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Power To Suspend Youth Custody Sentence

Volume 113: debated on Tuesday 31 March 1987

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`The provision relating to the powers of the courts to suspend either in whole or in part a sentence of imprisonment as set out in the Powers of the Criminal Courts Act 1973 (as amended) and in section 47 of the Criminal Law Act 1977 shall apply with like effect to any youth custody sentence.'.—[Mr. Mark Carlisle.]

Brought up, and read the First time.

I beg to move, That the clause be read a Second time.

The hour is late and I shall try to be brief. The background to the new clause is that, having come nineteenth in the private Members' ballot this year, I put down a private Member's Bill which would have the same effect as the clause that I now propose. Its purpose is to give power to the courts to suspend a sentence of youth custody in exactly the same way as they have power to suspend a sentence of imprisonment passed on a person over 21.

I do not pretend that the language that I have used in the new clause is perfect, and I am not asking my hon. Friend to say tonight that the Government accept the new clause, but I hope that I shall have from my hon. Friend an assurance that the Government will consider its purpose.

It has been of considerable concern to members of the judiciary—I refer, if one has to declare an interest at this stage, not only to those who sit in a permanent capacity, but to those who sit as recorders in a part-time capacity—that while they can suspend a sentence of imprisonment imposed on someone over 21, they cannot suspend a sentence of youth custody imposed on someone under 21. A court may often be faced with, say, four defendants, two of whom are over 21 and two of whom are under 21, and for various reasons it may be necessary to impose a custodial sentence on of all of them. The court has power to consider for those over 21 whether it is right that the sentences be suspended wholly or in part, whereas for those under 21 it cannot by law consider suspension of the sentences. This is an illogicality in our penal system that deserves examination. I believe that I am expressing the concern of a great many involved in the criminal courts in raising this point.

Will my right hon. and learned Friend accept that I have spoken to many judges, all of whom say that they would dearly love to see Parliament doing away with this anomaly and that they would like suspended sentences to be available for those under 21?

I agree with my hon. Friend. It is my experience, after talking to those who sit in a judicial capacity, that they recognise the illogicality in this area.

I hope that I understand why the Government felt it necessary to oppose the new clause and my private Member's Bill and why I suspect they will advise the House not to accept the new clause this evening. The Government say that, because of the philisophy of those matters which the court must take into account when deciding whether it is appropriate to impose any penalty of a custodial nature on a person under 21, it is inappropriate if that penalty is then suspended.

Let me remind my hon. Friend that I do not think that that argument stands up to much investigation. Of course, it is true that under the Criminal Justice Act 1982, and under new clause 2 which the Government have accepted today
"Where a person under 21 years of age is convicted or found guilty of an offence, the court may not … pass a youth custody sentence"—
that is the youth custody order with which my new clause is concerned—
"unless it is satisfied … that no other method of dealing with him appropriate".
It goes on to set out that that means that
"he is unable or unwilling to respond to non-custodial penalties"
or because a custodial sentence is necessary for the protection of the public or because the offence
"was so serious that a non-custodial sentence cannot be justified."

I remind my hon. Friend that the Powers of Criminal Courts Act 1973 says, although not set out in the same detail, that no court shall pass a sentence of imprisonment on a person over 21 who has not previously been to prison or had a sentence of imprisonment passed upon him unless the court is of the opinion that no other method of dealing with him is appropriate.

Whether the person is over 21 or under 21, the court first has to decide whether it is satisfied that there is no other appropriate method for dealing with him. Those considerations are much the same whether the person is 21 or 20. In fact—my hon. Friend the Minister will confirm this—there is clear authority from the Court of Appeal that no court should consider suspending either wholly or in part a sentence of imprisonment unless, in the absence of the power to suspend, it believes that it would be right to impose a custodial sentence. In other words, before a sentence of imprisonment is suspended, partially or wholly, it must first be decided that the sentence of imprisonment is the right sentence. Therefore, the argument that there is some philosophical difference between those under 21 and those over 21—

The right hon. and learned Gentleman will be aware of new clause 2, which was accepted by the House. He will have several difficulties if he pursues his new clause. He has spotted one of them, but what does he say of the position of a young person given a suspended sentence who then commits another relatively minor offence? He will be in breach of the suspended sentence but will then be trapped by the new clause, which the right hon. and learned Gentleman, along with his right hon. and hon. Friends, supported.

I did not speak on the new clause and I was not in the Chamber when it was debated, but as far as I can see it adds little to the existing law under section 1(4) of the Criminal Justice Act. I accept that if one goes for the concept of the right to suspend wholly or in part the sentence of youth custody, which I believe to be right or desirable, the wording of the Criminal Justice Act 1982, or the wording of new clause 2, to which the Government were sympathetic today, may have to be changed slightly.

Let me return to the reality of the situation. Let us suppose that a court is trying a group of people who have been convicted of, or have pleaded guilty to, an offence. Some are over 21, and some under 21. Whoever is trying the case must first ask himself what is the appropriate penalty for the offence, and whether as the law requires, he is of the opinion that a custodial sentence is the only appropriate method of dealing with it.

12.45 am

Let us assume that those people are out of work. In that case, it is ridiculous to suggest that a substantial fine is a realistic alternative. They are not recommended for community service and, for various reasons, they do not appear to be appropriate cases for a probation order. However, they have committed serious offences—let us say breaking and entering—and the court is therefore required to consider a custodial sentence as being the only appropriate method available.

Having reached that conclusion, the court decides that, in view of the background and history of the individuals concerned, it would be right to suspend the sentences. Surely it is wrong that the court should be able to suspend the sentence of the person over 21, but not the youth custody sentence imposed on the person under 21. It was to try to deal with that anomaly, which I know concerns those who sit in our courts, that I tabled the new clause.

My hon. Friend may say that there is a danger that the new clause will lead to a proliferation of youth custody sentences being imposed on those under 21. I shall be quite happy if he says that he will examine the new clause in the context of the higher courts only. I do not accept the argument that the hon. Member for Hammersmith (Mr. Soley) put forward in his intervention. Surely the whole point of a suspended sentence is that if the offender breaches it he is likely to go to prison. The purpose of my new clause is to empower the court, if it decides that youth custody is the only appropriate sentence, to consider whether it should be suspended, as the law requires it to do if the sentence is one of imprisonment.

In answer to the hon. Gentleman's intervention, in the absence of the power to suspend a sentence, the court, having come to the conclusion that a youth custody order is appropriate, cannot consider suspending; it is bound to put the person into custody immediately. If that person is over 21, however, the court has the option of considering whether the threat involved in a suspended sentence is adequate.

I hope that my introduction of the new clause has not been too long.

The point is worthy of consideration. Indeed, it is contained in the Government's document "Custodial Sentences for Young Offenders". I hope that the Government will take into account the views expressed by the judiciary and others, and in another place consider the introduction of such a measure.

I shall be brief. I support my right hon. and learned Friend the Member for Warrington, South (Mr. Carlisle), and I hope that the Government will accept new clause 19, or at least take it away and worry about it and come back with something constructive.

My right hon. and learned Friend argued his case cogently, and I have very little to add. However, I can confirm that, in so far as judges can ever be described as a lobbying body, I was lobbied in the London courts on the last couple of occasions that I have sat as an assistant recorder. They said, "For goodness' sake, do what you can to get the law changed and given a more sensible form."

I refer my hon. Friend the Minister to what the Lord Chief Justice, who I know commands great respect, said in the Court of Appeal in the case, in 1983, of R. v. Dobs and Hitchin. Two young men aged 18 and 19 pleaded guilty to inflicting grievous bodily harm. Lord Lane said:
"The court notes that, unfortunately, it is not possible for terms of youth custody to be suspended either in whole or in part, so consequently the sentencing court is often in a dilemma … For instance, in this case it might very well have been that the Recorder would make up his mind that a term of 12 or possibly even 18 months was appropriate, but in the light of the character, the testimonials and so on, perhaps only six months of that need be served, but that he cannot do. So what is he to do? Either he passes a sentence of 18 months, none of which he is allowed to suspend, which would probably be too long, or he goes to the other extreme, which is the only alternative, and passes an immediate sentence of that length of time which he would have ordered actually to be served in a partially suspended sentence, which would probably be six months. Each of those two is going to be wrong for one reason or another, the former too long, the latter too short. That is the situation which faces a court. One hopes that Parliament will see fit to make it possible before long for the courts to do that which in many cases they would wish and probably wish to do but at the moment that is not possible…What has to be done in this case? The answer is quite plain. In the circumstances which I have described, the only proper course is to pass the lesser of the two sentences."
That is clear, and the view is repeated in other cases. If Lord Lane's view is not more cogent than my words and perhaps those of my right hon. and learned Friend, there is no meaning in the word cogent.

I hope that my hon. Friend the Minister will accept the new clause.

My right hon. and learned Friend the Member for Warrington, South (Mr. Carlisle) and my hon. and learned Friend the Member for Burton (Mr. Lawrence) have put extremely clearly the argument in favour of new clause 19. My right hon. and learned Friend asked us to say whether it is worthy of consideration. It clearly is. My hon. and learned Friend asked me to take it away, worry about it and bring something back. The Government will take it away and worry about it, but I cannot give any undertaking to bring something back.

I recognise that my right hon. and learned Friend and my hon. and learned Friend were expressing the views of the higher judiciary, most notably the Lord Chief Justice.

This is a nicely balanced argument, and it is partly because of that and partly because we recognise the force behind the observations that have just been made that the Government embarked on a consultation process last summer. The great majority of the responses were hostile to what my right hon. and learned Friend has proposed. I shall mention but four—the Magistrates Association, the Law Society, the National Association for the Care and Resettlement of Offenders and the National Association of Probation Officers. They were hostile because they feared that the power to suspend would result in more custodial sentences being imposed.

There is some evidence to support that view before and since 1982, but I shall not trouble the House with it. None the less, those who responded were concerned about the possibility of an increase in custodial sentences.

My right hon. and learned Friend has shot my fox in the sense that he has torn to pieces the argument that I intended to advance on verbal gymnastics and the effect of the 1982 legislation, which provides that a custodial sentence can be imposed only if it is believed that that is the only appropriate way of dealing with the offender. I shall not trouble the House with that argument, but there is one more consideration that I would urge upon it. Anomalies will arise in either direction, but there will certainly be an anomaly if we accept the new clause, because it extends only to youth custody orders and does not embrace detention centre orders. Let us suppose that the elder of two young persons was sentenced to a youth custody order, part of which was suspended, and, though he was the ringleader, he served a lesser period than the younger offender who was sentenced to a detention centre order which could not be suspended. I accept, however, that these are debating points.

I return to where I started. The argument has been well advanced, but the Government's present position is that it is a proposal that we would not wish to support, for the reasons that I have set out. Anxiety is felt by many that the proposal would result in an increase in the number of custodial sentences that the courts impose, but it would be silly of me not to say to my right hon. and learned Friend and hon. and learned Friend that their arguments have been adduced with such clarity and eloquence that it is at least right that we should worry about the problem further. I do not want to give my right hon. and learned Friend the understanding, however, that I am giving a commitment to return to the House with revised legislation. I am not doing that.

I remember only too well that, when I occupied the position of my hon. Friend the Under-Secretary of State, I was put up on various occasions to argue against the amendment that was regularly moved to remove the then restriction on sending people under 21 years of age to prison for periods shorter than nine months or longer than three years. I tried always to argue against it with the eloquence with which my hon. Friend has argued his case this evening, but about eight years later in 1982 the sense behind the removal of the restriction was accepted by the House. I suspect that in a similar period the House will come to accept that sentences of youth custody should be suspended like sentences of imprisonment.

I am happy to have made the point and to have heard the Minister say that at least the Government are considering the merits of my argument. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.