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Lord Carlisle of Bucklow: My Lords, I strongly support my noble friend Lady Anelay and agree with every word that the noble Baroness, Lady Mallalieu, has said. Like her, I have also defended people under the age of 18 who have been charged with murder, and I share the views that she has expressed.

Serious and grave as the offence of murder is, it seems horrific that the judge should start with what effectively is a minimum of 15 years in prison for a person of 16 or 17, without the opportunity for that child, who will mature and change over the years, to be released at an earlier stage. Had we on this side of the House introduced this measure, I wonder what the Minister would have said about it.

Let me make it clear that I do not like Schedule 19, and I hope one will have the opportunity to debate it under the amendments of the noble and learned Lord, Lord Ackner. We are talking about using any of its schedules and applying them to immature young people of 16 or 17. In the two cases I can think of, one was clearly a bag snatch which went wrong, and the other a fight in a school playground. Are we really saying that for people who are convicted of murder in those circumstances—whatever may have happened to them since they committed the offence, however appalled they are about what they have done—the judge should be required to consider 15 years as the

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appropriate time? It is not a 15-year sentence, because 15 years is the equivalent of a 22-year sentence, but it will be 15 years before they can be released. Like the noble Baroness, Lady Mallalieu, I hope the Minister will think again about this and accept at least that this schedule should not apply to those under 18.

Baroness Stern: My Lords, my name is on Amendment No. 225, and I also support Amendment No. 237. The arguments have been very well put around the House, and I will be brief.

I emphasise that the UK Government have signed up to a range of international instruments about the rights of the child. Those were not forced on us; we signed them willingly. They are all based on certain principles—that children are not adults, that children must be treated differently from adults, and that the measures taken must be in the best interests of the child. Although society must be protected from children who are genuinely dangerous, children, whatever they have done, must be protected by society.

The proposed starting point of a sentence of 15 years for a child convicted of murder is in that context unacceptable. When an important country such as the United Kingdom allows itself to weaken the commitment to international instruments of such importance as the Convention on the Rights of the Child, other countries think that they can get away with that as well. We are setting a very bad example.

I do not find the arguments advanced in Committee by the noble Baroness, as compelling as she normally is, totally convincing. She said that such cases were very rare, which is the case. That suggests that an individual response to each case is appropriate, rather than the approach taken in the Bill. She also cited the possibility of inequity if an immature 18 year-old is subject to the provisions and a mature 17 year-old is not. That is an argument not for including children in the scheme, but against the whole scheme.

I very much hope that the Minister will be able to bring some satisfaction to a number of us by reporting on the review of principles in relation to juveniles that she promised in Committee, and agreeing that this measure is a step too far.

Earl Russell: My Lords, I made a very brief contribution on the sentencing part of the Bill in Committee, to which the Minister made a very generous and warm-hearted reply. Her defence was that she stood for consistency. That is a perfectly good argument; consistency is indeed a virtue. However, the question that must arise is, "Consistency in what?". Consistency as at present applied in the Home Office must necessarily consist of what can be put down on paper and measured.

It is interesting to compare that with the approach of the 17th-century court to consistency. It, too, believed in consistency, according to whether the prisoner showed remorse, whether the crime had been carefully premeditated, and in particular whether it was conducted selfishly for profit or was the result of the mood of the moment—whether the person intended to produce the result that they did. Those are perfectly valid

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considerations, but they cannot be judged without observing the demeanour of the witness. Indeed, it is difficult even to judge them by reading the transcript. They are questions of consistency that must of necessity fall to the trial judge.

What I cannot see is why one type of consistency—measurable, quantifiable thought—should be sacrosanct and the other sort of consistency totally ignored. If we want to be consistent, we must try in each case before us to strike the balance between the two types of consistency.

A case occurs to me. I admit that it is fictional, but it could perfectly well have happened. Let us suppose that, on the Channel Islands in 1940, a boy of 12 observed the invading Germans open his garden gate and march up his front path. He took his father's shotgun off the wall and fired, killing one of them. The Germans marched straight into the house, seized his father and shot him dead. The remorse that that boy would have felt would last the rest of his life. It is not consistent to treat that entirely on a level with a premeditated criminal who steals habitually for profit.

If we want consistency, we have to hear the evidence of the trial as well as the quantifiable statistics. That is much more difficult to do with children than with adults, because children are much more likely to perform certain unpremeditated action without full understanding of its consequences. That is a very strong argument for accepting the amendments.

The Earl of Listowel: My Lords, I strongly support the amendments. I want to clarify a point where there may be slight confusion. I am sure that the Minister will clarify that the Government do not seek to impose a minimum sentence for children. The provision is a minimum starting point, and it will be made clear that if the judge deems it suitable to have a minimum sentence of zero, that would be the case.

What has been the custom in the past is that the minimum starting point is discussed. Then the Lord Chief Justice advises in his practice statement that the minimum starting point, in this case for children who murder, is a certain number of years. Recently, the decision was that that should be 12 years. The Government propose 15 years, which is three years extra to the minimum starting point. My concern is that, as a result of what the Government propose, we will hold children and young people in custody for longer and long past the time when they are safe to return to the public domain.

I should briefly like to remind the House of the situation of such children. As many noble Lords have said, although the children have done terrible things they are also often very vulnerable. In Young and Dangerous, the research of Professor Boswell in 1996, she looked at a third of the children in custody for serious offences or murder. She found that 72 per cent of the children had been abused. That evidence was corroborated by at least one practitioner working with the children, and she felt very strongly that it was an underestimate of the number of children abused. Half the children in the juvenile establishment have been in care or in contact with social

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services. The rates of mental disorder are far higher than in the general population. Some 45 per cent of children in care have mental disorders, which is four times the average, and 90 per cent of children in residential accommodation in children's homes have mental disorders.

I do not wish to tire the House any further, but when we talk about Sure Start and the Green Paper, Every Child Matters, we are thinking about changing the culture and making this country a better place for children and families. I fail to see how being tougher on children—even children who commit the most terrible crimes, given that they often have horrible and horrific starting points in their lives—fits with the direction of improving the conditions for our most vulnerable families and children. If one looks again at the longitudinal research, one sees that such children come from the poorest and largest families with a history of family breakdown and punishment within the family, where the child cannot regularly predict what the parent will do in response to its behaviour.

I look forward to the Minister's response. She always tries to be as helpful as possible. With her long experience of work in the area, I am sure that her response will be well worth listening to.

Lord Thomas of Gresford: My Lords, it is my experience that children who commit crimes of serious violence are damaged children. That encompasses everything that the noble Earl said a moment ago. In this country, it is part of our society that we bend all our agencies in an attempt to help children to get over the disadvantages of their background, their lack of education, the housing from which they come, the bad parenting, and all other factors that have caused them to be damaged. However, we then come to adulthood, which we generally place around or about the age of 18, when we have to say to offenders, "I'm sorry. We appreciate that you have come from a terrible background and that you are a damaged person, but society can no longer function if we do not treat you as a person entirely responsible for your actions". It is at that point that the division is generally and should be made. The drawback of the Bill is that it does not seek to draw any distinction between children and adults in Schedule 19, which I shall criticise later for other reasons. Therefore, I entirely support the amendment.

4.30 p.m.

Lord Donaldson of Lymington: My Lords, I shall make two points, rather different in character. First, when I was a Queen's Bench judge, dealing not particularly with murder, but with a range of offences, I came to the conclusion, rightly or wrongly, that the magic age was approximately 24. Before that age, there was a real chance of reformation; after it, it became much more doubtful. Of course, I do not suggest that that is a precise cut-off point, but it is an important point.

My second point is unrelated. It concerns me in relation to the whole of Schedule 19 and its effect on children. Judges take an oath to do justice to all men: "I agree according to law and the customs and usages of the

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realm". However, if a judge is faced with a situation in which the law requires him to do injustice, or injustice as he sees it, he has a very real problem. I suspect that in most cases he will say to himself, "Well, I am not prepared to do this, so I will now spend a lot of time deciding how I can make it look respectable not to do it". The judge may then turn round and cite "the age of the offender" or "the mental condition of the offender". In other words, he will start not, as the Government would expect, from the provisions of the schedule, but from what is in his view a just result.

Having started from that point, he will try to see how he can bend the various provisions of the statute overtly to justify it, although that will not be his personal justification. That is not a satisfactory situation. If one is going to give judges the authority that they have always had and expect them to do justice in individual cases, according to what they see before them and the evidence they hear, one must let them have discretion. Otherwise, one will either slowly erode their passion for justice or erode the effect of the law. I hope that the latter will be the case.

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