Examination of Witnesses (Questions 60-79)|
MONDAY 18 NOVEMBER 2002
MP AND MS
60. Parliament has never voted on this. It has
never agreed to it by vote.
(Mr Denham) No.
61. You are telling us prerogative power should
(Mr Denham) I am saying if you are looking at the
question of whether this legislation is being taken into action
effectively I am defending certainly the rights of the Houses
of Parliament to do so.
Lord Lester of Herne Hill
62. I think you are saying, Minister, if I could
add, you think the Rights of the Child Convention is vaguer than
the European Human Rights Convention and therefore it cannot easily
be incorporated into domestic law?
(Mr Denham) I think there would be some difficulties.
It covers a much wider range of areas. There would be some very
similar points also covering similar protections of rights expressed
in different language. I am not a lawyer, I have to say this,
but it seems to me there will be some difficulties in doing so.
63. The European Court takes it into its mind
when making judgments?
(Mr Denham) As do domestic courts.
64. Therefore it is being applied indirectly
to the law of this land?
(Mr Denham) Right, indirectly. Certainly there have
been cases where judges have referred to the Conventionand
this is not the legal language but as I understand itas
a relevant piece of background information, something which gives
them some indication of the values, I suppose, against which they
should be making a judgment. I believe it has been used in that
Mr Shepherd: How is that democratic? You said
it was democratic.
Lord Lester of Herne Hill
65. Can I suggest a way?
(Mr Denham) I am happy to sit back.
66. I think I can help my colleague. The courts
work on the presumption that Parliament when it legislates does
not intend deliberately to flout Treaty obligations. It presumes
when legislation is ambiguous that you give it a meaning which
accords with the Rights of Child Convention if it is reasonably
possible to do so. In that sense they are fulfilling their role
of applying the law in a way which conforms with international
(Mr Denham) I am sure that is what my brief says though
not as eloquently as Lord Lester, thank you.
67. Juvenile justice, Minister, if we could
consider that. One of the recommendations of the Committee was
that the UK should "considerably raise the minimum age for
criminal responsibility". We have the lowest in the European
Union at present, the age of ten in England and Wales and Northern
Ireland and eight in Scotland. Does the Government intend to follow
that recommendation and review whether the age of criminal responsibility
might not be raised to match other countries in the EU?
(Mr Denham) Yes. I do not think we have plans at present
to raise the plans of criminal responsibility. It is not for me
to answer on behalf of the Scottish Parliament either but personally
I am not aware of plans by the Scottish Parliament to raise the
age of criminal responsibility.
68. The Scottish Parliament, thank you, but
would you say there are no plans in our government to do so despite
(Mr Denham) Not at present, no.
69. I know the governmentturning to a
different approach, perhaps, to the same concernsand you
have announced yourself the need for preventative plans for young
people starting from next April.
(Mr Denham) Yes.
70. Local councils will have to produce plans
showing how they are going to try and tackle potential criminals
and deflect them. I think that covers the ages seven to 13. Can
you tell us more about that? What action is being taken to develop
alternative and more effective methods for prosecution to make
children responsible for their criminal behaviour?
(Mr Denham) There are a wealth of answers to that.
Let me touch on the main ones. We have asked local authorities
to work together to put together clearer preventative strategies
for young people at risk. That is not just young people at risk
of offending but young people who may be at particular risk of
becoming drug abusers or young women who may become pregnant,
unwanted pregnancies at an early age. We have backed that up by
allocating part of the growth from the Children's Fund to working
with those local authorities to have identification and referral
and tracking systems for young people so we can identify as many
as we can of those young people at risk and therefore to be able
to have a preventative intervention at an early stage. The Prime
Minister announced recently that we will be publishing a Green
Paper in the spring taking those basic building blocks further,
again looking not just at young offenders, I need to stress, but
the wider age of young people who are at risk. We have instituted
already a range of preventative measures, some of which have legal
force, some of which do not, but, for example, parenting orders
which are proving successful where they have been used in working
with the parents or families of young offenders and those who
are getting into other sorts of difficulties, giving parents support
in bringing up their young people with the hope of diverting them
away from offending or whatever type of risk it is they are facing.
What we want to do is look at how we can build on the measures
which are in place already to address the needs of these young
people better. I think the starting point for much of what we
do is a feeling that there is a set of young people who are often
known to schools, maybe known to the police and social services
but the different agencies are not co-ordinating their interventions
at an early enough age and at the moment we end up dealing with
those young people when they have entered the criminal justice
system; that is the area that we need to address. On the age of
criminal responsibility, can I just pick up a point there. One
of the issues, therefore, that we have to weigh is that one of
the things you can sometimes do through the criminal justice system
is to ensure there is some sort of intervention in the young person's
life, either what you do with them or what you may do with their
parents, for example the implementation of the parenting order
may follow from a case taken through the criminal justice system.
I think it is very important to make sure that we have the ability
to get effective preventive interventions in place and, on occasion,
having the gateway through the criminal justice system can support
you in doing that. It is not purely about the age at which punishment,
if you like, kicks in, it can be the ability to take effective
measures which may include sanctions but may well include supportive
71. There was a debate in Westminster Hall in
October about the Convention on the Right of the Child and I asked
you thenI do not know if you recallabout what I
saw as an inequity of treatment between young offenders facing
serious charges in the crown court and the protections which were
given to child witnesses. You saidlet me read it because
it is a cause of some vanity to methat I had ". .
. raised some important and well informed points about young offenders
facing serious charges . . ." but, seriously, you went on
then to say they included points on which you would like to reflect
and I wonder if you have had a chance to reflect?
(Mr Denham) I have to some degree, at least. When
they were raised in Westminster Hall they were issues because
I do not deal directly with this area of policy, which had not
been put to me previously.
(Mr Denham) I think we have made, as you acknowledged,
some changes to the way in which the courts operated for defendants.
I have not reached the conclusion since the debate that we should
do more than we have done currently. I do feelI have to
say this is not on the basis of a lengthy reconsiderationthat
the issues are slightly different. On the one hand we are setting
out to making sure that courts are not run in such an intimidating
way that a young defendant cannot give a proper account of themselves,
understand the procedures and the rest of it and the measures
we have taken throughout the criminal justice system to protect
vulnerable and intimidated witnesses who are in a position of
possibly having to give evidence against somebody who may have
been responsible for a serious assault, for example, or something
of that sort, the two issues are not precisely the same. I am
not sure I am convinced at the moment we need to go further on
the position of young defendants. The old committee, of course,
did recommend a strengthened youth court with a judge with two
experienced magistrates to try young defendants who were accused
of grave crimes. We have consulted on various options in the White
Paper which we published last summer, particularly looking at
the problematic issue of what you do about an older juvenile who
is co-accused with an adult. I am not able to announce our conclusions
today but I hope we can do so before too long. There were specific
issues in the White Paper which we did commit ourselves to look
at and which were raised with us by Lord Justice Old.
Lord Lester of Herne Hill
73. Can I ask a supplementary. Has the department,
Minister, looked at why we have such a low age of criminal responsibility
compared with other democracies in Europe and what the experience
of those other countries is compared with ours in having a higher
age of criminal responsibility?
(Mr Denham) I think the reason they have is that it
has evolved in that direction through a mixture of the view of
the public and the judgment of politicians about the right age
which enables the criminal justice system to sanction effectively.
What I think we recognise is that there is no uniformity across
Europe about the level of the age of criminal responsibility and
that the criminal justice systems seem to operate quite differently
in a number of different countries, indeed the Scottish system
is quite different in many respects from the English system for
dealing with young offenders. One of the things we will want to
look at as part of the Green Paper which I talked about earlier
is whether further changes are needed to the way in which we run
our youth justice system. I do not anticipate at the momentbut
this is early daysaddressing necessarily specifically the
issue of criminal responsibility but it may be there are other
changes we need to make to make sure we are more effective at
stopping people becoming long term persistent young offenders
which we will need to make through that Green Paper.
74. Can I leave the topic that I was pursuing
with you, Minister, about the protections for young offenders
with just this thought: children are treated as automatically
vulnerable witnesses entitled to and indeed needing all the protections
that are given to them and it is very odd in that context that
a defendant who is a child who gives evidence is not entitled
to any of them.
(Mr Denham) No.
75. Children in custody, if we can go further
on through the criminal justice process, when a young person has
lamentably got into it. I think the Committee was pretty concerned,
also, that a lot of children between 12 and 14 were being deprived
of their liberty now in the UK and they were very concerned at
increasing numbers of those children at earlier ages, it seemed
to them, certainly for lesser offences and for longer sentences.
In particular they drew attention to the impact of the detention
and training orders. What steps will the government take to ensure
that the courts are aware that imprisonment of children must be
only a measure of last resort for the shortest appropriate period
(Mr Denham) The guidance which goes out to the youth
courts, which is the guidance issue by the Judicial Studies Board,
does make it clear that custody should be considered only for
offences of high level seriousness but also taking into account
the risk of reoffending. We have been developing a range of alternatives
to custodial sentences, including intensive supervision and surveillance
orders, for example, which are designed to be an alternative to
custody but also to deliver some of the support and the structured
response to the needs of the young person which are needed. I
think we have to recognise, though, that there are rights of other
young people who have been the victims of crime who are rarely
spoken about and rights of the wider community on occasion to
be protected from young people who will otherwise be serious offenders
or serious repeat offenders. I think if you look at our strategy
overall you can see that the Youth Justice Board in particular
has introduced a range of measures which are intended to give
the courts alternatives to custody which they can use where appropriate.
76. I can tell you that in the area of Redcar,
my own area, ISSOs seem to have been highly successful.
(Mr Denham) Yes.
77. Is there a case for looking at detention
and training orders and perhaps reforming their procedures?
(Mr Denham) They are relatively new and the idea behind
detention and training orders, as the Committee will be aware,
is really to try to make sure that we bring a more structured
approach into the education and training and supervision of young
people than would happen normally in a traditional detention in
a young offenders institution. I think it is much too early at
the moment to suggest that some radical changes are needed to
the detention and training orders because I think they are an
attempt to improve the type of treatment that a young person gets
when it is necessary for them to have a period of custody.
78. Your approach is really to say they must
stay there as a backdrop but they are improving non custodial
models very quickly in a very diverse way?
(Mr Denham) We are trying to address this right through
the system. We are trying to have better early prevention. We
are trying to have better ways of dealing with young people so,
for example, referral orders which take place when somebody pleads
guilty to a less serious first offence which now goes to a community
panel. We are trying to have better alternatives to custody through
the ISSPs and then, also, you have detention and training orders
which are trying to ensure the custody is more likely to reduce
the risk of reoffending because there is a much better focus on
well planned time both in custody and also the support that is
there after release. We have been trying to improve every element
of the system of youth justice sentencing.
79. Looking then at children in custody, I think
you said in answer to Hilton Dawson in the same Westminster Hall
debate that whether or not the Children Act applies to children
in custodyand I am quoting you now". . . the
welfare, care and needs of young people in young offender institutions
are central to what the government wants to achieve". If
that is so, setting aside whatever the outcome of the current
case is, should the government not take action to provide that
the Children Act does apply in these circumstances giving statutory
recognition to your own objectives, as it were?
(Mr Denham) I think I will skirt around the legal
action, if I may, Chairman. Let us remember the action that is
being taken. We are moving well on the target towards 30 hours
of education a week in young offender institutions. We are making
good progress to that target which should be in place by March
2004. If you take, for example, the area of education, I think
we can demonstrate that irrespective of whether the law does or
does not apply we are making moves in the right direction. There
have been very significant efforts made over the last couple of
years to improve the risk assessment, the health support, for
example, that is there to reduce the risk of suicide which is
a major issue, obviously, in young offenders institutions. I think
we are in a position here where we can say the government is undoubtedly
acting, whether or not it is compelled to by law, we are doing
it because we recognise the needs of these young people.