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Anjelica Smerin reviews one area of sentencing where reaching the age of majority makes a substantial difference.
Minimum Term Reviews allow those who commit murder as a child to apply at the halfway point of their custodial sentence for a possible reduction in their minimum term. Under S.27A Crime (Sentences) Act 1997, only those who were under 18 years old on the date of sentence are eligible to apply for a possible reduction of their minimum term. The determinative date is the age at sentencing, an approach which is contrary to the one usually taken by the courts in sentencing children and young people. The Court of Appeal reviewed this provision in the case of R (Quaye) v Secretary of State for Justice [2025] EWCA Civ 226.
The effect of s27A is to create a two-tier system with vastly different outcomes which cannot easily be predicted. In addition, the Crown Court backlog and subsequent delays in trial listings are likely to increase the number of children who commit offences of murder, but find themselves being sentenced after their 18th birthdays and are therefore ineligible under the s27A provision.
Sentencing in murder cases is governed by Schedule 21 to the Sentencing Act 2020, originally introduced by the Criminal Justice Act 2003. Individuals who are convicted of murder receive a mandatory life sentence comprised in practice of three elements: the minimum term to be spent in custody (imposed by the sentencing court), the post-term period (determined by the Parole Board) and a licence period. The average minimum term imposed in 2021 was 21 years (rising from a previous average of 13 years in 2000).[1]
The starting points in respect of youths convicted of murder are set out in §127 of the Police, Crime, Sentencing and Courts Act 2022. Sentencing of youths for murder requires careful consideration, taking into account the specific youth sentencing guidelines, s.58 Sentencing Act 2020, and the principles outlined in ZA [2023] EWCA Crim 596.
Between 2000[2] and 2022 anyone who committed murder as a child was eligible to apply for a review of their minimum term with a view to apply for a small reduction in that term. Eligibility for a minimum term review (‘MTR’) arose at the halfway point of serving the minimum term and applications were made on the basis that if the offender could show significant and exceptional progress since sentence a reduction in the original minimum term might be made.
Successful MTR applications were, however, the exception rather than the rule, with only a reported quarter of applications being granted and those that were resulting in an average reduction of 15 months.[3] For example, in Jobson [2014] EWHC 3254 (Admin) a reduction of 12 months was justified for a female defendant who had been sentenced at 15 years old:
“She was a wild and immature 15-year-old, in a violent relationship with a drug dealer, who had turned her into a regular cocaine user. She is now a young adult who shows every sign of being mature, highly motivated, and responsible, not only for her own future but able to take responsibility for others. She has also expressed a clear understanding of the impact of her actions on her victims, both direct and indirect, in ways which evidence a developing degree of empathy”
The principles behind the MTR reflected the well-established concept that children are, by definition, significantly less mature and cognitively developed compared with their adult counterparts, meaning that there is a greater chance of rehabilitation whilst in custody. The rehabilitation of offenders, and particularly youth offenders, benefits not just the individuals but the wider community as a whole. As Lady Hale concluded in R v Smith (No. 2) [2005] UKHL 12:
“It is important to the welfare of any young person that his need to develop into fully functioning, law abiding and responsible member of society is properly met. But that is also important for the community as a whole, for the community will pay the price, either of indefinite detention or of further offending, if it is not done.”
A different approach to review for those who commit murder as a child also mirrors the different approach to sentencing children for murder, as Lord Bingham also stated in Smith:
“The requirement to impose a sentence of HMP detention is based not on the age of the offender when sentenced but on the age of the offender when the murder was committed, and it reflects the humane principle that an offender deemed by statute to be not fully mature when committing his crime should not be punished as if he were. As he grows into maturity a more reliable judgment may be made, perhaps of what punishment he deserves and certainly of what period of detention will best promote his rehabilitation”. (§12)
Legislative reform to the MTR scheme was initially proposed in a White Paper ‘A Smarter Approach to Sentencing’ published in September 2020, which proposed to:
“Reduce the opportunities for over 18s who committed murder as a child, to have their minimum term reviewed, to protect the families of victims while maintaining a clear distinction between adults and children.” (at page 86).
The same 2020 White Paper also purported to implement a child-first approach and made a commitment to “supporting children in turning their lives around, and we recognise that having a criminal record can have a significant impact on children or adults who offended as a child.”
Legislative change followed. By virtue of section 128 of the Police, Crime, Sentencing and Courts Act 2022, a new section 27A was inserted into the Crime (Sentences) Act 1997 :
Sentence of detention during Her Majesty’s pleasure imposed on a person under 18: application for minimum term review
(1) This section applies to a person who—
(a) is serving a DHMP sentence, and
(b) was under the age of 18 when sentenced; and such a person is referred to in this section as a “relevant young offender”
(2) A relevant young offender may make an application for a minimum term review to the Secretary of State after serving half of the minimum term.
(3) An “application for a minimum term review” is an application made by a relevant young offender for a reduction in the minimum term.
(4) Where a relevant young offender has made an application for a minimum term review under this section, the offender may only make a further such application if—
(a) the period of 2 years beginning with the day on which the previous application was determined has expired, and
(b) the offender is under the age of 18 on the day on which the further application is made……
(11) There is no right for any person who is serving a DHMP sentence to request a review of the minimum term other than that conferred by this section.
The effect of which is to confine MTR eligibility to those who were under 18 on the date of sentence rather than the date of commission.
S.27A was successfully challenged in the High Court in R (Quaye) v Secretary of State [2024] EWHC 211 (Admin) by way of a judicial review and declaration that s.27A was incompatible with a defendant’s article 5 rights of the Convention. At §47:
“In our judgment, even with a low level of scrutiny, there is no objective justification for the differential treatment of offenders sentenced to DHMP who are 18 at the date of sentence. As a preliminary matter, we are satisfied that section 27A as inserted by the 2022 Act did not change the nature and ambit of a sentence of DHMP. It remains a sentence of detention to be imposed on an offender convicted of murder who was under the age of 18 at the time of the offence.”
However, the decision was reversed in the Court of Appeal in March of this year. R (Quaye) [2025] EWCA Civ 226, at 148:
“Section 27A and 27B of the 1997 Act, as amended, are compatible with Articles 5, 7 and 14, read with Article 5, of the Convention. The provisions do not involve arbitrary or unlawful detention contrary to Article 5. They do not impose a heavier penalty than the one that was applicable at the time contrary and are compatible with Article 7. The difference in treatment provided for by section 27A and 27B is objectively justifiable; the legislation pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim that the legislation seeks to achieve.”
The Court of Appeal held that s.27A proportionately achieved the aims of parliament:
“The aim of the legislation was to reduce the distress of victims’ families by reducing the opportunities for offenders to apply for reviews of the minimum term […] The difference in treatment was based on the age when sentenced. It was not based on a suspect ground such as gender or race, where, in principle, weighty reasons would be needed to justify the different in treatment.”
An application to the Supreme Court has been lodged.
The reasoning advanced in the Court of Appeal decision in Quaye was that differential treatment based upon age at sentence did not require “weighty reasons” in the same way that a differential treatment based on gender or race would. Yet, this would seem contrary to a long line of case law on how courts are to consider a defendant who crosses an important age threshold.
Practitioners will be well aware of the line of authorities on assessing maturity and culpability when sentencing young people. The issue was addressed in the case of R v Peters [2005] EWCA Crim 605:
“Although the passage of an 18th or 21st birthday represents a significant moment in the life of each individual, it does not necessarily tell us very much about the individual’s true level of maturity, insight and understanding. These levels are not postponed until nor suddenly accelerated by an 18th or 21st birthday. Therefore although the normal starting point is governed by the defendant’s age, when assessing his culpability, the sentencing judge should reflect on and make allowances, as appropriate upwards or downwards, for the level of the offender’s maturity.”
The principles from Peters [2005] were re-stated in Clarke [2018], Lord Burnett, at §5 observed:
“Reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purposes of sentencing. So much has long been clear. […] Full maturity and all the attributes of adulthood are not magically conferred on young people on their 18th birthdays.”
The need for an individualistic and careful approach, with a focus on the age and maturity of the youth at the time of commission of the offence was restated in R v ZA [2023] and again in R v BGI [2024] EWCA Crim 1591 (at para 27-28). This has been enshrined in the Youth specific sentencing guidelines which state:
“Note: This guideline applies to sentencing those aged under 18 at the date of finding of guilt, but many of the principles will also be relevant to sentencing young adults (aged 18-25). Where an offender has turned 18 between the commission of the offence and conviction, the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed, but applying the purposes of sentencing adult offenders. “
S.27A (as amended) therefore represents a move towards the opposite approach in relation to MTR where only the age at sentence is determinative. Given the authorities consistently restate that the sentencing outcomes for children must focus upon the age at commission, it would appear that “weighty reasons” for a departure should be outlined.
Public scrutiny of the Crown Court backlog has largely focused on the impact delays have in the lead up to trial on both defendants and victims of crime. The phrase “justice delayed is justice denied” is used to highlight the consequence of a lengthy period on remand or the emotional toll of waiting for trial over a period of years for all parties involved. What has been considered less is the impact upon sentencing outcomes and parole consequences as a result of delays.
The implications of s27A in light of, as are now commonplace, listing delays of several years must be understood and considered by practitioners. There have been several reports of trial listings in bail cases in the Crown Court as far as 2029, and even in remand cases, the custody time limits frequently whistle past with barely a judicial glance. The net of young people who are potentially caught and impacted by s.27A is therefore vast.
The result of s27A is to create a two-tier system where individuals who have committed the same offence in the same circumstances may have considerably different review options open to them, dependent upon factors which will be largely out of their control. Leaving the issue of the backlog aside, these issues are likely to arise even where cases come to court within an appropriate timeframe. For example, in multi-handed murder trials a defendant may plead guilty when he is aged 17 but may have to wait for the conclusion of his co-defendants’ trial before sentence. In such case a defendant who entered a guilty plea, therefore saving the victim’s family the emotional toll of a trial, could face worse review options on sentence when compared to a co-defendant who maintained a not guilty plea but was still under 18 on the date of sentence. Practitioners should therefore ensure that whilst s27A is still in operation they must be alive to the consequences of delay and that whilst turning 18 is not a cliff edge in respect of sentence, the same cannot be said for MTR.
[1] Dr Richard Martin for the Sentencing Academy, ‘Sentencing for Murder: A review of Policy and Practice’. April 2024<https://www.sentencingacademy.org.uk/wp-content/uploads/2024/04/Sentencing-for-Murder-A-Review-of-Policy-and-Practice.pdf>.
[2] Hansard, HC, cols 22–23 (13 March 2000), Statement of Secretary of State for the Home Department
[3] R (Quaye) [2024]EWHC 211 (Admin).
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