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Crime and Disorder Bill [H.L.]

8.36 p.m.

House again in Committee.

Clause 48 [Drug treatment and testing orders]:

Lord Henley moved Amendment No. 219:

Page 37, line 9, at end insert--
("( ) The Court shall not make a drug treatment and testing order until it has obtained and considered a pre-sentence report.").

The noble Lord said: We broadly support the provisions set out by the Government in Clauses 48 to 51 dealing with drug treatment and testing orders. We wish them well with their aims in this series of clauses. As the noble Lord will see, I have tabled only one amendment, Amendment No. 219, which is perfectly self-explanatory. It suggests that the court should not make a drug treatment and testing order until it has

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obtained and considered a pre-sentence report. No doubt I shall be told that that is exactly what will happen and that it is somehow dealt with in these clauses and I have missed it.

However, there is one other point that I wish to deal with. I hope that I shall not take up too much of the Committee's time, but it is a matter to which I wish to return. It was brought to my attention by the Standing Conference on Drug Abuse (SCODA), which raised concerns that these clauses apply to persons aged 16 or over and are not confined merely to those aged 18 or over. A number of concerns were expressed and I should like briefly to run through them. I hope that the noble and learned Lord the Solicitor-General will possibly respond to some of them and, if not, perhaps he will deal with them in writing. They are matters to which I and possibly some others will wish to return at Report stage.

Young people aged under 18 years--and for these purposes those aged 16 and 17--are "children" under the Children Act 1989. To provide services for them with adults under the testing and treatment order would possibly go against the spirit of the Children Act. The Social Services Inspectorate report, Substance Misuse and Young People, published by the Department of Health in 1997 states:

    "Treatment and welfare interventions with children and young people under 18 are, in the main, governed by a statutory framework which does not apply to adults",


    "Any approach needs to take into account the age and relative understanding of the child and young person".

The second point I wish to make is that it has been argued--and I should be grateful for comments from the noble and learned Lord--that to include under-18 year-olds, if a residential programme is proposed, would contravene the United Nations Convention on the Rights of the Child. Article 37(c) states that:

    "every child deprived of liberty shall be separated from adults unless it is considered in the child's best interests not to do so".

The third point that we wish to make is that patterns of drug misuse in children and young people are very different from those of adults. In summary, their use of drugs appears to be less dependent, to include a wider range of substances and, where use is dependent, to be linked to behavioural problems. For those reasons, adult drug treatment models are not necessarily applicable. Evidence brought together by the National Health Service Health Advisory Service thematic review Children and Young People, Substance Misuse Services indicates that most young people for whom drug misuse is a significant problem have very complex needs. Again, if I may quote from that report, it states:

    "Vulnerable young people with problems resulting from drug or alcohol use or misuse almost invariably have other behavioural or emotional problems ... and that these present a diverse range from truancy to child abuse, from criminality to homelessness".

These complex needs could possibly best be met under Section 17 of the Children Act 1989 which deals with those in need and Section 47, those at risk. Under 18 year-olds' drug use needs to be addressed within this context. Adult drug services are neither holistic nor linked to children's and families' services.

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The Social Services Inspection Report noted that there were some consistent general trends and factors in children's drug use: namely, a significant increase in the use of illegal drugs, particularly in the last five years; a greater range of drugs being used than ever before; a drop in the age of initiation into drugs and alcohol; regional variation in patterns of drug use and trends within different groups within any community; and most drug use among young people is experimental and one-off.

There are, however, a number of young people whose drug use is dependent and harmful to them. This was noted in the Social Services Inspectorate Report. For example, it noted that:

    "All local authorities reported small but significant numbers of young people who were dependent or chaotic drug users".

The Social Services Inspectorate Report has, therefore, recommended that both for the majority of young people and for those at risk from serious harm, there is need for

    "Substance misuse services for young people ... need to relate to the age and developmental stage of the child and [for there to be] a range of services at different levels of intervention".

The report was concerned that young people were dealt with separately from adults because the,

    "models and methods of drug and alcohol treatment ... are largely based upon philosophies and practices developed for adult misusers".

The fourth point I wish to make is that to make the testing and treatment order fit with the young offender strategy would take some considerable reworking with regard to under 18 year-olds and would, for example, need to have built in the involvement of parents, particularly with regard to revocation, review and the making of the order.

The last point I wish to make is one where, again, I apologise to the noble and learned Lord for deviating slightly beyond the scope of the amendment which I put down, but it is something to which I should like to return. In the main, young offender strategy is positive and the provision of young offender teams should provide the right source for young offenders to access appropriate and holistic treatment, rather than them being covered by Clauses 48 to 51.

I hope that the noble and learned Lord will find that of use. If he would prefer to write to me in further detail on the amendment, I should be perfectly happy to accept that. I appreciate that I have raised the matter without giving him notice. It is something that I think is important and I would wish to come back to it at a later stage, on Report. I beg to move.

8.45 p.m.

Viscount Tenby: I wish to associate myself with Amendment No. 219 just moved by the noble Lord, Lord Henley. Although his remarks about young offenders' drug abuse may be slightly wide of the amendment, I wish to say how much I agree with some of the points that he made.

I am aware of the pressure on the probation service with the increasing number of requests for pre-sentence reports, but I am sure we all agree that they are a vital tool in evaluating sentencing options and building up a

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full picture of the defendant's background and patterns of offending behaviour, if there are any. It seems to me that a pre-sentence report would be a necessary preliminary to getting a drug treatment and testing order into existence. So I support the amendment.

Lord Falconer of Thoroton: Two separate points were raised by the noble Lord, Lord Henley. The first was the one specifically covered by his amendment which says: should one have a pre-sentence report before one makes a drug treatment and testing order? We accept entirely the principle that a court should obtain and consider a pre-sentence report before making a drug treatment and testing order and we believe that this will often happen in practice. A court will in any event be obliged, under Section 6 of the Criminal Justice Act 1991, to obtain and consider a pre-sentence report before making a drug treatment and testing order, unless it considers that the circumstances of the case make it unnecessary to do so.

So from Section 6 of the Criminal Justice Act 1991, there will be an obligation to obtain a pre-sentence report unless circumstances make it unnecessary to do so. Such unforeseen circumstances may arise in practice and there is little to be gained by specifying in statute that a pre-sentence report must be obtained. To do so would separate the drug treatment and testing order from the general context of community orders in the sentencing framework established by the Criminal Justice Act 1991.

Moreover, it is a statutory requirement that the offender consents to the making of the order. It would be unreasonable to expect the offender to consent without having been informed of the expectations of the treatment provider. That means that an assessment interview should have taken place. The pre-sentence report would be the primary mechanism for that information to be reported to the court. It is therefore unlikely that a court would wish to make a drug treatment and testing order without having considered one.

It is intended that the drug treatment and testing order should be strictly targeted and that courts should only use this disposal where the offender is assessed as suitable for it. It is our expectation that a pre-sentence report assessment will be made in the vast majority of cases. We intend to issue guidance to probation services, sentencers and to treatment providers on the use of the order, which will set out for sentencers the need to obtain a PSR in all but the most exceptional circumstances.

I hope that in the light of this explanation, the noble Lord, Lord Henley, will agree to withdraw his amendment. We are all in effect singing the same song in relation to that.

Perhaps I may deal with the broader points that the noble Lord made, which he rightly pointed out were not in effect covered or prefaced in any way by the terms of the amendment. In essence, his worry is this and I am grateful to him for raising it. The drug treatment and testing orders apply not to over-18s but to 16s and

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over. So there are people, children who will be affected by them. Is that right and proper? Is it a breach of the UN obligations imposed in relation to the treatment of children?

First, as to the second point, DTTOs (drug treatment and testing orders) are intended to replace the requirement as to treatment for drug dependency which can be attached to any probation order by virtue of paragraph 6 of Schedule 1A to the powers of the Criminal Courts Act 1973. A probation order can be imposed under Section 2 of that Act on any person aged 16 or over. So we think it extremely unlikely, if that is what it is replacing, that there is to be a breach of any international obligation. We think it very unlikely that it is inconsistent with the Children Act 1989.

If one looks at Clause 49, what a drug treatment and testing order involve is an order with the consent of the offender that he shall submit to testing for a period of time and that he should comply with a condition in relation to treatment; that treatment being treatment as a resident in such institution or place as may be specified in the order or treatment as a non-resident in or at such institution or place at such intervals as may be specified. The effect of the provision therefore is to give the court disposing of somebody of 16 or over convicted of an offence an additional piece of armoury in their locker. The court will be able, I respectfully submit, to consider whether or not in relation to the facts of a particular case the drug treatment and testing order is an appropriate order to make. They will be able to consider whether, on the facts of a particular case, a 16 or 17 year-old would benefit from that.

It seems to me that it must be to the advantage of the court to have that additional power in its locker to deal with an individual aged between 16 and 18. It must be appropriate to be able to deal with that in the appropriate case rather than having to refer the matter to the family proceedings court, which appears to be what underlies the concerns of the noble Lord, Lord Henley. So giving courts the power seems sensible. They do not have to use it. One can, I think, trust courts to at least consider when it is appropriate to do so. That does not seem to me to be either a bad thing or a harmful thing; it seems to me to be a positive thing.

We know all too well that those aged between 16 and 18 are very often just the sort of people who would benefit from an early intervention in relation to drug treatment and testing to perhaps get them out of the sorts of habits that led them into crime. I hope I have dealt with some of the concerns raised by the noble Lord. If there are any that I have not dealt with, then I undertake to write to him. I shall check Hansard to see that I have dealt with them all.

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