Criminal Justice and Immigration Bill

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Clause 50

Interpretation of Part 4
Amendments made: No. 302, in clause 50, page 33, line 37, leave out from ‘means’ to end of line 38 and insert
‘any prison, young offender institution, secure training centre or approved premises in England and Wales’.
No. 303, in clause 50, page 34, leave out line 2 and insert—
‘“eligible”, in relation to a complaint or part of a complaint, means eligible for the purposes of this Part in accordance with section 30 (and cognate expressions are to be construed accordingly);’.
No. 304, in clause 50, page 34, line 32, leave out subsection (3) and insert —
‘(3) A reference in any provision of this Part to the High Court is—
‘(a) in so far as the provision extends to England and Wales only, a reference to the High Court of England and Wales; and
(b) in so far as the provision extends to England and Wales, Scotland and Northern Ireland, a reference to the High Court of England and Wales, the Court of Session or the High Court of Northern Ireland, as the case may require.’.
No. 305, in clause 50, page 34, line 38, at end insert—
‘( ) Any power under this Part to make an order modifying a provision of any legislation includes power to amend, repeal or revoke that provision.’.—[Maria Eagle.]
Clause 50, as amended, ordered to stand part of the Bill.

Schedule 10

Controlling authorities
Amendment made: No. 317, in schedule 10, page 164, line 19, at end insert ‘in England and Wales’.—[Maria Eagle.]
Mr. Garnier: I beg to move amendment No. 157, in schedule 10, page 165, line 2, at end add—
‘A local authority in any part of the United Kingdom which owns or manages secure accommodation.’.
This is a short amendment, which adds a further controlling authority. One sees from clause 50 that, in part 4 of the Bill, a controlling authority is defined as
“(a) a person listed in schedule 10; or (b) any person of a description specified in an order made by the Secretary of State”.
The list of persons in schedule 10 includes the most obvious sorts of people that one would expect. For this purpose, “person” means not only human beings but legal personalities. I propose to add to that list.
The Minister may well persuade me that a local authority that controls or manages secure accommodation is already covered by the listed persons, or that my adding of such authorities would be the result of a misunderstanding of the definition of controlling authorities and its purpose in clause 50. Local authorities own and manage secure accommodation, and the commissioner ought to have an eye on such things, subject to the children’s commissioner or the children’s ombudsman—one of whom we discussed briefly this morning—having a parallel or distinct jurisdiction.
Maria Eagle: It is the local safeguarding children’s boards of local authorities that have jurisdiction in respect of those children’s homes.
Mr. Garnier: If that is the answer to my question, perhaps we do not need to press the amendment much further. However, I would be grateful for an explanation of the relationship between local authorities that own and manage secure accommodation units, the commissioner, and the controlling authorities listed in schedule 10.
Maria Eagle: I will do my best to persuade the hon. Gentleman that it is not necessary to add local authorities as controlling authorities. However, I can say that, in general, we will have to consider suggestions for additions to the list. Before making any commitments, we must look at the matter in consultation with the prisons and probation ombudsman, and consider whether the body in question is one with which the commissioner may need to deal, and whether it would be appropriate to impose a duty of response on them.
Schedule 10 provides a list of bodies who are controlling authorities as defined in clause 50 for the purposes of the legislation and it includes those who are currently listed. The amendment would add local authorities who are owners or managers of secure accommodation in any part of the UK to the list of controlling authorities. It would give those local authorities the additional responsibilities of a controlling authority. That will come into play in four areas of part 4.
Under clause 31, a controlling authority is the body that is considered by the commissioner
“to have the most direct responsibility for the matters covered by the complaint”.
It must normally be given a reasonable opportunity to deal with that complaint before the commissioner takes any action. Under clause 34,
“The Commissioner may make recommendations to a controlling authority about any matter arising from a complaint”,
and the controlling authority must respond in writing to the commissioner within 28 days, setting out what it proposes to do.
Under clause 36, the commissioner must report in writing on the outcome of the death investigation to the controlling authority that appears to have most direct responsibility over the matters covered in the investigation. He can make recommendations to a controlling authority about any other matter arising from his investigation. Under clause 46, the commissioner may notify the controlling authority if, while performing any functions, he forms the opinion
“that a controlling authority should, as a matter of urgency, take action in relation to any matter”
that he might have come across during the investigation.
Schedule 10 lists all the bodies whose responsibilities for matters within the commissioner’s remit suggest that he may need to engage with them in those four different ways. All the controlling authorities included at present are those whose activities are directly covered by the commissioner’s remit.
Local authorities have control over secure children’s homes which provide accommodation for children placed by local authorities on welfare grounds. However, those placed by the Youth Justice Board fall outside this remit and that is why the local authorities are not there at present. Because of the links between secure children’s homes, secure training centres and youth offending institutions, there may be some occasions in which it would be useful for the commissioner to make recommendations for secure children’s homes. That can be done without adding them to the list of controlling authorities, as we do not believe that that is necessary at this time.
The issue is about the purpose of schedule 10, and the fact that there are other complaints arrangements outside of this in relation to secure children’s homes. That is why they are not there—they do not need to be. However, it is not something that we want to be pedantic about. Should the remit change to include complaints and secure children’s homes, it might be sensible to put local authorities into schedule 10, but as the Bill stands it is not necessary. I hope that that will satisfy the hon. and learned Gentleman, with respect to the amendment.
Mr. Garnier: I am grateful to the Minister for setting out her understanding of the purpose behind schedule 10 and clause 50. Given her undertaking to keep the matter under review and to change the schedule if necessary, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 10, as amended, agreed to.

Clause 51

Power to modify certain provisions of Part 4
Amendments made: No. 306, in clause 51, page 35, line 25, at end insert —
‘(7A) Nothing in this section authorises an order under this section to make provision that would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament.’.
No. 307, in clause 51, page 35, line 26, leave out from beginning of line to ‘subordinate’ in line 27 and insert
‘The power under section 123(2)(c) to make consequential provision in an order under this section includes power to modify this or any other Act or any’.—[Maria Eagle.]
Clause 51, as amended, ordered to stand part of the Bill .

Clause 52

Power to confer new functions on Commissioner
Amendments made: No. 308, in clause 52, page 35, line 36, at end insert —
‘(1A) Nothing in this section authorises an order under this section to make provision that would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament.’.
No. 309, in clause 52, page 35, line 37, leave out from beginning of line to ‘subordinate’ in line 38 and insert
‘The power under section 123(2)(c) to make consequential provision in an order under this section includes power to modify this or any other Act or any’.—[Maria Eagle.]
Clause 52, as amended, ordered to stand part of the Bill

Clause 53

Alternatives to prosecutions for offenders under 18
Question proposed, That the clause stand part of the Bill.
Mr. David Burrowes (Enfield, Southgate) (Con): I welcome you back to the Chair, Mr. O’Hara. I refer to the principle behind the extension of conditional cautioning to 16 and 17-year-olds, while understanding the logical distinction from what is in place for 18-year-olds. No doubt we want to deal with particular circumstances concerning young people and whether it is appropriate for the regime that is in place for adults to apply to them.
I am concerned whether alternatives to prosecution under the clause are, in fact, an alternative to justice. The worry that is borne out by practice in many ways is whether justice is not properly delivered in those many cases that are being extended by the Government in respect of pre-court disposals and if that is seen in the realms of conditional cautioning or fixed penalty notices. The trend of particular concern to the Magistrates Association and practitioners is that the appropriateness of such penalties should not be done down and dealt with before matters reach court.
No doubt the Government’s mantra is to bring more people to justice and they are keen to ensure that targets are fulfilled and that disposals happen. That might be a fast track to dispose of different offences, albeit low-level offences, but is it a short cut that diverts away from justice? I invite the Minister to explain the principles behind conditional cautioning and to say whether it is appropriate to extend it to the arena of 17 and 18-year-olds.
More often than not conditional cautioning comes within the province of the custody officer, albeit it with reference to the Crown Prosecution Service, to decide on the appropriateness of conditional cautioning. However, in practice, it is very much at the behest and call of the custody officer and the police to decide within a range of areas how they wish to impose certain conditions. I want to know whether the conditions that are attached are always appropriate to the particular penalty and offender.
There is also a concern about resources. It is one thing to have a regime of conditional cautioning and to extend it to 16 and 17-year-olds, but whether the resources will be in place properly to apply those conditions is another matter. No doubt, we will talk about that and concur to some extent when looking at areas of rehabilitation and restoration programmes. The argument that will be made by the Minister of State to justify conditional cautioning and the rationale behind it—to divert young offenders from the criminal justice system and involve them in an early intervention in restorative and rehabilitative programmes—might hold little weight if the funding and resources to go hand in hand with such a proposal are not provided. In practice, one is left with conditions being tacked to cautions, which have little to do with any real rehabilitation or restoration, but which seek to circumvent the young offender’s liberty in certain areas. I ask the Minister to confirm the exact principle and rationale behind clause 53, and to tell the Committee about the evidence that justifies extending the practice to 16 and 17-year-olds, and whether the required resources are available.
1.30 pm
Mr. Heath: I want to echo some of the concerns expressed by the hon. Member for Enfield, Southgate. All of us can see merit in pre-court disposals and diversion away from prosecution—I do not think that there is any doubt about that—but there is also concern about how that works in practice, and whether the same considerations are given when a conditional caution is applied, and the degree to which it simply removes a level of responsibility from the prosecutorial and penal systems in dealing effectively with offenders.
I would like to raise a separate issue, and I am genuinely interested in the Minster’s response. Why were the ages of 16 and 17 chosen as being appropriate for the conditional caution, and not those who are under-18 and younger than 16? On the face of it, the measure introduces a new anomaly, and had I tabled an amendment at an earlier stage in the proceedings, it might not have been starred and it might have been selected for debate at a subsequent sitting, where we might have explored the matter more fully.
The proposal creates a potential new anomaly in that a 15-year-old with an identical series of circumstances to a 16-year-old would not be eligible for a youth conditional caution and therefore a prosecution would be required to achieve the same objective. The arguments of diversion from prosecution that apply to a 16-year-old would not apply to a 15-year-old. It is not inconceivable, in fact it is almost certain that there will be circumstances in which several youths are involved in an unlawful activity and they will have to have different disposals according to which side of their 16th birthday they are; one will lead to a 15-year-old appearing in court and the other will result in a 16-year-old being given a youth conditional caution.
I am interested to know why the Government have taken the view that this should apply only to 16 and 17-year-olds. If the answer is that it is considered that only a 16 to 17-year-old would have sufficient maturity to understand a youth conditional caution, that raises a different question, about the fact that many 16-year-olds might not have that maturity, and about whether the disposal is effective and appropriate in that case. Is it perhaps an adult disposal, being used for young people; and is that appropriate? What is the reason for the cut-off point at 16? What are the arguments for it? Will the Minister explain why the Government have taken the view that they have on the magical element of the 16th birthday, which makes the disposal appropriate then, but not for a younger child?
The Minister of State, Ministry of Justice (Mr. David Hanson): I welcome you back to the Chair for the afternoon sitting, Mr.O’Hara. I am grateful to the hon. Members for Enfield, Southgate and for Somerton and Frome for raising again the issues that they have raised today. I hope that at the end of the discussion clause 53 will stand part of the Bill.
The youth conditional caution is, as I know the hon. Member for Enfield, Southgate is aware, designed as a disposal to prevent young people from going before the court for offences that are deemed not to be sufficiently serious. We want to extend the range of out-of-court options to avoid their going to court. The benefit for a young person would be in having a matter dealt with much more speedily than by a court referral; from my perspective the approach would improve community confidence in the youth justice system.
The hon. Gentleman will know about several recent cases in which effectively minor offences have led to court appearances by young people. The youth conditional caution is designed to try to avoid that scenario, by providing a better way of dealing with several minor incidents, so that young people who have exhausted existing out-of-court disposals and who then commit low-level offences can be kept out of court. The principle is to try to prevent young people from going to court.
The hon. Gentlemen have asked three questions about the broad principle of youth conditional cautions. First they asked whether and how we have evaluated the use of the cautions for 18-year-olds. Secondly they asked about costs and savings implications. Thirdly, they asked the valid question why, if a 16 or 17-year-old could be liable under the Bill for a youth conditional caution, a 15-year-old could not also face that prospect. I shall try to answer those three questions, rather than to go into detail about youth conditional cautions, because I suspect that hon. Members know the principle, and there is not much point in my going over it.
We have undertaken an evaluation—the details of which have not yet been published, so I hope that the hon. Gentleman will take what I say on trust—which we commissioned in 13 early implementation areas in six criminal justice areas in England and Wales, to provide evidence to inform our national roll-out. There was an evaluation from December 2004 to November 2005, and I hope to be able to publish its results shortly. The evaluation shows a positive impact from youth conditional cautions for 18-year-olds. I am looking forward to publication taking place shortly. I am examining the results; but there is value in what has been done.
Mr. Burrowes: I do take on trust the positive results from the evaluation, although it would obviously have been helpful, and in many ways ideal, if it had been published before the Government went ahead with legislating on extending youth conditional cautioning. I wonder whether the evaluation takes account of the concerns that arise about victims and their often limited involvement in the conditional caution process compared with a court disposal. There is some concern about whether victims see justice happening, and whether they are involved in compensation or other restorative approaches; they might have a better chance of obtaining those forms of justice in a court disposal.
Mr. Hanson: I accept in part what the hon. Gentleman says. It is important that victims should be central to the question of involvement in the criminal justice system. I accept that an element in the youth conditional cautions means that victims may not visibly be part of that through the Court Service. However, we should make no mistake about the fact that the youth conditional caution will, I hope, still be an effective way of preventing further crime. The purpose—I know that, deep down, the hon. Gentleman shares my view—is to ensure that those who have previously committed offences and who may have been reprimanded or given a warning and who may shortly reach the stage of being taken to court should be given some sort of warning or caution as a pre-court disposal. The intention is to intervene without taking the young people to court, which otherwise could be a potential beginning to an escalation of their court careers and their involvement in the criminal justice system.
Mr. Burrowes: Another method at the court’s disposal for young offenders is the referral order. It is unique to young people and is not available to adults. It gives the courts the opportunity to divert the young offender from the criminal justice system. The advantage of the referral order is that the offender goes to court and, in that publicly accountable way, justice is seen to be done by the victim and the public—and by the offenders themselves. The referral order also has available a package that allows the direct involvement of the young offender team and other agencies, allowing them to provide the restorative and rehabilitative approach that would be put in place by the youth conditional caution but not in the formal way provided by the referral order.
Mr. Hanson: The purpose of the conditional caution is to prevent young people from going to court. That is the purpose of the pre-court disposal. Our hope and wish is that that intervention will prevent future court appearances. I accept the potential issues that the hon. Gentleman has mentioned, but in the evaluations that have taken place so far, anecdotal evidence suggests that about 70 per cent. or 71 per cent. of victims are satisfied with how their cases were dealt with. That evidence is anecdotal, but I hope to publish it shortly. However, there is merit in examining the extension to 16 and 17-year-olds, provided for in clause 53, based on experience to date. It is done for a purpose, which is to intervene before individuals come to court. If their behaviour deteriorates and they fail the youth conditional caution system, they will come before the court in due course, and all the issues that the hon. Gentleman mentioned will come about.
The hon. Gentleman asked about the costs of the youth conditional caution. If he examines paragraph 726 of the explanatory notes, he will see that we anticipate that it will result in a saving for the courts. On current projections, it will be £98,000 for the Court Service, £68,000 for the police and potentially more than £300,000 for the youth offending team in 2008-09, 2009-10 and 2010-11. There will be a financial saving, but I emphasise that it is not being done for the purpose of saving resources. It is being done because we hope that pre-court interventions will help young people to face up to their behaviour, and not to embark on a long career in court.
The hon. Member for Somerton and Frome made an extremely valid point. We have conditional cautions for 18-year-olds, and the Bill will extend them to 16 and 17-year-olds. It is valid to ask why we are not doing it for 10 to 16-year-olds. It is a potential anomaly. I do not rule out considering that at some point, but I want to take things at a pace that ensures that things are done properly. I am happy to examine the question; there may be merit in considering an age of criminal responsibility of 10. It would involve consideration of a number of details in a wider consultation, which I may consider. We would need to examine not just the individual’s responsibility but also the important issue of parental responsibility. For those children aged between 10 and 15, there may well be greater parental involvement than there is for those who are aged 16 or 17, and indeed for those who are 18, the age for the current operation of cautions.
1.45 pm
We need to examine the needs of parents and carers, administrative procedures and the resource implications, but I will not rule out that possibility of extending the age at which conditional cautions would apply. The aim at the moment is to extend that measure to areas where there is potentially a high level of offending among 16 and 17-year-olds. As hon. Members know, this measure is designed to be a pre-court diversion to ensure that we try to take action before escalating into court in due course. I hope that both hon. Gentlemen will welcome the measure, I hope that I have been able to offer some answers to the questions that were put and I commend the clause to the Committee.
Clause 53 ordered to stand part of the Bill.
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