Recent media attention has shone a spotlight on children convicted of serious crimes, but the public debate has often lacked factual input and nuance. In this blog post, criminal and public law silk Samuel Skinner KC explains the law and guidelines and explores the difficulties in finding the right sentence if a child is convicted of crime.
“To you, to me”
“If he was old enough to do the crime, he was old enough to do the time”.
So commented one person under an online news article about one of my cases where I defended a 15-year-old accused of murder. In the end, the prosecution accepted a plea to manslaughter by reason of loss of control. But this warlord of the comments section still reckoned that the three-year sentence was much too low. I tried to imagine his expression when he found out that the Court of Appeal released my client from detention and imposed a youth rehabilitation order instead. I expect that for some keyboard warriors sitting in front of a computer screen, sending children to prison seems easy and straightforward.
Sentencing children for serious crimes is complicated, as shown by the recent example of three teenagers convicted of sexual offences by the river Avon in Fordingbridge, Hampshire. HHJ Rowland gave the boys – X, Y, and Z – sentences in the community. But following a public outcry, the Court of Appeal found X and Y’s sentences to be unduly lenient and increased them to four years in detention. When giving the judgment in R v X, Y, and Z [2026] EWCA Crim 845, the Lady Chief Justice rather understated it when she said that “sentencing children who have been convicted of extremely serious offences is a difficult task”.
How do you approach it?
The patchwork of provisions applying to child sentencing provide little help to judges or counsel.
You will look in vain within the Sentencing Code for the principles governing the sentencing of children. Instead, they are to be found within the Crime and Disorder Act 1998, and the Children and Young Persons Act 1933. Once you have digested those, you can go back to the Code. On your way though, please do be very careful about Sentencing Guidelines. The one that you normally apply to the adult offence probably doesn’t apply to children. And the credit for a guilty plea guideline? Adults only. Just like the guideline for offenders with mental health problems.
Instead, you must focus on the ‘Sentencing Children and Young People’ guideline. Do please read it carefully. We all know, as the Lady Chief Justice reminded us in R v X,Y, and Z, that “no one could sensibly contend that children of 13 or 14 years of age should be treated in the same way as adults”, but what should the reduction in sentence for a child be?
Well, paragraph 6.46 of the Sentencing Children and Young People guideline says that “the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the adult sentence for those aged 15-17 and allow a greater reduction for those aged under 15”. Note this linguistic trap for the unwary (or busy) – it does not say that the reduction should be half to two thirds.
Once you have got up the law, you must learn the vocab. Do you remember that the Proceeds of Crime Act 2002 does not provide for confiscation in the sense understood by schoolchildren? Well, we are going to double down on that principle and use words that confuse children under the guise of making things more straightforward. See – we do not imprison children in this country; they go to detention. This is a word that is supposed to be easier for them to understand. Although it does seem unfair to use the same word as the child might hear at school about something very much not like prison.
In any event, please forgive me, I thought we had moved on to terminology and away from law, but there’s an aspect which involves both. Unlike adults, children are not remanded into custody, they are remanded either to local authority accommodation, or they are remanded to youth detention accommodation. These are both custodial remands within the meaning of LASPO 2012 and attract custody time limits. But only a remand to youth detention accommodation is a “remand in custody” meaning that time served is taken off an eventual sentence. For the love of Archbold, don’t mix them up.
Is there a solution?
There is. Take your copy of the useful Bench Book 'Child Defendants in the Crown Court' and inscribe the words “DON’T PANIC” on the cover in large friendly letters. Then read ZA [2023] EWCA Crim 596. Try to work out which court centre where you frequently appear has a court room that could comply with the layout ZA requires when dealing with children. Then read R v X, Y, and Z. Set aside some time though. The judgment in R v X, Y, and Z is concerned only with sentence but runs to 53 pages. Diagrams are included. Locking children up is complicated.
Conclusion
Representing a child accused of a serious crime, or prosecuting such a child, is a heavy responsibility. Locking children up is, and should be, an absolute last resort. Sentencing a child is a difficult exercise for a judge, who will need help from experienced counsel. Sentencing, notoriously, is an art not a science. Some of the greatest art may look effortless, but it actually requires considerable work and skill.
And if all of this has made you think that we should raise the age of criminal responsibility, so does the Bar Council.
Samuel Skinner KC is a criminal and public law silk at the 36 Group and a member of the Bar Council’s Legal Services Committee. Last year he appeared in several criminal trials for murder, and one for rape, where the defendants were children.