Schedule
1
Further
provisions about youth rehabilitation
orders
Mr.
Heath
:
I beg to move amendment No. 174, in
schedule 1, page 86, line 19, at
end insert
‘, after
considering advice from children’s services and the youth
offending team,’.
The
Chairman:
With this it will be
convenient to discuss amendment No. 171, in schedule 1, page 86,
line 22, at end
insert—
‘(aa) that the
imposition of a fostering requirement would tend to improve the
circumstances in which the offender was living,
and’.
Mr.
Heath:
We come now to consideration of the youth
rehabilitation order with fostering requirements, and what might be
suggested by such an order. The amendments are small and it might be
said that they state the obvious, in terms of the provisions, but they
also cover areas that are not explicit in the Bill. The present wording
of schedule 1 requires the court to be satisfied
“that the behaviour which
constituted the offence was due to a significant extent to the
circumstances in which the offender was living,”
and
“that the imposition of a fostering
requirement would assist in the offender’s
rehabilitation.”
It goes
on to say that before any fostering requirement is made, the
court’s assessment needs to be accompanied by consultation with
the offender’s parents or guardians and consultation with the
local authority in which the court intends to place the offender with a
foster parent.
It is
axiomatic in what Ministers have said about the orders that they would
be derived from a proper consultative process by all concerned. The
measure would not be imposed by a court out of the blue sky, but would
be the result of all the agencies involved with the care and future
management of the offender sharing the view that this is a disposal
that they would recommend. The courts will make the decision as to
whether it is an appropriate disposal, but other agencies must be
involved. There is no mention of that in the Bill but it is assumed
that that will be the case.
Amendment No. 174 tries to
ensure that the court will have properly consulted with
children’s services and the youth offending team before it
considers this fundamental, and as we know expensive and perhaps
difficult to effect, order. The court must be satisfied that it is the
right and proper disposal for that individual.
The Minister may intend to
include that in sentencing and other guidelines to the court, but it is
important that the point is made. This is a culmination of a
consultative process rather than ex cathedra judgment by the court.
Quite apart from the interests of the criminal justice system, it is
fundamental to the child’s
interests.
Amendment
No. 171 might be taken as a statement of the obvious. Again, it is an
important consideration that the court must take into account. It
touches on the point made in the context of the previous amendment by
the hon. and learned Member for Harborough. It would be wrong to take
somebody out of an environment that may be conducive to them offending
or reoffending, only to place them in an environment which is no
better. We have already had assurances from the Minister about pilot
schemes, and I see no reason not to include the latter point made by
the hon. and learned Gentleman, although whether it can be rolled out
is a different matter from whether it should
form part of the provision within the Bill. Even though a criminal
justice Bill arrives every few weeks, there is no reason not to use
this one to make the necessary amendments to the
law. During the pilot schemes,
individuals were placed with foster families and not into
children’s homes—some of us have serious doubts as to
whether children’s home accommodation could possibly provide the
stability and safe refuge that would be required. We must be satisfied
that the order would do the same. Amendment No. 171 states
that
“the imposition of a
fostering requirement would tend to improve the circumstances in which
the offender was living”.
That is modest wording for what we intend
to accomplish. It should very significantly improve the environment in
the context of the behaviour that constituted the
offence.
5.45
pm
May I just say
one thing in parenthesis? Is it correct to say
that
“the behaviour which
constituted the offence was due to a significant extent to the
circumstances”,
rather
than that the circumstances contributed to the likelihood of the
offending behaviour? There is a difference. I would hate it if a clever
person were challenging this at some later stage and said, “You
cannot possibly imply causality from the family environment with any
certainty.” I ask the Minister not to respond now, but to ponder
whether there is any difficulty with the bald expression “the
offence was due”. Of course, the offence was due to the
behaviour of the individual and perhaps the circumstances in which he
or she found themselves on that day, having the opportunity to commit
the offence. It is not due to the environment, but the environment can
affect the propensity of an individual to commit an offence, which is
what we are dealing with through the intensive fostering arrangements.
That is an aside.
I
have two separate points to make, neither of which I intend to seek to
divide the Committee on. First, I should just like to gauge the
Minister’s reaction to the orders arriving out of a genuinely
consultative process with all concerned with the individual’s
welfare and management. I think that that is intended, but I want to
ensure that that is always so. Secondly, I want to ensure that the
placements are, as far as can possibly be arranged, to the benefit of
the individual and will not be allowed where a local authority has
failed to make proper provision—if it is their responsibility to
do so—and the different environment is no better than the one
from which the child was taken as a result of the rehabilitation
order.
Mr.
Garnier:
I sympathise with the intention
behind amendments Nos. 174 and 171. However, instead of “after
considering advice”, in amendment No. 174, I would prefer to use
the words “after considering evidence”, because a court
would be making decisions based on evidence rather than advice. Advice
might be useful—opinion evidence is sometimes
permitted—but I think that we want to know the facts before we
make a decision.
I
agree with the hon. Gentleman’s criticisms in relation to
paragraph 4(2)(a), under which the offence
is
“due to a significant
extent to the circumstances in which the offender was
living”.
We want to know about the
circumstances in which the offender was living, then we can draw our
own conclusions, based on the offence and those circumstances, about
whether there was a relationship between the two. Plenty of people live
or have been brought up in difficult circumstances and never commit a
crime in their lives and far too many people who have had privileged
lives none the less go on to commit offences. Equally, I suppose that
if the circumstances in which the offender was living affected the way
his mind was working or his morals, his understanding of right and
wrong or what was due to his actions and what was not, the court should
be informed. We want information given to the court on the basis of
which it can make a sensible
decision.
I would not
have written the Bill as it has been drafted. Perhaps, when the
Minister takes the Bill back, in the gap between this Session and the
next, a different form of words can be produced. That is just a
suggestion. It is not something that I will go to the stake on, because
I suspect that when the courts are advised by advocates, or what used
to be called justices’ clerks, they will take a common sense
view of this issue.
The
hon. Gentleman said that he was doing no more than putting forward the
blindingly obvious; perhaps I am paraphrasing him inaccurately.
Amendment No. 171 is fairly close to being within that category. It is
tough being in opposition; it is even tougher being the third party in
opposition—not that I intend to change his position in relation
to the two main
parties.
Mr.
Heath:
The amendment was tabled in order to have the
debate that the hon. and learned Gentleman managed to have under the
previous group and to examine the circumstances in which a person could
be placed in foster care and whether that could include a local
government home placement rather than a foster
family.
Mr.
Garnier:
Now we are getting back to the meat of the
discussion. In paragraph 18 of schedule 1, which is married to the
paragraph that the hon. Gentleman is seeking to amend, sub-paragraph
(6)
states:
“This
paragraph does not affect the power of a local authority to place with
a local authority foster parent an offender in respect of whom a local
authority residence requirement is
imposed.”
I
know that we discussed this issue with the Minister a moment ago when
debating the other group, but it is important that if the fostering
requirement is to work, the fosterer should be a human being or a human
family, not a local government institution. Otherwise, the whole point
is lost. The expression “a local authority foster parent”
may be well known in the social service and family court worlds. It may
be defined later in the Bill—I should have checked—but it
is important that paragraph 18(6) refers to human beings.
The only other
comment that I make in relation to paragraph 18 relates to
sub-paragraph (7). That requires the Secretary of State to certify that
there is a fostering family or a fostering system available in the area
of the local authority that is to place the offender. That brings me
back to the York university evaluation and the pilot scheme that the
Minister told us about not so long ago. The Bill, all being well, is
likely to complete its passage through Parliament some time after
Easter and will
presumably receive Royal Assent in the early summer. However, as we
know, Bills do not come into force on the day of Royal Assent nowadays.
They come into force in various sections or at a date to be appointed
by the Secretary of
State. I suggest gently
to the Government that the date to be appointed should be after the
evaluation of the York university pilot scheme because if this
system—or this disposal, to use a hideous expression—is
put on the statute book and made available to the courts before it is
ready, we will just get into a muddle. I would rather that we did this
slowly and sensibly than speedily and less sensibly, albeit that
Governments are often tempted to do and say things in order to get a
headline.
Mr.
Hanson:
I am grateful to the hon. Member for Somerton and
Frome and the hon. and learned Member for Harborough for the way in
which they have approached the amendments. I hope that I can give them
some comfort in relation to the objectives that they seek. I remind the
Committee again that we have had a long discussion on the question of
intensive fostering, and it is a primary requirement of intensive
fostering that the offending must be associated with the individual
offender’s home environment. That is clearly set out in
paragraph 4(2) of schedule 1. I raise that point again because it is
important to recognise that the intensive fostering requirement states
that the behaviour that constituted the offence must have
been
“due to a
significant extent to the circumstances in which the offender was
living”.
I
expect that the use of the order will be very limited and fully
anticipate that, before agreeing that the intensive fostering
requirement is necessary, those professionals and individuals involved
in assessing the individual will have undertaken a full assessment of
the individual and judged that their home is a contributory factor
towards the offending and
“the imposition of a fostering
requirement...would assist in the offender’s
rehabilitation”.
Therefore,
the objectives that the hon. Member for Somerton and Frome put in
amendment No. 174, of
“considering advice from
children’s services and the youth offending
team”
and those of
amendment No. 171, will be implicit in the work that will go on to
prepare for the likely imposition of the order by a court. I fully
expect that, before recommending to the court that the fostering
requirement is appropriate, the youth offending team will have
undertaken a full assessment not only of the young offender and their
needs, but of the impact on the young offender’s family, who are
equally part of the objective outcome of the order.
I do not consider the amendment
to be necessary for the reasons that I have stated today regarding good
and appropriate practice and guidance for those who will study the
legislation. It will be essential that the individual organisations
that he has mentioned in his amendment are involved in the full
assessment of the order prior to it finally being made.
The youth
offending teams are involved not simply because it is a good and
positive thing that they are or because I say that they should be. They
will be involved
because, under section 156 of the Criminal Justice Act 2003, there is
already a requirement for a pre-sentence report, which the youth
offending team will have to prepare prior to any consideration of the
order by the court. I fully understand where the hon. Member for
Somerton and Frome and the hon. and learned Member for Harborough are
coming from, and simply say that I hope they will understand from my
perspective that those bases are covered and the encouragements that
they want to see are provided for in the 2003 Act. They are also
provided for by my encouragement of good practice in relation to
pre-sentence reports made prior to the exercise of the intensive
fostering order by a court. That will take place when the legislation
reaches the stature book in January
2008.
Mr.
Heath:
I am extremely grateful to the
Minister for his response, which entirely satisfies me. The only
comment that I will make is that, when he mentioned the circumstances
in which the offender was living, he used the valuable phrase
“contributory factor”. I would be much happier if his
provision was so worded, so that the court had to be satisfied that the
circumstance in which the offender was living was a
“contributory factor” to a significant extent to the
behaviour that constituted the offence. That would satisfy my slight
quibble concerning the causality implicit in the current wording. I
will leave him to ponder that, and beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
6
pm
Mr.
Hanson:
I beg to move amendment No. 22, in
schedule 1, page 91, line 1, leave
out ‘14’ and insert
‘16’.
The
Chairman:
With this it will be convenient to discuss
Government amendments Nos. 23 and 24 and 49 to
53.
Mr.
Hanson:
Amendments Nos. 22 to 24 make changes to the
bandings of the aggregate hours for which offenders may be required to
attend at an attendance centre. They will change the hours set out in
the Bill to those currently used by the youth courts, so effectively we
are not making any change. The Bill proposes a change but we are not
making it. The number of hours will be as they are now: a maximum of 12
hours for under-14s: between 12 and 24 hours for 14 to 15-year-olds;
and between 12 and 36 hours for 16 to 17-year-olds.
We have had discussions since
the Bill was published with key stakeholders who agree that the
attendance hours should not be increased, particularly for the younger
age group, and we have accepted that. Essentially, the changes I am
making are neutral in their effect. Amendment No. 49 makes a small
textual correction. Amendments Nos. 50 to 53 make changes to schedule
5, which modifies the requirements of the youth rehabilitation order to
apply them to youth default orders. They change the hours that can be
offset against an outstanding fine in a similar way to the amendments
made to the hours in schedule 1. I hope that these are fairly
straightforward amendments. They should not be controversial. They are
small textual changes and I commend them to the
Committee.
Mr.
Garnier:
The Minister says that the amendments are small
textual changes: they are to some extent, but they have some
considerable effect. It was not quite clear from what he said how the
figures in the Bill got in there as opposed to the ones that he now
wants in. Presumably someone must have thought quite carefully about
how the Bill was constructed. Amendments Nos. 49 to 53 affect pages 150
and 151. I have lots of little read marks all over my copy of the Bill.
I am sure that the Minister is itching to tell us how it was
created.
Mr.
Hanson:
It is probably a fair cop in the sense that this
was an error in the Bill that I am trying to rectify, following
consultation after its publication. The figures in the Bill should not
have been included. They should have been the figures in the amendments
that I have proposed. I am trying my best to make that clear. I am
taking this on the chin and doing it according to the
Committee’s
will.
Mr.
Garnier:
The Minister has a very delicate chin and I do
not want it to come to too much harm. In a sense this is a small and
childish debating point. But that is not the point that I am trying to
get across to the Committee. My point is that when a Bill like this is
pulled together from all sorts of different places, and it deals with
all sorts of different things, errors of this nature will happen. In
the great scheme of things it is probably not very important that the
figure 18 was put in when it should have been 12 or whatever. Nor does
it very much matter that it says convict instead of conviction. I think
we all know what the draftsman was trying to do.
This is an object lesson that
shows us that essentially the Bill should be deconstructed. There
should be a separate Bill for youth justice, a separate Bill for the
police stuff and a separate Bill for the immigration status stuff, and
so on. I know that it is convenient in some respects to lump everything
together on a great Christmas tree and then Ministers can come in
during the Committee stage or on Report or in the House of Lords and
just hang additional things on.
Mr.
Garnier:
Hang on, a constructor of Christmas trees is
about to intervene on me. I wish I could chop them down more
effectively from time to time. This Parliament—that is to say
the 1997 through to 2007 Parliament—has seen hundreds of Bills
come forward. In the criminal justice field we have seen lots of these
funny Christmas tree Bills which give Ministers additional powers to do
this, that and the other, and I want to give the Government a gentle
spur toward occasionally having a criminal justice Bill once every two
years.
Alun
Michael:
Will the hon. and learned Gentleman give
way?
Mr.
Garnier:
I shall in a moment, because I want to hang
something on the right hon. Gentleman shortly. As I was saying, if we
could move toward having a criminal justice Bill once every two years
instead of once every six months, we would have tidier and more
coherent legislation. The present situation is not the fault of the
Minister of State; he had to pick up this dish when he moved from
Northern Ireland. However, I am beginning to
meander.
The
Chairman:
Order. I think the hon. and learned Gentleman
saw my elbows flexing. That is enough
meandering.
Alun
Michael:
I am interested in the hon. and learned
Gentleman’s remarks about tidiness of Bills. I wonder why he did
not show such vigour in challenging Christmas tree Bills when they were
the responsibility of the right hon. and learned Member for Folkestone
and Hythe (Mr.
Howard).
The
Chairman:
Order. We really must bring the debate back to
consideration of the Bill.
Mr.
Garnier:
I quite agree. [Interruption.] I feel many
things when I listen to the right hon. Gentleman, but desperation is
not among them. His remarks were not so much a Christmas tree as a
total turkey.
Alun
Michael:
The hon. and learned Gentleman forgets the nature
of the Crime and Disorder Bill, which even went so far as to have
amendments to fisheries and shellfish legislation in it, and was such a
total dog’s breakfast that it spent three days on Report.
The
Chairman:
Order. Enough allusion has been made to
parallels in past legislation. I call Mr. Garnier to address
the
Bill.
Mr.
Garnier:
The election will be along shortly. I leave my
comments where they were. They were a gentle reminder that we need more
thinking before
legislation.
David
Howarth:
I have little to add, except
possibly to suggest a slightly different approach in these
circumstances. There is far too much machismo in this place for my
liking, and we should try to make it easier for the Government to
change their mind. On the attendance centre figures they have gone back
on the proposal after listening to other advice, and they are restoring
the status quo. When they make a concession of this sort, we should not
make it difficult for them by crowing and trying to humiliate them; we
should thank them for their common sense in listening, and hope that
they do so again in relation to other parts of the
Bill.
Mr.
Hanson:
In my 15 years in the House, I
have participated in, I believe, 26 Bill Committees, and I can honestly
say that on not one single occasion has the relevant Bill completed its
passage through Committee without being altered in some way. During my
five years in Opposition, there were a number of Bills that affected my
constituents, and in relation to which amendments arrived in droves.
Bills develop organically.
I am grateful for the question
from the hon. and learned Member for Harborough. I shall tell him a
secret, which might be of comfort, which is that at an earlier stage I
asked the same question. He has referred to the fact that I came back
from Northern Ireland to find that a large amount of work had already
been done on the Bill by officials and colleagues. Some aspects of the
Bill will continually evolve. Today’s amendment acknowledges the
fact that there was an incorrect figure. I am grateful to the hon.
Member for Cambridge for recognising that such things happen, and I
commend the amendment to the Committee.
The
Chairman:
The amendments have been exhaustively
debated.
Amendment agreed
to.
Amendments
made: No. 23, in schedule 1, page 91, line 3, at end
insert—
‘(aa) if the
offender is aged 14 or over but under 16 at the time of conviction,
must be—
(i) not less
than 12, and
(ii) not more than
24;’.
No.
24, in
schedule 1, page 91, line 5, leave
out ‘18’ and insert
‘12’.—[Mr.
Hanson.]
Mr.
Hanson:
I beg to move amendment No. 25, in
schedule 1, page 95, line 40, leave
out from ‘(c)’ to first ‘the’ in line
41.
The
Chairman:
With this it will be convenient to discuss
Government amendment Nos. 26 to 28, 32 and
33.
Mr.
Hanson:
The amendments update the language used, to
reflect the terminology now used by the Department of Health and to be
in line with the Mental Health Act 2007. The amendments change the
wording in schedule 1 surrounding the mental health drug treatment and
drug testing requirement, and the references to those requirements made
in schedule 2, which deals with breached revocation and amendment to
youth rehabilitation orders.
An indication
of willingness to comply with treatment will be required, whatever the
age of the young offender and not simply for those aged 14 and over, as
the Bill provides. Guidance will deal with those who are of an age that
they cannot fully understand the implications of such a requirement. We
brought forward those changes because of the changes that I have
mentioned in the Mental Health Act 2007. They have been brought forward
in consultation with the Department of Health to ensure consistency of
approach. The Department of Health will separately provide detailed
guidance to medical practitioners on the issue of consent to treatment.
That is different from the matter of willingness to comply, which is
required before the court may impose a treatment requirement in a youth
rehabilitation order. I hope that the Committee will accept the
amendments to update the Bill, following the Mental Health Act. I
commend the amendment to the Committee.
Mr.
Garnier:
I do not disagree with the amendments that the
Minister proposes. I ask a question out of ignorance, which is: can a
child consent to treatment, medical or otherwise, or express
willingness to receive it, without the agreement of his parent or
guardian? Obviously, if he cannot that may undermine the thrust of
these paragraphs of the schedule. If the Minister wishes to take advice
on that issue I do not expect him to answer the question now, but I
cast that fly across the water so that we can view it. I will also
continue to address the Minister so that any notes that may come
forward to allow him to answer can do so.
Mr.
Heath:
I do not know the answer to that important point. I
suspect that consent can be given. I recall that that was the basis of
the Gillick case, to a considerable extent, but perhaps I am wrong and
I certainly claim no authority. Consistency between
statutes is to be wished for but is seldom achieved and if this is a
case of the Department getting it right, I welcome
it.
Mr.
Hanson:
I hope that the amendment will be
non-controversial. I am hopeful, if I may help the hon. and learned
Gentleman, that the amendment is not about consent to medical
treatment. We are trying to ensure that the offender will comply with
the order. In relation to parental consent, I should like to reflect on
that point and get in touch with the hon. and learned Gentleman
shortly.
Mr.
Heath:
The Minister has just worried me now. Is he saying
that the person could comply with the order by attending the mental
health treatment place, even if he did not accept the treatment when he
was
there?
6.15
pm
Mr.
Hanson:
We are not trying to force
treatment on young people. It is quite the contrary. We aim to
encourage them to undertake treatment when it is clear that their
offending is linked directly to their need to receive treatment. It is
essentially a voluntary involvement to ensure that young people are
encouraged to undertake the treatment, not compulsory
treatment.
Mr.
Heath:
I repeat the point: does the person to whom such an
order is applied comply with the order simply by attending the
treatment centre rather than undergoing specific treatment at the
centre?
Mr.
Hanson:
An indication of willingness to comply with
treatment will be required whatever the age of the young offender. The
young offender has to ensure that they comply with the treatment, but
it will be done on a voluntary basis. We do not want to force young
people, but encourage them when there is a clear and identified need to
ensure that they receive the
treatment.
Mr.
Garnier:
I had not intended to get into such a discussion,
but it is quite important. Several people in such a condition could
have a double diagnosis. They could be mentally ill and could also have
a drug addiction. If is often difficult to distinguish what causes
which. Clearly, a court that was thinking about giving a mental health
treatment requirement would want to be satisfied before it did so that
the individual defendant in front of it could usefully attend
treatment. Obviously, it would not be able to second-guess the doctors,
but it would want to know that whatever treatment outlined would be
applied and have a beneficial effect. While not wishing to delay the
Committee with a debate about the Government’s amendment, we
ought in fairness to the public whom we represent not pass over
something that could lead to unforeseen problems if we can briefly
discuss it
now.
Mr.
Hanson:
I hope that I can clarify the matter and help the
Committee. It is important that, when a young person is not able to
give consent at any age, the parent or guardian will be involved. In
the type of treatment under discussion, it is important that parents
and guardians have a role. It will be open to an offender to express
willingness to comply with a term, but equally
the offender could refuse particular treatment if it were reasonable to
do so. The judgment on what is reasonable would be made in light of
what the offender said. The amendment would not affect consent to
particular treatment in any way, shape or form. I am simply trying to
bring the terminology into line with Mental Health Act
2007.
Mr.
Heath:
I am interested in what the Minister said and in
his understanding of the capacity to refuse treatment. He said
“if it were reasonable to do so”. I am still at a loss to
find that provision in the Bill. I do not want to tax him further on it
now, but it seems a crucial issue. I am arguing about the circumstances
in which an order is made and the person complies with it by attending
the treatment centre, but then refuses treatment for whatever
reason.
Mr.
Hanson:
I refer the hon. Gentleman to paragraph 9(2) of
the schedule, which
states:
“The
offender is not to be treated for the purposes of paragraph 6 or 8 as
having failed to comply with the order on the ground only that the
offender had refused to undergo any surgical, electrical or other
treatment required by that requirement if, in the opinion of the court,
the refusal was reasonable having regard to all the
circumstances.”
Obviously,
it is for the court to determine what is reasonable, but the provision
provides the legal background to the
decision.
Mr.
Heath:
The Minister is absolutely right. However, the
provision begs the question what is reasonable and what is not
reasonable. Presumably only a court can determine that. I hope that you
will not mind my having raised the issue, Mr. O’Hara,
and I am grateful to the Minister for his guidance. I will look a bit
further to see whether I believe that it satisfies the answer that was
raised in my
mind.
Amendment
agreed
to.
David
Howarth:
I beg to move amendment No. 120, in
schedule 1, page 95, line 42, at
end insert—
‘(3A) A court
may not specify treatment falling within sub-paragraph (2)(a) in a
youth rehabilitation order unless it is satisfied, on the evidence of a
registered medical practitioner approved for the purposes of section 12
of the Mental Health Act 1983, that the medical condition of the
offender is such as requires treatment as a resident
patient.’.
The
amendment relates to the mental health treatment requirement. As I
understand it, under paragraph 20(2) of schedule 1 the offender can be
required to be treated as a resident patient or as a non-resident
patient. The question is, what place will medical evidence play in the
decision to place an offender in either residential or non-residential
care? It appears from sub-paragraph (3) that the medical evidence used
in the decision making for a mental health treatment requirement does
not require the medical practitioner’s view to be taken into
account on that question. Sub-paragraph (3) says that the court has to
be satisfied
“on the
evidence of a registered medical
practitioner”
approved
under the Mental Health Act 1983, merely that the offender’s
mental condition is
“such
as requires and may be susceptible to treatment, but ... is not
such as to warrant the making of a hospital order”.
On the face of it, it seems that
the choice between residential and non-residential is not a matter that
the mental health practitioner has any influence over. That seems to be
a gap in the way that the Bill works. It seems to me—not as a
person with any qualifications in the area—that this sounds more
like a medical matter than a legal matter that the court could come to
a conclusion about by
itself.
In addition, if
there is a non-medical element in this matter, it is a policy element.
Over the last few years, Government policy has been moving in the
direction of saying that mental health should be a matter more for care
in the community than for residential care. There is some dispute about
whether that is the right direction and I do not wish to get into that
debate. However, it seems to me that the right way to approach that
question as well is as a matter of medical evidence and not just as a
matter of
politics.
There should
be a requirement in the Bill that the decision between residential and
non-residential treatment should be taken on the advice of a medical
practitioner. The underlying anxiety that prompts the amendment is that
it is very important that mental health is not seen as a way of
producing an alternative form of imprisonment. Mental health decisions
about residential or non-residential treatment should not be criminal
justice decisions. This is not an in or out decision, in the criminal
justice sense. It has to be seen, for the integrity of the mental
health practitioner, if for no other reason, as more of a medical than
a legal
decision.
Mr.
Garnier:
I have a brief question, following on from the
hon. Member for Cambridge’s remarks in support of the
amendment.
A moment ago
we were discussing the willingness of a child or a minor to agree to
certain forms of treatment. I would like to ask the Minister to clarify
whether, in the event that a mental health treatment requirement is
thought to be appropriate by the magistrates or the court and there is
available hospital or non-residential space to carry out the treatment,
but the defendant refuses or is unwilling to comply, the only
alternative is to section the person and detain him compulsorily, or
will he be sent into
custody?
It seems that
we have to anticipate people being unwilling and, therefore, what do we
do when they are unwilling, because the Government are building into
the system a requirement that they should be willing? Certainly, many
of the people whom I have had to sentence in 10 years as a recorder
have not always been very
willing.
Mr.
Hanson:
I am grateful to the hon. Member
for Cambridge for tabling the amendment and I hope that I will be able
to deal with it to his satisfaction. It is very similar to the existing
provision under sub-paragraph (3) of the mental health treatment
requirement, which requires that the court be satisfied on the evidence
of a registered medical practitioner that the mental condition of the
young offender requires and is susceptible to treatment. The amendment
would require that the court seek similar satisfaction from the
evidence of a registered medical practitioner to support residential
treatment, in particular.
In practice a mental health
treatment requirement will be made by a court only if it has been
recommended by a registered medical practitioner and the court is
satisfied that a treatment place is available. Residential treatment,
similarly, will be ordered only if it is deemed appropriate by the
medical practitioner. I hope that I can reassure the Committee by
indicating that, as with many other orders before it today, the court
order treatment will be used only as a last resort and the requirement
can be added to the youth rehabilitation order only if a young
person’s mental health is linked to their offending behaviour
and if they have failed to seek and receive
treatment.
Having
considered what has been said, I think that there are sufficient
safeguards in place to ensure that appropriate treatment is
provided under the requirements, as
drafted.
Mr.
Charles Walker (Broxbourne) (Con): When I sat on the
Mental Health Bill Committee a few months ago before the summer recess,
one of the concerns raised was that there are not enough places for
young people in mental health units specifically structured around the
needs of young
people.
Too
often young people end up in mental health wards populated by adults,
and that concern was expressed by all parties and by many of those
organisations coming to see us. What safeguards or guidance to
sentences does the Minister envisage incorporating in the legislation
to ensure that the type of residence will be taken into consideration?
It would be a disaster if a young child of 14 or 15 was placed in an
adult mental health ward, where they could be subjected to some
appalling acts of brutality. It would certainly not be in their
interests for them to be in that
environment.
Mr.
Hanson:
The hon. Gentleman raises an important point. I
hope that, if he examines Hansard for my earlier remarks, he
will see that I have tried to deal with that point. For the sake of
repetition, the mental health treatment requirement will be made by a
court only if it has been recommended by a registered medical
practitioner and if the court itself is satisfied that a treatment
place is available. I shall not determine today what that treatment
place is. Obviously, any court that is considering a mental health
treatment order would need to have background discussions with medical
practitioners to ensure that the placement was appropriate for the
individual.
6.30
pm
Also,
if the court was considering residential treatment for an individual it
would have to be satisfied that a treatment place was available. Again,
the appropriateness of such treatment would be a matter for the court
to consider. There would be a medical report, a recommendation of a
placement and the security that that placement was available. I do not
want to delineate the details precisely because I cannot second-guess
what the court might wish to say. I hope that there are sufficient
safeguards to ensure that the court’s consideration is dealt
with in an appropriate
way.
Mr.
Walker:
For the record, a treatment place may be
available, but if that place was in a largely adult mental health ward,
it would not be in the child’s interests to put them
there.
Mr.
Hanson:
The whole purpose of our discussions is to improve
the lives of those who have orders placed against them and to prevent
them from reoffending. If, as in this case, mental health issues are
related to the offending behaviour, the whole purpose of the order is
to ensure that those issues are dealt with in an appropriate way,
either by placement or in a residential setting. I cannot second guess
what happens down the line, but what I can say is that there will be a
medical assessment. The court will be aware of that and the individual
facing the order will have consideration given to their best needs.
Ultimately, the court will have to be satisfied that the reoffending
issue will be addressed by the placement. I hope that that offers some
satisfaction to the hon.
Gentleman.
The
hon. and learned Member for Harborough asked what would happen if an
offender refused to comply with the court and whether they would then
be sectioned. Normal mental health legislation applies and if
sectioning is an appropriate course of action, that might be the case
for that individual. However, it would not be seen to be done simply in
sentencing terms. If the individual refused to comply with the order,
the court could consider alternative sentence options to help prevent
reoffending issues. If an individual met the criteria for statutory
sectioning under the Mental Health Act 2007, that could happen, but it
would not be linked under an order of the court because treatment
cannot be forced on an individual, and that is made clear in the
legislation. I hope that that helps to clarify the concerns of the hon.
Member for Cambridge, and that he will now withdraw his
amendment.
David
Howarth:
I accept what the Minister
says. Most of the time, the court will be looking at the medical
practitioner’s report, which will probably mention the issue of
residential or non-residential treatment. Most of the time, the system
will work in the way that the Minister said. I accept the
Minister’s intention that that is how it should work. However, I
ask the Government to think about the problems of busy courts, busy
medical practitioners, reports that do not always cover all the issues
that perhaps they ought to cover, and magistrates and district judges
not fully understanding the law or the Government’s policy
intentions. When a district judge or a magistrates clerk looks at the
statute—that is where they go for guidance in a real
case—it would be better if they could see what the Government
mean and how they intend the system to work in the statute itself. I am
happy with the Minister’s assurance, but I ask the Government to
reconsider the wording of the schedule. I have no intention of dividing
the Committee although I may return to the matter should the Government
reconsider it and come to a conclusion that I do not fully agree with.
On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Amendments
made: No. 26, in schedule 1, page 96, line 20, leave out paragraphs
(a) and (b) and insert
‘if the offender has expressed
willingness for the treatment to be given as mentioned in that
sub-paragraph’.
No.
27, in
schedule 1, page 97, line 26, leave
out from ‘(d)’ to ‘the’ in line
27.
No. 28, in
schedule 1, page 98, leave out line
5.—[Mr. Hanson.]
Mr.
Heath
:
I beg to move amendment No. 169, in
schedule 1, page 100, line 37, at
end
insert—
‘Emotional
and intellectual
maturity
27A
Before making a youth rehabilitation order, the court must obtain and
consider information about the offender’s age and emotional and
intellectual
maturity.’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 170, in schedule 1, page 100, line 37, at end
insert—
‘Welfare
and
well-being
27B
Before making a youth rehabilitation order, the court must obtain and
consider information about what requirements would be in the best
interests of the welfare and well-being of the
child.’.
Mr.
Heath:
The amendments have been suggested to me by the
Standing Committee for Youth Justice. They deal with the overall
proportionality of the order and the Minister will be aware from our
evidence sessions that this matter has caused concern in some
areas.
Having a wide
palette of disposals available to the court has obvious benefits,
especially when tailoring requirements to the individual before the
court. However, unless there is clear guidance, there is a risk that
the courts will tend towards a wider range of requirements within an
order than might have been the case were they assembling different
orders on a different statutory basis. If that happens, the risk is
that a young person or child might be faced with a long list of
requirements that they must meet in order to comply with the order. In
those cases a breach of the order and a further descent into criminal
sanctions becomes more likely, simply because of the person’s
inability to cope with the range of sanctions that has been placed upon
them by the court.
I
hope that that will not happen. Evidence from the Magistrates
Association suggests that good sense from the magistrates bench plus
any future guidance that might be given would prevent that from
happening. However, it must be acknowledged that there is at least the
risk that a disproportionate outcome may arise from what is a perfectly
sound reasoning process in so far as it looks at each of the separate
provisions available within the rehabilitation order, and applies them
to the circumstances of the offender in question.
It could be
argued that there is already a requirement for broad proportionality
under section 148 of the Criminal Justice Act 2003. It is right that
that applies to the offence rather than the individual. Amendment No.
169 would ask the court to make an assessment of the emotional and
intellectual maturity of the individual before making an order, so that
it is in a position to decide whether the range of sanctions and
disposals that apply through the order is appropriate, not only to the
offence, in terms of condign punishment, but to the individual who is
before the
court.
Mr.
Burrowes:
I hear the charge that the
hon. Gentleman is making. Is it not the case, however, in this area as
in many others, that we need to be careful of the issue of
over-legislating? There is a need to allow guidance to develop, and
indeed the Sentencing Guidelines Council will no doubt issue guidelines
in relation to these new sentencing options. Obviously, those
guidelines, as existing
guidelines do now, will seek to ensure that magistrates are consistent
in their approach to sentencing, and also take account of the points in
relation to the offender, balanced with the points in relation to the
offence.
Mr.
Heath:
That is, generally speaking,
true. However, there are a number of provisions already in the schedule
that we are referring to—part 3 of schedule 1—about
factors that the court must take into account. What is missing from
those factors is the emotional and intellectual maturity of the
offender.
I am not
sure that it is over-proscriptive to say to the court, in statute, that
maturity is a factor that ought to be a consideration. It certainly
would not become a paramount consideration; it is only one of the
factors that would be taken into account. However, it would be useful
for the court to have evidence about that maturity.
This issue refers back to some
of the debates that we had earlier, about the enormous range of
maturity that is evident, particularly among young offenders where age
is very often not a clear determinant of the maturity of the offender
and their ability to understand the consequence either of the offence
or of being in breach of the order. Therefore, it seems to me that
maturity is a material consideration that the court ought to take into
account.
It may be
that the Minister will say that guidelines and advice to the bench are
the right way of approaching this subject. I would not take the matter
further if he were to say that guidance would be clearly set out.
However, it is important that an assurance is given that maturity is a
factor that must be taken into
account.
Amendment No.
170 deals with welfare and well-being. Again, it deals with a
suggestion from the Standing Committee for Youth Justice. The standing
committee sought to make the point that one can provide for the welfare
and well-being of the child offender in a variety of ways, some of
which, under these orders, will be coercive and some of which will not
be coercive but will be part of the standard fare, as it were, of the
welfare services. It is important that the court does not confuse the
two in reaching its verdict and giving its sentence.
There is at least a fear that,
when a person who is perhaps living under chaotic circumstances and has
a multitude of problems in their life, the court may, with the best of
intentions, wish to deal with everything that is having an impact on
that young person’s life rather than simply addressing those
issues that are part of the reason for the offending behaviour. It is
only the latter type of issue that the court should be concerned with;
the other issues are matters for the welfare services and other
agencies.
It is
important that help is given, but it is not essential that it forms
part of a requirement on the young person through a rehabilitation
order, the breach of which would constitute grounds for further action
through the criminal justice system. That seems to me an important
distinction and one that, again, I hope can be made clear to courts in
the advice that they are given on sentencing. There is not a
requirement to ensure that absolutely every provision that could be
made in order to make that young person’s life better is
made, under threat of coercion through a sentence, and there are other
means of achieving that purpose. That is the principal purpose of
amendment No. 170 as a probing amendment. We seek assurances of the
sort that would ensure that the courts directed themselves properly to
the offending behaviour, rather than to the offender’s general
welfare interests. I look forward to the Minister of State’s
response. 6.45
pm
Mr.
Garnier:
I want briefly to make a
suggestion. I understand what the hon. Member for Somerton and Frome is
seeking. However, surely the simplest solution—we could just
substitute it in part 3 of the schedule—would be to insert a
requirement that no court should make an order without a pre-sentence
report. It could then be made a matter of guidance or practice, as I am
sure it already is, that all the things that we are concerned about
should be in that report.
Mr.
Hanson:
I was going to make that very
point. Before the courts make a youth rehabilitation order they will
already have a pre-sentence report that will cover all the factors that
have been mentioned. The youth offending team will undertake detailed
assessments of the offender, their needs, and their welfare. We should
also recall the purpose of the provisions, which is to help prevent
reoffending through the imposition of the order. Pre-sentence reports
are not the subject of legislation but will be available as a matter of
course before imposition of a youth rehabilitation order, and are
key.
The
hon. Gentleman mentioned that, when sentencing, the court must already
have regard to the young person’s welfare. In particular, when a
court proposes making a youth rehabilitation order, the existing
provisions of the Criminal Justice Act 2003 will apply. The court will
therefore be required to consider whether a youth rehabilitation order
is the most suitable sentence.
Let me give an example from the
main body of the Bill. Schedule 1, paragraph 27 indicates that there is
a need to have regard to family circumstances and to the likely effect
of such an order on those circumstances. To me, that indicates that the
welfare of the child and the impact on the family are crucial
considerations in considering whether to make an
order.
Mr.
Heath:
The Minister of State partly makes my point by
referring to that provision. The fact that that will be specified in
statute as a consideration, but that the maturity of the offender is
not, is precisely the omission to which I seek to draw
attention.
Mr.
Hanson:
In my defence, I refer to the point made by the
hon. and learned Member for Harborough to the effect that the
pre-sentence report will be a decider in the imposition of any youth
rehabilitation order. The court’s main purpose is, and should
remain, the need to reduce reoffending. The factors that will be
considered in the round by the youth offending team will be generic to
the assessments, so that a holistic approach can be developed before
the court makes the appropriate sentence.
Alun
Michael:
My right hon. Friend makes a
powerful point. It has always seemed to me that, if the court is to
look at the problems of offending, it must consider the individual
circumstances and take maturity into account. What we do not want to do
is allow the court to become confused by taking its mind off the
importance of reducing and preventing reoffending, the central point of
my right hon. Friend’s
argument.
Mr.
Hanson:
I am grateful to my right hon. Friend for his help
and support. I am sure that the Committee will examine aspects of the
order. For example, paragraph 28 of the schedule is entitled:
“Compatibility of
requirements, requirement to avoid conflict with religious beliefs,
etc.”
The court is
required to ensure that the order is compatible with the
offender’s religious beliefs and does not conflict with work,
education or the requirements of another youth rehabilitation order. I
appreciate where the hon. Gentleman is coming from, but within the
safeguards already in the Bill and in the Criminal Justice Act 2003,
and those provided by the need for a pre-sentence report, the welfare
of the child and the best interests of the young person are catered
for, so I ask him to withdraw the
amendment.
Mr.
Heath:
I am genuinely grateful to the Minister for setting
out the process. If no reference had been made to such matters in the
Bill, I would entirely accept his saying that they will be given proper
weight in the guidelines because the pre-sentence report would be
expected to cover all issues. However, because some aspects are dealt
with under paragraphs 27 and 28 in part 3 of the schedule to which the
right hon. Gentleman drew the Committee’s attention emphasises
the fact that other issues are not. That begs the question why it was
thought proper to mention the offender’s family circumstances,
which is part of the holistic approach and undoubtedly are matters that
should be taken into consideration, yet it is not thought important to
mention other factors such as those outlined in the
amendments.
The more
that I think about it, the more I think that the alternative
formulation put forward by the hon. and learned Member for Harborough
would be entirely appropriate. The Bill draws attention to the
importance of the pre-sentence report in such a context because it is
crucial to the operation of the rehabilitation order. However, I am not
worried about matters as long as factors are taken into account
properly and by whatever means it is appropriate to do so. The Minister
may appreciate that the omission emphasises the fact that some areas
are included specifically in part 3 of the schedule. He has given us
some useful assurances of what will be written into guidance. On the
basis that no doubt we shall return to the such matters, I beg to ask
leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Mr.
Hanson:
I beg to move amendment No. 29, in
schedule 1, page 103, line 9, leave
out sub-paragraphs (2) and
(3).
The
Chairman:
With this it will be convenient to discuss
Government amendments Nos. 34 and 35, 47 and 48, and
19.
Mr.
Hanson:
The essential element of the
amendments is to provide for a generic reference to local authorities
acting in the role of parental responsibility to be applied throughout
part 1 of the Bill, when reference is made to parents. That will ensure
that, when a young person is in the care of a local authority, it will
be consulted in its role as acting parent. They are technical
amendments relating to the position of local authorities when they
have young offenders in their care. Those covering part 1 would ensure
that, when local authorities are acting as parents, they are consulted
on matters that reflect the role of parents under the
Bill.
Amendment
agreed to.
Further
consideration adjourned—[Mr.
Khan.]
Adjourned
accordingly at five minutes to Seven o’clock till Thursday 25
October at Nine
o’clock.
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