Introduction: why the age at the time of the offence still matters
A person may be investigated, prosecuted and convicted as an adult for conduct alleged to have happened when they were a child. This is seen most often in historic sexual-offence cases, where a complaint is made many years later. It can also arise when an offence comes to light after a young person has turned 18 or when a case has taken a long time to reach court.
The court does not simply ignore the defendant’s childhood and apply an adult sentencing guideline from the outset. It must begin with the legal and sentencing framework which applied to a child of that age when the offence was committed. The person’s adult circumstances and the information now available still matter, but adulthood alone cannot create a power to imprison which did not exist at the time.
The Court of Appeal reinforced that approach in LIJ [2026] EWCA Crim 1053. A sentence of seven years’ imprisonment was replaced with a community order because custody would not have been available for the offending when the defendant was aged 11 to 13.
What happened in LIJ?
The defendant was 28 when convicted in 2025 of sexual offences against two younger siblings. The offences had been committed between 2007 and 2011, when he was aged between 11 and 13. The sentencing judge used the adult sexual-offences guideline, reduced the resulting figures to reflect his age at the time, and imposed a total sentence of seven years’ imprisonment.
The Court of Appeal held that this was the wrong method. At age 11, a detention and training order was not available for the offences. At ages 12 and 13 it could only have been imposed if the child was treated as a persistent offender. The defendant had not previously come to the attention of the criminal justice system in a way which could support that conclusion.
The correct starting point was therefore a non-custodial sentence. The Court of Appeal substituted a 24-month community order, with an accredited programme and rehabilitation activity days. It did not add a punitive requirement because the defendant had already spent time in custody. An indefinite sexual harm prevention order was reduced to five years, with the notification period adjusted to match.
The result was not based on the court minimising the seriousness of the offences. It followed from a legal limit on the sentence available for conduct committed by a child of that age.
What approach must the sentencing court take?
The Court of Appeal’s leading guidance comes from R v Ahmed [2023] EWCA Crim 281 and has now been applied again in LIJ. In practical terms, the court should work through six connected principles.
The children and young people guideline remains relevant even if the defendant is now an adult
The Sentencing Council’s guideline on sentencing children and young people is relevant even though the defendant is an adult at the date of sentence. The court must consider the defendant as the child they were when the offence happened, including their maturity, understanding, home circumstances, education, vulnerabilities and any exploitation or abuse.
Children do not think, assess risk or resist pressure in the same way as adults. Their emotional and developmental age may also differ from their chronological age. Those are not abstract points: they can materially affect culpability.
The court must identify the sentences legally available at the time
The judge should establish the maximum sentence and the types of disposal which could lawfully have been imposed on a child of that age. Youth sentencing powers have changed over time, so this may require careful research into the law then in force. Many lawyers who have been in practise a long time keep a selection of elderly law books for just this sort of thing.
The question is not what sentence exists today. It is what the court could have done if the child had been convicted and sentenced close to the offence date.
The likely contemporaneous sentence is the starting point
The court should form a view of the sentence that would probably have been imposed at the time. This requires more than taking a modern adult term of imprisonment and applying a broad discount. The youth framework is different in purpose as well as scale. It places particular weight on welfare, rehabilitation and the prevention of further offending.
The historical exercise will not always produce one exact answer. Records may be incomplete and old sentencing provisions may need interpretation. The court must nevertheless undertake the exercise openly and give reasons for its conclusion.
This is the central rule illustrated by LIJ. If the child could not lawfully have received a custodial sentence, the adult cannot be sent to prison for that conduct years later. Turning 18 does not retrospectively expand the court’s sentencing power.
There can be difficult questions about whether a particular child met a statutory condition for detention, such as being a persistent offender. That issue must be decided on evidence, not assumed from the seriousness of the present conviction.
If custody was available, the historic maximum still matters
Where custody was legally available at the time, the court should be slow to exceed the maximum or likely custodial term which applied then. There must be a good reason for doing so. The fact that the defendant is now an adult is not, by itself, a good reason.
The Court of Appeal used this approach in R v Limon [2022] EWCA Crim 39, reducing a sentence after considering the lower maximum which would have applied when the defendant was a young person.
Later information and present-day sentencing purposes can still be considered
The court is not required to pretend that the intervening years did not happen. Evidence emerging later may show that the conduct caused greater or lesser harm than could have been understood at the time. A continuing course of offending may change the picture. The defendant’s adult record, present risk, health, rehabilitation and personal circumstances may also be relevant.
Adult sentencing purposes—such as punishment, rehabilitation and protection of the public—are considered at the date of sentence. They operate, however, within the legal framework created by the defendant’s age at the time of the offence.
Why an adult-guideline discount is not enough
Starting with an adult guideline may appear convenient: the judge identifies an adult sentence and reduces it for youth. The problem is that this treats childhood as a mitigating percentage rather than a different legal framework.
It can also produce a sentence which was never legally possible. In LIJ, no percentage discount from an adult prison term could cure the error because the true starting point was non-custodial. Defence solicitors should therefore identify the historic powers and ensure that the court is aware of the rules in force at the time of the offence to ensure that the court does not exceed its powers.
What evidence can affect the sentence?
Sentencing an adult for childhood conduct requires a detailed picture of both periods: the defendant’s circumstances then and their position now. Relevant material may include:
- school, social-services and medical records showing development, vulnerability or abuse;
- evidence about the family setting, relationships and power dynamics at the time;
- psychological or psychiatric evidence about maturity, trauma, learning disability or mental disorder;
- the defendant’s criminal record and any periods of stability or rehabilitation;
- evidence of the impact on the complainant; and
- current information about work, family responsibilities, treatment and risk.
The passage of time can make these records difficult to find. Early requests are important. Where a record no longer exists, the defence may want to obtain evidence from people who knew the defendant at the time the crimes were committed.
Does the delay make the offence more serious?
Delay does not increase the defendant’s culpability simply because they are older when sentenced. A child’s responsibility must be assessed by reference to their age, maturity and knowledge at the time.
The delay may still have practical consequences. A complainant may have lived with the effects for many years. The defendant may have demonstrated long-term rehabilitation, or may have committed further offences which alter the assessment of risk. The court considers those matters for what they genuinely show; it should not use the passage of time as a reason to convert childhood conduct into adult culpability.
If the defendant deliberately caused the delay – for example by absconding or obstructing the case – that conduct can be relevant and is likely to affect what weight a court gives to a defendant’s claimed remorse.
The age of criminal responsibility and very old allegations
In England and Wales, a child under 10 cannot be guilty of a criminal offence. If an allegation spans a period when the child was under and over 10, the dates and particulars may be critical and yes, we have dealt with serious sexual allegations where offending spanned the alleged perpetrator’s 10th birthday.
An additional historic rule can apply to conduct before 30 September 1998. At that time, a child aged 10 to 13 was presumed not to have the necessary criminal capacity unless the prosecution proved that the child knew the act was seriously wrong, rather than merely naughty or mischievous. This rule is called doli incapax.
Although doli incapax was abolished prospectively, the abolition did not rewrite the law for earlier conduct. In a qualifying historic case, the prosecution may need clear positive evidence of the child’s understanding which is distinct from proof that the act happened. This issue is highly fact-sensitive and should be identified well before trial.
What happens if the judge uses the wrong approach?
A sentencing error can be challenged in the Court of Appeal, but permission is required and strict time limits apply. The ordinary time limit for an application for leave to appeal against sentence is 28 days from sentence. A late application must explain the delay, and permission is not automatic.
The appeal court may reduce the sentence, replace it with a different type of order or dismiss the appeal. It will consider whether the sentence was wrong in principle or manifestly excessive. In LIJ, the error went to the legal availability of custody, so the Court of Appeal substituted a community order.
Prevention is better than appeal. The historic sentencing law, relevant youth guideline and supporting records should be placed before the Crown Court in a clear written note.
How Chetwode Criminal Defence Solicitors can help
Cases involving childhood conduct require more than a standard plea in mitigation. The defence may need to reconstruct an old legal framework, obtain records from several organisations, commission expert evidence and explain how childhood development affects culpability.
Early preparation is especially important in historic sexual-offence cases. The sentence may turn on facts and legal provisions which are not obvious from the current offence guideline.
Frequently asked questions
Can an adult be prosecuted for an offence allegedly committed as a child?
Yes. Turning 18 does not prevent a prosecution. The age at the time affects criminal responsibility, the offences which can be proved and the sentence which can be imposed.
Will the case be heard in the youth court?
An adult defendant is dealt with in the adult criminal courts, even where the alleged conduct occurred during childhood. The sentencing court must still apply the principles relevant to the defendant’s age when the offence happened.
Can the court send the defendant to prison if detention was impossible at the time?
No. Ahmed and LIJ confirm that custody cannot be imposed later where it was not lawfully available for that child at the time of the offence.
Is the adult sexual-offences guideline ignored completely?
Not necessarily. It may help the court understand present-day assessments of harm or offence characteristics, but it is not the proper starting point. The historic youth sentencing framework comes first.
Does a guilty plea still reduce sentence?
Yes, subject to the ordinary guilty-plea guideline and the circumstances in which the plea was entered. The court should first identify the appropriate sentence under the correct childhood framework, then apply any plea reduction.
Can the court make a sexual harm prevention order?
Potentially. Ancillary orders and notification requirements have their own statutory tests and periods. They must be considered separately from the length or type of the main sentence. In LIJ, the Court of Appeal reduced the indefinite order to five years.
Next steps
If you or a family member faces sentence for conduct alleged to have occurred before the age of 18, ask the defence team to address the historic youth sentencing powers expressly. Do not assume the current adult guideline contains the answer.
Chetwode Criminal Defence Solicitors can review the allegation, the defendant’s age at each relevant date, the law then in force and the evidence needed for a properly informed sentence. Contact us at an early stage so that historic records and expert evidence can be pursued before they are lost.
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