Why ZA v R is so important

“Sentencing children and young people is a difficult and time-consuming endeavour, if it is to be done properly…”

A tragic albeit routine case involving allegations of robbery, knives and murder has provided another powerful and authoritative reminder that all sentences involving children should reflect “an entirely different approach to sentence required than that which courts routinely apply to adults”.

The full transcript of ZA [2023] EWCA Crim 596 should be read by all practitioners. As the Court itself acknowledged the case raised important points concerning the correct approach to sentencing young people and children.

It is sadly not uncommon to represent young people charged with very serious crimes and it is important to remember and apply properly the sentencing guidelines that exist. In this case the sentencing judge relied on the adult guideline for Robbery and failed to refer at all to the Robbery – Sentencing children and young people guideline which came in to effect on 1^st June 2017 – an error that was not picked up by counsel during the sentencing hearing.  The judge was further criticised for failing to approach the sentence in an “individualistic way advocated in the overarching youth guideline” (Sentencing Children and Young People) as well as not discriminating between the appellant and his older co-defendants, and for not explaining her decision to reject potential sentence options.

The case is a welcome reminder that sentencing young people is complicated, that the guidelines must be considered and adopted, and that a sentencing note can save an awful lot of trouble down the line.

In this case the Court of Appeal set out a checklist at paragraph 82 that should be regarded as mandatory:

1. Court listing should ensure that there is sufficient time for the judge, even if it is the trial judge  who knows the case, to read and consider all reports and to prepare sentencing remarks in age appropriate language. This is of real importance in our current over-crowded and optimistic listing mess. Just this month I experienced a chaotic list where the Judge was forced to concede that there was simply insufficient time to deal with a s18 sentence and the two young defendants reacted, as one might, very badly to the case being adjourned having travelled from considerable distance and waited for a number of months to discover their fate. The onus is on counsel and their clerks to ensure the Judge and list office does appreciate that such cases take time.
2. Consideration should be given to listing separately – and as a priority – the sentence of any child or young person jointly convicted with adult co-defendants.  In practice this may be a difficult objective to achieve unless the roles are very distinct.
3. The court should be set up and arranged to ensure that the child or young person to be sentenced is treated appropriately, namely as a vulnerable defendant entitled to proper support. Again this may prove difficult to implement given the design of most Crown courtrooms but it is an objective that should be at least considered.
4. Counsel must expect to submit full sentencing notes identifying all relevant Sentencing Council guidelines and in particular addressing material considerations in an individualistic way for each defendant. This requirement is directed at both prosecution and defence.  At this juncture, there are youth-specific guidelines for bladed article offences, robbery and sexual offences; in relation to all other offences, regard should be had to the overarching guidelines for sentencing youths.
5. The contents of the Youth Justice Service PSR and any medical/psychiatric report will be key. The Court should consider these reports bearing in mind the general principles at section 1 of the overarching youth guideline. Practitioners should be familiar with each of the 21 points raised in paragraph 1 (and indeed the whole of the guideline).
6. In general, it will not be helpful to go straight to paragraph 6.46 – “that the court may consider applying a sentence of half to two thirds of the equivalent adult sentence” without having first directed the court to general principles canvassed earlier in that guideline as well as to any youth specific guideline. The stepped approach should be followed. The key element to remember is that the most appropriate sentence for a child or young person will be the one that fully takes into account their individual circumstances with the dual aims of youth sentencing: to prevent offending and consider the welfare of the child when delivering an individual sentence which should focus on rehabilitation where possible.
7. If the court considers that the offence(s) are so serious as to pass the custody threshold the court must consider whether a YRO with ISS can be imposed instead, and if not, the court must explain why.

It could be argued that the most important points are at 4 and 6. They set out a clear instruction to practitioners and the court as to the steps to be followed when undertaking such an exercise.  Additional guidance can also be found in the Youth Defendants in the Crown Court bench book (‘Youth Bench Book’).

A clear move away from the simplistic interpretation of 6.46 is to be welcomed and any suggestion that enforces the requirement for an individual sentence is to be commended. Children and young people should never be treated as “mini-adults” and it is hoped that this authority will firmly close the door on that archaic and lazy idea.

Ben Hargreaves