House of Commons Hansard Debates for 25 Feb 1991

Dr. Norman A. Godman (Greenock and Port Glasgow) : I hesitate to intervene in these proceedings as a Member representing Scotland, but I have a couple of questions about the amendments.

Has the Minister had any discussions with his right hon. and hon. Friends in the Scottish Office on the implementation of such measures in Scotland? I speak as someone who has sought to change the law of Scotland on child witnesses. I did so last year during our deliberations on the Law Reform (Miscellaneous Provisions) (Scotland) Bill. Unfortunately, I was unsuccessful. The amendments will determine the status of children and the protection given to them in what can be the most harrowing of circumstances. It is unfortunate that English legislation is well in advance of developments in Scottish legislation. On behalf of the Scottish children caught up in these dreadful circumstances, I must express my deep regret about that.

Two cases pending in Scotland involve the most harrowing instances of sexual abuse against a number of young children, some of whom were only two or three years old when the horrible incidents took place. Nevertheless, children in Scotland caught up in these dismal circumstances will be denied the protection rightly afforded to English children in these most welcome measures. It is a disgrace that identical legislation for Scotland has not been introduced. What discussions have taken place between the Home Office and the Scottish Office on bringing about these welcome changes in Scottish legislation?

Mr. Roger Sims (Chislehurst) : My right hon. Friend will know of my long-standing interest in this matter, and particularly of my association with the National Society for the Prevention of Cruelty to Children, which has been concerned about the way in which children have been subjected to the process of appearing in court proceedings. I warmly welcome the clauses in the Bill which, to a large extent, implement the recommendations of the Pigot report. There was a gap in the law with respect to expediting proceedings involving witnesses. I thank my right hon. Friend for the courtesy with which he received me and my hon. Friend the Member for Congleton (Mrs. Winterton), who advised me today that she was unwell and could not be with us. Together with the hon. Member for Newcastle-under- Lyme (Mrs. Golding), we discussed these matters, and the Government amendments meet our anxieties.

The Minister will have noticed amendments Nos. 98 and 99 on the Order Paper ; perhaps he will confirm that the Government amendments deal with the points contained in those amendments--and are no doubt better drafted than ours. If they do, I shall not move amendments

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Nos. 98 or 99 ; of course, if the Opposition Members whose names those amendments also bear wish to speak to them, that will be up to them.

I am grateful to my right hon. Friend for accepting the recommendations made to him on this matter.

Mr. Robert Maclennan (Caithness and Sutherland) : Will the Minister say a word about some other matters touched on in the Pigot report? For instance, should there not be a code of practice governing the giving of evidence by children? Do the Government believe it possible to introduce measures to prevent unnecessary delays in court cases that involve this sort of children's evidence?

Mr. John Patten : Is the hon. Gentleman referring to the generality of the Pigot committee's recommendations when he speaks of codes of practice, or is he referring specifically to speeding up court hearings?

Mr. Maclennan : I am referring only to the giving of evidence by children.

Lastly, the National Society for the Prevention of Cruelty to Children has also mentioned the need to ensure that no distinction will be made between children who have suffered abuse and children who have witnessed serious abuse and violence--but I suspect that the Government amendments take care of that.

5.45 pm

Mr. John Greenway : I too should like to record my thanks to my right hon. Friend for tabling these amendments. I am sure that he will recall that, when we discussed the matter for many hours in Committee, we did not manage to persuade him of the validity of our arguments, but he agreed to reconsider the matter, and that is what he has done. We are most grateful to him. I fervently believe that the law should protect a child witness as much as it protects a child victim. Indeed, it is often difficult to distinguish between them.

Mr. Sheerman : We welcome the amendments. It is a shame that two of the hon. Members who argued most eloquently for the ideas that they incorporate are not here. I understand that they are unavoidably detained in Select Committees. I refer of course to my hon. Friend the Member for Newcastle-under-Lyme (Mrs. Golding) and to the hon. Member for Ynys Mo n (Mr. Jones).

These are important concessions to the Pigot proposals, extending as they do the protection offered to child victims to child witnesses. This subject constituted the most harmonious part of our proceedings in Committee. All hon. Members in Committee wanted as far as possible to make the process of giving evidence in court humane and sensitively handled. The Opposition are pleased that the amendments have been introduced.

Mr. John Patten : First, I want to answer the hon. Member for Greenock and Port Glasgow (Dr. Godman), the first part of whose constituency I can never pronounce. He asked me whether discussions had taken place between the Home Secretary and the Secretary of State for Scotland on these important matters. Of course the two Departments consult on these issues. As the hon. Gentleman knows, the Scottish criminal law and criminal code have developed differently from ours, which means that, from time to time, Scottish, English and Welsh law look a little out of kilter. Indeed, my hon. Friends occasionally look with envy at some aspects of the Scottish

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criminal code. For instance, children's panels are often urged on us ; we are thought to be lagging behind in that respect, although we are now trying to achieve the same ends in a different way. I shall draw the hon. Gentleman's remarks to the attention of the Secretary of State for Scotland, and, if necessary, he and the hon. Gentleman can correspond thereafter.

I reassure my hon. Friend the Member for Chislehurst (Mr. Sims) that the Government amendments adequately cover the possibility of getting around committal, and of not making it possible for children to be cross-examined by those alleged to have assaulted them. I pay tribute to my hon. Friends the Members for Chislehurst and for Congleton (Mrs. Winterton), and to the hon. Member for Wentworth (Mr. Hardy), who is not here today but who takes a considerable interest in the subject.

I also pay tribute to the hon. Member for Newcastle-under-Lyme (Mrs. Golding), who was not here earlier to hear my lavish compliments about how she broke the Trappist vows of the Whips and occasionally went to the Back Benches in Committee to argue the case for children. Her arguments, and those of my hon. Friend the Member for Ryedale (Mr. Greenway), were powerful. As the House knows, we are a listening Government ; we listened and then we tabled the amendments.

The hon. Member for Caithness and Sutherland (Mr. Maclennan) asked whether we were going to introduce a code of practice governing children's evidence. We are. We are already negotiating, if that is the right word to use, these issues with members of the academic community : for instance, with Professor Bull, a notable authority in the area ; and with Mr. John Spencer--just to show how broad-minded I am in these matters--fellow of Selwyn college, Cambridge, even though he has occasionally criticised me in print. He is also an expert, and I have not taken offence. We are bent on employing him, if he is willing to advise us within the strict terms of the Bill, on how to incorporate a practical measure for children's evidence.

I repeat : we are a listening Government and a broad-minded Government, and on this occasion we are a Government with whom the hon. Member for Huddersfield (Mr. Sheerman) was happy to do business on an issue in which party politics played no part. I am happy to pay tribute to him and his colleagues for the part that they played in Committee in dealing with these important matters.

Amendment agreed to.

Amendment made : No. 109, in page 27, line 8, after committed', insert

; or

(ii) to have witnessed the commission of the offence,'.--[ Mr. John Patten. ]

Mr. John Patten : I beg to move amendment No. 110, in page 27, line 9, leave out from that' to by' and insert

, for the purposes of avoiding any prejudice to the welfare of the child, the case should be taken over and proceeded with without delay'.

Madam Deputy Speaker : With this we may take Government amendments Nos. 111 and 120.

Mr. Patten : The amendments form the second part of the Government's response to the debate in Committee about the need to reduce undue delay in cases involving child witnesses. During our scrutiny of the Pigot clauses,

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the hon. Member for Ynys Mo n (Mr. Jones) moved a new clause that formed the basis of much of the debate. Despite my considerable sympathy with his intentions and those of my hon. Friends, I was unable to accept the new clause exactly as it stood, because it imposed a strict timetable in criminal cases which I felt could lead to the guilty walking free if it was not adhered to to the letter. The amendments would not impose a strict timetable, but would, I believe, establish a clear framework for the elimination of unnecessary delays.

Clause 43 already gives the Director of Public Prosecutions power to bypass committal proceedings if he is satisfied that the case should be taken over by the Crown court without delay. Amendments Nos. 110 and 120, however, strengthen that principle by referring explicitly to the welfare of the child, and I think that a number of hon. Members will approve of that. They also impose a clear duty on magistrates courts and the Crown court to consider how best to avoid delay. For the magistrates courts, that means expediting their residual tasks under schedule 5.

The amendments effectively abolish the argument that is sometimes advanced by those involved in the criminal justice system, that they are not responsible for the delay. They are now responsible for minimising it : the amendments bring that into sharp focus. The amendment will, however, allow judges, who have the often difficult task of dealing with children--whether they are victims or witnesses--to tailor any action to the needs of individual cases, balancing the legitimate interests of child welfare with those of natural justice.

The remaining amendment simply corrects a minor drafting error.

Mr. Sheerman : Yet again, we accept and endorse the Government's proposals. As we said in Committee, delay is often an important factor. In Committee on any Criminal Justice Bill, we increasingly realise the need for better co-ordination between the separate parts of the system : Opposition Members want to reform that relationship, and to expedite the processes involved. Justice that takes a long time is justice delayed, and, sometimes, is not justice at all. Amendment agreed to.

Amendments made : No. 111, in page 27, line 18, leave out 3 and 4' and insert 2 and 3'.-- (Mr. John Patten).

Clause 45

Video recordings of testimony from child witnesses.

Amendments made : No. 113, in page 30, line 37, after alleged', insert (i)'.

No. 112, in page 30, line 38, after committed', insert

; or

(ii) to have witnessed the commission of the offence ;'.-- (Mr. John Patten.)

Clause 47

Responsibility of parent or guardian for financial penalties

Mr. Alun Michael (Cardiff, South and Penarth) : I beg to move amendment No. 82, in page 31, line 38, at end insert--

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(1A) After subsection (2) of that section there shall be inserted the following subsection.

(2A) In taking the decisions required by subsections (1) and (1A) above, the court shall have regard to such of the following considerations as appear to it to be relevant, that is to say-- (

(a) whether the parents have neglected to exercise due care and control of the child or young person and whether any such neglect has caused or contributed to the commission of the offence.

(b) whether it is desirable that the child or young person himself should assume responsibility for payment of the sum.

(c) the relationship of the child or young person with his parents and the likely effect on that relationship of ordering the sum to be paid by the parent or guardian.

(d) the respective means of the child or young person and the parent or guardian.

as well as to any others which appear to be relevant.'.'. Madam Deputy Speaker : With this we may take amendment No. 83, in page 32, line 31, at end add--

(5) No court shall exercise its powers under this section in regard to local authorities, except in those cases where the local authority has been negligent in the conduct of its duties as defined in paragraph 2 of this section or has acted unreasonably, given the circumstances of the case.'.

Mr. Michael : The Minister must answer a simple and basic question : does he, and do the Government, accept that it is wrong to punish the innocent? If he accepts our amendment, he will ensure that no parent who is innocent of any blame, and no social services department that has done its job properly, will be punished or penalised.

Amendment No. 82 proposes that, in deciding whether a parent should be required to pay a fine, the court should have regard to a number of considerations that may be relevant. The first is :

"whether the parents have neglected to exercise due care and control of the child or young person and whether any such neglect has caused or contributed to the commission of the offence."

The second is :

"whether it is desirable that the child or young person himself should assume responsibility for payment of the sum."

The third is :

"the relationship of the child or young person with his parents and the likely effect on that relationship of ordering the sum to be paid by the parent or guardian."

The fourth is :

"the respective means of the child or young person and the parent or guardian".

Any other relevant circumstances should also be taken into account.

That, surely, is an entirely correct and reasonable approach, which has been supported by the Government themselves in Home Office circular to courts No. 3/1983 entitled "Criminal Justice Act 1982 : Sanctions Against Parents and Guardians". The 1982 Act stipulated that fines should be paid by parents unless the court considered that that would be unreasonable or the parent could not be found. Paragraph 3 of the circular states :

"During the passage of the Bill, considerations which might be relevant to the question of whether it would be unreasonable to order payment by the parent or guardian were discussed. It was suggested, for example, that regard should be had to factors such as whether the parents had neglected to exercise due care and control of the child or young person or whether any such neglect had caused or contributed, whether directly or indirectly, to the commission of the offence ; whether it was desirable that the child or young person himself should assume responsibility for the payment

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of the fine, compensation or costs, or for part of it ; the relationship between the child or young person and the parent or guardian and the likely effect on that relationship of ordering that the parent pay the sums".

The Government should surely support the principles contained in the amendment.

In view of the emphasis that the Government have placed on parental responsibilities, it is important for them to state on the face of the Bill that they are willing to protect responsible parents. If they agree that the court should consider the criteria that I have specified, the criteria must be included in the legislation, rather than relegated to a paragraph in a long-forgotten circular of some eight years ago.

In come cases it will be appropriate to oblige parents to pay fines imposed on juvenile offenders, but in many others such a course might be both unreasonable and harmful. In some cases, when a young offender is at odds with his parents, the resentment resulting from the imposition of a fine on the parents--who may already be at the end of their tether, especially when the family is poor--could damage family relationships still further, placing the young person more at risk than ever, and perhaps leading to the commission of further offences.

In some instances, magistrates may consider that, if the fine is to have any value, that will lie in its being paid by the child himself rather than in his parents relieving him of the financial responsibility. I know from my own court experience that that frequently arises. In other cases, the parent may have done all that could reasonably be expected to discipline and control the young person, but without success. All parents will have found occasionally that their best efforts have not succeeded. The Minister may claim to be a perfect parent, but most of us would probably admit to being fallible from time to time.

It is important that the courts should be required to consider those potential pitfalls when deciding whether to impose a fine on the parent of a juvenile offender. The amendment does not, of course, prevent the court from considering any other factors which may be relevant. It does not prevent the court from placing an obligation on a parent if it is right and proper to do so. It does not mitigate parental responsibility, but it protects the innocent parent and ensures that courts take into account circumstances in which placing a burden on parents would be detrimental. The Minister will surely not disagree with that.

When the issue was debated in Committee on 24 January, amendment No. 82 was grouped with others and the Minister did not comment specifically on it. Today, he must comment specifically on its merits, and I hope that he will simply accept it.

6 pm

Amendment No. 83 says :

"No court shall exercise its powers under this section in regard to local authorities, except in those cases where the local authority has been negligent in the conduct of its duties as defined in paragraph 2 of this section or has acted unreasonably, given the circumstances of the case."

The amendment limits the circumstances in which a local authority can be required to pay a fine. The clause is far too broad, because it is unreasonable to expect local authorities to pay fines for the offences of juveniles if they and their employees have acted appropriately and professionally. Home Office circular No. 3/1983 is relevant, and the same considerations should apply to local authorities.

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The Government recognised that in their White Paper, "Crime, Justice and Protecting the Public", which states that the Government will require local authorities to pay financial penalties when juveniles in their care are convicted of offences and

"the court is satisfied that the offence followed a failure by the local authority to carry out its duties."

The amendment requires that that statement be included in the Bill, which places no clear statutory obligation on courts to consider whether the local authority has been negligent or unreasonable and to impose a fine only if an authority has been shown to be at fault. The assumption in clause 47--an assumption that seems to be in the minds of some of the Government's more right-wing Back Benchers--is that local authorities should always be able to prevent offending by juveniles in their care. That shows little awareness of the reality of caring for those young people, many of whom are persistent young offenders who were taken into care because of their parents' inability to exercise due care and control. The damage caused to those young people may work through to absconding and associated offending. The local authority, which was not responsible for the offending, is left to pick up the pieces.

The Government seem to have turned the cause and effect relationship upside down, and instead of recognising that those young people are in care because of their offending are blaming the local authority for it. I hope that the Minister will put that right. There are dangers if fining local authorities becomes the norm. It could lead to local authorities reducing home leave and family contact with children in care and it could be detrimental to the young person. There may be increased security in children's homes, at the expense of caring and rehabilitative regimes. I hope that the Minister will agree that a failure to rehabilitate young offenders will increase the long-term threat to the public, and that it must be avoided.

Young offenders may find it amusing and gratifying to see their social worker fined for their behaviour. They may be encouraged to feel that they can break the law with impunity.

Mr. John Patten : The Bill does not say that individual social workers will be fined. The local authority will be at risk for not fulfilling its responsibilities.

Mr. Michael : The local authority would not be fined for not fulfilling its responsibilities--that is the whole point of my argument-- but the amendment seeks to correct that. If the Minister meant what he just said, he will accept the amendment. The amendment aims to provide for what he just suggested ; by accepting it, he will make life a lot easier.

Young offenders may find it amusing and gratifying to see their social worker fined for their behaviour. If local authorities are punished, that pressure will be passed down the line. I am sure that the Minister understands what I mean by that. Having worked with young offenders, I can assure him that such amusement is a real danger. It is important that the Bill be amended to provide what the Minister has just suggested. I hope, therefore, that he will accept the amendment.

Mr. Patten : I did not want to intervene, because the hon. Gentleman speaks from much personal experience, but for once, uncharacteristically, he seemed to be

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factually incorrect. He said that individual social workers would be at risk financially ; it is important that he should not continue to say that.

Mr. Michael : I take the Minister's point, but he surely understands that, if local authorities, whatever they do and however professional their social workers or correct their systems, are in danger of being forced to pay fines, immense pressure will distort the regime in which social workers work with young people. Young people will rapidly become aware of that and of their ability to play games with their social workers.

The Minister must take that danger seriously. In his first intervention, he suggested that, under the Bill, social services departments would be placed under a burden only if they failed in their duty. We tabled the amendment to correct that. I hope that the Minister, by his intervention, was accepting the amendment. A local authority should be responsible for financial penalties only in specified circumstances when it has acted negligently or unreasonably. That was what the Minister said, that is what I say and that is the purpose of the amendment.

In Committee, the Minister said that there was some protection to local authorities under section 55 of the Children and Young Persons Act 1933. However, that section is merely on whether it would be unreasonable to fine in the circumstances. Amendment No. 83 goes much further and defines the conduct or misconduct of the local authority as the factor that leads to a fine being imposed.

The amendments are reasonable and fair. They will ensure that innocent parents and effective local authorities will not be in danger of being forced to pay, while allowing a culpable parent or local authority to bear the burden of a fine. How can the Minister possibly refuse that? He almost seemed to concede my point in his intervention, but he must at least assure us that the principles that I have set out will be observed absolutely in the operation of the Bill when it is enacted.

Mr. Terry Dicks (Hayes and Harlington) : The points made by the hon. Member for Cardiff, South and Penarth (Mr. Michael) link with the Home Secretary's statement on the Woolf report. Everyone is talking about parent responsibility, but allowing parents to avoid it. In the statement, all we heard was about the poor life of prisoners. So far as I can remember, no one deigned to mention how victims suffer or to make the obvious point that people are in prison by choice--they choose to go there when they break the law, and we should not be too concerned.

We should take great care about making parents responsible for their children's actions, but the hon. Member for Cardiff, South and Penarth seemed to be looking for a way out. If some of the hoax telephone calls of the past week were made by children under the age of 17 or 18, and if their parents knew that their kids had access to the telephone, is the hon. Gentleman really saying that we should not worry? If a child had been involved in making those hoax phone calls, a three-month sentence for him or his parents would not be justified--the minimum sentence should be five years, with deportation for any foreigners.

The essence of the point being made by the hon. Member for Cardiff, South and Penarth is that we must look for ways to enable parents to avoid their responsibilities. Would he say that they were not paying

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due care and attention if they were watching television while their 12 or 14-year-old was thumping a policeman at a football match? Should we say, "Those parents did not know that their child was at a football match, so we should not worry"? I am glad that we are making parents responsible. Instead of creating loopholes to enable parents to get off, we should tighten them to ensure that they do not.

Mr. Robert Maclennan (Caithness and Sutherland) : I welcome the clause and support the amendments. I have never been entirely happy with the principle of vicarious criminal liability, which seems to have been embodied in the law for a long time. It does not lead to a need for a court to investigate the degree of parents' criminal liability. The hon. Member for Hayes and Harlington (Mr. Dicks) assumed that parental liability was involved in all circumstances in which a person committed an offence. That should be demonstrated, argued and proved before a court. One of the benefits of amendment No. 82 is that it would make it necessary to argue before a court the extent to which parents should be liable for the misdeeds of their children.

It is clear from the passage read out by the hon. Member for Cardiff, South and Penarth (Mr. Michael) that the Home Office has in mind precisely those considerations which are encapsulated in the amendment. Including them in the Bill would have the virtue of leading to the facts being considered. It may be that that consideration is given, and will be given, in many courts through the presentation of social work reports and so on. If there is a specific requirement along the lines proposed in amendment No. 82, a court will be in no doubt about whether parents are culpable to such an extent that they should be held liable to pay.

Similar considerations apply to amendment No. 83 with regard to the alleged negligence of local authorities. If local authorities are held to be liable, that involvement should be tested. They should not be held to have been negligent without the evidence having been considered by a court. The hon. Member for Hayes and Harlington assumes that, if the children involved are in care, the local authority is responsible for their misdeeds, but that assumption severes the connection between the offence and the person who committed it. That cannot be in the interest of justice. I hope that the Government will accept these sensible amendments.

Mr. John Patten : I was greatly taken by what my hon. Friend the Member for Hayes and Harlington (Mr. Dicks) said about hoax telephone calls by juveniles and adults. The House views with revulsion and distaste the hoax telephone calls to the emergency services in recent days, which in certain circumstances could lead to serious injury or loss of life if the emergency services had been diverted. This is a disgraceful habit in the country at large. It is punishable by imprisonment.

My hon. Friend said that the penalties were not severe enough. He must take credit for bringing to our attention the need to consider this issue. Although I shall not table amendments to the Bill, I shall undertake a review in the Home Office of the penalties that can be imposed on those demented people who make hoax telephone calls about devices, causing chaos not only to the emergency services

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but to the travelling public. Under the present law, the courts are stamping down hard on that behaviour, and I hope that the House welcomes that action. Perhaps we should arm the courts with tougher measures to deal with such people.

6.15 pm

My hon. Friend the Member for Hayes and Harlington made another important point when he talked about the importance of parental responsibility. I believe that my Conservative colleagues would respectfully agree to disagree with the hon. Member for Caithness and Sutherland (Mr. Maclennan) about vicarious penalties. We are talking about those who have charge of children and young people. Whether they are parents, step-parents, grandparents or local authorities, they should bear their share of the responsibility by paying fines if the children involved cannot do so.

Alas, there is no clearer sign of the division between Conservative Members and the Opposition than the long debates in Committee on these issues. We had to agree to differ. It is a pity that the hon. Member for Caithness and Sutherland could not be a member of the Committee. We genuinely missed him, although we have heard on Report some "footsteps" of what might have been a lengthier speech in Committee. We shall have to agree to differ, because the amendments dilute the principle of parental responsibility on which the Government place great weight.

Mr. Maclennan : Anyone listening to the right hon. Gentleman or reading his speech later may be forgiven for overlooking the fact that he and the Government have diluted the principle of parental responsibility by changing the 1933 Act. It is a question not whether one dilutes the principle but whether one should define the circumstances of the dilution, which is the purpose of the amendment.

Mr. Patten : The hon. Gentleman has forgotten three fundamental limbs of the Bill : first, that we expect parents to be in court when their children are tried ; secondly, that we expect parents, guardians and social services departments to pay the fines ; and, thirdly, that we want the courts to have a considerably enhanced power to bind over parents to use their best endeavours to prevent children offending. If that is dilution, I am surprised at the hon. Gentleman's uncharacteristic misuse of language.

In all cases, before a parent could be ordered to pay a fine, the court would have to think about several factors, such as whether the offence resulted partly from a failure to exercise parental care and control and what effect making the parents pay would have on family relationships. The court would have to take a view on those factors and presumably--although it is not for me to say--that view could be challenged on appeal. That means that obstacles would be placed in the way of the operation of section 55 of the 1933 Act, and the clear principle that it embodies.

When we discussed what is now amendment No. 82--to which allegedly the relevant Minister did not refer in Committee--either the hon. Member for Cardiff, South and Penarth (Mr. Michael) or the hon. Member for Huddersfield (Mr. Sheerman) quoted from paragraph 3 of Home Office circular No. 3/1983 on the Criminal Justice Act 1982. As the hon. Member for Cardiff, South and Penarth pointed out, paragraph 3 suggested that the courts

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