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The youth rehabilitation orders are to be made by a magistrates’ court, whose prime purpose in the Bill is said to be punishment. Yet magistrates are turned into a social agency who must pick and mix from a selection of requirements tailored towards the individual young offender. They are to initiate service provision, such as accommodation by local authorities, medical treatment, drug treatment and education. They are to consider intensive supervision and fostering. Is that the role of a sentencer in a criminal court? If it is, how can that possibly be done without extensive reports, assessments into the background and personality of the person in question from social workers, probation officers and, frequently, medical practitioners? What input will there be from parents and from the offender himself, as happens with the more enlightened Scottish system of children’s panels? If our courts are to become a social agency of this nature, surely it is incumbent to state that the prime purpose in sentencing young offenders is not punishment but the consideration of the best interests of the child, as is set out in the children’s convention, whether that includes an element of punishment or not. As the Joint Committee on Human Rights says in its report today, detention or imprisonment should be seen only as a last resort. We shall be putting forward amendments for debate on all these matters. My noble friends Lady Linklater and Lady Falkner will expand on that.
The grave danger that exists with all these restrictions and requirements is that they set up children and young people to fail. The sanction in each case is a fine and, in the ultimate, imprisonment. Around 6,500 children and young people are in prison, a 200 per cent increase since 1991. Reoffending rates following custody are 82 per cent, rising to 96 per cent for those who have more than seven convictions. The cost is £245 million a year, which is 70 per cent of the Youth Justice
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The Government claim that their policies have in some areas resulted in a fall in crime. In some respects, that may be so, but they cannot take the credit for it. Crime has fallen across Europe. The European Crime and Safety Survey, published last year, and sponsored by the European Commission, compared levels of crime across all EU countries. It found that levels of common crime have fallen in the EU during the past 10 years, but the UK is regarded as a crime hotspot. For example, out of 20 countries, we rank fourth for the level of thefts of personal property reported to the police, which is twice the rate it is in Poland. When it comes to a comparison of 16 capital cities, London leads the field in the provision of security devices, but it has the highest levels of theft, burglary, robbery, sexual incidents and assaults in Europe—it is higher even than in New York. It was no surprise to learn last October that gun crime had increased by 10 per cent in a year. London has the lowest percentage in the EU, bar Amsterdam, of citizens who have not been victimised in the past five years.
That accords with our own perceptions: how many of your Lordships would feel safe, not just in London, but in your nearest town, in walking the streets after nine o'clock in the evening? Even the Home Secretary finds it necessary to take her minder to the local kebab shop in Peckham.
The Earl of Onslow: My Lords, did the noble Lord see an article by Libby Purves in today’s Times, which noted that, under the reign of Genghis Khan, a naked virgin could carry a pot of gold from one end of the kingdom to the other without any form or fear of interference?
Lord Thomas of Gresford: My Lords, I am not suggesting that the Home Secretary should follow that precedent, but she did say that she would not be safe in Kensington. That shows you the standing of this Government.
Although we are still heading the European league tables for crime, we imprison vastly more offenders than our European neighbours. Prison is not the answer. According to the International Centre for Prison Studies based at King’s College London, in 1998 we imprisoned 98 out of every 100,000 citizens; today, that figure has gone up 50 per cent to 143 out of every 100,000 citizens. Let us look at the comparisons. In that same period, France has moved from 85 to 84 in every 100,000 citizens, Germany from 93 to 81, Italy from 67 to 85, Ireland from 72 to 71 and Denmark from 67 to 64. Imprisoning 143 out of every 100,000 citizens in this country is the result of that macho swaggering that we saw by rival Home Secretaries of both Governments. Prison does not work, but what is the Government’s answer? It is build more, build bigger.
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On sentencing, we shall be concerned under Part 2 to examine the failure of the indeterminate sentence for public protection and to attack the unconstitutional attempts to have released prisoners recalled for a fixed term of 28 days at the say-so of the Secretary of State, without any judicial or independent oversight.
With violent offender orders, we are back on familiar territory. This is the use of the criminal justice system not for the investigation and punishment of past offences, but as a tool to manage future risk. Over centuries, in order to protect the innocent defendant, the common law developed the concept of due process in criminal cases, as encapsulated in Articles 6(2) and (3) and 7(1) of the European Convention on Human Rights. However, no similar safeguards exist or have been suggested for the misuse of civil procedures to impose conditions or requirements on an individual, breach of which amounts to a criminal offence. It is not a technical procedural question of interest only to lawyers; it involves a court—frequently on hearsay, tittle-tattle evidence, which would not be received in a criminal court—making an order that sets out a personal code for the individual forbidding such conduct as prostitution or entry into an area of a town or a particular public house, which is not criminal in itself. It follows that a person who breaches his own personal criminal code imposed on him may be sent to prison for non-criminal conduct, which would not have that effect on anyone else. The principle of all those orders, from ASBOs onwards, is bad—and the practice is even worse.
Another issue of principle arises with the proposal that unqualified CPS staff will be able to conduct serious trials in a magistrates’ court, which is totally contrary to the public interest. I cannot put it better than the Bar Council, which said that,
- “in cases involving contested facts, issues of law, and serious allegations, which demand a high level of professional responsibility and developed advocacy skills legally qualified lawyers have an essential role to play. Qualified lawyers, who are under a professional duty to be independent, not only contribute to maintaining the independence of prosecutions in our criminal justice system but they also inspire confidence in the public and the victims of crime.”
It is a cost-saving exercise that the Government are engaged in.
There are two necessary requirements: first, to put a ceiling on the type of case that may be conducted by an unqualified person—certainly not including cases punishable by imprisonment—and, secondly, to ensure that any CPS staff appearing in court at least qualify with ILEX, the Institute of Legal Executives, and are taught to understand and apply the ethics of advocacy thoroughly. Your Lordships will appreciate that the negotiation of pleas, the disclosure of documents and other evidence, and the rules of evidence themselves are particularly important. It is wrong that the only person in court who might have received any training at all should be the court clerk—and even he does not have to be a professional. It would be hopelessly inappropriate for him to advise the prosecutor on how to conduct his case properly and then go in with the magistrates to advise them on the law.
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I turn to populist measures, which I mentioned at the beginning and which are simply misconceived. The Government seem to think, along with the tabloid press, that under the law as it stands defendants who are guilty regularly escape punishment because the Court of Appeal will quash their convictions on a technicality. Since 1907, the Court of Criminal Appeal has been required to dismiss an appeal if the jury would inevitably have convicted. However, the court does not consider whether it is satisfied beyond reasonable doubt of the guilt of the appellant. How could it? It has no opportunity to see the witnesses, hear what they have to say or see them examined or cross-examined. The task of the Court of Appeal was to determine whether the defect was so fundamental as to make the jury’s verdict unsafe; if it does so conclude, generally it will order a new trial. This new proposal that the Court of Appeal will not dismiss an appeal if it is convinced beyond reasonable doubt of guilt turns it into judges of the facts without hearing the evidence. That is utterly alien to the rule of law.
I turn to another topic: the introduction of a watered-down Megan's law in Part 13. It ignores existing practice, which involves the notification of head teachers of the presence of someone who is a danger. The presumption that information about an offender should be disclosed not simply to a targeted individual but generally, as the Bill proposes, will dangerously encourage vigilante groups of the sort which attacked a paediatrician because they thought that she had something to do with child abuse.
As for self-defence, I suppose that it is the Government's intention, following the Martin case, to strengthen the defence of self-defence to allow a householder to shoot someone in the back as he runs away. At common law, a defendant today who acts under a mistaken belief has to show that his belief is objectively reasonable. The new provision put forward by the Government says that he is protected by this defence even if his mistaken belief was entirely unreasonable. I do not agree with the Joint Committee on Human Rights that the clause clarifies but does not amend the existing law: it strengthens self-defence in a way that I hope your Lordships will agree is quite inappropriate.
I shall have much to say on the proposed cap on compensation for miscarriages of justice. The Government do not seem to realise that if a person is wrongly imprisoned he is a victim of the state, not of a third party, and it is for the state to put him in the same position he would have been in had he never been wronged.
As for extreme pornography, Clause 113 is utterly vague, and Clause 115 proposes an unacceptable reverse burden of proof. We welcome what the Minister said a moment ago, when he appeared to recognise that. I shall leave it to my noble friends Lord Wallace of Tankerness and Lady Miller to comment further on the provisions of Parts 7 and 8. Similarly, in Committee, my noble friend Lady Harris will deal with policing matters in Part 11 and my noble friend Lord Avebury with special immigration status in Part 12.
I make no excuse for speaking at length on the Bill. The primacy of the House of Commons in this Parliament
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Perhaps the first sign of spring is the abandonment of Parts 4 and 5, which gets rid of 47 clauses voted through the other House on a Whipped vote. The proposal then was to replace the ombudsman with HM Commissioner for Offender Management and Prisons, someone who was neither a commissioner responsible to Parliament nor involved in offender management. What a title—Gilbert and Sullivan would have loved it.
We will raise issues that colleagues in the other place sought to argue but which were ruled out for lack of time. Such issues are data protection and the scandal to which the noble Lord, Lord Henley, referred of personal files in the control of the Government dropping off the back of a lorry, and human trafficking. Why are we legislating on prostitution but still delaying ratifying the Council of Europe Convention on Action against Trafficking?
We will look to the Government to fulfil the pledge that was given to Dr Evan Harris, my colleague in another place, on the abolition of the law of blasphemy, and we shall bring forward other serious amendments hoping to persuade your Lordships to include them in this Bill. If, in due course, they are rejected on a Whipped vote by the government party in the Commons—a party supported at the last election by 35.1 per cent of those voting—then the joke will be upon the people of this country, and they will not find it very amusing.
4.05 pm
Baroness Howe of Idlicote: My Lords, I echo what noble Lords have said about the way in which this Bill has been handled, and, indeed, add my commiserations to the Minister who is in charge of guiding this Bill through your Lordships' House.
Parts of the Bill are not only acceptable but welcome—these may include some of those to which the noble Lord has already said goodbye in Parts 4 and 5. However, it is a sad state of affairs when all the opposition parties in the other place, not to mention a number of the Government’s own supporters, are so unhappy—I use a mild word—with the way it has been handled, particularly with the addition of so many new clauses at Commons Report stage, as we have heard, and the grotesquely short time given them to consider this huge Bill. Even the Minister of State, David Hanson himself, commented that,
- “if I were an Opposition Member I might well oppose the motion myself. I know that it will be very difficult for us to discuss some of the amendments before the House in the time that we have allocated”.
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Unsurprisingly, the point was underlined by many speakers in the other place that this House now has a vast amount of work to do if we are, in the words of Edward Garnier,
- “to deconstruct the Bill and turn it into something resembling a proper Act of Parliament”.—[Official Report, Commons, 9/1/08; cols. 308, 428.]
I have no doubt that we shall do our best to achieve this. Our track record for doing so with many other Bills is very good. But it is, quite frankly, pretty disgraceful that this is the background to the Bill and that it comes to us clothed in such ill feeling.
That prompts me to make some more general remarks about the way in which the Government approach the business of legislating in the criminal justice area. I speak from my background of years as a juvenile court magistrate, as a one-time member of the Parole Board, and as somebody who has been involved with many voluntary organisations working in this field.
It simply is not a competent way to run a service to have so much legislation poured into those who have to work in the system and operate it, such as magistrates and probation and prison officers. As we have heard, the law is changed time and again. As Liberty reminds us, it is the Government’s 37th criminal justice or policing Bill since 1997. I was horrified to hear the noble Lord, Lord Thomas of Gresford, say that the figure was 57, so there is a little inconsistency there. But the resources are simply not there for everyone to be properly retrained to meet the demands of this legislation. As we also heard, much of it is never implemented and some of it is repealed before it is even implemented. I suggest to the Minister that we would have a much better outcome from the criminal justice system if only the Government were more minded to listen to those who work in it and who struggle to do a good job in increasingly difficult circumstances.
I have a complaint about something that was not much covered, if at all, in the Bill. On 6 December 2007, the Government published their response to the Corston report on women in the criminal justice system. As your Lordships will recall, the noble Baroness, Lady Corston, was commissioned to report to Ministers after the tragic deaths of six women in Styal prison. Her excellent report, published in March 2007, concluded against imprisoning, at huge cost, vulnerable women offenders who pose no risk to the public. Instead, the report called for the closure of women’s prisons over a 10-year period, along with the establishment by the Government of some small custodial units for dangerous offenders and a larger network of support and supervision centres.
These centres would be based on the existing successful community centres visited by the Corston review group and would provide access to services to help women deal with addictions, mental illness, rape and domestic violence, trauma and debt, while helping them gain skills and take responsibility for their families. A study undertaken by the New Economics Foundation and the Prison Reform Trust demonstrates conclusively that such an approach would be highly cost-effective.
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In my view, the Government’s response to the review of the noble Baroness, Lady Corston, has been weak and insubstantial. Ministers agreed with the report’s analysis of the problem and nearly all of its recommendations; but they have failed to support the key recommendations—first, for dedicated funding and, secondly, for establishing a women’s commission to drive things forward. Ministers have also failed to use this legislative opportunity, which is being used for many other matters, to introduce any changes in the way that women are treated. Many other noble Lords will, I am sure, join me in expressing grave disappointment at this.
I said earlier that I spent many years as a juvenile magistrate. Through that experience I learnt the importance of taking the greatest care when dealing with the damaged children who come before the courts, often from the most poverty-stricken backgrounds—poverty-stricken not just in terms of money but in aspiration and preparation for life. If children are to survive such backgrounds and not grow up to be the residents of adult prisons until, sadly and often, they meet an early death, they need solutions that deal with what has happened to them and thus try to transpose their prospects. I fear that Keith Joseph's “cycle of deprivation” that he outlined many years ago is all too obviously alive and kicking today.
Imprisonment is simply not the answer, but despite that the number of children and young persons under 18 in prison doubled in 15 years, from 1,405 in 1992 to some 3,000 last summer. I want to tell the Minister again what he has heard me and others say previously—children should not be in prisons or in establishments run like prisons. If they are dangerous to themselves and others they must be in secure settings, but which should be run on child care and human rights principles.
So I welcome very much the involvement of the Department for Children, Schools and Families in the youth justice system and the appointment of the new chairman of the Youth Justice Board, Mrs Frances Done, who comes from a local authority background. But I cannot welcome the youth justice proposals in this Bill, because they constitute no more than a further fragment of piecemeal reform of the system and completely miss the opportunity to address its fundamental flaws. In particular, we need legislation and policy for children in trouble with the law to be made much more congruent with that which deals with children and families more broadly, in respect of welfare, safeguarding, education and health.
I hope, too, that we can make some progress in Committee by introducing a much higher threshold for the use of custody. That is strongly supported by the Standing Committee for Youth Justice, the Local Government Association and the Joint Committee on Human Rights. I hope also that we can remove the possibility of violent offender orders being used for those under the age of 18. There are already sufficient powers to deal with that tiny and tragic minority of children who need continued supervision. It would be a great step forward if we could persuade the Government that breach of an anti-social behaviour order should not lead to a child being put into custody. That power does not exist in Scotland, so why do we need it here?
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I turn briefly to the measure on prostitution. I know that the noble Lord, Lord Faulkner will speak on this; he has done much to raise awareness of the need for better treatment of women involved in this work. I welcome the provision that defines a brothel, but I fear that the proposals on compulsory rehabilitation, and the possibility of 72 hours’ imprisonment for failure to attend this, will not make women safer. Instead, they will add pointlessly to the prison population and will not address the depth of the problems that some of these women face. I hope that we can persuade the Minister to look again at these proposals and to consider seriously their utility and practicality in terms of the use of resources. Is it intended that these measures should apply not only to those who work in prostitution, but also to those on the buying side? Surely there should be equal provision—although I would prefer that the whole of this area be taken out of the Bill.
It is clear that this House has a long haul ahead of it. I look forward to hearing the concerns of other noble Lords about this Bill and particularly to hearing what hope the Minister can give us when he concludes.
4.16 pm
The Lord Bishop of Manchester: My Lords, the appearance of another criminal justice Bill at least provides a speaker in your Lordships’ House with plenty of scope. I shall leave the right reverend Prelate the Bishop of Liverpool to touch on those parts of the Bill that affect the working of the criminal justice system. I hope that noble Lords will forgive me if I allude to two issues, neither of which was contained in the Bill when it was introduced in another place, but to which the Minister referred in his opening remarks.
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