2Young offenders: custodial sentences
(1)Section 71A of each of the 1955 Acts (juveniles) and, subject to the modifications in subsection (6) below, section 43A of the 1957 Act (juveniles) shall each be amended in accordance with subsections (2) to (5) below.
(2)In subsection (1B)—
(a)after the words “imprisonment for life” there shall be inserted “then, subject to subsection (1E) below”; and
(b)paragraph (a) shall be omitted.
(3)After subsection (1C) there shall be inserted the following subsections—
“(1D)Subject to subsections (3) and (4) below, the only custodial sentences that a court may award where a person under 21 years of age is convicted or found guilty of an offence are—
(a)a custodial order under section 71AA of this Act or under paragraph 10 of Schedule 5A to this Act; and
(b)a sentence of custody for life under subsection (1A) or (1B) above.
(1E)A court may not—
(a)make a custodial order under section 71AA of this Act; or
(b)pass a sentence of custody for life under subsection (1B) above;
unless it is satisfied—
(i)that the circumstances, including the nature and the gravity of the offence, are such that if the offender were aged 21 or over the court would pass a sentence of imprisonment; and
(ii)that he qualifies for a custodial sentence.
(1F)An offender qualifies for a custodial sentence if—
(a)he has a history of failure to respond to non-custodial sentences and is unable or unwilling to respond to them; or
(b)only a custodial sentence would be adequate to protect the public from serious harm from him; or
(c)the offence of which he has been convicted or found guilty was so serious that a non-custodial sentence for it cannot be justified.”
(4)In subsection (4)—
(a)for the words “A person under 17 years of age” there shall be substituted “In any case where—
(a)a person aged 14 or over but under 17 years of age is”;
(b)for the words “may be sentenced by the court, if it” there shall be substituted “or
(b)a person under 14 years of age is found guilty of manslaughter,
and, in either case, the court”; and
(c)after the word “suitable” there shall be inserted “the court may sentence that person”.
(5)After subsection (6) there shall be inserted the following subsection—
“(7)A sentence of detention under section 71(1)(e) of this Act shall be treated for the purposes of this section as a non-custodial sentence and references in this section to a custodial sentence shall be construed accordingly.”
(6)The modifications of the amendments in subsections (2) to (5) above in their application to section 43A of the 1957 Act are—
(a)for “section 71AA”, in each place where it occurs in the amendment in subsection (3) above, there shall be substituted “section 43AA”;
(b)for “Schedule 5A” in the amendment in subsection (3) above there shall be substituted “Schedule 4A”; and
(c)for “section 71(1)(e)” in the amendment in subsection (5) above there shall be substituted “section 43(1)(e)”.