Bowker v R.

Where an offender crosses an age threshold between offending and sentence, the sentence likely to have been imposed at the date of the offence is a powerful starting point. It is not determinative. The court must assess culpability by reference to the offender’s age when the offence was committed, but may take account of the sentencing purposes applicable when the offender is convicted as an adult, including deterrence.

Article 7.1 of the European Convention does not prevent the ordinary operation of an unchanged sentencing regime by reference to the offender’s age at conviction. An anti-social behaviour order may properly impose a geographically defined, night-time exclusion without a time limit where it is necessary to prevent further violence and remains capable of later variation.

The appellant pleaded guilty in the Liverpool Crown Court to violent disorder arising from sustained violence between rival groups outside a Wigan night club. He was 17, two days short of his 18th birthday, when the offence was committed. At sentence he was 19.

The Crown Court imposed 28 months’ detention in a young offender institution and an indefinite anti-social behaviour order prohibiting entry to Wigan town centre between 10 pm and 7 am. The appellant challenged both the length of detention and the order’s scope and duration. The principal sentencing issue was the effect of his having crossed the age threshold between the offence and sentence.

1. The appeal was allowed only in relation to the custodial term. The sentence was reduced from 28 months to 24 months’ detention. The anti-social behaviour order was upheld.

2. The court applied the approach in R v Ghafoor [2003] 1Cr App R (S) 84. Where an offender crosses a relevant age threshold, the likely sentence at the date of the offence is the starting point. That reflects the reduced culpability of young offenders and the greater emphasis ordinarily placed on rehabilitation. It remains a powerful, rather than exclusive, consideration.

3. The appellant’s culpability was assessed by reference to his age of 17 at the time of the offence. However, he was almost 18, was convicted after reaching that age, and had played a leading part in exceptionally serious group violence. The court could therefore give substantial weight to deterrence and the wider sentencing purposes applicable to adults. A 24-month term fairly reflected his age, guilty plea, serious culpability and the need for deterrence.

4. The court rejected the submission that Article 7.1 of the European Convention on Human Rights restricted sentence to the maximum punishment applicable to this appellant when the offence was committed. Article 7.1 addresses retrospective changes in the law. The law and maximum penalty for violent disorder had not changed; only the ordinary application of the existing regime to the appellant’s age at conviction had changed.

5. The exclusion from Wigan town centre was necessary to protect others from a significant risk of renewed night-time violence. The appellant did not live in Wigan and was excluded only during the hours when a visit would likely be for night-club entertainment. Although the order was indefinite, it could be varied on a future application. There was no proper basis to interfere with it.

• Court of Appeal (Criminal Division): Allowed the sentence appeal only to the extent of reducing detention from 28 months to 24 months; upheld the anti-social behaviour order.
• Liverpool Crown Court: Following a guilty plea to violent disorder, imposed 28 months’ detention in a young offender institution and an indefinite anti-social behaviour order.