5 Cr.App.R. (S) 158: “looking at the matter in terms of disparity, the question is whether a right-thinking member of the public would consider that something had gone wrong with the administration of justice when this appellant received a substantial community sentence with significant requirements attached to it, yet his co-accused received shorter and less onerous Referral Orders instead, including in particular, a defendant who was only three months younger and who had pleaded guilty to the much more serious offence of inflicting grievous bodily harm”.

Having read Probation reports of T’s engagement with the Community Order in the time awaiting Appeal, the Court of Appeal sought to achieve parity with the Referral Orders imposed on the co-defendants by reducing the length of the Community Order, and quashing its additional requirements.

“That said” – said the Court of Appeal – “the real problem in this case arises simply from the accident of the appellant’s age and the timing of the relevant court appearances, which has resulted in the cliff edge of an adult sentence at the age of 18”.

The “accident” of T’s age and the timing of court appearances is of particular concern knowing, as we do, about the delays and likely case timeframes in 2021 criminal justice. It highlights the huge impact that even the shortest of delays can have on how young people are dealt with by the courts, and how wary youth practitioners must be before time is allowed to elapse unnecessarily.

Wider impacts include rehabilitation periods of adult sentences which are much greater. Although in effect T will have engaged in the same rehabilitation work with Probation as his co-defendants did with the Youth Offending Team, the Community Order will take an additional year to be “spent” in terms of his criminal record, compared to a Referral Order which is spent as soon as it is complete. Similarly, the point of release from imprisonment, and the length of time defendants are subject to the Sex Offenders’ Notification Requirements are also greater.

Of course, defendants who are accused of offences can cross the significant age threshold of 18 between the date of commission of the offence and the first court appearance. In that instance, the Youth Court has no jurisdiction to hear the case at all. Small impacts such as lack of access to YOT, the physical layout of the courtroom, the company of an appropriate adult, may all make a material difference to the experience of a very young adult in a criminal court, perhaps for the first time. The concept of RUI means it is increasingly the case that the timescales of police station cases are extended by months, if not years. These currently involve no fast-tracking provisions for young people, including those approaching their 18^th birthday. This can also preclude young people from being eligible for youth cautions or out-of-court disposals designed to triage them away from the criminal justice system at the earliest stage. 

In a time where, unfortunately, the timelines of the relevant court appearances are likely to cause a cliff edge of adult sentencing for youths who find themselves in the adult court arena – particularly those in multi-handed cases where control over proceedings is not all theirs – the 18^th birthday of youth clients should be as important to youth practitioners as it is to youth defendants themselves.  We must be ready to ensure that, despite their numerical age, young people who commit offences as young people are appropriately dealt with as just that.

Chloe Birch is one of Carmelite’s newest junior tenants. She has a very busy Youth Court practice and is frequently instructed in serious youth cases including robbery, weapon offences, public order offences and those of serious violence, with a proven record of success. She is Vice-Chair of Women in Criminal Law, and a Middle Temple scholar.