Previous Section Index Home Page

The measures in the Bill largely date back to the Policing and Crime Act 2009, which introduced a new mechanism to create gang injunctions. Under that legislation, the ambit of those injunctions was limited to adults largely because that mechanism was intended to build on certain aspects of the civil law and on the
8 Mar 2010 : Column 92
concept of dealing with a breach as a contempt of court. When the 2009 Act was being debated, the Government accepted that that mechanism would not be a suitable way of dealing with children and young adults because the ultimate sanction available to the courts-a sentence of imprisonment-would have meant sending young people to adult prisons, which would not be appropriate given the need to focus on rehabilitation. It would be better, more effective and within the framework of the existing law for a young person to go to a young offenders institution. The whole mechanism is based on the court ruling that previous injunctions that had been used in the west midlands, under section 222 of the Local Government Act 1972, were not applicable and that authorities had to go down the route of using ASBOs first.

We understand and recognise why the Government seek to move forward with this measure to deal with the issue that has been outstanding since the 2009 Act came into being. However, they are seeking to crowbar into civil law various sanctions that might otherwise be available to youth courts when dealing with breaches of ASBOs, for example, and other, more criminal, sanctions. They are creating a hybrid between the criminal law and the civil law by attempting to bolt into the civil law system various sanctions that might otherwise be available under a more criminal approach.

We debated this issue at reasonable length in Committee, and I accept and respect the amendments that the Minister has tabled in response to the points that we raised about the need for a clear mechanism for having pre-sentence reports for the courts before they decide whether gang injunctions have been breached and which sanctions are appropriate. Equally, some of the mechanisms that exist in the youth courts should be reflected. If a court thought that a sanction of detention was appropriate, it would have to express its reasons for that decision in open court.

We certainly welcome the measures that the Government have sought to introduce in dealing with those technical issues, but I still question whether bolting the measures into the civil structure is the right way of building things. I wonder whether it might be more appropriate for the youth courts to deal with these issues given that we are dealing with a kind of hybrid mechanism that crosses over between criminal and civil law. The youth courts will be more used to dealing with the relevant issues and will know what may or may not be appropriate. Given that they have that knowledge and that they regularly deal with young people in that way, it might be better to bring the approach regarding gang injunctions and young people within the framework, context and scope of the youth courts.

The new clause and the associated amendment are therefore designed to test the Minister on the extent to which that line of thinking was adopted to ensure an even-handed approach to the use of the orders and in response to breaches of them, in contrast with antisocial behaviour orders and certain other sanctions that might otherwise operate in the youth court. We need to ensure that there is a level playing field and that these matters will be dealt with appropriately, based on knowledge and experience in dealing with young people.

We are in uncharted territory because the provisions that apply to adults have yet to be used. Because they are so new, they have not yet been implemented, so we
8 Mar 2010 : Column 93
cannot rely on experience of how they operate in practice and how breaches should be dealt with. Case law must be developed to provide a framework. We are talking about these issues in the abstract, unless the Minister can give the House any new information that was not available when the Committee considered them.

It is worth testing the Government to find out whether the right approach has been adopted or whether a different mechanism is needed for young people who are subject to the orders. Before an order can be imposed, the gang connection must be established, as well as the potential criminality associated with the young person's actions and the need to remove that young person from the dark path of gang membership and involvement in activities that may lead to serious criminal behaviour.

The question is whether the Government have got their approach to young people the right way round or whether, instead of bolting provisions on to the civil court, the orders should reside in the youth court. I hope the Minister will reflect and confirm that the Government's approach is likely to be effective, proportionate and based on the experience of those dealing with young people in the civil courts. I will listen with interest to the Minister's response to the debate to see whether the Bill has got it right.

Chris Huhne: I shall be brief so as not to labour the point. We accepted in Committee that in some circumstances gang injunctions can be useful for tackling adults involved in gang-related violence, and we supported the Government on the Policing and Crime Bill last year on the basis that such injunctions would not be applied to children. However, that commitment has been broken in this Bill and we cannot support their use on children. The penalties for breach of the injunctions are draconian and they blur the line between civil and criminal law for children in a dangerous way.

The proposals do nothing to address why children are in gangs or how to help children get out of them. Instead, they add to the criminalisation of children. Gun and knife crime need to be tackled using intelligence-led policing, hot-spot policing, which we discussed earlier, using accident and emergency data, and better use of intelligence-led stop and search. Although I understand the purpose of the official Opposition's amendments, and that they are trying to make a Government proposal more palatable by introducing the new clause, we are not in favour of the powers being used on children, so we will not support it even though it is clearly well intentioned and aims to make the provisions work better.

7.45 pm

Mr. Hanson: I am grateful to the hon. Member for Hornchurch for tabling his amendments. I hope that he will welcome the fact that, once again, we listened in Committee to the discussions on gang injunctions and introduced amendments accordingly.

I am sorry to hear that the hon. Member for Eastleigh is unable to support the Government amendments or the principles behind the new clause. I recognise that there is a need not just to tackle gangs of over-18s, as we did in legislation last year, but to support individuals below the age of 18 who are involved in gangs, as we are trying to do in the Bill.

8 Mar 2010 : Column 94

The amendments relate to how we approach under-18 gang injunctions in court. The Government amendments deal with the relationship between youth offending teams and consideration by the courts of those gang injunctions. I remind the House that the under-18 gang injunction is intended to be a pilot. We are looking at two areas for piloting to take place. I hope that will assuage the concerns of the hon. Member for Eastleigh. We will learn lessons about how the gang injunction works in practice.

The hon. Member for Hornchurch expressed concerns about gangs and how they operate. I recognise those concerns. We need to consider carefully what steps we need to take to prevent gang membership. Consideration of the new clause and the amendments gives us the chance to examine in detail how gang injunctions will work. We believe that they should prevent serious acts of violence from occurring, break down gang culture, prevent younger gang members from escalating into poor behaviour, and provide opportunities for agencies to engage with gang members to develop effective strategies to help them leave the gang.

I draw the attention of the House to Government amendments 17 and 18, which provide for help and support from youth offending teams at an early opportunity, not just to give a view on how gang injunctions should operate and whether individuals are appropriately considered for that, but to give the clarity that the hon. Member for Hornchurch called for in Committee, to ensure proper engagement from youth offending teams to make representations to the court about the most appropriate sentence, how the injunction will operate and, most importantly, what should be done in the event of a breach of such an injunction, which was the subject of considerable discussion during the Committee's consideration.

As I said previously, youth offending teams should, at the earliest opportunity in the gang injunction process, ensure that the injunction is tailored to the individual and therefore be more likely to produce the desired outcomes. That is why the Government amendments allow youth offending teams to make representations to the court about a range of matters. Amendment 18 further emphasises the point that detention for breaching an injunction is a last resort. Throughout my work in the Ministry of Justice and in the Home Office, I have been clear that detention should be a last resort.

I am disappointed that the hon. Member for Eastleigh does not support the amendments. The gang injunction is meant to be a procedure that takes individuals out of a gang and provides interventions and support to try to break gang behaviour. If the injunction were breached, as might occasionally happen, that would be seen by me and by the Government as a failure of the gang injunction and of the entire process. I accept that we need to look at early intervention and alternative activities, and at the work that we are undertaking on gangs, guns and knives, the round table work, the knife crime action plan and all the other work that we are doing. Ultimately, however, if we are to make an impact on gangs, particularly those with members under 18 years old, the pilot will help us to develop a form of action that could help individuals to leave those gangs and, accordingly, receive the help of youth offending teams before any breach action is taken or any detention is forthcoming. I hope that the hon. Gentleman reflects on those views and changes his mind.

8 Mar 2010 : Column 95

The hon. Member for Hornchurch asked whether we had had to date any gang injunctions from the over-18s legislation. The answer is no, we have not. That was the situation during Committee, and it remains the situation now, but it does not get away from the fact that we must take action on under-18s with this gang legislation today. I cannot accept his proposed changes, new clause 4 and amendment 24, so I hope that he will not press them to a vote. They would insert a new clause requiring under-18 gang injunctions to be heard in the youth court rather than the county court, and remove the clause that gives the county court the power to make a supervision order or a detention order when a person aged under 18 breaches their injunction.

I accept that the youth court is the specialised criminal court for under-18s. However, it is not, by any means, the only court where under-18s are dealt with. Hon. Members will be aware that youths can appear in the adult magistrate's court, the Crown court and the county court, depending on the type of case. Hon. Members will know also that the county court has special procedures for cases that involve young people, including the requirement that they are assisted by a litigation friend. Therefore, the structure about which the hon. Gentleman was concerned is in place to deal positively with gang injunction hearings, and it will not be a departure from the existing procedure.

I strongly believe that the county court is the specialised court for civil injunctions, and, following our examination and roll-out of the over-18 gang violence injunctions, it will become the specialised court for injunctions for under-18s. The project is a pilot; if Royal Assent is given, we will determine the areas in which it operates; we will monitor that pilot; and we will evaluate how it operates in practice. If there are difficulties, we will reflect on them as part of our considerations, but the county courts' experience in hearing-in due course, when they occur-general over-18 injunctions, granting appropriate prohibitions and requirements and sentencing individuals following breach hearings for over-18s means that in most places it will be the appropriate place to hear an under-18 injunction, if it is referred to court.

We have sought to involve youth offending teams in the process at the earliest opportunity, and I believe that we can support the injunction's effective use to help manage under-18s and help YOTs manage the objective of leading under-18s away from a gang in the first place.

Mr. Gummer: I am following the Minister very carefully, but I still find it difficult to understand the issue. He says that the whole purpose of the measure is to try to lead young people away from gangs, and that the system is supposed to be remedial. Would it not therefore be natural for the courts that fundamentally deal with such matters, the youth courts, to deal with them? I fail to understand why, as a first resort, he has gone to the county court, rather than to the youth courts, which are so much better prepared to deal with such circumstances.

Mr. Hanson: I am grateful for the right hon. Gentleman's contribution. In Committee, we discussed the likely age range of individuals who would face a gang injunction, and some members will be as young as 13 or 14. The Committee took evidence from various charities and
8 Mar 2010 : Column 96
others in order to look at those issues before commencing its scrutiny of the Bill, and we assume that the vast majority of individuals who become involved in gangs will be aged 16 to 18. When we pilot the gang injunctions, as we intend to, individuals on the cusp of 16 or 17 might have an injunction that lasts beyond their 18th birthday. Breaches could occur following the granting at seventeen and a half of an injunction that continues until the individual is eighteen and a half, because the injunctions might last for 12 months or, perhaps, longer.

We have looked at the issue, and breaches, specialist injunctions and the type of activity under consideration are best dealt with by an adult court, because it has the expertise. Sad though it might be, many individuals who are under 18 will become 18 and over during the course of the injunction, so the breach may well be best dealt with by the court with that relevant expertise.

We have a clear definition of "gang" and "gang-related violence". We have looked at the Police and Crime Act 2009, and it describes gang-related violence as that which

as the hon. Member for Hornchurch said-

We want to ensure that we protect young people who might be on the fringes of such activity, on the fringes of a gang or on the fringes of being involved with a name, an emblem or a geographical area. They would therefore benefit from an injunction. My amendments indicate that the youth offending team would, following the hon. Gentleman's helpful suggestion, be involved formally in some assessments, and be involved in the event of any breaches before the court took a final decision. In the pilots, the injunctions will be useful to ensure that we provide alternative activities, keep people away from the geographical area, potentially stop them wearing a name, emblem or a colour, stop them meeting certain individuals and help them, through positive activities, to turn away from gang activity.

That is why I cannot for the life of me understand why the hon. Member for Eastleigh does not support the proposal. I should really welcome his intervention to tell me why he does not support it, because we should get it on the record. Through the measure, we will help people to move away from gangs, ensure that they do not become involved in gang activity and meet an obligation to help people to participate in a positive activity. This is the last chance for him to put on the record why he does not agree with that proposal, because, given what I have said, I genuinely cannot find any way in which anyone could.

Chris Huhne: The Minister knows perfectly well why I cannot agree. My position is clear from what I said in my speech, and from what we said in Committee. In reality, the proposal further criminalises children, and our party does not think that that is appropriate. Indeed, when these gang injunctions last came up, the Minister's party did not, either.

Mr. Hanson: I wanted to get that response on the record in order to knock it back. The proposal is not about criminalising young people. The gang injunction will not go on a criminal record. It is about-

8 Mar 2010 : Column 97

Chris Huhne: Breaching.

Mr. Hanson: With due respect to the hon. Gentleman, our proposals state that there are clear support mechanisms available so that the YOT can make a judgment on the breach. If I reach a situation, through the courts, where a breach has occurred, the gang injunction will have failed. We are looking at two pilots, trying to identify two areas and considering how the measure will work for the gangs themselves. If a breach occurs, the whole process-of identifying individuals and the injunction, of taking the injunction through the courts, and of assessing in the adult court whether the injunction should be made and whether the youth offending team has been supported-will have failed. I accept that a breach may occur, but if we reach that stage we will have failed.

Mr. Flello: Does my right hon. Friend agree that children effectively begin to criminalise themselves by becoming involved in gangs, and that those support mechanisms are a way of stopping them from doing so?

Mr. Hanson: My hon. Friend is absolutely right. The whole purpose of the injunction is to remove people from criminal activity and to support them so that they do not breach it. In the legislation, I have to take steps to deal with a breach, and that is why we have put in place the ultimate penalty of a custodial sentence. However, the intention is not to impose a custodial sentence-that will happen if the injunction has failed. I want the injunction not to fail and to work properly. I want to ensure, through the efforts in these clauses, that this is undertaken in a positive way through the pilot so that we can look at the issues and learn lessons, and, if necessary, reflect on the issues raised in the new clause.

8 pm

Chris Huhne: Could the Minister explain to the House how a custodial sentence would not involve criminalising the child?

Mr. Hanson: I have tried to explain that the gang injunction is about trying to have an intervention that is not a criminal intervention but is intended to support the young person in getting away from the purposes of a gang, which, I remind the House, is a group that

If an individual is examined and found to fall into those categories, and if the court determines that they would be best served by having an injunction to remove them from those people, that group or that area, then that is what the gang injunction is about. The injunction will run for a period of time and will have support from the youth offending team, the police and the agencies to ensure that the young person is not involved in those three ways. We must have in place a penalty of sufficient deterrence to ensure, with the help and support of the agencies, that a breach of the injunction does not occur. Our objective is to ensure that we have a situation whereby there is sufficient support to ensure that we complete the task of dealing with gang-related violence, and the threat of it, in a positive way. The hon. Member for Eastleigh would prefer that we did not have that
8 Mar 2010 : Column 98
penalty. I can tell him that a breach in itself is not a criminal offence, and it does not lead to a criminal record. I repeat to him, in simple terms, that the gang injunction is meant to remove somebody from a particular problem. It is about ensuring that that individual is given help and support, and it is not a criminal offence.

I have spoken on this matter for longer than I anticipated. I hope that the hon. Member for Hornchurch will withdraw his new clause and that the Government amendments will be accepted.

James Brokenshire: Unlike the Minister, I intend to be brief.

I heard what the Minister said, and there are clearly issues of workability in relation to these provisions. I notice that he is setting great store by the pilots in being able to iron out any of the matters that might arise; we shall wait and see. There is a need to focus on the role of the county court. I heard his remarks about the ability of the county court to deal with young people appropriately, but there is more experience in the youth court in dealing with such matters. We are talking about a wholly new concept of detention potentially being made available to the county court. That needs to be considered carefully, and it would be better if there were some experience to guide that. However, I do not intend to press the new clause to a vote.

Clause, by leave, withdrawn.

Clause 3

Next Section Index Home Page