---

Lord Mackay of Drumadoon: In considering this matter, which I accept is an important one, we should bear in mind a number of considerations. The first is that mentioned by the noble and learned Lord, Lord Hope of Craighead; that is, that few children in Scotland are in fact prosecuted in the courts. As Lord Kilbrandon recognised, notwithstanding the introduction of a children's hearing system which he advocated, there would always be some who came outside that system.

Some children undoubtedly fall into the category mentioned by the noble and learned Lord, Lord McCluskey; that is, those who are charged with extremely serious crimes. But others fall into the category of much less serious matters, including housebreaking, theft, shoplifting, crimes of causing malicious damage and repeated motor vehicle offences. To give an idea of the figures with which we are dealing, in 1994 only 171 children had charges referred against them in the criminal courts.

Another important matter to bear in mind is that it is proposed, if these provisions come into force, that they would be operated on a pilot basis in different areas,

6 Mar 1997 : Column 1988

restricted in the first instance to the sheriff and High Courts. That is an approach which has been adopted in England and a recent Home Office research study--No. 163--provides provisional findings of the research carried out into the use of electronic monitoring in the three areas examined.

Those who practise in the criminal courts will know that for a child to end up being prosecuted for a charge such as housebreaking, theft, shoplifting or a motor vehicle offence, means that in all probability the child will have been before a children's panel or a children's hearing on a number of previous occasions. Therefore, when those children come to court, the view has been taken by the procurator fiscal or Crown counsel--under the guidelines of the Lord Advocate--that, for that young offender under 16, prosecution is the way forward. In taking that decision, it is appropriate for the prosecutor to take into account information coming from the children's report, the police, social workers and others.

Those children have already been before a panel; they have had supervision requirements placed upon them, some perhaps with a condition of residence in a specific place. But that has failed to cure their offending. Therefore the risk of their going into custody is a real one. Consonant with the approach which has been followed by the Government, the wish is to provide another alternative to custody than that presently available. That is why curfew orders--as they are colloquially called--are being introduced. In principle they command a measure of support. Where the difference arises is in relation to the use of electronic monitoring.

To take account of some of the points mentioned in the debate, the noble Lord, Lord Sewel, referred to responses to the consultation document. I suspect he knew the answer to the question he posed and will not be surprised when I mention the name of one Phil Gallie MP as the gentleman who gave unqualified support to the proposal. That consultation covered the idea of introducing tagging as part of the sentencing at children's hearings rather than introducing it for the criminal courts. I understand that several of the respondents did not rule out entirely the possibility of electronic monitoring. These provisions are designed to try it out and to see whether it works. It would then be a matter for the Secretary of State to decide whether to extend it to all courts in Scotland or not to proceed with it at all.

Questions were raised about whether it would unfairly discriminate against girls as opposed to boys. The whole issue of children attending school wearing tags is a valid concern. But the provisions of the proposed Section 245C(2) would allow the court to order that the tag did not require to be worn continuously and therefore the order could provide that it would not be required to be worn during school hours.

Another suggestion was made that young offenders who were tagged would brag about it. Anyone who has worked with young offenders in the criminal justice system knows that on occasions they brag about all sorts of things--that their sentence in the young offenders'

6 Mar 1997 : Column 1989

institution was longer than that of their co-accused or of their friend who was in court the previous week. Whether they brag about it continuously, one rather suspects not. But bragging about how you get on with the police and in court is one of the issues that anyone addressing the problems of young offenders has to look at. So I do not think that provides a complete answer to the issue either.

Very recently I visited a young offenders' institution in Scotland at Polmont and I sat in on a course being run with young offenders who were addressing the problems that their behaviour was causing. The particular topic they were discussing was how many of them had been warned by their teachers and by their parents that if they did not mend their ways they would end up in custody. I intervened to ask what might have stopped them ending up in custody, as all of them had been before the children's panel before. Two of them quite spontaneously mentioned the issue of tagging.

Whether it is wise to rely on such anecdotal evidence is a matter that has to be considered. But it certainly fits in with the views of young offenders as they have been reported to those who are researching the position in England. Perhaps I may quote from Home Office Research Study No. 163 on curfew orders with electronic monitoring. Paragraph 9 of the introduction states:

"The offenders interviewed for this evaluation spoke highly of the monitoring staff, and were quite positive about their experiences on the order ... All of those interviewed had consented to the order in court, and all but one said that they had agreed in order to avoid a custodial sentence".

That provides support for what I mentioned earlier--that this is a real alternative to people going into custody.

Lord Macaulay of Bragar: I am obliged to the noble and learned Lord for giving way. When he went to Polmont, was he introduced to the young people? Were the young people told who he was and why he was there? Was a prison officer present during his chats with these young people?

Lord Mackay of Drumadoon: I would not think that many inmates of any institution would require to be told who Lord Mackay of Drumadoon was when he walked in the door. I fully recognise that I am not the most popular person in Her Majesty's institutions in Scotland. Clearly, I was introduced as the Lord Advocate; clearly, the Solicitor-General, to mention someone we were talking about recently, was introduced as well. It is possible to be cynical and say that these young offenders said something just to please the Lord Advocate of the day, conscious of the fact that four weeks later he would be debating the matter in a Committee of your Lordships' House and wished to have something to say. I suspect not. I think the noble Lord will give me this--that I have acted in connection with young offenders over 25 years and that if I think there is something to be said for listening to their views, I am possibly in a reasonable position to assess that. I do not place too

6 Mar 1997 : Column 1990

much reliance on it. I just report it to your Lordships as something that fits in entirely with the views obtained by researchers in England in examining the matter there.

Families and partners were generally very positive, as it meant that the offender could stay out of prison and be less likely to associate with other criminals. That takes account of a point made by the noble Lord, Lord Macaulay, that this would in some way interfere with parental responsibility. I disagree entirely with that observation. It seems to me that it helps to reinforce parental responsibility, because one of the things the court would have to do before imposing such an order with the consent of the offender is to be satisfied that the home circumstances were such that his or her case was an appropriate one for imposing the order.

In this field there can be no guarantee of success for each and every disposal which the court imposes. The whole history of the children's panel system illustrates that. It is respected in Scotland and it is respected furth of Scotland. But no one who works with it or has any dealings with it would accept that it solves every problem for every under 16 year-old who offends.

It is on that basis that the Government have presented the proposals in the Bill. We believe that to remove the option of remote monitoring, as it is called in the Bill, which can be subject to the conditions set out in new Section 245C of the 1995 Act, would be to weaken the chances of that option being successful. On that basis, I invite the Committee to reject the amendment and certain of the subsequent amendments to which we shall come in due course.

4.45 p.m.

Lord McCluskey: I have before me a copy of the paper Crime and Punishment, which was published in June 1996. Paragraph 9.13 deals with electronic monitoring orders which might usefully add to the range of sentencing options available to Scottish courts. Given that that document was published in June and that there was no invitation to consult in relation to it, although other measures were mentioned there in relation to children, can the Lord Advocate explain to the Committee why this idea was not promulgated in June 1996 and has made such a late appearance and led to such hasty consultation? Secondly, given the fact that some 100 bodies chose to respond, why was the only voice listened to that of Mr. Gallie?

---