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.
Before we move to schedule 11,
I want to consider alternative ways in which to deal with the process
of youth conditional cautions. What evidence does the generic Minister
have for the supposed success of
conditional cautioning? Is there real evidence to justify its extension?
It is often tempting to see what happens at the adult court and say,
“Well, what is good for the adults should be
good for the youths.” I should like to see on an evidence base
whether conditional cautioning has worked. Obviously,
“Alternatives to prosecution”, the clause heading, is the
point of conditional cautioning. No doubt all members of the Committee
are united in wanting alternatives to prosecution in appropriate cases
and to divert young offenders away from the criminal justice
system. 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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