Public opinion and understanding of sentencing

Response to the House of Commons Justice Select Committee Inquiry

Professor Kathryn Hollingsworth

Kathryn.Hollingsworth@newcastle.ac.uk

16th January 2023

1. About the respondent

1.1  I am a professor of law at Newcastle University. My research focuses on children’s rights in the criminal justice system, and my current work examines children’s access to justice and their understanding of legal outcomes, especially in relation to sentencing.  I have assisted the Judicial College in amending the Crown Court Compendium: Part II Sentencing in relation to the sentencing of children and communicating sentences to children.[1] I am on several advisory boards for youth justice organisations including the Youth Justice Board and the Youth Justice Legal Centre.

2. Response to the inquiry on public opinion and understanding of sentencing

2.1  This response addresses the terms of reference with a specific focus on children (defined as those under the age of 18 years). 

2.2  In summary, this response urges the committee to pay special regard to children in the following ways:

2.2.1        that any consideration of public opinion and understanding of sentencing should specifically consider the public’s opinion and understanding of sentences for, and sentencing of, children (issue 1);

2.2.2        that any consideration of the public’s opinion and understanding of sentencing should specifically consider children as a subset of the broader public, and thus consider children’s opinion and knowledge of sentencing (issue 2).

3. Issue 1

Summary: Any consideration of public opinion and understanding of sentencing should specifically consider the public’s opinion and understanding of sentences for, and sentencing of, children.

This section addresses the following consultation questions with specific regard to public opinion and knowledge of sentencing for and of children:

(i)                 What does the public know about the current approach to sentencing in England and Wales?

(ii)               What is public opinion on sentencing, and how can it be ascertained or measured?

(iii)            What are the barriers to improving public awareness of how sentencing works?

Knowledge and Opinion

3.1 A survey carried out by Roberts and Hough in 2005 examined public opinion on sentencing children. This research revealed a ‘significant gap between the kinds of dispositions that the public expects to be imposed, and those that people would like to see imposed’.[2] However, they found the public to be ‘far from uniformly punitive’ and that where children make restorative gestures, the support for custody declines.[3]

3.2 Hough and Roberts’ survey considered public opinion but did not specifically explore public knowledge of sentences or sentencing practice in relation to children.  However, they suggest that it is reasonable to assume (aligning with research on adult sentencing) that the public underestimates the severity of youth court sentencing. They note that the circumstances of the lives of children who offend are rarely part of media discourse around youth crime, and that this can promote more punitive opinions that favour the greater use of custody. Thus, they conclude, there is a need for the public to better understand the individual circumstances of the child and their life, and his or her degree of culpability.

3.3. Since this study in 2005, there have been significant shifts in the sentencing of children. This includes a massive decline in the number of children being sentenced and being sentenced to custody in particular; and changes to sentencing law and sentencing practice, including the introduction of a revised Guideline for Sentencing Children and Young People.[4] The Guideline for Sentencing Children and Young People represents a more children’s rights-based focus to sentencing, and one that is focused very heavily on an individualised approach to sentencing. At the same time, some legislative changes have become more punitive.[5]

3.4 It is recommended that new research be commissioned to examine public knowledge and opinion of sentencing children in England and Wales to reflect the current legal and practice context.

Barriers

3. 5 Public knowledge of sentencing of children is likely to be lower than public knowledge of the sentencing of adults for at least two reasons:

(i) The public have fewer opportunities to experience the sentencing of children first-hand

3.6 The majority of children are sentenced in the youth court (95% in 2021).[6] The public are excluded from the youth court for good reason: to create a less intimidating environment that better enables child defendants’ participation; and to protect their anonymity. However, this means that the public are unable to attend most sentencing occasions involving children.

3.7 The public can therefore only witness first-hand the sentencing of children in the Crown Court.  Given that children are only sentenced in the Crown Court for the most serious of offences, this may distort the understanding, and therefore the opinion, of the public in relation to sentencing children. This is not a reason to open the youth court to the public, but it does point to an additional barrier to public understanding of sentencing children.

3.8 The public therefore rely more heavily on the media for their knowledge and understanding of sentencing children (the media are allowed in youth court, albeit with automatic reporting restrictions protecting the child’s anonymity). Given that the media are likely only to report cases that are particularly ‘newsworthy’ (usually owing to their seriousness), there is a greater risk of distortion in the public’s understanding of the sentencing of children. Further, research suggests that media portrayals of children involved in offending has added layers of outrage compared to crimes committed by adults.[7]

3.9 In addition, the youth court is not a court of record.[8] This means that youth court sentencing remarks are not recorded and are not publicly available.

3.10 Sentencing remarks provide an important and unfiltered (by the media) source of information for the public to enhance their knowledge of, and inform their opinions about, sentencing. Even in Crown Court, written sentencing remarks are not widely available. Only a small number of sentencing remarks are written down by judges and an even smaller number are published and available online[9] or recorded and uploaded to the dedicated youtube channel.[10] Very few examples of sentencing remarks for children have been published. Most members of the public will therefore rely on indirect accounts of children’s sentencing as reported by the print media and on social media.  

(ii) The law and practice of sentencing children is particularly complex

3.11 Second, the law and practice of sentencing children is particularly complex. Different sentences apply to children, different age thresholds apply even within some childhood sentences (eg for starting points for minimum terms when a mandatory life sentence is imposed;[11] for the availability of certain sentences;[12] and additional criteria must be met for some sentences to be imposed upon certain age-groups[13]) and determining available sentences can be particularly complex depending on the child’s age at the date of conviction and the child’s age at the date of the offence.

3.12 Furthermore, different legal obligations are imposed on judges when determining sentence for children, for example to have regard to the child’s welfare under Children and Young Persons Act 1933, section 44(1) and to the primary aim of the youth justice system to prevent offending under the Crime and Disorder Act 1998, section 37. Additionally, the Sentencing Council publishes different sentencing guidelines in relation to children, for example, there is a Sentencing Children and Young People Guideline,[14] and certain offence specific guidelines for children.

3.13 The complexity of the legal and practice framework therefore creates a further barrier to the public’s understanding of the sentencing of children.

The consequences of poor knowledge and understanding of sentencing children

3.14 The consequences of poor knowledge and understanding of sentencing may be particularly detrimental to children. Research suggests that young people believe they are subject to the most extreme labels or negative stereotypes as a result of media reporting.[15] This can result in children as a group feeling demonised and excluded.[16]

3.15 For individual children with a criminal conviction, the stigma and labelling from the media reporting around childhood offending and sentencing (especially where the circumstances of their offending and the reasons for the sentence are poorly understood) may have very real consequences for their rehabilitation. This is particularly the case if the child is publicly named.[17]

Improving public knowledge of sentencing children

3.16 Greater transparency and awareness of sentencing of children, both generally and in specific cases (provided the child’s anonymity is adequately protected to protect their welfare, reintegration and rights[18]), may increase public understanding of the reasons why the sentencing regime for children is different than for adults. These reasons include adolescent brain development and the significance of age and maturity to sentence type and length; the vulnerabilities experienced by many child defendants (including the presence of trauma in their lives); communication and educational difficulties; and other welfare factors that are relevant to sentence.

3.17 Increased understanding would be dependent on (i) effective communication by judges in their sentencing remarks and (ii) access to sentencing remarks and/or increased public education on sentencing children.

(i) Effective communication by judges of their sentencing remarks

3.18 Judges should take special care to set out in their remarks the special obligations owed to children, including the welfare duty, reducing offending, that sentencing should be individualistic and focused on rehabilitation, the application of custody as a last resort principle, and the significance of age and maturity to sentence calculation. They should also deliver their sentencing remarks in a clear and compassionate manner, using simple and non-stigmatising language. This would help to address any distortion that can occur in media reports of sentencing involving child defendants. It would also educate the public not only on the individual circumstances of the child and their culpability (as recommended by Roberts and Hough) but also the special rights-based obligations owed to children in conflict with the law.

3.19 Guidance on how to communicate sentences to children in this manner is now available to judges in the Crown Court Compendium, Part II Sentencing (Appendix II), and has been integrated into judicial training.

(ii) Access to sentencing remarks and/or increased public education/awareness raising on sentencing children

3.20 Without greater transparency and access to sentencing remarks in cases involving children, the public are unable to read for themselves examples of sentencing remarks that are written in compliance with this guidance and which facilitate public understanding of sentencing and of childhood offending more broadly.

3.21 Recommendation: examples of sentencing remarks that comply with the guidance in the Crown Court compendium should be made publicly available and publicised to promote greater public understanding of sentencing children and the underpinning principles.

3.22 A consultation process should be undertaken to consider whether sentencing remarks in all Crown Court cases should be publicly available and whether the youth court should be a court of record.

3.23 When considering publishing a greater number of sentencing remarks in cases involving children, the advantages that may come from increased transparency (an increase in public knowledge and greater judicial accountability) must be balanced against the potential harmful consequences for children and their privacy.

3.24 Further, since not all judges prepare written sentencing remarks, a shift towards greater availability of sentencing remarks may require practice change. In the short term, a random selection of sentencing remarks could be published reflecting a range of offences and seriousness. Any publication of sentencing remarks concerning children should be anonymised and identifying material redacted to adequately protect the child’s identity and privacy, in line with the UN Convention on the Rights of the Child, Article 40(2)(b)(vii). Publication could also be delayed to further protect identity.

3.25 Recommendation: irrespective of developments towards greater availability of sentencing remarks in cases involving children, consideration should be given to other ways to increase public knowledge of sentencing children. This should include a commitment to improving public knowledge about the principles (eg on children’s rights) and evidence (eg on childhood offending and desistence) that underpin the differential sentencing of children and adults and the Sentencing Council’s guideline.

4. Issue 2

              Summary: Any consideration of the public’s opinion and understanding of               sentencing should specifically consider children as a subset of the broader public,               and thus consider children’s opinion and knowledge of sentencing

This section addresses the following questions with specific regard to children’s knowledge and opinion of sentencing:

(i)                 What does the public know about the current approach to sentencing in England and Wales?

(ii)               What is public opinion on sentencing, and how can it be ascertained or measured?

(iii)            What are the barriers to improving public awareness of how sentencing works?

(iv)             To what extent should public opinion inform sentencing policy and practice?

4.1 I am not aware of any quantitative research on children’s knowledge or opinion of sentencing. Major surveys on public opinion and knowledge of sentencing have usually included only adults in their sample populations.

4.2 It is recommended that research be commissioned that specifically surveys children on their knowledge and opinion of sentencing.

4.3 Understanding children’s knowledge and opinion of sentencing and taking these views into account in appropriate circumstances is consistent with the UK’s obligations under the UN Convention on the Rights of the Child. Article 12 (the child’s right to be heard) and Article 3 (the best interest provision). Read together, these provisions require governmental bodies to provide opportunities for children to express their views on matters, including legislative decisions, that affect children as a group, and to give due weight to those views.[19]

4.4 Given that the minimum age of criminal responsibility in England and Wales is 10 years and any child over this age could be subject to criminal sanction and given that children of any age may be victims of crime, children as a group are affected directly and indirectly by current sentencing laws and practice.

4.5 In accordance with the principles set out in paragraph 4.3 above, it is recommended that where public opinion is used to inform sentencing policy and practice, whether concerning adult sentences or children’s sentences, the views of children should specifically be ascertained and given due weight.

4.6 Although there is no quantitative data available on the knowledge and opinion of children in relation to sentencing, I recently conducted a small qualitative study with justice-experienced children.[20] This study sought to understand children’s experience and views on the communication of sentencing remarks by sentencing judges; and it asked the participants their views on different styles of sentence delivery.

4.7 Although this was a small-scale study, it is one of only a small number of research studies that examine the views and experiences of justice-experienced children of the sentencing process, and particularly regarding communication and understanding.

4.8 Most of the children interviewed reported negative experiences of the sentencing process. In particular, they found it very difficult to understand the proceedings, including the sentence outcome and the reasons for the sentence.  The complexity of courtroom communication, including language, was identified as particularly difficult for children. Words such as ‘custody’, ‘licence’, and ‘sentence’ are commonly misunderstood. Sentence calculation (which is heard as ‘all numbers’) is particularly challenging. The heightened anxiety that child defendants experience in court exacerbates their inability to understand the sentence and sentencing process.[21]

4.9 In addition, children reported feeling alienated by the process where the sentencing remarks did not reflect their own (often minimal) participation and views, where they felt misunderstood by the judge, and where stigmatising language was used. Their confidence in the fairness of the justice process, and the legitimacy of the sentence, was intricately linked to the language employed and the way the sentence was communicated.

4.10 The evidence from this specific subset of children – child defendants – therefore suggests that even direct experience of sentencing does not, for most children, lead to accurate knowledge of specific sentences nor the sentencing process (for example, the factors that are taken into account in sentencing children), nor does it increase legitimacy in the process.

4.11 It is recommended that in all cases involving a child defendant, the sentencing remarks should be written down and the child should be provided with a copy. This would enable the child to read the remarks later on, in a calmer environment, when she or he is more likely to comprehend the sentence outcome (and thus comply with it). This will help to ensure that those children most affected by sentencing, child defendants, have greater knowledge and understanding of the process.

4.12 As noted above, since 2021, the Crown Court Compendium, Part II Sentencing has provided specific guidance to judges on delivering sentences to children.[22] The focus of the guidance is on the clarity of the communication and on relational communication – that is, the messages (implicit and explicit) that are conveyed to children through sentencing remarks. The intention of the guidance is to ensure that child defendants understand their sentence and the reasons for it, and that it is conveyed in a way that enhances children’s likelihood of sentence compliance. In addition, the Compendium also now includes revised examples of sentencing remarks for each of the child-specific sentences. These were rewritten with the assistance of a speech and language therapist and designed to enhance the child’s understanding. A sentence written in a way the child defendant can understand is also one that can be better understood by all audiences, including victims, members of the media, and wider members of the public.

4.13 It is recommended that judicial guidance is further amended so that the good practice ‘simplified’ versions of the example sentencing remarks for children are used as a template for rewriting the example sentencing remarks for adults. This would help to enhance public understanding of sentences and sentencing practice in all cases.

4.14 In the course of the interviews, the participant children/young people expressed broader opinions on sentences for children. Specifically, they had strong views on the need to treat children differently in terms of the severity and nature of the sentence, compared to adults in a similar position. They also often felt this was not the case in practice.

4.15 In particular, they felt children should be given a second chance, that the sentence should be designed to ‘help’ them (to be rehabilitative, re-integrative and restorative), and that children should be given hope – both in the sentence imposed (specifically in terms of a community sentence rather than custodial sentence) and in how the sentence was delivered. In particular, and in line with Article 37(2)(b) of the UNCRC, the children interviewed felt that custody should be a last resort, and that in most cases, a sentence of custody would ruin a child’s life and their future life chances.

4.16 Justice experienced children therefore expressed clear views in favour of a sentencing practice that in both outcome and communication complied with broader children’s rights principles.

January 2023