Policy paper

Youth custodial sentences: Police, Crime, Sentencing and Courts Bill 2021 factsheet

Updated 20 August 2022

Judges’ hands are too often tied in handing down sentences to young offenders that are too lenient and potentially put the public at risk. We want to see a more coherent approach with courts given more tools to pass appropriate sentences and a better opportunity to balance public protection and the culpability of the child in question.

Lord Chancellor’s Speech: White Paper Launch - A Smarter Approach to Sentencing

1. What are we going to do?

Where the threshold is met for a custodial sentence, we are ensuring that the courts have the tools they need to pass appropriate sentences that properly reflect the culpability of a child and the seriousness of their offending, and that work fairly.

2. How are we going to do it?

2.1 Detention and Training Orders (DTOs)

We are making changes to the most common youth custodial sentence, the DTO.

We are removing the current fixed lengths (4, 6, 8, 10, 12, 18, or 24 months) so that a DTO for any length between 4 and 24 months can be given. This allows the courts to pass the right sentence in the interests of the child and the interests of justice.

It also means that more accurate reductions can be made for time spent on remand, qualifying bail and guilty pleas.

2.2 Section 250 of the Sentencing Code (previously known as a section 91 sentence)

We are moving the automatic release point to two-thirds (from half-way) for those who receive a section 250 sentence of 7 years or more for the most serious violent and sexual offences. This applies to homicide-related offences, wounding with intent to cause GBH, and sexual offences (with a maximum penalty of life). This ensures that time spent in custody reflects the seriousness of the offence committed.

2.3 Discretionary life sentences

A discretionary life sentence has a tariff that sets out the minimum amount of time that must be spent in custody before the Parole Board can consider release. The current way to calculate the tariff is to take what an equivalent determinate sentence length would be, and then halve it. We are changing this for both adults and youths so that the tariff is based on two-thirds of an equivalent determinate sentence. This will bring the tariff into line with the broader approach for dangerous offenders, where release can be considered at the two thirds point.

3. Detention at His Majesty’s Pleasure (DHMP)

3.1 Starting points

DHMP is a mandatory life sentence for children who commit murder. DHMP has a minimum term (tariff) that sets out the minimum amount of time that must be spent in custody before the Parole Board can consider release. Currently the starting point for the minimum term is 12 years for all children.

We are introducing a sliding scale so there are different starting points that take into consideration the age of the child and the seriousness of the murder. This means that the older the child and the more serious the murder, the higher the starting point. This reflects that children develop and mature at a much faster rate and that children are very different at age 17 compared to age 10. This also means there will be less of a gap between the starting points for older children and young adults.

4. Minimum term reviews

Currently those sentenced to DHMP are eligible to apply for a review of their minimum term at the half-way point. This is because children are still developing and maturing and the purpose of the review is to determine if the existing minimum term is still appropriate or whether it should be reduced. The individual can continue to apply for reviews every 2 years.

We are restricting the number of minimum term reviews that an individual can apply for. The individual will only be able to apply for one review at the half-way point of their sentence and they will only be able to apply for a further review 2 years later if they are still under the age of 18. Anyone who is already aged 18 or older at the time of sentencing will no longer be eligible to apply for any review at all. This is because their age and maturity will have been taken into account at their sentencing.

5. Background

These reforms were initially proposed in the Government’s White Paper, A Smarter Approach to Sentencing, published in September 2020, which set out a number of proposals for strengthening the youth justice system. The approach to youth sentencing is distinct from that for adults. It has a separate sentencing framework, which is focused on reducing offending but also considers the welfare of the child. We think there are significant changes that could be made to improve the way it does that.

The sentencing system can be complex and is too often ineffectual. Victims and the public often find it difficult to understand and have little faith that sentences are imposed with their safety sufficiently in mind. The courts can find it cumbersome and difficult to navigate, with judges’ hands too often tied in passing sentences that seem to make little sense. The Police, Crime, Sentencing and Courts Bill aims to address this.

We want a youth justice system that recognises the unique needs of children, tackles the underlying reasons why children offend, and intervenes early to provide support and to divert them where possible.

Custody is only to be used as a last resort for children. The youth sentencing framework emphasises restoration and rehabilitation, including high intensity community orders as well as restrictions on the use of custody for younger children. For the most serious of crimes, however, we need to ensure that the courts can give sentences that provide justice for victims, reflect the seriousness of the crime and ensure that the public are protected.

6. Frequently asked/useful questions

6.1 How many children will these changes affect?

The DTO is the most common youth custodial sentence and 980 DTOs were given in 2019. Between 2017 and 2019, 26 section 91 sentences (now known as a section 250 of the Sentencing Code) of more than 7 years were given for the serious sexual and violent offences to which these changes apply. All were to children between 15 and 17 years old.

There were 224 DHMP sentences given in the period 2011 to 2019. 10 offenders were aged 10-14 at the time of sentencing, 130 were aged 15-17 and 84 were aged 18 or over. There were 7 discretionary life sentences given to children between 2015 and 2019.

6.2 What is the problem with the DTO’s fixed lengths?  

The DTO’s fixed lengths mean that when courts apply reductions to the sentence for guilty pleas or time spent on remand or qualifying bail, this can result in a sentence that falls between two lengths. The court must then choose the nearer fixed length (or, in the case of reductions for guilty pleas, the lower), meaning that reductions are applied inconsistently. Removing the fixed lengths ensures that the length of the DTO will accurately reflect the level of reduction.

This change allows for more flexibility and brings the DTO in line with other youth sentences.

6.3 Do these changes preserve the important distinction between children and adults?

Children continue to be treated differently from adults and have their own youth justice system. The youth sentencing framework emphasises restoration and rehabilitation and provides that custody is only to be used as a last resort for children. The courts always take a child’s age and maturity into consideration when deciding on the most appropriate sentence.

The youth justice system has seen considerable successes over the past decade. The number of children sentenced to custody has fallen by 76% within period 2008/09 and 2018/19.

It is important, however, that the amount of time spent in custody reflects the seriousness of the offence. It is key that the public feel protected by our criminal justice system, even where the offender is a child. That is why the changes we are making to increase the amount of time spent in custody only apply to the most serious offences.

6.4 Why are you increasing the starting points for some children who commit murder?

Children are very different at age 17 compared to age 10. We want to ensure that the minimum term starting points reflect the different stages of development children go through and the seriousness of the crime.

That is why we have based this on the more nuanced system used for determining starting points for adults.

The introduction of a sliding scale also reduces the gap in starting points for older children and young adults.

Courts will still have the discretion to set a minimum term higher or lower than the starting point depending on the details of the case.