Scothern v R

Where an offender committed an offence while under 18 but is sentenced as an adult, the starting point remains the sentence likely to have been imposed when the offence was committed. A departure above that starting point requires good reason.

When the comparable youth sentence is a detention and training order, the court must have regard to its actual detention component. Criminal Justice Act 2003, section 247A does not apply to a detention and training order because it is not a fixed-term sentence. An adult custodial sentence which would require materially longer detention may therefore require reduction to give proper effect to the age-threshold principle.

The appellant was convicted after a retrial of membership of the proscribed neo-Nazi organisation National Action, contrary to section 11 of the Terrorism Act 2000. He was aged 15 and 16 during the offending, but 19 when sentenced by Birmingham Crown Court to 18 months’ detention in a Young Offenders’ Institution.

He appealed against sentence. He contended that the judge had insufficiently reflected his mitigation and that the sentence was unlawful because the later early-release regime would require him to serve substantially more custody than an equivalent detention and training order imposed while he was under 18.

The central issue was how the age-threshold sentencing principle applied where section 247A of the Criminal Justice Act 2003 governed the adult sentence but not the comparable youth disposal.

1. Appeal allowed in part. The court quashed the 18-month sentence and substituted nine months’ detention in a Young Offenders’ Institution.

2. The sentencing judge had correctly applied the terrorism guideline and the guideline for children and young people. The appellant’s offending justified a two-year starting point before mitigation. The reduction to 18 months properly reflected his age, immaturity, good character, developing rejection of extremism, low risk of reoffending, time subject to curfew, and the difficulties of custody. Immediate custody remained necessary.

3. The court held that section 247A of the Criminal Justice Act 2003 applies only to a terrorist prisoner serving a fixed-term sentence. A detention and training order is not a fixed-term sentence within section 237(1). It follows that section 247A would not have applied had the appellant been sentenced while under 18. Such an order has its own statutory structure: one half is detention and training and the balance is supervision.

4. Applying Ghafoor [2002] EWCA Crim 1857, the sentence likely to have been imposed at the date of the offence was the powerful starting point, from which departure requires good reason. An 18-month detention and training order would have entailed nine months’ detention. Since section 247A meant that the adult 18-month sentence would not provide equivalent early release, the proper adult sentence was nine months.

5. The court did not need to determine the Article 7 issue. The reduction under the age-threshold principle gave the appellant no less favourable position than he could obtain through that argument.

• Court of Appeal (Criminal Division): Allowed the sentence appeal in part and substituted nine months’ detention in a Young Offenders’ Institution: [2020] EWCA Crim 1540.
• Birmingham Crown Court: Following a retrial, HHJ Farrer QC convicted the appellant of membership of a proscribed organisation and imposed 18 months’ detention in a Young Offenders’ Institution on 9 June 2020.