Singled out

The detention of the young has always been a controversial issue, not just because of the impact that a custodial sentence will have on the young person but also because it shines a grim light on society as a whole in allowing the young to be locked up in this way.

The Lord Chancellor's pledge to reduce the number of custodial sentences is yet to be seen, as many young adults are still incarcerated for their crime even when non-custodial sentences may have been more appropriate in the circumstances of some cases. There are between 2,000 to 3,000 children aged between ten and 17 in custody at any one time either under sentence or on remand in England and Wales, and there does not seem to be any effective steps being taken to reduce that number.

The recent student and anti-cut protests which saw mass arrests of young people across the country by officers from Operation Malone and Brontide have now resulted in protestors receiving custodial sentences. The first of the student protestors to be sentenced was 18-year-old schoolboy Edward Woollard, who was sentenced to 32 months in January 2011 and is serving his sentence at a youth offender's institute. This month we have seen the custodial sentences of students Francis Fernie, 20, and Charlie Gilmour, 21, who were sentenced to 12 and 16 months respectively.

But is custody the right option when it comes to sentencing young protestors? The offence in many occasions is a one-off incident, out of character for the young person who before this time has never been in trouble with the law. Although 'deterrent sentences' have a part to play in reducing the level of crime, they should not be seen as a solution when sentencing a protestor as no sentence will stop protests from happening.

Instead of the 'deterrent sentence', the courts must recognise that a non-custodial sentence will also get the message across to the younger generation that their actions were not acceptable, and most importantly will give them that much deserved second chance.

The harsh penalty of a custodial sentence should be a last resort and is seen as the last resort when it comes to youth detention in other types of cases. The judgment by Lord Justice Toulson in the case of R (on the application of A) v Lewisham Youth Court (Defendant) & Director of Public Prosecutions (Interested Party) [2011] EWHC 1193 Admin reaffirms the stance that courts should take when sentencing the young. This case was a judicial review by the claimant of the decision to remand him in custody in prison, rather than secure accommodation following his arrest and charge for an offence of murder. It was held that: 'Even for a child or young person charged with an offence as grave as murder, remand in prison establishment should be the last resort. It was impossible to believe that parliament could have intended prison to be mandatory, regardless of whether the defendant could be safely kept in more suitable accommodation.'

The case of R (on the application of Suppiah and Others) v Secretary of State for the Home Department [2011] EWHC 2 Admin, which concerned the detention of two families, Ms Suppiah and her two children and Ms Bello and her child, also recognised that the detention of children should be the last resort. The Yarl's Wood family unit detention centre subsequently had to close as it was held that the detention of children in those circumstances was unlawful.

Although many of the protestors who are facing charges are not children, they are young, vulnerable adults and equal consideration needs to be given to their age if they are sentenced. This approach does not seem to have been followed in all occasions and instead there has been a disproportionate response by the court in opting for the custodial sentence above all else which needs to be addressed quickly.

There is no reason why young protesters should be singled out in this way, and we need to keep the last resort last if we are to give the young protestors equal treatment within the law.