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Viscount Colville of Culross: This point needs a certain amount of consideration. It is not so much the issues upon which a judge has to decide as a matter of discretion—for instance, those under Section 78 of the Police and Criminal Evidence Act—because those matters will not be left to the jury. I have in mind, particularly in relation to Amendment No. 232E, the situation where there is a question of inferences from silence.

I cannot believe that juries are not surprised that on occasion a defendant says nothing about a particular matter. I remember one case—and I am sure many other noble Lords with experience of this issue will remember similar things—in which one defendant out of a group did not give evidence because he had a bad record and consequently would be cross-examined by one of his co-defendants. One then has the problem of what to say to a jury about inferences from his failure to give any evidence. I can readily see that that someone on a jury who knew about these things would carry an undue influence. I believe that the noble Baroness, Lady Scotland, could help us greatly in describing how she sees this kind of situation being resolved.

The issue would have to be resolved at the selection stage of a jury. These things do not necessarily arise at an early stage in a trial; they turn up as it goes along. One does not want to have a jury member, who has obviously been acquainted with the other members of the jury in the course of the proceedings, suddenly being discharged because something arises about which he or she is bound to know more than would be good for anyone to be told about during a jury's deliberations. There are great practical difficulties on this issue. I shall be very interested to hear what the noble Baroness has to say about it.

Baroness Scotland of Asthal: I should declare an interest because I am in the unusual position of having actually served on a jury. I concluded my degree aged 20, but did not join the Middle Temple until shortly after my 21st birthday. In the interim I was called to jury service. I must confess that to your Lordships because I did not disclose my knowledge to the jury. So, I was perfectly aware that the defendant had convictions when they were not put in; I was also

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perfectly aware that the basis upon which the judge retired was to hear something on the voir dire; and I understood perfectly the issue. I must say that I hope it did not impinge on my ability to do justice, but I did not tell anyone who I was.

So I understand the anxiety about the issues raised by the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord Hunt. We believe—and I welcome the warmth given to these provisions by the noble Lord, Lord Hunt—that widening the ambit of people who can give assistance as jury members is very important and that we need to have that inclusion clearly faced.

The proposal will take two stages. There will undoubtedly be circumstances in which it would not be appropriate for, say, a police officer, a judge, or a lawyer to serve on a jury. A number of safeguards exist to ensure that people whose presence on a jury might threaten, or even appear to threaten, the fairness of a trial will not so serve. These will be adequately covered in the new arrangements.

The screening process is to have two stages. At the first stage, the jury summoning form, which will need to be amended to reflect the new arrangements, invites anyone who thinks they have a "good reason" to defer or be excused from jury service to state that reason. One such reason would be that it is very likely that the person will know, or be known to, someone involved in the conduct of the trial. The guidance to be issued by my noble and learned friend the Lord Chancellor will also make this clear.

A number of noble Lords know about the situations of which I speak. There are members of the judiciary who have been in an area for a very long time. There will be no one in that locality who does not recognise either their face, their name or sometimes, just as importantly, their voice. There will be police officers who have worked in an area for a very long time. It may be that in another district, in another area but within the same jury catchment, it would be perfectly proper for them to so serve. So we would—

Lord Hunt of Wirral: I am very grateful to the noble Baroness, as will be the Committee, for her careful exposition of these matters. But she is clearly reading from some guidance or draft guidance. It perhaps might be useful to the Committee for her to share her detailed notes on this issue. Rather than take up the Committee's time in going through the guidance, it might be very helpful before Report for noble Lords to have sight of the document to which she refers.

Baroness Scotland of Asthal: I regret to tell the noble Lord that there is no document: I seem to have developed the ability to read and think at the same time—I know that that is somewhat testing. If it would be more helpful, we could certainly set out in a written document the sort of ideas that we have about how it

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will work. They are not set in stone, because they are just our thinking, but I want to reassure the House that we entirely take on board the issues raised by both the noble Lord, Lord Hunt, and the noble Viscount, Lord Colville. We shall have to make proper arrangements. I should be happy to do that.

6 p.m.

Lord Dholakia: The Minister mentioned people who have been detained at some stage, especially under Part 2, in relation to disqualified persons. There is a small group of people—immigration detainees—who may subsequently find themselves legally qualified to remain in the United Kingdom. Will they have to wait for 10 years before they can serve on a jury, or will the fact that they have been found to be legally entitled to stay in this country entitle them to jury service?

Baroness Scotland of Asthal: The noble Lord raises an interesting point. It will date from the time that they are declared to be lawfully in the country. I do not know whether we have resolved that difficulty. Usually, the time starts to run from the moment that lawful presence or residence is acknowledged. I do not know the precise answer; I shall certainly write to the noble Lord, because he has raised an interesting point.

Lord Hunt of Wirral: I am grateful to the noble Viscount, Lord Colville of Culross, for his intervention. Like him, I can see some great practical difficulties here, but the Minister has done much to reassure us. Without wanting to curtail matters, I am grateful to her for having agreed to share with us in more detail some of the anticipated guidance. I am pleased that it is in draft form, so that we have a real opportunity to influence it before it is finalised.

Baroness Scotland of Asthal: I should make clear that I do not have guidance; I have our outline thinking on the matter. I am certainly happy to place the outline that I have just described in written form, but it would be wrong if the Committee were to think that we yet have the guidance, because we have not. I can do my best to provide that outline.

Lord Hunt of Wirral: I was referring to guidance with a small "g". I was warmly welcoming the guidance that the noble Baroness will give us. That will give us the opportunity to think through some situations; we are very much with her on how vital is the inclusive nature of a jury. Against that background, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 232C to 232E not moved.]

Schedule 27 agreed to.

Clauses 292 to 294 agreed to.

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Baroness Walmsley moved Amendment No. 233:

    After Clause 294, insert the following new clause—

For section 37(2) of the Crime and Disorder Act 1998 (c. 37) (aim of the youth justice system) there is substituted—
"(2) The youth justice system shall also have regard to the following principles—
(a) the welfare of the child shall be the paramount consideration;
(b) deprivation of liberty should only be used as a measure of last resort and for the shortest possible time;
(c) any decisions must be made in the best interests of the child.
(3) In addition to any other duty to which they are subject, it shall be the duty of all persons and bodies carrying out functions in relation to the youth justice system to have regard to the aim and principles.""

The noble Baroness said: The amendment stands in my name and in that of the noble Baroness, Lady Massey of Darwen. Unfortunately, the noble Baroness has been detained from your Lordships' House this afternoon through other responsibilities, but she supports the amendment.

The purpose of the new clause is to establish a clear legal framework for the youth justice system to be guided by child-centred principles that meet the UK's obligations under international and domestic law and to ensure that all those working in the youth justice system, including the Prison Service, courts and youth offending teams are guided by those principles.

I shall make a few general comments before I move to the three principles in the amendment. We feel that the new clause is necessary because the Bill contains proposals that will significantly reform the criminal justice system in the UK. In attempting such a broad revision of the system, the Government fail to give adequate attention to the particular need to protect children and young people from the full force of the criminal law and to ensure that their welfare and best interests are at the forefront, in line with our domestic law and international obligations. A group of children's charities and justice organisations is urging the Government to amend the Bill to ensure that the welfare and best interests of children are at the heart of the youth justice system.

I shall now outline the specific reasons why we feel the need for a statement of principles in the Bill. That is because the youth justice system has been the subject of criticism from the United Nations Committee on the Rights of the Child and successive reports from Her Majesty's Chief Inspector of Prisons. The recent report from the chief inspector, Safeguarding Children, found that:

    "the welfare needs of children and young people who commit offences were not being addressed adequately by those responsible for their welfare".

The UN Committee on the Rights of the Child has also expressed serious concerns about the UK's treatment of children in trouble with the law—in particular, our failure to establish a system of juvenile justice that fully integrates the convention. The United Nations Convention on the Rights of the Child commits the UK to separating the system for children

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in trouble with the law from that for adults—in Article 40—to ensuring that the best interest of the child are a primary consideration in all decisions about them—in Article 3—and to ensuring that custody is used only as a measure of last resort—in Article 37.

The amendment sets out clearly a framework for the youth justice system that would meet all those obligations and requirements and clarify the necessary safeguards for children while—this is crucial—retaining the primary overall aim of the youth justice system as set out in the Crime and Disorder Act 1998, which is the prevention of reoffending. That Act contains no statement of principles to guide those working in the system.

The other relevant provision is Section 44 of the Children and Young Persons Act 1933, which requires all courts to have regard to the child's welfare. Although important and valuable, that provision is often neglected and is in need of clarification and strengthening. It applies only to courts, not to the whole of the youth justice system. That is why we feel that the amendment is necessary.

It would also bring the legislation in England and Wales in line with that in Northern Ireland, where the Justice (Northern Ireland) Act 2002 sets out a framework for the youth justice system there that establishes that all persons and bodies exercising functions relating to youth justice must have regard to the welfare of children.

First, I address the new clause's provision for the welfare of the child. The Children Act 1989 states that in all matters relating to the upbringing of a child the court must have the child's welfare as its paramount consideration. That is generally regarded as setting the marker and standard for the treatment of children and young people in England and Wales. However, the welfare principle contained in the Act is not clearly applied to proceedings other than family proceedings. There are signs that the welfare of the child is not being given adequate consideration in the youth justice system, where greater emphasis is placed on punishment delivered by strictly offending-related assessments and programmes of intervention.

The recent joint report of Her Majesty's Chief Inspectors, Safeguarding Children, found that the welfare needs of young people who commit offences were not being adequately addressed by those services responsible for their welfare. In particular, the work of the youth offending teams was found to be focused exclusively on the offending behaviour of young people and there was little evidence of welfare needs being addressed or considered. The report further found that the YOTs were detached from other services and not fully addressing children's needs for protection and safeguarding.

Although, as the Howard League judgment of November 2002 by Mr Justice Munby in the High Court, established, the Children Act 1989 applies to children in prison, it does not apply to the Prison Service, which means that, unlike authorities, it does not have a clear statutory duty to safeguard the welfare of children. In the light of that judgment, the Joint

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Committee on Human Rights recently recommended that an amendment to the Children Act 1989 be sought at the earliest opportunity to place a statutory duty to safeguard the welfare of children on the Prison Service and local authorities. The amendment would go a long way towards achieving that aim.

The second point of principle is custody as a last resort. The current population of the juvenile secure estate in England and Wales is more than 3,000, which is significantly high, when compared to the majority of western Europe. Recent Home Office figures confirm that the UK now has the highest overall prison population rate among countries of the European Union. Since the early 1990s, successive legislation has increased the availability of custodial measures for remand and sentence for children as young as 12. That has reversed the trend established in the 1980s away from custody. It has resulted in year-on-year increases in the numbers of children in custody. That is another reason why we need the statement of principle.

In October 2002, the UN Committee on the Rights of the Child published its response to the UK Government's implementation of the UNCRC. The committee was extremely critical of the UK Government with respect to the youth justice system in England and Wales. It expressed particular concern about the increase in use of custody for children, especially young children, and their treatment in custody. Article 37 of the UN convention states that the imprisonment of a child shall be used only as a measure of last resort and for the shortest possible time. The UN committee states:

    "It is the concern of the committee that deprivation of liberty is not being used only as a measure of last resort and for the shortest appropriate period of time, in violation of article 37(b) of the [convention]".

It is a very clear direction regarding the use of custody, to which the Government should pay attention.

In particular, the committee expresses concern that the detention and training order has been introduced, allowing children aged 12 to 14 to be deprived of their liberty. Implementation of Section 130 of the Criminal Justice and Police Act 2001, which relaxed the criteria for making court-ordered secure remands, has also increased the numbers of children in custody. The Youth Justice Board has stated that the piloting of Section 130 has had a "significant impact" on the size of the juvenile custodial remand population. The noble Lord, Lord Warner, chairman of the Youth Justice Board, has described the measures as "unsensible".

The third principle is the best interests of the child. In its 2002 report, the UN Committee on the Rights of the Child made its most comprehensive and severe criticism of the UK's administration of juvenile justice. In particular, the committee recommended,

    "that the State party establish throughout the State party the best interests of the child as a paramount consideration in all legislation and policy affecting children, notably within the juvenile justice system".

Although the Children Act 1989 establishes that decisions taken by the court must be taken in the child's best interests through the establishment of the

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welfare checklist and the need for the court to take all matters into account, the Crime and Disorder Act 1998 has eroded that principle in dealing with children who offend by stressing the primary aim of preventing offending above all other considerations. That is another reason why we feel that a restatement of the principle of best interests is needed in the Bill.

I am aware that the Green Paper Every Child Matters and the Next Steps document that accompanies it set out some possible changes to the youth justice system, some of which are very welcome. However, the document covers only sentencing issues. It fails to address the problems across the whole youth justice system and the difficulties caused by a system that is not fully separate from the adult criminal justice system.

I hope that the Minister will be inclined favourably towards our amendment since it would retain the Government's overall aim for the youth justice system—the prevention of offending by children—while reinforcing and clarifying the necessary safeguards for children and better complying with the UK's children's rights obligations. I beg to move.

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