Criminal Justice and Immigration Bill

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Clause 7

Youth rehabilitation orders: interpretation
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Amendment made: No. 19, in clause 7, page 6, line 17, at end add—
‘(4) If a local authority has parental responsibility for an offender who is in its care or provided with accommodation by it in the exercise of any social services functions, any reference in this Part (except in paragraphs 4 and 24 of Schedule 1) to the offender’s parent or guardian is to be read as a reference to that authority.
(5) In subsection (4)—
“parental responsibility” has the same meaning as it has in the Children Act 1989 (c. 41) by virtue of section 3 of that Act, and
“social services functions” has the same meaning as it has in the Local Authority Social Services Act 1970 (c. 42) by virtue of section 1A of that Act.’.—[Mr. Hanson.]
Clause 7, as amended, ordered to stand part of the Bill.

Clause 8

Isles of Scilly
Question proposed, That the clause stand part of the Bill.
Mr. Heath: I shall be brief. Years of experience have led me to form the view that, if I wish to disconcert Ministers in charge of criminal justice Bills, I should ask them either about courts martial, Northern Ireland or British overseas territories. Northern Ireland simply will not work in this respect, because two of the Ministers know far more about it than I do, and courts martial have been covered, but I have never before considered the possibilities of asking about the Isles of Scilly, which form part of the English and Welsh jurisdiction.
I assume that the rest of the Bill applies, unamended, to the Isles of Scilly and that the clause refers only to part 1. However, I am keen to ensure that the orders, which it appears now can be evaded by going to Thurso, cannot also be evaded by going to Tresco, because that may be a temptation to young hooligans in Penzance and Newlyn, for whom that would not be a huge journey. Can I just be assured that the principal objectives of the rehabilitation orders will take effect in the Isles of Scilly and that the Minister’s intention in including a power to exempt by order is not to remove any significant part of the orders that we have debated?
Mr. Hanson: As ever, I am grateful to the hon. Gentleman. I hope that, as he said, I cannot be caught out by him on Northern Ireland. Having had two years there as Minister of State, I feel as though I can answer any questions relating to Northern Ireland. In relation to our discussion earlier about Scotland, I have already indicated that I will write to him to clarify that point and, although I feel that it is covered, I will reflect on what he said.
Mr. Heath: Nor is the common council of the City of London, and there was no problem in inserting that into clause 7’s definition of a local authority. That is normally what is done with the Isles of Scilly, and I wondered why we need a separate order. I need not extend the debate further though.
Question put and agreed to.
Clause 8 ordered to stand part of the Bill.

Clause 9

Purposes etc. of sentencing: offenders aged under 18
Mr. Heath: I beg to move amendment No. 135, in clause 9, page 6, line 25, leave out subsection (1) and insert—
‘(1) After section 142 of the Criminal Justice Act 2003 (c. 44) insert—
“142A Purposes etc. of sentencing: offenders aged under 18
(1) This section applies where a court is dealing with an offender aged under 18 in respect of an offence.
(2) The court must have regard primarily to the welfare and well-being of the offender, in accordance with its duties under section 44 of the Children and Young Persons Act 1933.
(3) The court must ensure a proportionate response to offending behaviour.
(4) The court must also—
(a) have regard to the purposes of sentencing mentioned in subsection (5), in so far as it is not required to do so by subsection (2), and
(b) in accordance with section 37 of the Crime and Disorder Act 1998, have regard to the principal aim of the youth justice system, namely to prevent offending (including re-offending) by children and young persons.
(5) The purposes of sentencing are—
(a) the reform and rehabilitation of offenders,
(b) the protection of the public, and
(c) the making of reparation by offenders to persons affected by their offences.
(6) This section does not apply—
(a) to an offence the sentence for which is fixed by law,
(b) in relation to the making of a hospital order (with or without a restriction order), an interim hospital order, a hospital direction or a limitation direction under Part 3 of the Mental Health Act 1983.
(7) In respect of a proportionate response, as stated in subsection (3), this shall be considered to mean a variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care, in a manner proportionate both to their circumstances and the offence.’.
The Chairman: With this it will be convenient to discuss the following: Amendment No. 193, in clause 9, page 6, line 26, leave out ‘18’ and insert ‘19’.
Amendment No. 194, in clause 9, page 6, line 28, leave out ‘18’ and insert ‘19’.
Amendment No. 195, in clause 9, page 6, line 31, leave out ‘18’ and insert ‘19’.
Amendment No. 9, in clause 9, page 7, line 1, after ‘of’, insert ‘financial compensation or other appropriate’.
Amendment No. 196, in clause 9, page 7, line 18, leave out ‘18’ and insert ‘19’.
Amendment No. 136, in clause 9, page 7, line 20, leave out subsections (3) and (4).
Amendment No. 197, in clause 9, page 7, line 25, leave out ‘18’ and insert ‘19’.
Amendment No. 198, in clause 9, page 7, line 34, leave out ‘18’ and insert ‘19’.
Clause stand part.
New clause 13—Principal aim of the youth justice system
‘(1) Section 37 of the Crime and Disorder Act 1998 (c.37) (aim of the youth justice system) is amended as follows.
(2) In subsection (1), after “preventing offending” insert “(including re-offending)”.
(3) At end insert—
“(3) Subsection (2) above is subject to section 142A(2) of the Criminal Justice Act 2003 (which requires a court to have a regard primarily to the welfare and well-being of offenders aged under 18 in accordance with its duties under section 44 of the Children and Young Persons Act 1933).”.’.
New clause 14—Courts to have regard to the welfare and well-being of offenders under 18
‘(1) Section 44 of the Children and Young Persons Act 1933 (principles to be observed by all courts in dealing with children and young persons: general considerations) is amended as follows.
(2) In subsection (1) after “shall have regard to the welfare”, insert “and well-being”.
(3) After subsection (1) insert—
“(1A) In complying with their duties under subsection (1), courts shall have regard in particular to the following matters—
(a) in respect of welfare, the matters set out in section 1(3) of the Children Act 1989; and
(b) in respect of well-being, the matters set out in section 10(2) of the Children Act 2004.”’.
Mr. Heath: It is rather rare that one is almost formally invited by the Attorney-General to table an amendment in Committee, but in this instance we can properly say that we were. Similar amendments with the same objective as those in this group were proposed on 3 July in the House of Lords to clause 33 of the Bill that became the Offender Management Act 2007 by my noble friends Lord Wallace of Saltaire and Baroness Linklater. They were well supported, and received support from Baroness Anelay of St. Johns, Lord Ramsbotham, Lord Judd and Baroness Howe of Idlicote. In response, the Attorney-General, Baroness Scotland, said:
“The distinction between welfare and well-being is an interesting, important and rather subtle one. The House will have extensive opportunities to reflect on it during consideration of Clause 9 of the Criminal Justice and Immigration Bill, to which the noble Baroness, Lady Anelay, referred, which was recently introduced in another place. I agree with her that that is probably the better place for these issues to be more fully debated.”—[Official Report, House of Lords, 3 July 2007; Vol. 693, c. 999.]
That is very much an invitation from a Minister to table these amendments, which is something that I have not enjoyed before. The Minister may care to have words with the Attorney-General later.
The amendments relate to sentencing, which is a serious purpose to which we could devote a considerable amount of time. I do not propose to do so, because we can simply state the objectives of this group of amendments. Essentially, they would introduce into the principles of sentencing in the criminal court some of the underlying principles that apply in the family court in terms of the welfare of the child and its paramountcy.
As the Minister will know, the Children Act 1989 requires that the principle should apply to all children involved in family court proceedings, and that there is a welfare checklist that the court is required to consider when taking forward any proceedings involving a child. The proposition before us this afternoon is that a similar welfare checklist ought to apply when dealing with the rehabilitation orders, which have at their core the idea that one treats the individual as a whole. The circumstances that might promote criminality and offending behaviour in that child, and all those influences that are pooled together by those agencies that have dealings with the young offender and that are invited to give their views and advice to the court, ought to be taken into account during the sentencing procedure.
The Children Act 2004 framework document—the five outcomes document— examines the factors that ought to be taken into account when considering whether a relevant authority or institution has improved a child’s well-being. Some of those factors are entirely relevant to the actions of a court when considering the disposals available to it in dealing with a young offender. There are particular factors that are relevant to the points made earlier by the hon. Members for Northampton, North and for Leyton and Wanstead and by the hon. and learned Member for Harborough.
What are the provisions available, in the context of sentencing procedure, to deal with education, for instance? Is there a special needs requirement that is not currently being met? What are the welfare implications? Is the child a child in need, as identified under section 17 of the Children Act 1989? Those are material issues, as are mental health assessment, consideration of housing and living conditions, and consideration of physical health. All these factors, if they are taken in the round, provide the substance that ought to underlay the principles of sentencing.
What is being proposed is to draw together the various strands of Government policy in this area. The Government have been very clear in stating their intentions in respect of how best to deal with children who suffer various disadvantages and to ensure that they have access to the type of support that they need. All those factors are relevant to a person who has found themselves in trouble with the courts, where there are underlying issues that go beyond the offending behaviour, which must properly be brought into account when considering the measures contained in the Bill. By extending the principles of sentencing to encompass those factors, I believe that the courts would take an even wider view than they currently do of their responsibilities to the child as well as to society, in trying to protect society against the offending behaviour, in dealing properly with the prospects of recidivism and in ensuring that there is less prospect of reoffending.
Without extending the debate—I think that my intentions are very clear already, and I have no doubt that other Members will support my views—I believe that the amendments would reconcile the provisions of this Bill with the Children Act 2004 and other legislation. They would reconcile the systems that are already in place in the family court to those in the criminal court, which would produce more integration in what we do with these young people to ensure that they have access to the support that they need.
Harry Cohen: In this cluster of amendments—Nos. 193 to 198—are amendments that I tabled, which would all do the same thing, which is alter the age below which the youth justice system is involved from 18 to 19. That arises very much from the evidence that we were given in our fourth sitting by Les Lawrence of the Local Government Association. He said:
“My final point—and it is a strange conundrum—is that the Children Act 2004 created the concept of a child or young person as being from 0 to 19. In the youth justice system, the cut off is at 18.”
He goes on to say that
“as far as the responsibility of a local authority under the Children Act goes, that person should be supported until the age of 19.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 18 October 2007; c. 144, Q290.]
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Mr. Lawrence was referring to the gap of a year. My amendment aims to put some coherence into the system. I would not mind if the local authorities were to start at 18, but it is probably better that the youth justice system includes those aged 18 and finishes at 19, so that there is not that gap. I have tabled these probing amendments to get the Minister’s opinion on that and to hear what he thinks about the gap that was identified by Mr. Lawrence.
While we are talking about ages, I will take the opportunity to discuss a matter that is not specifically about 18 to 19-year-olds, but still relevant. On Second Reading, I quoted from the newsletter from the youth offending teams’ managers at their annual general meeting. It states:
“It is crucial that there is a distinct and separate youth criminal justice system, where 17-year olds are afforded the same rights as 16-year olds on arrest and within the court system. This would mean access to an appropriate adult at the police station as well as the remand criteria equating to that of 16-year olds.”
They go on to say that the review of Police and Criminal Evidence Act 1984 and this Bill are opportunities to forward that ambition. Clearly, there is a gap from 16 to 17-year-olds that needs to be addressed as well. At least the local authorities and the youth justice system recognise that the matter in respect of 17 and 18-year-olds needs to be addressed. My amendment aims to get some coherence into the system and address that gap.
I will say a few words about the amendment and the new clause tabled by the hon. Member for Somerton and Frome. I will not make a big speech now, but in the initial stages, I said that I felt that the welfare and development of the child have to have a more paramount position in the criminal justice system. I hold that as my view and that is very much what his amendments are about. I like the look of his amendments in lots of ways and will be interested to hear what the Minister has to say.
While I accept that there needs to be some blurring in legislation, we also need some clarity. We should be clear in our own mind of the three elements that we want in the system. First, we need punishment and retribution, but the truth is that the UN conventions on the rights of the child and others and Government legislation do not talk about punishment and retribution. They may be a factor in the criminal justice system, and if they are, we need to be honest and say that they are necessary for horrendous crimes, but we need to set out their limitations. The system should not be solely about punishment and retribution. That is why I think that we need some clarity, including in the legislation.
The other element is the welfare and well-being of the child, and that is in all the documents that we have signed up to, including the convention on the rights of the child. The reason that we have come so far down that chart on looking after children has a lot to do with how we treat child offenders. We have not given that element the priority that it should have had. We must revisit that point and be clear that whatever happens on the other factors, the welfare and well-being of the child will always be present in how we expect children to be dealt with. That point is very important.
Thirdly, my right hon. Friend the Member for Cardiff, South and Penarth, a former Home Office Minister, made the point on Tuesday that, since it has been in power, Labour has seen the prevention of reoffending as a priority. That is the other factor that is involved in this issue. Often, those elements can work together. For instance, the welfare of the child, in terms of education and the development of skills for when they come out of custody, can work towards the prevention of reoffending.
We need to be clear in our minds about the three factors: punishment, preventing reoffending, and welfare and well-being. We must be clear about what priority we give them, how we spell that out in the legislation and how we expect it to be implemented. I come back to the point that the amendments are about the welfare and well-being of the child. That must always be present in conjunction with the other two factors. We must say to administrators and judges that the welfare and well-being of the child is an important factor, which we expect them to take account of.
Ms Keeble: I am pleased to take part in this debate because it gets to the heart of what the youth criminal justice system is all about. Personally, I oppose the amendment, although I have enormous sympathy will all the sentiments that gave rise to it. I agree completely with the approach of many of the outside organisations that have promoted this measure, but I do not agree with the amendment. I thought that it might be helpful to set out why that is.
The state obviously has to think about a number of issues. One is the protection of the wider public, which is what the criminal justice system is all about, to a great extent. There are also issues about the welfare of the child, which is also the state’s responsibility. That is the responsibility of different Departments under different bits of legislation; for instance, the Department for Children, Schools and Families is involved. The amendments confuse or give the wrong priority to some of the roles and responsibilities. However much we do not like what has happened to these children in their lives and however much we might sympathise, once they are in front of the court, being sentenced, they have stepped over the boundary.
The job of the courts must be to deal with the crime, as well as to deal with the young offender. The sequencing for that in the legislation seems to be the right way round. When the courts come to sentencing, they have to deal with the offending behaviour, and in the process of dealing with that, must look at the welfare of the child.
We have discussed the enormous sympathy with which the young people must be treated in different instances, for example, with regard to the religious views of the family. Those things are absolutely right. However, once the child is in the criminal justice system, it is right that the offending behaviour has to be the first concern. Part of this issue is about sequencing. In other areas of our legislation, courts and others have to sequence different roles and responsibilities of the state in making their decisions. The hon. Member for Somerton and Frome mentioned the family courts, but they are different. I am not involved in the legal profession, but I understand that, in many instances, in the family courts, the welfare of the child is protected against the war that goes on between the parents. It is absolutely right to say that the paramount concern in all this must be the welfare of the child, not the right to access of either parent.
I am much more familiar with housing legislation, where the importance is placed on the local authority’s ability to allocate housing, rather than a child’s need for a home. A family can be made homeless despite the fact that people will say that the child has a right to a home and the welfare of the child has to be considered. The issue is therefore one of sequencing and of what comes first, whether that concerns how the parents became homeless or the need of the child for a house. These are difficult issues, and there are competing rights and responsibilities. However, different priorities have to be set in different areas, and it is right that the priorities and sequence with which the courts should consider the different factors are set down in the legislation.
Underlying a lot of this, as the hon. Member for Somerton and Frome and the hon. and learned Member for Harborough commented, are qualms about what actually happens to young people in the criminal justice system. I not only share their concerns, but probably take a more oppositionist stance than either of them, because I have profound concerns about how some young people are treated and think that wholesale changes are needed. Those failings are failings of administration, procedure and systems and are not so much the result of the legislation.
For example, there were profound failings in the work of the Home Office monitor in the case of Gareth Myatt, the case that I am most aware of. The Home Office monitor said that he found it very hard to challenge the decisions that were taken by the management of the secure training centre. What is the point of having a Home Office monitor if they cannot challenge the decisions that are being taken? That, at least, is supposed to be one of their functions. There are supposed to be reports on each incident of restraint. I find it hard to believe that all those reports were done—if they were, there might be between 3,000 and 4,000 reports every year, which I defy anyone to deal with.
I have much more profound concerns about the whole regime of restraint, which is horrific and under-reported with regard to injuries. I know a young man, a constituent, who was repeatedly subjected to the nose distraction technique in one of the secure training centres. He only went to hospital when he went to the next institution because of the damage that had been done to his nose. That is an ongoing case that I have just written to the Department about. There are major issues that are not the result of the welfare considerations taken at sentencing, but concern the failures of the system once the young people get into the institutions.
The level of scrutiny that applies to the approval of restraint regimes is also partly our job. It is in our own gift, as a Parliament, to take the Government to task over the statutory instruments that provide for the current system of restraint. The Liberal Democrats, in fact, were responsible for getting the debate in another place. The Government could have been overturned on that, but were not. One could say that that was partly a failure of parliamentary scrutiny. There are issues about how all the restraint techniques were put together and approved. The amendment tabled by the hon. Member for Somerton and Frome would not change one whit of that.
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When we talk about how we will make things better for these young people and deal with the appalling record of recidivism, we also need to consider carefully what happens in some of these institutions. The Government and others who support them say in their defence that the children and young people are well looked after and that their welfare is being protected, just as the hon. Gentleman would want.
I have not been to as many secure training centres or seen as many institutions as some Opposition members of the Committee, but a young person came with me when I went to Rainsbrook and, interestingly, her response was very different from mine. The young people in Rainsbrook looked better than they did outside. I met one of my constituents there and, knowing where that young man came from, I am not surprised that he looked better because it was probably the first time in his life that he had had three meals a day and got to bed on time. However, what he learnt about behaviour in an institution where restraint was used with the frequency that it was in Rainsbrook was probably negative. He would have learnt that ultimately the sanction is force, which he probably knew before he went in and on which basis he would continue to operate after he left. We need to do some profound thinking about the regimes, but the amendment will not alter that.
To make the provisions of the amendment a primary concern in the criminal justice system would be to let the social welfare system off the hook completely and the prime responsibility for the tragedy of these young people’s lives is that intervention is much too late. It should happen much earlier. All of us know that most of the young people who end up in these institutions are a slow-motion disaster that we can all see coming, as we have all tracked them through the system. For example, a young girl at a special needs school was picked up for shoplifting, kept in a police station overnight and progressed from one thing to another until she ended up in Holloway. I have a sneaking suspicion that if there had been a more substantial, thought-through, considered intervention very much earlier, that disaster might not have happened. There are hundreds of kids like that.
Let us get the child services in place to intervene early on, quite toughly if needs be. Once children have committed crimes and go to court, it is right to reassure wider society that the offending behaviour will be the courts’ prime concern, but we must look after the welfare of the child. I hope that my right hon. Friend the Minister will not now jump up and say he will accept the wording in the amendment.
I think that the general public understand that the lives of most of these kids are a disaster and a tragedy and they would not want them to be treated badly. I had nothing but supportive comments from my constituents after I dealt with the Gareth Myatt case, as they understood that what had happened to that young person was wrong. Equally, they would want the kind of behaviour that leads a young person to be given an ASBO to be dealt with.
Although I have enormous regard for the points being made and for the organisation behind the amendments, we need to ensure that we deal with the offending behaviour as well as dealing with the welfare of the young person while they are in the court system. We must try to ensure that we break the appalling cycle of repeat offending and disadvantage, which is what takes these children round and round the revolving doors of the criminal justice system, until they do something really horrible and end up with a long sentence in an adult prison. On that basis, I oppose the amendment.
David Howarth: There are two main differences between the amendment and the clause as it stands. One is the matter that the hon. Member for Northampton, North just referred to, which is the primary regard of the system. The other is the purposes of sentencing. I want to mention a couple of points on each issue.
On the first issue, perhaps the difference between the two versions of the clause is not as great as the hon. Lady suggested. It is not in the interests of a young person, in terms of their welfare and well-being, to be an offender. The amendment would introduce broader considerations alongside that fundamental consideration. I do not think that anybody believes that allowing a young person to remain in a state where they repeatedly offend can possibly be in their interests.
My second point concerns the purpose of sentencing. The difference between the amendment and the existing clause is that the amendment would miss out the punishment of offenders as the first mention of the purpose of sentencing, but it would leave in the other three purposes: the protection of the public, the reform and rehabilitation of offenders and the making of reparation by offenders.
Mr. Hanson: This goes to the nub of the differences between us. Does the hon. Gentleman feel that the 64 young people who are currently in offender institutions because of the crime of murder should not be punished?
David Howarth: The question is whether there is any point to punishment that is not protecting the public, reforming or rehabilitating, or making reparation. In the cases referred to by the hon. Gentleman, presumably the public are being protected. That is presumably why the young people have been sentenced in the way that they have. No one is arguing that the protection of the public aspect of sentencing should be removed, and it would be wrong for the Minister to suggest that that is part of what we are saying. The protection of the public is in the amendment. What is not in the amendment is punishment that does none of those other three things. What is the point of punishment that does not protect the public, that does not rehabilitate and that does not repair the damage?
Mr. Hanson: The amendment tabled by the hon. Gentleman would remove clause 9(4)(a). I take the view, as I think my hon. Friends would, that whatever the circumstances regarding reoffending, the need to protect the public and reparations required of offenders, there has to be an element of punishment for those individuals who have committed crimes—in some cases horrendous crimes of murder. If the hon. Gentleman takes his case to the general public and argues that the murderers of Jamie Bulger should not be punished as well as rehabilitated, he will find himself on the wrong side of the argument with the public at large.
David Howarth: The question is what the purpose is of punishment. The purpose of punishment in those cases is the protection of the public. For the Minister to suggest that Opposition Members favour murder, which is what he seems to think, is absurd. All we are saying is that it is for the Government to say what the point of a punishment is, not to refer to what other people might think, but what the Government and Labour Members themselves believe to be the purpose of punishments that do not fulfil any of the other three functions.
Alun Michael (Cardiff, South and Penarth) (Lab/Co-op): During the course of sentencing I was always primarily focused on the three elements that the hon. Gentleman mentioned; in other words, on having a constructive purpose to the decision that is taken. However, if he takes the trouble to ask young offenders, including some of the most difficult and prolific offenders in the land, whether they think that there should be punishment when something wrong is done, he will discover that he is in a very small minority in suggesting that punishment should be cast to one side as not relevant. He is making a mistake.
David Howarth: I would be glad to be in a minority of young offenders, although I am not a young offender, as I hope that the hon. Gentleman will realise. The question is still for him to ask—[ Interruption. ]
Alun Michael: No, the hon. Gentleman has missed the point.
The Chairman: Order.
David Howarth: The hon. Gentleman should not refer to what other people believe, but he should answer as a sentencer what the point of a sentence would be that did not protect, repair or rehabilitate; it does not have to be all three of those things, but at least one.
Alun Michael: I was making the point that those who commit offences understand full well that there will be, and expect there to be, a punishment. Young offenders can be among those who are the most critical of their friends if they commit offences. In the wider scheme of things, to follow what the hon. Gentleman is saying, it would have to be shown that a specific decision leads to prevention, whereas, the general fact that there is punishment is important in creating an environment in which it is understood that there is cause and consequence, and that a punishment follows offending.
David Howarth: The purpose, ultimately, is to protect the public. The hon. Gentleman is reading more into the clause than is there; it is still part of the purpose of the sentence to protect the public in those circumstances. The fundamental point is that one of the things that stands out about British society compared with almost all of the rest of the world, except, perhaps, the United States, is the profound degree of punitiveness that characterises our society, as we have heard today. What do we make of that? What do we do about that as policy makers?
The irony is that one of the clearest causes of crime in a young offender’s background is having been subject to a punitive parenting style. The same characteristic that makes our society punitive is the one that generates, in large measure, the crime that we are trying to prevent.
Ms Keeble: Will not the hon. Gentleman accept that he is confusing punishment with some kind of physical chastisement or more severe sanction? It seems perfectly logical that if society sets boundaries beyond which people are not supposed to go, the most obvious one being murdering people, someone who breaches those must receive a sanction. Wider society expects that in order for it to be confident in the criminal justice system. A young person will only learn how to behave if they understand that if they go beyond that boundary, there will be a sanction of some sort. We are not a particularly punitive society. Our penalties are probably less severe than in the majority of other countries.
David Howarth: I am afraid that research is against the hon. Lady. We do not have a clause saying that the purpose of sentencing is sentencing. The courts impose sanctions on people; the question is what the purpose of that activity is. Our clause meets the requirements of putting forward purposes for sanction. It makes no sense to say that the purpose of punishment is punishment. That is ultimately what our amendment alters in the Bill.
Mr. Burrowes: I speak to amendments Nos. 135 and 9, tabled in my name and those of my hon. and learned Friend the Member for Harborough and my hon. Friend the Member for Ruislip-Northwood.
We could debate the purpose and principles of sentencing at length. But it is also important to look at the practical reality of the impact on the courts. The statutory duties to prevent offending were explicit in the Crime and Disorder Act 1998. For the first time, a duty to prevent offending was imposed not just on the courts but on all those involved in the criminal justice system, which included practitioners and solicitors. It meant that those solicitors who were defending their clients and acting in their best interests also had a primary duty to prevent them offending. That was a good duty and it is repeated in clause 9. The clause also repeats the purpose of sentencing, which is aligned to those purposes relating to over-18s. That is quite proper. The principle that justice should be the same and should be seen to be achieved both in relation to the victim and the offender, regardless of age, is right.
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Mr. Hanson: May I give the hon. Gentleman the same opportunity that I gave the hon. Member for Cambridge? In seeking to amend the clause, does he think that people who have murdered and are currently residing in youth offender institutions should not have punishment as part of the purpose of their sentence?
Mr. Burrowes: I am grateful for that intervention. It is probably one of the easiest ones that I have had from the Minister. Of course the answer is yes— [ Interruption. ] If I can complete my reply, it depends on the context in which we look at the purposes and whether the purposes need to have a focus and need to underlie the sentencing regime. The implicit point of any sanction is punishment. The point of prisons is punishment. If the argument put forward to rebut the amendment is that removing punishment as a purpose of sentencing inevitably mean removing prisons, that is obviously not so—prisons are there to punish as much as any other sanctions in the court system. The important point when one looks at punishment is to look at what it achieves and at what sentencing, which in its very nature is punishment, achieves.
Ms Keeble: We can get very involved in semantics here. How would the hon. Gentleman explain to one of his constituents that punishment pure and simple is not required to ensure that people have confidence in the criminal justice system? There are all the other worthy things too. But when he is dealing with a constituent who is a victim of crime how will he explain away the idea that punishment means punishment?
Mr. Burrowes: The way to answer that is very simple. Punishment obviously forms an inherent part of the criminal justice system. The purpose of this amendment was to probe whether we are achieving the purposes of sentencing on the ground. We need to focus on those areas of reform and rehabilitation of offenders and the protection of the public. We also need to look at the context in which offenders come to court and how they are dealt with in family courts. There is reference to acting in the children’s best interests. Many clients come through to the youth courts. Are the social welfare gaps that the hon. Lady described being plugged by the youth courts? Unless such children come within the statutory definition of a child in need, there are often gaps in that system which are not dealt with properly.
Often a case will involve a young person with special educational needs or family issues such as abuse in the home or housing needs. If they come before the court for, perhaps, a more serious offence but the courts are keen to deal with matters speedily, particularly given the present guidelines for speedy justice, the reality is often that the background of the offending is not properly considered in depth. Often, all the needs of a child attending court for the first time are not taken into account and properly considered, and the effect is limited.
When discussing sentencing and justice, we need to take account of reparation. That is the purpose of amendment No. 9. The courts often give limited attention to reparation. On earlier clauses, we had debates about restorative justice and the progress and improvements that have been made, but unless restorative justice involves not just conferencing and challenging offenders’ behaviour and their relationship to victims, and unless that is seen in relation to proper restitution and making of amends, its effects will be limited. That is why the amendment seeks to include in proposed new subsection (1)(4)(d) the words
“financial compensation or other appropriate”
before the words
“reparation by offenders to persons affected by their offences.”
The reality is that the number of financial compensation orders made in youth courts is limited. The latest figures, which are for 2005, suggest that 22,511 orders were imposed, but there are no centrally collected figures to indicate how many were enforced and collected.
Many people consider that basic justice should involve people paying for their crime and properly making amends, but they do not see that as the reality. For example, offenders who commit property or shoplifting crime do not accept that there are any victims. The horrible expression “victimless crime” has come into common parlance but it is something that one should treat with great caution. The concern is that offenders who commit such offences do not understand that they properly need to make amends for their crime.
Let us take the example of a prolific burglar who committed robberies in the Enfield area. When he got into robbing local petrol stations, he did not see a victim. As far as he was concerned, petrol stations were fair game. He considered them to be part of an institution and not bodies with which the concept of victim could be associated. He certainly did not think that he should make any amends. The sentences that he received during the years of his criminal life did not truly require him to pay back the victims of his criminal behaviour.
We have all spoken about reparation. The purpose of amendment No. 9 is to make the point explicitly that it must include financial compensation or other appropriate reparation. That crucial element must become a reality. I ask the Minister to explain how the justice system will ensure that reparation means what it says and involves the financial compensation that many victims often want.
We have discussed welfare issues, which are already a statutory duty, and the suggestion that we should extend the duty to well-being, and broaden the issues of which the court needs to take account with regard to children. But the general concern of the public in respect of the justice system is that victims are not included in discussions on sentencing. The public want people to pay for their crime, and they often want financial payment. It is important for there to be reality in the purpose of sentencing, which is why we tabled the amendment.
Mr. Walker: I have been in this place for two and a half years and I still do not have a clue how to navigate my way around a Bill. Proposed new subsection (1)(4)(d) refers to
“the making of reparation by offenders to persons affected by their offences.”
It is important that people in our communities see that those young people responsible for making their lives miserable and for destroying the environment in which they live are making financial reparation for the harm and offence that they have caused. Like many hon. Members, I attend public meetings at churches and community halls in which we discuss antisocial behaviour. There is a strong desire among the public for financial reparation.
As I said on Second Reading, when a group of youngsters are caught smashing up a bus shelter for the first time, they must pay for the repair of that bus shelter. I note that the provision refers to the making of reparation by offenders
“to persons affected by their offence.”
It should refer to persons and organisations. The bus shelter would be owned by an organisation. If the youngsters smashed up the bus shelter a second time, they should pay for the repair—although it would probably be their parents who pay—and receive a fine. In the case of it being smashed up a third time, the youngsters and their parents should appear together at the magistrates court. It is not on for young people to be recidivist offenders without their parents taking an interest in them and the reason behind their actions.
Ms Keeble: The hon. Gentleman has particularly strong views about violence against women with which I agree absolutely. I also agree with him about reparation for minor crimes, but is that acceptable for major crimes such as violence against women? If people say that they are sorry for their actions, does he believe that they should be allowed to go unpunished? Does he accept punitive sentencing?
Mr. Walker: The hon. Lady draws me into a completely different area. People who commit violence against others should be incarcerated, so that they do not continue to pose a risk to law-abiding members of society. While they are incarcerated, the underlying cause of their violent behaviour should be addressed, be it their addictions, their mental illness or whatever.
As for youth offending, it is important that, when culprits are identified, they are not just given a warning and told not to do it again. They must be made responsible for their actions. Parents must also be made responsible for the actions of their children. If my children were caught smashing up the local bus shelter—and I hope to God that they would never do such a thing—and I was told that it would cost me £500 to repair it, I would make damn sure that they did not do it a second time. The Bill must allow for that to happen and place responsibility on parents for the actions of young children. Until they take an interest, we will not get to the bottom of the problem.
The Chairman: Before I call the Minister, I say to the hon. Member for Broxbourne that a learned Clerk is sitting on my left, and the Department of the Clerk of the House is here to help all hon. Members. If he wants to be shown around a Bill, I assure him that those in the Department can lead him a merry dance.
3.45 pm
Mr. Garnier: I want to intervene briefly because the sedentary chatter that has been going on might have disturbed the general direction of the debate. I do not want to appear more pompous than I am usually. Many hon. Members will find that impossible.
However, I wanted to try to draw us back to the purpose of the Bill and the purpose of this particular debate. I do not think that we need to get over-excited about the points that have been made by people from sedentary positions, when they say, “Oo-er, you have removed the word ‘punishment’”; that is a given. It seems to me that the purpose of tabling this amendment and having this debate is to ensure that we realise that the system is not just about punishment but about disposing of young offenders’ crimes with greater purpose. I do not think that that can be controversial; I am sure that the new Labour party is very keen on punishment nowadays. I am also sure that we all agree that punishment is a necessary part of the criminal justice system.
However, we need to stress that punishment by itself is not enough. The Minister and I have had debates about this issue, in relation to custody. Sending somebody to prison and doing nothing more is not enough; giving someone a young offenders institution sentence and doing nothing more is not enough; sending someone to a secure training centre and doing nothing more is not enough. I suspect that the purpose of the amendment is to get us to engage our thoughts about the whole breadth of purpose of the sentencing system.
I would have thought that those views are utterly uncontroversial. We all know that, even if this matter were pressed to a Division, the Government would have their day. So what? I think that we can be a bit more grown-up about what we are discussing. Let us enjoy the fun of the late Thursday afternoon and tease each other about whether the word “punishment” is in or out, but let us also be serious about what we are trying to achieve and let us hope that no Government Minister will concentrate too much on what he thinks is a good debating point and instead concentrates on the substance of the issue.
Alun Michael: The hon. and learned Member for Harborough has tried to row back from some of the discussion that has been going on in this debate today. However, it is very important indeed that we recollect something that has been referred to in this debate; that it is the purpose of the criminal justice system, particularly in relation to young offenders, to prevent reoffending. If a youngster offends, there is damage to the victim, whoever that is, to the wider community, very often to the offender’s parents and family, and certainly to the offender themselves, in terms of their future prospects. So it is in nobody’s interests that there should be reoffending.
However, in seeking to discourage offending and reoffending, it is very important indeed that the message gets across that if someone offends they will get punished. [ Interruption. ]
The Chairman: Order.
Alun Michael: It is that message that Opposition Members sought to resile from in this amendment. I think that they may have muddled themselves; they may not have intended to do that. However, that is what they did.
It is also important, when deciding on the individual sentence and how a youngster is punished, that other decisions are taken that will help to get the youngster out of a pattern of offending and that they are taken constructively. That is why the provision in the Crime and Disorder Act 1988 was put in place, and a very wise one it was, if I may say so.
Opposition Members need to recognise that it is important, from the point of view of offenders or possible offenders, and also from the point of view of the public, in terms of their confidence in the criminal justice system, that we do not put the line through the word “punishment”. It is not the same as the word “punitive”. The word “punitive” means punishment that is excessive in relation to the offence, and punitive measures are not terribly constructive in helping to prevent reoffending. I think that Opposition Members, in instigating this debate, have simply demonstrated that they are a bit muddled about the English language.
Mr. Burrowes: It is important to have a grown-up debate about these important issues. I heard the right hon. Gentleman say that he was concerned that the criminal justice system should prevent reoffending. The amendment seeks to include reoffending, but no one is suggesting that anyone, in any part of the House, wants to put in place measures that will make it easier to reoffend. We are almost getting into a debate over whether to include a phrase saying that we are against that certain principle. He seems to want to make it clear in the clause specifically that we want to stop reoffending.
Alun Michael: I am glad that the hon. Gentleman has had the opportunity to clarify his position.
David Howarth: Is not an alternative view of the meaning of punitive, that it is punishment that does not have a purpose? The amendment is trying to make it clear that punishment should have a purpose.
Alun Michael: I do not think that that is the case. I think that that is a gross over-simplification. Punitive means a punishment that is excessive and inappropriate. That is the simple definition.
Mr. Hanson: I am grateful to have had this debate. I fear that I will disappoint the hon. and learned Member for Harborough in my response. The issue is not about having a childish debate. These are very serious issues. I have looked at the amendment and at the clause. I am a simple man and have been here for only 15 years. I still occasionally look at Bills and decide how we can amend them, just as the hon. Member for Broxbourne has done after two and a half years in this House.
It is clear to me that under the clause, the words “the punishment of offenders” are there as the first purpose of sentencing. That is associated with the issues on which we all have some agreement, such as that we must reform and rehabilitate offenders, protect the public and seek reparation. Simple man though I am, I look at the amendment and see that the first purpose of sentencing is
“the reform and rehabilitation of offenders”.
The words from the Bill—“the punishment of offenders”—are not present.
The amendment was tabled by the hon. Members for Somerton and Frome and for Cambridge, the hon. and learned Member for Harborough, the hon. Member for Enfield, Southgate and the hon. Member for Ruislip-Northwood, who has just come in and has missed a very interesting debate. I congratulate the hon. Members for Broxbourne and for Kettering for not putting their names to the amendment. I think they will find that that will curry favour with their constituents at some point.
I am astonished, rather like my hon. Friend the Member for Northampton, North and my right hon. Friend the Member for Cardiff, South and Penarth. There needs to be an element of punishment. There needs to be an element of boundary also, but there must be some consideration that there will be punishment. Whatever well-meaning words the Committee has heard, the amendment does not put in the words that the purpose of sentencing is “the punishment of offenders”. It would delete those words.
I simply say to the Committee that I hope that the Liberal Democrat Members press the amendment to a Division because I know that my hon. Friends will take great pleasure in voting against it. I do not ask them to withdraw it, but challenge them to put it to a Division. Let us see what the Committee thinks of that motion.
Mr. Burrowes: The Minister interestingly put a primacy on the function of punishment. Does he put it ahead of paragraphs (b), (c) and (d)?
Mr. Hanson: Punishment is important. The first point should be punishment. We need to look at rehabilitation and the prevention of reoffending, but ultimately, I can only defend to my constituents that an element of punishment is—[ Interruption. ]
David Howarth rose—
The Chairman: Order. We have been sitting for nearly three hours and I have been in the Chair for three hours. Personally, I believe that this debate has been taken as far as it should have been taken, but I am the servant of the Committee. I advise the Committee that if it goes on much longer, I will suspend proceedings because I believe that three hours of debate without any break is long enough. I warn the Committee that quite shortly I shall suspend proceedings for at least 10 minutes.
Mr. Hanson: I hope to complete my remarks before the stroke of 4 o’clock at the very latest.
David Howarth: Will the Minister give way?
Mr. Hanson: I would rather complete my remarks, if I may?
David Howarth: This is a serious point about the legal interpretation of the clause, to get away from the politics and back to how the courts will read the clause. The Minister was just saying that the clause should be read in order, so that an aim that comes first is more important that an aim that comes afterwards, and that is a hierarchy. For the sake of Pepper v. Hart, was that the interpretation of the clause that the Minister intends?
Mr. Hanson: All aspects of clause 9(4) are important, but I emphasise that the punishment of offenders is equally important. If the amendment is passed, that will not be in the Bill. I want to see the prevention of reoffending, the protection for the public and reparations. However, I also want individuals to know that they will be punished for the crimes that they undertake, particularly serious crimes. I can concur no more than with the statement:
“The purpose of punishing criminals is to deter crime and to send a clear signal that it is wrong.”
That is from the Conservative party’s 2005 manifesto. The signal that the amendment would send on the purpose of sentencing would be entirely the wrong signal.
A couple of other points were made during the debate. My hon. Friend the Member for Leyton and Wanstead suggested raising the age to 19. I think that that would confuse matters and respectfully tell him that I cannot concur with it. Doing so would confuse the courts by crossing the established boundary between youths and adults in youth offending.
Some hon. Members have also mentioned the question of reparation. I do not consider that financial or other compensation needs to be directly referenced in the Bill. If hon. Members look at section 1(30) of the Powers of Criminal Courts (Sentencing) Act 2000, they will see that courts already have a separate power to order any offender to pay compensation.
Mr. Walker: All I suggested was the making of reparation by offenders to persons affected by their offences. Would the Minister consider adding, “persons and organisations”?
Mr. Hanson: I will reflect on that. That is an amendment that the hon. Gentleman could have brought forward.
I say to the hon. Member for Cambridge with regard to new clause 14, that, while we have had a gentle debate around the issues of the initial amendment, I accept that it might be worth while including the words “including reoffending” in the Bill. I will reflect on that and potentially bring back a clause or amendment on Report.
I hope that the hon. Member for Somerton and Frome will put amendment No. 135 to the Committee, because I know that my hon. Friends would be grateful for the opportunity to vote on it.
Mr. Heath: We have had a debate that was in part constructive and sensible and in part deeply depressing for its unoriginality and preoccupation. I had hoped that we might have had a sensible debate about the purposes of sentencing and a proper consideration of the attitudes that the Government have clearly expressed many times on how to deal with the child. The hon. Members for Leyton and Wanstead and for Northampton, North certainly touched on that.
The hon. Member for Northampton, North did not agree with the terms of my amendment, and I accept that. She said, quite rightly, that the matters that I wanted to ensure were taken into account before the point of going to court and that there is a much greater duty on the agencies that deal with the child before they come into the criminal justice system and on the penal system after sentence than we sometimes understand or recognise. I do not disagree with her at all. I simply say that the court is a convenient point at which stock take can be taken of all the things that should have been done by those agencies. Using the sentencing procedure and bringing it into the same context as the process that occurs in the family courts is an opportunity to see whether the right support is being given to that individual for the purposes of preventing reoffending and protecting the public. That is what the penal system is all about.
After what was quite a sensible debate on that, we had this absurdity of deciding whether the purpose of punishment had to be punishment. What a nonsense of a debate. Labour Members were saying that they wanted the first principle of punishment to be punishment. It was as if the purpose of the Bill was to make a Bill. If that was the way that the short title started I would be right to say that those words should be deleted. The purpose of sentencing is punishment because sentencing is punishment. As we say in amendment No. 135, sentencing is to ensure a proportionate response to offending behaviour. A sentence is not exerted unless it is punishment, but that punishment must have purpose. The present Prime Minister used to say when he was Chancellor, “prudence with a purpose.” Everything must have a purpose. What we are trying to establish is the purpose of punishment and sentencing. That is why I so deplore the way in which we have descended into such a futile debate, simply because some thought that they might be able to secure some petty political advantage. I have not got the slightest intention of prolonging this debate any further. I find it very sad that we cannot have a serious debate about the purposes of sentencing in this Committee without people making utterly futile points. I therefore beg to ask leave to withdraw the amendment.
Hon. Members: No.
Question put, That the amendment be made:—
The Committee divided: Ayes 2, Noes 9.
Division No. 1 ]
Heath, Mr. David
Howarth, David
Coaker, Mr. Vernon
Cohen, Harry
Eagle, Maria
Hanson, rh Mr. David
Keeble, Ms Sally
Khan, Mr. Sadiq
Michael, rh Alun
Waltho, Lynda
Wilson, Phil
Question accordingly negatived.
The Chairman: The way in which the Committee has been debating in the past few minutes indicates that a three-hour sitting may be a little bit too long.
Clause 9 ordered to stand part of the Bill.
Further consideration adjourned.—[Mr. Khan.]
Adjourned accordingly at four minutes past Four o’clock till Tuesday 20 November at half-past Ten o’clock.
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