House again in Committee on Clause 9.
moved Amendment No. 68:
68: Clause 9, page 7, line 22, after “of” insert “financial compensation or other appropriate”
The noble Lord said: After the wide-ranging debate on the previous group of amendments, I might well be accused of condescending to the particular in this amendment. Indeed, it is an amendment about a particular and clear matter.
Financial compensation orders are not often used by the courts. Why is that so? There are some links here to reparation orders. Financial compensation orders could be an effective way of impressing on offenders the significance of their crime—to take just one example, crimes associated with vandalism. The reality is that the number of financial compensation orders made in youth courts is extremely limited. Offenders who commit property or shop-lifting crime often do not accept that there are any victims. Here is an opportunity to change that. Obviously, a financial compensation order would have to be tailored to the offender and take into account his circumstances. I beg to move.
I thought that it was an interesting amendment, and I have a great deal of sympathy with the reasons for proposing it. I am clear that young people who have offended should be held responsible for their actions and that proper reparation, including financial compensation, should be an important feature of making young people accountable for their actions.
We do not think that there is a specific need for the noble Lord’s amendment for a number of reasons. Reparation is a key theme within the current framework of the youth justice system, which is why it should be included as a purpose of sentencing for the court to consider. The court can sentence a young person to a specific reparation order, which will remain a separate sentence beneath a youth rehabilitation order. A reparation order focuses on reinforcing personal responsibility and on learning the consequence of the damage the offender has caused both to the individual and the community. It may cover a variety of activities from simply writing a letter of apology to carrying out work to assist the local community.
I took part in such a community payback programme in relation to a scout hut in Northolt some months ago and met a number of young people who were required to take part. I must say that I found it useful. It is interesting that through such schemes and their contribution, some of the young people have found skills and work. They also contributed to renovating a much-needed community asset, when it would have been difficult to find the resources to do it.
There are many other marvellous examples to which we must pay tribute. As we discussed yesterday, I thought that reparation must be an element within the youth rehabilitation order itself. Reparation activities can be used in some of the requirements and as unpaid work.
In terms of the legislation, we believe that courts already have the power to order any offender to pay compensation under existing legislation. Section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 provides for that power. A compensation order awarded by the court in favour of the victim is the primary sentence of the court, like a fine. Its main purpose is to punish the offender, not necessarily to compensate the victim fully.
I noted the remarks of the noble Lord, Lord Kingsland, that it is all very well there being a provision but it does not seem to be used often. I have some sympathy with that, although no doubt he would acknowledge the benefit of the courts’ discretion in these matters, as he has pointed out to us. The problem is probably that the courts take the view that it would not serve a useful purpose to award an amount and require payment at a level that the offender had no hope of repaying within the foreseeable future, which might merely tempt him or her to commit further crime.
That may be the reason, but as I have said, my figures for 2005-06 show that 15,492 compensation orders were given to young offenders. Clearly the power is used to a certain extent, but I am happy to take away the provision to see whether anything more could be done to encourage more use of the order in the future.
I am most grateful to the Minister for his reply. I could not have asked for a more constructive response to my amendment. In those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 69 and 70 not moved.]
Clause 9 agreed to.
71: After Clause 9, insert the following new Clause—
“Restrictions on custodial sentences for offenders aged under 18
(1) This section applies where a person under the age of 18 years is convicted of an offence punishable with a custodial sentence other than one—
(a) fixed by law, or(b) failing to be imposed under section 51A(2) of the Firearms Act 1968 (c. 27) (minimum sentence for certain offences under s.5) or under sections 226 to 228 of the Criminal Justice Act 2003 (c. 44).(2) The Criminal Justice Act 2003 is amended as follows.
(3) In the title of section 152 (general restrictions on imposing discretionary custodial sentences), after “general restrictions on imposing discretionary custodial sentences” insert “on offenders aged 18 or above”.
(4) In section 152(1), after “where a person” insert “aged 18 or above”.
(5) After section 152 insert—
“152A Restrictions on custodial sentences for offenders aged under 18
(1) A court shall only pass a sentence of custody on a person under the age of 18 as a measure of last resort and where—
(a) the offence committed caused or could reasonably have been expected to cause serious physical or psychological harm to another or others; and(b) a custodial sentence is necessary to protect the public from a demonstrable and imminent risk of serious physical or psychological harm.(2) The court shall state in open session its reasons for passing any sentence of custody under this section.””
The noble Baroness said: Despite the Government’s protestations that custody should indeed be the disposal of last resort and for the shortest possible time, as is laid down in international human rights law, the fact remains, as we have now said over and over again, that the number of children in custody has steadily risen over the Government’s lifetime. One hopes, when one says these things over and over that the content of the meaning does not get diluted. It is just a serious fact.
It is accepted in theory that because they are children, those who break the law must be treated differently from adults, as we have already been saying at great length today. All those institutions and structures devised to deal with them must take that into account. However, the JCHR in scrutinising the provision in the Criminal Justice Act took the view that the restriction on the use of custody is a general one applying to all offenders rather than specifically ensuring that it is genuinely used as a last resort where children are concerned.
The reason for this amendment is to introduce a more specific safeguard and to create a statutory custody threshold that will act as a barrier to the downward use of custody for lesser offences and be clearly for public protection, except of course where mandatory custodial sentences apply. For the awful truth is that while the crime rate overall is dropping, the numbers of children in custody is rising.
We have rehearsed so often in this House the statistics relating to children that show that on virtually every measure they are the most deprived and damaged in our society. When we add to that the fact that the reoffending rate is the highest of any group and the subsequent life chances are the lowest, it seems clear that we are all losers in the exercise. It is neither logical nor justifiable in any of the outcomes.
Further, we could just remember that six children have died in custody in the past five years. However, there is evidence that a custody threshold was successful in bringing down the custody figures when it was tried 25 years ago. It resulted in a 54 per cent decrease over a decade on the under-21s given custody for an indictable offence until it was repealed in 1991. Since it cost the YJB £280 million in the year ending March 2007, just think of the possibilities for greater investment, rehabilitation, prevention and restorative alternatives.
The current threshold under the Criminal Justice Act 2003 is too vague, but Section 1(4) of the 1982 Act provided that the courts must not pass the sentence of custody on a person under 21 unless they were,
“of the opinion that no other method of dealing with him is appropriate because it appears to the court 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 recommend most urgently to the Minister that we follow that excellent precedent and reintroduce such a threshold again. I beg to move.
[Amendment No. 72, as an amendment to Amendment No. 71, had been withdrawn from the Marshalled List.]
73: After Clause 9, line 3, leave out “18” and insert “21”
The noble Lord said: All of us in the Committee should be grateful to the noble Baroness, Lady Linklater, for the wide scope of things she brings to these debates—her experience is pretty unrivalled—but particularly for having tabled Amendment No. 71. She referred to the unacceptably large number of young people being incarcerated in one way or another. With that statistic goes the reality that the facts speak for themselves: it is not a successful process. The rate of reoffending remains deeply disturbing. Even if there were no other grounds, any sane society would say that we had better look at this because what we are doing is obviously not effective.
The noble Baroness has put the case very well. On the amendments immediately following, we shall touch on the danger to children in custody as well. I therefore applaud Amendment No. 71 and plead with my noble friend the Minister to take it seriously. The purpose of my amendment is simply to say that I am at least as concerned about the 18 to 21 year-old age group. This was brought home to me in the context of the YMCA’s work in young offender institutions, prisons and the rest. That age group is in many ways a particularly vulnerable section of the population, because it is so easy for staff and others to regard them as adults and they are not. Just think of our own children—as I wish we would more often in this situation—and how dependent they are. They may not want to admit it, but they are terribly dependent and reliant. We must therefore be particularly careful about consigning anyone in that age group to custody unless—as we shall come to on later amendments—we are certain about the form of custody into which we are putting them. My amendments are therefore in a spirit of welcoming the amendment of the noble Baroness, but I propose that it should be extended to cover this other age group as well.
I am glad that the noble Lord, Lord Judd, with his usual prescience, has raised this threshold to 21. It brings to mind the fact that, in the custodial system as it is, there are people aged under 18 in the hands of the Prison Service, and then those aged 18 to 21 of whom there many more, but they are marginalised. They are marginalised because nobody is responsible for looking after them; they are not regarded as adults, they are not regarded as children and nothing is done for them.
That group probably needs our help more than any other which we are not helping. Its members are on the threshold of adulthood; it is the last chance saloon, if you like. Therefore, while we are dealing with children and all the special things that happen, we ought to bear in mind that some establishments known as “split sites” have both groups. If you visit them, you will find that the younger group has facilities like education and work, and the 18-21 year-olds have not because the facilities have been milked to provide them for the juveniles for whom the Prison Service is under contract from the Youth Justice Board.
It has been said that this group of young offenders should go up to the age of 25. That is another debate and another aspect that needs to be considered, but bearing in mind that, as I shall be raising in another amendment, it is now possible for people to remain in care until the age of 21 and remembering the immaturity of some of these people who need all the help that they can get, it is right that the restrictions on custody that the noble Baroness has so rightly raised should apply to the age range raised by the noble Lord, Lord Judd.
Does the noble Lord agree that the statistic which, to be candid, I gave to the House in the context of an Oral Question this afternoon makes his point very clearly? While it is true that since 1990 30 children have died in custody—that is a disturbing enough statistic—during the same period 201 people aged 18 to 20 have died in custody, including 178 self-inflicted deaths and five homicides. We somehow as a society just say, “Oh well, those are the statistics”. Think of the human tragedy that every case represents and the appalling situation for families, relatives and others. For all those reasons, we cannot overemphasise the importance of the noble Baroness’s amendment. I am very glad to see that she seems to be indicating that she has no difficulty with our proposition that it should be extended to cover the 18 to 21 age group.
I accept that. The noble Lord’s figures emphasise once again the importance of looking at all aspects of this—from suspicion to arrest, through every trial, through custody and whatever—holistically with the same thing in mind and not as single issues.
I strongly support the amendment. I shall not repeat what I have already said about this matter, but shall take this opportunity to welcome strongly the measures in the first part of the Bill to provide proper community sanctions so that children can be kept out of custody more than they have been in the past. I note what the Minister said about a static period, but can he say a bit more about the trend? I understand there was a rising trend, then a static period and then it began to rise again more recently. Has that rise now settled?
There are a number of points to make about this. I think I am correct in saying that there has not been a death in a local authority secure unit. Perhaps the Minister will confirm that. If one can reduce the population within the custodial centre, one can concentrate on quality. One could make centres local and concentrate on having the best training and support for staff and really use custody effectively. Currently, there is overcrowding, so there is a high level of churn. That means it is difficult to establish relationships between the young people and the custody officers, which means that a heavy use of force is needed to keep them under control. Again and again I hear from people working in these places that relationships are crucial to managing behaviour, but they cannot be established. We now have a call from the Prison Officers’ Association for prison officers to be allowed to carry batons in these settings.
There are so many good reasons to wish to move in this direction. Before I finish, I want to emphasise the huge cost to the public of locking up all these children. How much better that money might be spent on the community sanctions that the noble Lord is proposing. I hope that the Minister can give a sympathetic reply to the amendment.
I will be brief but I have no hesitation in backing both the amendment and the amended amendment. This group of children, particularly in today’s world of overcrowded prisons—which, let us face it, it is going to take some time to sort out—is the most vulnerable group. The more we can do to help them the better, by not only encouraging but laying a duty on local authorities and others to see them through into, we hope, a better world with backup and resources provided to help them get into jobs or training. The numbers who take their own lives or self-harm are quite appalling. I would like to ask whether there are any figures for men and women on this but one knows that there are very vulnerable women in these circumstances. The Corston report has made that clear to us. But I certainly back these amendments.
I view these amendments with sympathy but not with total acceptance and I would like to say why. In the last couple of days it has become almost a truism to say that there is very little expectation of a successful result from an order of custody imposed upon anybody under the age of 18. I am much in sympathy with what the noble Lords, Lord Judd and Lord Ramsbotham, have said about the special circumstances that affect the under-21s. Over the years we have legislated to provide that custody for a young person shall only be a last resort. From that it follows that Parliament has regarded it as a resort, albeit a last one and therefore one very sparingly turned to. My anxiety about these amendments is that it is to impose a dangerously narrow restriction on what may be regarded as a last resort to say that,
“the offence … could reasonably have been expected to cause serious physical or psychological harm to another or others”,
“a custodial sentence is necessary to protect the public from a demonstrable and imminent risk of serious physical or psychological harm”.
I think that could be found to be dangerously and impracticably narrow. I would be interested in the noble Baroness’s comment on this point and the Government’s response to it. There may be a case for a restriction on what can be regarded as a last resort but as at present advised I think this is unduly narrow.
To a large extent I support both sets of amendments. I particularly support the amendment that raises the age from 18 to 21 for that very vulnerable group of children. I also share the concerns of the noble and learned Lord, Lord Mayhew, that there should be a restriction but that this is too narrow. One should be thinking a little more broadly for the protection of the public because the public will not understand if between the ages of 18 and 21 we are treating them exactly the same as children. But even with children one has to be a little careful that this is not too restrictive. I totally agree with the concept but some wording to make it slightly broader would be better than the present.
I will not speak about the amendments of the noble Lord, Lord Judd, on raising the age of the custody threshold to 21; I will speak only to those which have my name against them. Anticipating perhaps what the Government’s resistance to this might be, I would argue that one of the problems here is the definition of “so serious”. Section 152(2) of the Criminal Justice Act 2003 requires that:
“The court must not pass a custodial sentence unless it is of the opinion that the offence … was so serious”.
The problem is that the threshold and the meaning of “so serious” is too vague. That definition necessarily will relate to a person’s age and circumstances, and, dare I say, emotional and intellectual development, on which we have had such a robust debate earlier.
I direct the noble and learned Lord, Lord Mayhew, and the noble and learned Baroness, Lady Butler-Sloss, to international comparisons, which were articulated so clearly yesterday in the opening speech made by the noble Baroness, Lady Stern, on the principles. In this country, we cannot have children who are more feral, who are worse, than comparable children elsewhere—at least in comparable economies, GDPs and populations.
When we talk about the situation in this country we seem to believe that something is particularly wrong with us here—I call it British exceptionalism—which is an admission of defeat. International comparisons clearly show that custody thresholds apply and are successful elsewhere. I shall not answer those questions directly—I shall leave that to my noble friend Lady Linklater—but I make that observation. We know that custody does not rehabilitate the vast majority of children; three-quarters of them reoffend within a year.
The amendment would enable interventions to be improved. It perhaps is a little too narrow and perhaps we need to think again about whether we can make it more practically applicable. But it would provide interventions for those who need to be locked up for genuine reasons of public protection and would enable the reallocation of resources for more suitable and effective community work. We know that community programmes are not adequately funded. About 70 per cent—£280 million—of the Youth Justice Board’s programmes budget is spent each year on locking up—I know that the Minister is sensitive about those words—children.
We are most sympathetic to the animating theme which lies behind these amendments, although we have one or two hesitations about particular aspects of the detail.
As I think that we have all said in the past two days, custody is known to be one of the least effective and most harmful of criminal justice disposals for children, with eight out of 10 reoffending within two years of release. I note that the Minister in another place, David Hanson, did not object to the concept of custody thresholds, which is not surprising. The Youth Justice Board’s publication, entitled, Strategy for the Secure Estate for Children and Young People, of November 2004, said:
“The YJB expects legislative changes that are due soon to bring greater clarity for courts about the [children’s] custody threshold”.
As Members of the Committee are well aware, YJB policy documents are cleared by Ministers and thus, effectively, become government policy.
The aim of a custody threshold for children should be to ensure that children are only ever locked up as a last resort, principally for public protection. Moreover, a reduction in the number of children in custody would release considerable resources for improved prevention and rehabilitation where it can be most effective, as noted by the Audit Commission, the Public Accounts Committee and many other official bodies.
Perhaps I may refer to a few of the questions that were raised before I come on to the Government’s view of the specific issues. The noble Baroness, Lady Linklater, referred to the downward use of custodial sentencing, which I think is the equivalent of my up-sentencing. We understand what we mean. I just want to stress that this is not the aim. This is about ensuring custody is indeed the last resort. That is why, in the earlier part of the Bill, so much emphasis is put on the YROs. The noble Earl, Lord Listowel, referred once again to the very important question of restraint. As I said earlier this afternoon—it seems many hours ago now—the review that has been commissioned is due to report in April. I hope that will inform the development of a sensible and helpful policy. We will have to see what the review says.
The noble Earl also asked about deaths in custody. I am very happy to circulate the details that I have. I cannot answer the question, raised I think by the noble Baroness, Lady Howe, about women. I will try to find that information. We have another happy debate only a few hours ahead in relation to the report of the noble Baroness, Lady Corston, and I have no doubt that that is one of the matters that we will discuss. On the noble Earl’s specific question, every death is a personal tragedy. My understanding is there was one death at Hillside SCH in 1998. I will let him have details of that of course.
I also want to provide the figures on young people in custody and the question of whether we are in a stable position. My understanding is that on 30 June 1997, there were 2,479 under-18s in custody. In October 2002 it had gone up to 2,735. The figure for June 2007, which is the latest I have, is 2,426. It is on that basis that I used the word stabilisation earlier. The YJB disposal data published for 2006-07 show that total disposals in that year were 216,000: pre-court were just over 96,000; first tier 73,000; community 39,700 and custody 7,097. The difference is that the figures I gave earlier were the number of people in custody at one point, whereas the latter figures are about the number of disposals during the calendar year. Noble Lords will interpret those figures, but it does put this into perspective.
I will also comment on another interesting question the noble Baroness, Lady Linklater, has raised about the 1982 Act. There was undoubtedly a significant drop in the use of immediate custody between those years for indictable offences for under-21s. This coincided with a corresponding increase in repeat cautioning for offenders, particularly the group aged 17 to 21. For instance, the number of males cautioned for an indictable offence in 1980 was 3,200 and that had risen to 22,500 by 1990. My understanding is that repeat cautioning for indictable offences was deemed not acceptable by the then Government which was why they reversed the position. That is the background to some of the very interesting questions—
My assumption is yes, but I will double-check to make sure and let the noble Earl know.
Let me turn to the question in hand. Although we understand what noble Lords are getting at, we think—as has been hinted at already—that the amendments would set an entry point for custody so high that it could present a real risk to the public. Amendment No. 71 would mean that a young person could be sent to custody only where the offence caused or could have caused serious physical or psychological harm and where it is necessary,
“to protect the public from a demonstrable and imminent risk”
of such harm. The proposal could apply to some of the most serious offences, such as manslaughter, rape and wounding with intent to cause grievous bodily harm.
There are provisions to deal with young offenders who are classified as dangerous in Sections 226 and 228 of the Criminal Justice Act 2003. This involves an assessment of whether the offender has committed an offence listed in Schedule 15 to that Act and whether they pose a significant risk of serious harm to members of the public. If someone commits one of the serious offences I have mentioned they will not be automatically assessed as dangerous. Most young offenders who commit such offences are given a sentence under Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.
The provisions in Section 152 of the Criminal Justice Act 2003 apply at present to offenders who have committed one of the most serious offences but are not classified by the courts as dangerous. The amendment would mean that even when the most serious type of harm had been caused and if it could be proved that the young offender had deliberately caused grievous bodily harm with the intent to cause such harm, the court could not impose a custodial sentence unless the prosecution could also prove that, looking forward, it was necessary to protect the public from a demonstrable and imminent risk of serious physical or mental harm. Only then would custody be an option.
There is a risk that if we accepted the amendment, notwithstanding that the prosecution could prove all the elements of the offence, the courts could not impose custody unless the prosecution could also show that there was a demonstrable and imminent risk of serious physical and mental harm. Such an offender would not necessarily meet the criterion of dangerousness in the amendment.
We think that there is a risk that the custody threshold could be raised in a way that prevents the courts protecting the public from young people who have committed serious and violent crimes.
I was very interested in the debate about 18 to 21 year-olds. I remind the Committee that in May last year, the then Minister at the Home Office made a Statement about young adult offenders. He said that,
“we are firmly committed to further work to ensure we plan for appropriate provision to address the specific needs of 18 to 24-year olds. We will progress a suite of proposals to enable us to test the best approaches both in custody and in the community by … piloting a specification for a new regime for this age group as an integral part of the new prison capacity building arrangements”.—[Official Report, Commons, 8/5/07; col. 7WS.]
Although I have some reservations about the amendment, I assure noble Lords that we accept the challenge presented by this age group.
I have been alerted to an error that I made in some of the figures that I gave, for which I apologise. The figures that I gave as a snapshot of the offender population were for young offender institutions only. I shall give the overall figure for the young offender population: in June 2007, it was 2,928; in June 2006, it was 2,925. I offer to circulate to all noble Lords the full figures so that when we debate the matter again on Report we are all clear about what we are talking about.
I am grateful for all the contributions. We know simply that the young offender population has teetered around an unacceptable 3,000 for several years. I am grateful particularly to the noble Lord, Lord Judd, for his amendment to my amendment. He was right that nobody knows better than the noble Lord, Lord Ramsbotham, just how even more deprived are these prisoners and how they can deceive us by looking so big, tough, frightening and dangerous. We have only to look at the figures. Well, we looked at the figures for suicides. We looked also at the figures for self-harming, to which nobody has referred today, and which are the biggest and loudest cry for help. It is in this age group that it is the most frightening.
In response to the reservations that have been expressed, I say that the proposed new clause at least offers a strategy for trying to put a lid on what is already such an unacceptably high figure. It might help the Government to focus on this if I said to them that the Ministry of Justice’s figures for December 2007 show that the vast majority—78 per cent—of the 5,291 children aged 15 to 17 who were sentenced to imprisonment in 2006 was not convicted of sexually related offences or violence against the person. They were not those most serious offenders. In other words, this down-tariffing or scooping-up of younger children into custody is one of things that we must find strategies to counteract.
I thank the Minister for that. One can nitpick over these things. I suppose that my general argument remains the same: too many children are going in for offences that are relatively too minor.
I was interested in what the noble and learned Lord, Lord Mayhew, and the noble and learned Baroness, Lady Butler-Sloss, said about the narrowing effect of the amendment. Evidence shows that when we had a threshold, it was very successful and brought down custody by nearly half. That is an important experience that we should not ignore.
I appreciate the general support of the noble Lord, Lord Kingsland. I hope that the Minister will perhaps look once again at the proposal. It is not an issue that we will let go. We look forward to returning to it later. In the mean time, I beg leave to withdraw the amendment.
Before I put that request to the Committee, I have to deal with Amendment No. 73. Perhaps I may invite the noble Lord, Lord Judd, to indicate his intentions with regard to Amendment No. 73.
Amendment No. 72 was withdrawn from the Marshalled List for a technical reason: it was inadvertently tabled before we realised that you cannot in fact amend the title of a clause. That is what I was led to understand and that is why I withdrew the amendment.
Perhaps I may assist the Committee. The order of withdrawal has to be something like this: Amendment No. 73 has to be withdrawn, Amendment No. 72 already having been withdrawn from the Marshalled List. The Deputy Chairman puts it to the Committee that Amendment No. 73 is withdrawn; the noble Baroness, Lady Linklater, then has the right of reply to Amendment No. 71. At that point, she will probably seek to withdraw her amendment, and the Deputy Chairman then puts that to the Committee.
If it helps the Committee, I am pleased at this juncture to say that I beg leave to withdraw my amendment to the amendment.
Amendment No. 73, as an amendment to Amendment No. 71, by leave, withdrawn.
[Amendments Nos. 74 to 77, as amendments to Amendment No. 71, not moved.]
78: After Clause 9, insert the following new Clause—
“Secure accommodation for children and young persons convicted of a criminal offence
(1) After section 89 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) insert—
“89A Detention orders
(1) This section applies where a child or young person (under 21 years of age) is convicted of a criminal offence and a court makes an order that that child or young person should be detained.
(2) A local authority must provide suitable premises in which that child or young person can be securely accommodated and appropriate care and support provided.
(3) The Secretary of State may by regulations make provision about the provision of suitable premises under subsection (2).”
(2) In section 27(1) of the Criminal Justice Act 1984 (c. 58) (remand of persons aged 17 to 20) omit the words—
(a) “, if the court has been notified by the Secretary of State that a remand centre is available for the reception from the court of persons of his class or description, ”, and(b) “and, if it has not been so notified, it shall commit him to a prison.”(3) In section 43(2) of the Prisons Act 1952 (c. 52) (remand centres, detention centres and youth custody centres) omit paragaph (c).
(4) For section 106 of the Powers of Criminal Courts (Sentencing) Act 2000 substitute—
“106 Interaction with sentences of detention in a young offender institution
(1) Where a court passes a sentence of detention in a young offender institution in the case of an offender who is subject to a detention and training order, the sentence shall take effect as follows—
(a) if the offender has been released by virtue of subsection (2), (3), (4) or (5) of section 102 above, at the beginning of the day on which it is passed;(b) if not, either as mentioned in paragraph (a) above or, if the court so orders, at the time when the offender would otherwise be released by virtue of subsection (2), (3), (4) or (5) of section 102.(2) Where a court makes a detention and training order in the case of an offender who is subject to a sentence of detention in a young offender institution, the order shall take effect as follows—
(a) if the offender has been released under Part II of the Criminal Justice Act 1991 (early release of prisoners), at the beginning of the day on which it is made;(b) if not, either as mentioned in paragraph (a) above or, if the court so orders, at the time when the offender would otherwise be released under that Part.(3) Subsection (1)(a) above has effect subject to section 105(3)(a) above and subsection (2)(a) above has effect subject to section 116(6)(b) below.
(4) Subject to subsection (5) below, where at any time an offender is subject concurrently—
(a) to a detention and training order, and(b) to a sentence of detention in a young offender institution,he shall be treated for the purposes of sections 102 to 105 above and of section 98 above (place of detention), Chapter IV of this Part (return to detention) and Part II of the Criminal Justice Act 1991 (early release) as if he were subject only to the one of them that was imposed on the later occasion.
(5) Nothing in subsection (4) above shall require the offender to be released in respect of either the order or the sentence unless and until he is required to be released in respect of each of them.
(6) Where, by virtue of any enactment giving a court power to deal with a person in a way in which a court on a previous occasion could have dealt with him, a detention and training order for any term is made in the case of a person who has attained the age of 18, the person shall be treated as if he had been sentenced to detention in a young offender institution for the same term.”
(5) Section 61 of the Criminal Justice and Court Services Act 2000 (c. 43) (abolition of sentences of detention in a young offender institution, custody for life, etc.) is repealed.”
The noble Lord said: The amendment stands in my name and that of the noble Baroness, Lady Stern, the noble Lord, Lord Dholakia, and the noble Baroness, Lady Howe of Idlicote. I am very grateful to them for their support for the amendment. I am glad, too, that the amendment is grouped together with Amendment No. 119. Of course, the noble Lord, Lord Ramsbotham, will speak to his own amendment. I shall say only that I am very much on board with it, as it seems to me that if young people are in custody, it is important that the local authorities, with all their special responsibilities and experience, continue to feel a sense of engagement with those children, so that they are there to help with rehabilitation when the children or young people are released and there is continuity in the situation. I am glad that the noble Lord’s amendment refers to the importance of trying to provide for continuity not only institutionally but by having the same people going through the same process.
I do not want to sentimentalise, and I know that I am inclined to talk about this, but my nine years as honorary president of the YMCA had a profound effect on me. One thing that I realised—and I hope that the Committee will forgive my putting it like this—is that if we take rehabilitation seriously, it is important to have someone who takes the hand of the youngster concerned and walks with that youngster through the whole experience of custody, rehabilitation and back into full life outside the institution afterwards. That transition phase afterwards is absolutely crucial in winning the youngster back to society and preventing still further exclusion.
We have had the statistics on the risks. I referred, in mentioning them, to the tragedy of each individual case, but the tragedy does not really sum up the situation well enough. We should think of the mental anguish and despair of the youngster concerned, who has given up hope. This is a terrible reflection—that we can somehow absorb this statistic and not be angry and indignant about it. I should like to feel that the new department with its new approach—and I believe that there is a lot of new thinking going on there, which I welcome—would have right at the top of its priorities how on earth we are going to stop this human tragedy of youngsters dying in custody. It is our responsibility—all of us—and it is essential for us to register what a terrible reflection it is on all of us that this can happen.
My first job in government, a long time ago, was as a service Minister. In those days, there was a Minister for each service. I had the privilege of being Minister for the Navy. We had in the Ministry of Defence a very interesting group. I used to tease them by saying that it was rather like painting the Forth Bridge. They were constantly discussing the future shape of the fleet, trying to assess what the real threats were and what kind of fleet we would need to meet the new threats.
It often occurred to me that, if we were to follow that job through logically and thoroughly, we would send these people off to a country house somewhere with a clean sheet of paper. We should say, “Forget there’s a Navy. Analyse the threats, and come up with the maritime dimension of what you believe needs to be done to meet those threats”. I always thought that there were one or two who would be horror stricken if there were no maritime dimension, but of course there was.
I am a realist, although noble Lords do not always feel that I am. I know that you do not meet trouble half way and you should strike compromises—I believe in compromise—that are constructive, positive and dynamic. You should move relevantly to the future by taking a firm position on what you believe ought to be at the beginning. We are inclined to be too mealy-mouthed in our approach and to compromise too soon. Having said that, to go back to my experience with the Navy, I would then tell them, “When you have done that, look over your shoulder and say, my God we've got this thing called the Navy”. I told them to look at the Navy as it was and try to make the most dynamic, sensible compromise between what they ideally wanted, what they inherited and what needed to be done.
Why do I say all that? It is because I am getting to the same point of concern about our penal system. There is a big gap, constantly, between what all the research and evidence demonstrates and what we actually do. More and more, the evidence that is being collected and the work that has been done indicate that most progress towards rehabilitation can be made with people in small units appropriately designed to their particular needs. A variety of opportunities should be available for people with particular kinds of problems.
I know that my noble friend will say that that is misguided as we go into the next phase of vast expenditure on new prisons—which I am inclined to think will end up as warehouses. He will say that because of economies of scale, we will be able to have much better services available within these warehouses to answer the specialists’ needs. But that is the issue. Technically and professionally there may be greater resources—I do not argue against that. I can see in an arid way that there could be economies of scale in that sort of context. But if we take seriously the work that says that you make real progress with small units, and the point that the noble Lord, Lord Ramsbotham, always makes—I hope he will make it again tonight—about the importance of continuity in human relationships in the whole process, it is not much good having technical, professional services and expertise available if that cannot apply in a dynamic, ongoing, complete social experience that makes sense for the youngster concerned.
I go back to my experience with the Navy and the white sheet of paper. I put forward the thesis that if we could miraculously discard ourselves of the whole infrastructure of the penal system now, take a piece of white paper and say, “What do we need?”, we could come up with a tailor-made system to meet all the research and analysis that has been done, which would be not a penny more expensive than what we spend now desperately trying to shore up a system that is not working. I do not believe that we begin to do that rugged, tough exercise of really analysing how far what we have is cost-effective or completely the wrong model. I believe in compromise and am a realist. One has to meet the situation that has been inherited. It is tragic, but one has to. Therefore, there will be compromises, but that is the kind of discipline we need in our thought.
I am very grateful to the experts in drafting, and for their legal advice, who, as good professionals, without committing themselves to my amendment, explained how it must be phrased in order to be watertight in the context of the Bill. My amendment is intended to say that so much is at stake with children and young people, that the governing principle should be that they do not go to prison, or into the kind of custody we have seen too frequently in the past. Noble Lords on the Liberal Democrat Benches, whom I greatly respect, have argued with me that I am being unreasonable because I go too far and what I want would be impossible. I think of one in particular, who is not with us this evening, with whom I quite often find myself in agreement. My anxiety is that while you have a system in which there are exceptions to putting someone in prison, there will be a tendency among some sentencers not to use prison as an exception, but as a convenience. It is the easy thing to do. One has, therefore, to introduce the approach that says no.
Of course, society must be protected. Of course, society must be protected. I hope that my having repeated myself comes out in the Official Report because I feel that very strongly. I believe, as we all keep saying, that if society is to be protected, it should not only be in the immediate or short term, but in the long term. That is why the success of rehabilitation work is so vital. I believe that. I accept that in some situations a young person will have to go into custody. In our society, surely, it is only acceptable if, when that happens, it should be into appropriate custody, which is part of the general care system. It has to be secure, but appropriate. I therefore move this amendment with some feeling, because I really have begun to feel exasperated at our failure to take a rugged, robust approach to what is necessary if we are to succeed in our oft-repeated objective of effective rehabilitation. I beg to move.
I am delighted to support this amendment. It was a great privilege to be asked by the noble Lord, Lord Judd, to add my name to it. A number of arguments have been advanced about amending Clause 9 of Part 2 of the Bill, which deals with the purpose of sentencing. The purpose of the amendment is to probe in greater detail the Government’s intentions. The Minister has stolen my thunder, because my last question to him was going to be, “Is there anything in the pipeline that will address the issue of age and suggest remedies?”. He has already answered that, but a number of issues need to be highlighted.
It is not my intention to repeat the arguments that have been put forward. In fact, in debate after debate there is a general consensus about the purpose of sentencing and so on, and I do not need to repeat that. I can well understand why the Government wish to promote the principal aim of the youth justice system when dealing with offenders up to the age of 18. The questions that I am always asking is, “Do we have the right approach? Should it be restricted to 18? Would the raising of the age from 18 to 21—which the noble Lord rightly put in the amendment for detention centres—actually help to reduce offending and reoffending rates?”. I have no doubt whatever that in the final analysis that is probably the reason that they would do so.
I sat as a magistrate in Sussex—the county that the noble Lord, Lord Bassam, comes from—for a very long time. When you are sitting in the court, it is very difficult to distinguish particularly in relation to the age factor and sentencing. I say that because some youngsters aged 12, 13 or 14 are much more mature than some people aged 21. Is that factor important? Or should you not effectively be looking at what is most appropriate for the individual before you? That is fundamental to the amendment.
In various amendments to Clause 9, a number of noble Lords tried to establish a balance; but the balance that we are lacking at the moment is effectively the age factor. I am not surprised, nor is the chief executive of the Youth Justice Board, that issues of youth justice continue to be very high profile, and we are increasingly focusing on this issue in the debates in your Lordships’ House. I am also aware that there is an ongoing 10-year plan to deliver the principles that have been set out in the Youth Justice Board strategy for the secure estate for children and young people.
There are obvious benefits, which include—this is the suggestion that the noble Lord, Lord Ramsbotham, has spoken about previously—a single-site population of under-18s, small, flexible units, young people being located close to their home community and safe environments that better meet the needs of young people. It is equally important that such provision should apply to people who are under 21 years of age; but until the 10-year plan comes into force, we need to explore how best to provide suitable accommodation and premises where appropriate care and support are provided by the appropriate agencies. This requires amendment to the Powers of Criminal Courts (Sentencing) Act 2000, Section 27(1) of the Criminal Justice Act 1984 and Section 43(2) of the Prisons Act 1952. We further propose revisiting Section 106 of the Powers of Criminal Courts (Sentencing) Act 2000. To avoid further technicality, we have identified suitable words to substitute that section and other relevant sections in previous legislation. I have not set out to criticise the work of the Youth Justice Board. In previous debates, I have always complimented the considerable strides we have made since the establishment of the YJB. If its success is to be carried forward, if the intervention is to reduce reoffending—and offending—then it is right that we should be able to fish out the Government’s intention.
I need to exercise some care as one or two issues cause me concern. There are some limitations, and that is why I say this should be probed deeply. First, should we limit the provision of accommodation by local authorities for those up to 21 years old? If that is the question, then we need to talk about capacity, as well as the differing needs of the sentence group, which can vary from between 10 and 21. Secondly, we need to take into account that we have in secure accommodation the most damaged children and their needs ought to be carefully examined. Any change in the age range would need to be carefully planned and properly resourced. It may also require parallel arrangements for the management of those young people in the community and in the court, for example where the respective roles of youth offending teams and probation need to change.
For these reasons, it would be helpful to have some indication of not only the Government’s thinking but also what they have in mind. Then we will likely see some results in terms of the age factors, the special needs they have, and how we could adequately meet that.
In rising to speak to my Amendment No. 119 and also warmly to support the amendments of the noble Lord, Lord Judd, I have to declare a certain sense of déjà vu. About three weeks ago, almost at the end of a day in Grand Committee, this amendment was called and there was insufficient time to raise it. I deliberately tabled it both in this Bill and in the Children and Young Persons Bill to emphasise the linkage between these two. My wish, having read all that is in the two Bills, is that perhaps this Bill had been brought by the Minister for Children, supported by people from other ministries, to make the point that there really was a holistic bringing together of what is needed.
I do not dissent in any way from what was said by the noble Lord, Lord Judd. I am glad he brought those points out. I have a number of points to make in support of that, really based on my frustration during my five and a half years as chief inspector in trying to persuade the system to listen to what was actually happening, and to put people in charge who were responsible, accountable and making it happen. I will go on repeating that none of these systems will work unless those people are there. It is absurd that in the Prison Service there is no one responsible for children and no one responsible for the young offenders. There are planners, yes, but doers, no.
My amendment refers to one group which bridges them—those young people sent into custody from care and so who come into custody without parents. Sensibly, when the Youth Justice Board introduced the detention and training order, an order spent half in custody and half in the community, it insisted that, at the beginning of the custody period, there should be a case conference involving those people responsible for planning what the sentence should be and how it should be carried out. It also invited parents to attend. There was another compulsory conference at the end of the sentence where the same people attended, with the idea of making certain that the transition to community was planned, and that it was overseen by the same people. Interestingly, I was finding that up to 60 per cent of those young offenders had parents attending those conferences. Who was missing? It was the people in care.
This amendment tries to ensure that if people go into custody from care, the person responsible for that care is responsible for them throughout the period they are in custody, to act in loco parentis, to attend conferences, most particularly to plan the resettlement and transition stage and to come with them out into the community. I am seeking to put that burden on the local authorities to make certain that they ensure that a named person who knows this young offender stays with them. I hope that will improve how things happen for them and that we will overcome some of the frightful problems of people in care having no one responsible for them when they come out and having nowhere to go and no one to look after them.
I am very glad that this amendment was grouped with that of the noble Lord, Lord Judd, because in each of the various clauses to which he refers the local authorities are mentioned. One lesson that I learnt from looking at young offender establishments is that the more local they can be, the smaller and the more linked to communities they can be. Then those communities can bring in their resources, their people, their work experience and so on. There is then much more chance of engaging with the young persons and being able to oversee their transition into the community and not waste what is done in custody.
Yesterday I described such a situation being developed by the foyers of localising young offenders, which I really think is an opportunity for hope. I can see no place for these awful Trojan prisons in this context. Going back to what a child needs, lessons about what is needed must be learnt. I hope that in the spirit of these amendments the Minister will pick this up and pass it on to the people responsible and respond to the points that have been made.
My name is attached to the amendment of the noble Lord, Lord Ramsbotham. I gladly support it and him and the noble Lord, Lord Judd, who is my noble friend. I have been a social worker, a children’s panel member and a magistrate. I have seen this from both sides. Since then I have had quite a lot to do with the theory of it.
The realities are a million miles from what they should be. As the noble Lord, Lord Judd, said, the transition from prison to the outside world is when all people, but particularly young people, are at their most vulnerable. He will know, as I do, that it is not at all unusual for people to come out with nowhere to go. It makes one’s heart bleed to think of what that can mean for people.
This amendment deals with so-called looked-after children, whose total life experience and life chances are, at a stroke, diminished by being in the care of the state. That says a lot for the care of the state, does it not? Our amendment requires local authority representatives to visit a looked-after child, who is in care, who is then taken into custody. There was a Green Paper which vaguely said that local authorities should carry out an assessment of need of such a child,
“with an expectation that they will continue to be supported as a child in care”.
Not surprisingly, those expectations have not been realised.
A vast proportion of children in custody have been in care—up to 49 per cent—with all that that means. At the same time, we all know just how stretched our social services departments are. So the temptation for social workers, who may be miles from where a child has ended up in custody, to park their responsibilities for such a child until such time as he or she is released is irresistible. That may be the reason—indeed justification—but it does not mean that it is right. Quite the reverse is the case.
For many children, going into custody is like falling into a black hole. Indeed, one of the three STCs that I have visited, some more than once, dissuaded families from visiting, and did not even invite them to come to see a production of a play that had been a great source of excitement and pride to the participants. Distance and cost were the explanations for the lack of any invitation. Distance and cost are also the explanation for lack of social workers, plus, quite rightly, pressure of work and the temptation perhaps to take comfort from the fact that for a while someone else has the responsibility for the child.
Clearly, continuity of care by those whose role it is to support vulnerable children in the community who are in theory being looked after by them is essential as well as desirable. There should indeed be, as the amendment proposes, a statutory duty to maintain contact, make an assessment of need and report annually. I have also heard from staff in STCs about the difficulty they have in making or keeping contact with their co-professionals outside, including at the point of release, which is deeply shocking.
These are children who need more, not less, continuity of care, and it is incumbent on all of us to see that that happens. Once again resources of time, money and manpower are at issue. But if the welfare of the child is indeed paramount and not just another form of words, action must be taken. These children should be at the top of the list, not the bottom where they so shockingly and so often are. We have a pressing duty to see that that is put right.
I am a signatory of the amendment tabled by my noble friend Lord Judd. Like my noble friend Lord Ramsbotham, we went through exactly the same process with the Children and Young Persons Act and became very aware of the postcode lottery and how many of those children were left without any sort of contact whatever.
There are two major reasons why the amendments are crucial. As we have all heard, this is the most vulnerable group of children we can think of. They have already been failed because we have not been able to stop them committing crimes so that they have ended up in custody. My noble friend Lord Judd spoke passionately about the group that we need to reclaim. We need to save them from themselves and their families, from the abuse they have received, and from their lack of learning and training—all of which have been mentioned—if we are to make any progress with the proposed plans. I hope very much that the two amendments will be accepted—whether they are exactly right or not at this moment is almost immaterial. We are focusing on a group that needs maximum help and support.
An aspect of one of these amendments refers to any contact that has happened in the past and where a relationship had been formed. That is the sort of person that children need to help them through the next period, to advise them on training and make certain that they have somewhere to live. They will engage the local authority and private sector bodies to help with jobs, training, and so on. I was particularly impressed by the Local Government Association. I agree entirely that we need to aim at local placement, whether prison or secure units. They must be increasingly local if they are to succeed. This will also mean that the whole community will gradually feel the responsibility to ensure that they turn into responsible citizens. If they do not, they will be a charge on their own local community. For all those reasons, and the fact that the Local Government Association applauds that approach, wants to see it happen and encourages it, I hope that the Minister will give reassuring answers to the amendment.
In the Children and Young Persons Bill, the Government introduced a new duty on local authorities to place children within the local authority area unless there were exceptional circumstances. That is pertinent to this Bill and these amendments. It makes sense to keep the children as local as possible.
We are most sympathetic to all the arguments deployed in support of the amendments by all those who have moved them or signed them.
That was a pithy comment. The debate is a fitting conclusion to an extraordinarily interesting day.
I say to my noble friend Lord Judd, who is a great humanitarian, that I am sorry about his exasperation. I fully accept that after-care, resettlement and integration of the young person back into society after release from custody is critical to a successful outcome from the youth justice system. I welcome his acknowledgement that the new Ministry of Justice is in a good position, albeit in close co-operation with our friends at the Department for Children, Schools and Families. I acknowledged to the noble Lord, Lord Ramsbotham, that I would be delighted for my noble friend Lord Adonis to be standing here today taking part. I have watched with interest the debates that he has been having with noble Lords on his Bill. Although it is early days, we are establishing a stronger relationship between the two departments, which is essential to achieving the integrated approach that noble Lords want to see.
I will not comment any further on the country house clean sheet of paper. I was tempted to talk about aircraft carriers to the noble Lord. I will not refer to Titans tonight, although I anticipate a good discussion tomorrow in the noble Baroness’s debate, where my noble friend Lord Carter is also speaking. That should be extremely interesting.
If young people have to go to custody, they should be placed in accommodation that is fully adapted to the needs of that young person. Noble Lords will know that we are not persuaded that local authority secure children’s homes will be suitable for all young people, even if places were available for all of them, which is far from being the case.
I will not go into the detailed reasons, as they were set out by my noble friend Lord Adonis, but I want to assure noble Lords of two things. First, the Government have taken on board the views of noble Lords who have spoken on the matter, both today and on earlier occasions. Secondly, the Youth Justice Board is committed to developing the secure estate for children and young people to ensure that the accommodation provided continues to become more closely adapted to the needs of those young people.
In response to the interesting contribution by the noble Lord, Lord Dholakia, I say that, since the YJB assumed responsibility for commissioning and purchasing custodial places in 2000, it has created a diverse and secure estate. Of course, the balance of provision could be improved. We recognise that the provision for the needs of more vulnerable older boys is a particularly worrying issue, which the YJB is working on.
As I said earlier, we are looking at options for developing the kind of provision required for the young adult offenders to which Members of the Committee have referred. I say to the noble Lord, Lord Ramsbotham, and other Members of the Committee who have spoken about looked-after children in custody and in general, that we are all aware that they represent some of the most vulnerable children in our society, and that their educational attainment can be pretty poor. In terms of offending, my understanding is that 9 per cent of children in care for a year or more have been cautioned or have committed an offence, compared to 3 per cent for the general child population. We know that many of these problems will continue into adulthood for many looked-after children.
There are some signs of encouragement. The educational outcomes of children in care have improved quite dramatically: 49 per cent of looked-after children got one GCSE in 2000; it rose to 63 per cent in 2006. In 2000, 7 per cent got five A to C grades at GCSE. That is not a good figure at all, but at least it rose to 12 per cent in 2006. Clearly, there is an awful long way to go, but there are some signs of improvement. Of course, there is more to be done.
We are listening very carefully to the comments that Members of the Committee have made, both today and when the Children and Young Persons Bill was being debated. The noble Lord referred to attending the sentence planning meetings, which was a very relevant point. Where the local authority shares parental responsibility for a looked-after child, we would expect its representatives to participate in sentence planning meetings. We will deal with this in future revised guidance to the Children Act 1989. That will be necessary; we will have to change the guidance in the light of the legislation currently going through the House, which offers a valuable opportunity.
We have also made clear our intention to use the delegated powers to impose a requirement for local authorities to arrange visits to those looked-after children who lose their status when they enter custody; namely, those voluntarily accommodated under Section 20 of the Children Act 1989. That will ensure that these children continue to receive the support they need, and that local authorities are aware when they are likely to be discharged from custody. The purpose of the visits will be to assess the young person’s needs and establish the kind of continuing support that will be necessary to resettle the young person back into the community. For some young people, this will involve ensuring that, on release from custody, they are provided with appropriate accommodation and that the local authority should therefore arrange for them to become “looked after” once more.
The new requirements being introduced by the Children and Young Persons Bill will, as I have said, be supported by revisions to regulations and statutory guidance. We will use these revisions to set out that the person responsible for visiting a formerly looked-after child in custody will be an officer of the local authority children’s services, rather than a member of the youth offending team and that, where possible, this officer should be a qualified social worker familiar with the child’s case.
I very much understand that we are dealing with one of the most vulnerable groups of young people in our society, and that the outcomes for them have been very poor indeed. It is going to be a tremendous challenge to turn this round, but there are signs that we are beginning to see improvements. I also refer to the children leaving care legislation which is helping, as will the joint work between my department and the Department for Children.
I understand my noble friend’s exasperation, but I hope he will accept that we believe that this is a critical area of work to be undertaken by the Government and our partners in local government. I hope that he might stem his exasperation a little more to see how this turns out.
I am extremely grateful to all noble Lords who participated in this debate, and I am particularly grateful to noble Lords in general for staying beyond the new conventional hour of 10 o’clock. Seeing the Chief Whip sitting there, I should apologise to her that we have over-run 10 o’clock. I am a bit sorry that we have had the pressure of time because I think that some noble Lords would have liked to say more had there been more time. I always listen very attentively to my noble friend when he replies because he is always so courteous and thorough. He always tries to meet the arguments put forward and explain his own position, even if he does not convince us.
I believe that this debate has been invaluable in focusing attention on the special needs of children and the 18 to 21 year-old age group. I have a certain amount of hope—I hope not forlorn—that the new Ministry of Justice and the new approach will enable us to do a lot of new thinking together over the years ahead. I do not want to see this Bill as the end of the story. If we are serious about rehabilitation and about protecting the pubic in the long run by successful rehabilitation, it is inevitable that we will move to special provision in all cases for children and the 18 to 21 year-old age group. Anything else is, or is in danger of being, highly counterproductive. In the hope that we will carry this debate forward in the years ahead, to bring that about as soon as possible, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.