The first, and obvious point is that they are guidelines and it is open to any sentencer to depart from them, but, of course, the sentencer would state the reason for taking this course. Secondly, and obviously, those conducting the research did not say that that an under-25 should not be sent to prison and it is clear that they are saying that every case must be considered on it own – the well established jurisprudential principle that each case turns on it own facts.

While the report goes into matters which are not normally part of the lawyer’s legal quiver, nevertheless, the general point is that those under 25 may not be as mature as older adults – not a surprising conclusion to reach.

However, at several places in the report, the researchers make some interesting points. For example: “While we do not therefore recommend the use of stringent age ranges in sentencing guidelines, it is however recommended that the brain’s continued growth, until as late as 25-30 years of age, and the resulting cognitive immaturity, is considered during judicial processes involving adolescents and young people.” This is part of the executive summary.

Another is this: “Arguably, if evidence from neuroscience indicates that, for example, certain essential cognitive abilities do not fully develop until early adulthood, adolescents may be less culpable for their crimes. The principle of proportionality would suggest that offenders who are deemed less culpable for their actions (in this case adolescents), should receive a lesser punishment than an offender functioning at a higher level of cognitive maturity.”

Further on, the report mentions various studies, e.g. on facial emotion processing, the ability to interpret or recognise facial expressions of emotion, on social information processing, cognitive control and affective (mood and feelings) processing and also social rejection and retaliation and emotional regulation.

It continues: “As indicated, there is an important need for further research emanating from these studies, to fully establish whether sensitivity is more pronounced in early or mid-adolescence to these socio-emotional tasks, and at what age this sensitivity reaches maturity, i.e. differences in such functional tasks in relation to adult cognitive activation patterns.”

At pp. 58-59, the report has a heading: “The development of cognitive and emotional maturity in adolescents and its relevance in judicial contexts.”

It states in that connection:

From reading the report, two things are clear. The first is that every offender, under 25 or not, has to be considered separately from others. This is already the practice. Secondly, a lot more research has to be carried out. That does not, in any way detract from the value of the research.

The report deals only with the question of the maturity of under-25s. It is trite to say that the sentencer will, or may, have other factors in mind. While one should never sentence to please the media, one has to bear in mind the possible reaction of the public to a sentence. Also, the effect on the victim is relevant and nowadays, the court can be supplied with a “victim impact statement”. The sentencer may wish to “send a message” to others. Thus, if there is a spate of a particular type of behaviour, e.g. speeding in built-up areas, a sentencer may wish to make it clear that this type of behaviour is unacceptable because it is potentially dangerous.

While the report does not recommend the use of “stringent age ranges in sentencing”, we do have such age ranges in other areas. It is possible to enter into a contract, vote, marry, drive a car, purchase alcohol, at certain ages, all under 25. Thus, there are those who are “worldly wise” at 16 and know what is right and what is wrong, and, to me, it would be unwise to assume that someone under 25 does not fully understand the consequences of certain actions, and so, should not receive a custodial sentence. In many instances, and in all cases of those under 21, a social inquiry report will, or should provide that information and a lot else besides.

Hopefully, further guidance will be handed down by the Appeal Court.

Douglas J. Cusine is a retired sheriff and a respected author of articles and books on legal and medico-legal topics.