Previous Section Back to Table of Contents Lords Hansard Home Page

On youth rehabilitation orders, while the standing committee welcomes the principle of generic community sentences, it is concerned about too much subjectivity in the court’s approach, which may be difficult to counter in cases towards the higher end of the community sentencing range. It believes the Bill has to be amended to prevent a standard custodial sentence—a detention and training order—being imposed unless a youth rehabilitation order or intensive supervision surveillance order has previously been tried. It also believes that the Bill should establish that sentencers are required to take into account the age and circumstances of children and young people before them, and not to overload the sentence content and duration beyond their reasonable capacity to comply. It reminds us that such children are frequently unstable and immature.

22 Jan 2008 : Column 158

Among other concerns are the importance of retaining the power of the court when dealing with a breach to allow the order to continue without imposing additional punishment, if this is the most appropriate course to take, and the unacceptability of removing the specification that the court may impose an intensive supervision and surveillance requirement or a custodial sentence for a breach of an order when the original offence did not warrant custody or was a non-prisonable offence.

It is also concerned about the absence of a guarantee that children should have access to justice with proper legal representation, whatever the form of youth rehabilitation order being imposed, and not just before requiring local authority residence or foster care, as envisaged in part 2 of Schedule 1. It is necessary to make the promotion of children's welfare an explicit primary purpose of sentencing. Similarly, it is important to replace a punishment purpose for children with a requirement that sentences are proportionate to the offence.

We need to take into account the relative success of referral orders with their problem-solving and restorative justice approach by making provision for second referral orders, provided that a youth offending team or equivalent officer recommends that. There are similar concerns about the youth default orders in Clause 39.

We need to extend the otherwise good step in Clause 98 of a youth version of the conditional caution to those under the age of 18. We also need to abolish the power to prosecute children under 18 for prostitution, which was surely intended by the Department of Health guidance on safeguarding children in prostitution issued in 2002. Children must be seen as the victims of social inadequacy and worse, as they almost always are.

The Standing Committee also notes the absence of convincing supporting evidence to justify the introduction of violent offender orders. It asks whether proportionate and appropriate use can be made of such orders with children and young people. It emphasises the dangers of counterproductivity among children inherent in anti-social behaviour initiatives. Therefore, while it welcomes the principle of periodic reviews, it stresses the importance of ensuring that these are available at any stage, not just after 12 months. It also stresses the importance of removing a custodial sentence for the breach of an ASBO by a child and of ending the iniquitous practice of naming and shaming, which not only breaches our international obligations on privacy for the child, but too easily becomes a badge of honour. It is also important to reduce the minimum length of the child ASBO from two years to three months.

There is also an imperative need for an assessment under the common assessment framework before an order is made to ensure that mental health difficulties or conditions such as autism have been identified, so that the children affected by such conditions get appropriate treatment and not just an inappropriate ASBO.

The children covered by this Bill are, in many ways, already among the most excluded in our society. In our deliberations, we must be very careful indeed lest in any way some provisions of the Bill inadvertently tend to institutionalise that exclusion.

22 Jan 2008 : Column 159

5.23 pm

The Earl of Onslow: My Lords, I can say in all truthfulness that I agree with every single word said by the noble Lord, Lord Judd, on the aspect of children; I just wish that the Government would not only take him seriously but act on his advice. I am deeply privileged to serve on the Joint Committee on Human Rights. Two of us are down to speak today—the other is the noble Baroness Lady Stern, who will cover youth justice, offender management, compensation for miscarriage of justice and prostitution. I will attempt to summarise our position on the rest.

The noble Lord, Lord Hunt, stated on the face of the Bill that it was HRA compatible, but we have serious doubts about that. We have looked into it in depth. Our committee is chaired by a very able member of a different party from me from another place and we arrived at our conclusions effortlessly and unanimously. Our committee noted with disdain the amount of clauses that went undebated in another place. This Government’s lack of respect for Parliament and government Back-Benchers’ supine acceptance of timetable Motions is nothing short of pathetic.

The Government claimed that they would rebalance the criminal justice system. What exactly does this mean? In giving evidence to one of our committees in 2005-06, the noble and learned Baroness, Lady Scotland, stated that there was no need to rebalance the criminal justice system. Could we please have some help on which of those two things the Government mean?

I start with the changes to the Court of Appeal, which were dealt with extremely well by the noble Lord, Lord Neill. I really should not have anything to add but as I am trying to summarise what the JCHR has said, I ought to try. We are concerned about the fact that the judges will be asked to adjudicate on fact—which is the proper job of a jury—and not on the conduct of the trial. Surely the job of the Court of Appeal is to find whether the trial has been properly conducted and whether there are grounds for a retrial or for the throwing out of the conviction. I believe this has arisen because there is a rumour going about that the Court of Appeal has been letting criminals off because of triviality. There is no evidence of this and the court has found no evidence of this.

In previous reports on monitoring breaches of human rights we have noted that the UK law does not allow the reopening of criminal cases following an ECHR judgment. This Bill has an opportunity to rectify that and I hope that we can persuade Her Majesty’s Government so to do.

I now turn with gentle delicacy to extreme porn. What is it? Is it Juvenal’s ninth satire? I have unfortunately lost my Latin copy of it; otherwise, I would have quoted it to your Lordships. However, I certainly would not dream of translating it. Luckily, we are of a much less classical generation so I hope that most of your Lordships would not have understood it. I once quoted it on the wireless—on a Radio 3 programme about pornography rock with the encouragement of the noble Lord, Lord Alli, and a minor payment. This little sideline concerns what is meant by extreme porn. “Extreme” is an extremely subjective word. The law

22 Jan 2008 : Column 160

must not have subjective judgments in it; it makes things too difficult, if not impossible, and it makes judgment on facts difficult.

We wrote to the Minister, asking for a definition that was sufficiently precise and foreseeable to pass Article 8, relating to respect for privacy, and Article 10, relating to freedom of expression, and asked whether the new offence was necessary in a free society. We are concerned at the vagueness of the offence. We question whether Clause 113 is precise or foreseeable enough to meet the Convention requirements. The offence requires the image to be extreme. That is an extremely subjective judgment in itself. The Explanatory Notes state that the new offence was made to protect individuals from participating in degrading staged activities or bestiality, to cut supply and to prevent others from accidentally coming across such material. We question whether the behaviour criminalised in Clause 113(6)(a) and (b) should be so if carried out by adults in private.

Self-defence and force used to prevent crime are welcome. Our committee thought that the Government clarified it—although the noble Lord, Lord Thomas, said that they did not, so we will have to work that out later—rather than extended the existing law. The noble Lord, Lord Neill, said that that put “a gloss” on it, which is a good expression. However, the issue also brings into focus the question of reasonableness in the circumstances, regardless of the reasonableness of that belief. This can be summarised thus: if a racist householder shoots a black visitor because he believes that all black men are burglars, should that be classed as a reasonable thought and should it be taken into account?

Violent offender orders were not debated at Report in the Commons and they raise serious human rights issues. First, is the power to make them sufficiently defined as to be compatible with the Human Rights Act? Secondly, are they fair in accordance with Article 6? Thirdly, are there sufficient safeguards against retrospective punishment? We think a power to impose VOOs that interferes with Convention rights is not well enough defined to satisfy legal certainty. Unlike the Prevention of Terrorism Act or the Serious Crime Act, the Bill does not include an indicative list of prohibitions, conditions or restrictions that may be imposed. The Explanatory Notes to the Bill state that VOOs are not punitive and do not constitute sanction.

On that issue, we asked the Government three questions: first, would they distinguish between VOOs and indeterminate sentences for public protection; secondly, why is it appropriate to use civil proceedings in circumstances of criminal conviction; and, thirdly, why are criminal guarantees not appropriate in the light of the McCann case? I shall quote the noble and learned Lord, Lord Bingham, who stated in the Court of Appeal that the procedural protections must be commensurate with the gravity and consequences of the controlled individual. He stated:

The Government have accepted in the Commons that criminal standards will apply, but they must be in the Bill. The Minister has confirmed that hearsay evidence and written rather than verbal evidence will be allowed. This evidence must be open to challenge on behalf of the accused, otherwise it will not be subject to Article 6.

Interim violent offender orders can be imposed for four weeks initially and renewed indefinitely. No proof of individual behaviour is necessary. These two conditions are excessive. There must be prima facie evidence and a limit on renewability. The Government dispute that VOOs may clash with Article 7 of the Convention on the possibility of retrospective punishment—that is, the imposition of a VOO arising out of a conviction prior to the Bill becoming law. The Government say that VOOs are not punishment, but are preventive measures; but imposing a curfew sounds to me extremely like, and not dissimilar from, punishment.

Premises closure orders run the risk of creating homelessness and interfering with property rights. The Government are to produce guidelines, but they should be in the Bill.

Special immigration status gives rise to the risk of further breaches of the refugee convention and, therefore, the statutory interpretation by the 2003 Act of Article 1F should be repealed.

The Bill will attract trouble ahead and I will happily mix it with the best, because the legislation needs serious revision. I hope that noble Lords will accept that that was rather a rushed précis of a long and complicated document.

5.35 pm

Lord Dholakia: My Lords, as my noble friend Lord Thomas of Gresford said, here we are again repeating the annual cycle of criminal justice and immigration Bills. There is no respite and I suspect that this pattern will continue in future years. This is at a time when the police are in conflict with the Home Office regarding their pay. Prison officers have not hesitated in taking industrial action. The Probation Service is at breaking point in some areas and demands adequate resources. The future of NOMS is still in question and, more importantly, police and court cells are still being used to house some prisoners, because of overcrowding. In my 30 years of involvement in various parts of the criminal justice field, I have never come across such a sorry state of affairs.

I shall concentrate on two aspects. The first is about immigration. I am tempted at this stage to deal with Part 12, which relates to special immigration status. It affects those who have committed terrorism or other serious criminal offences and who cannot be removed because of Section 6 of the Human Rights Act 1998. I shall of course leave that to my noble friend Lord Avebury who will have a lot to say on that subject. My concern relates not to what is in the Bill but what we have failed to rectify.

As noble Lords will know, Prime Minister Gordon Brown has just returned from his visit to India. This is his second visit. I am aware that during his previous

22 Jan 2008 : Column 162

visit, the Prime Minister of India discussed with him the impact of retrospective changes affecting migrants and their families who entered the UK legally from the Indian subcontinent under the Highly Skilled Migrants Programme (HSMP). The Joint Committee on Human Rights in its report on the HSMP stated that these retrospective changes were unlawful in ECHR law. The Human Rights Commission and the then Commission for Racial Equality stated that the changes were discriminatory and breached Section 71 of the Race Relations Act.

Why do I mention this? The effect on individuals has been catastrophic. We are criminalising groups of people who may be reluctant to leave the United Kingdom. There are those who have returned to India with their families and have lost everything. They felt that the British Government had cheated them. The UK Government unfairly went back on their promise that the HSMP would lead to settlement, but the retrospective changes made that impossible. They have nothing left in their home country—no jobs, no assets, no hope and in some cases not enough money to travel back. These are qualified people. They were deemed to have skills which were required here. To retrospectively alter their status and ask them to leave is inhuman and does not fit with the liberal values we espouse.

If we are concerned about the impact of the Human Rights Act on those who damage this country and wish to remove them—as we intend to do in this legislation—should we not, by the same token, meet our obligations to those whom we trusted under our Highly Skilled Migrants Programme? This was the golden opportunity to rectify this shameful decision, but it does not form part of the Government’s legislative programme. We on our part would certainly wish to explore amendments in Committee to see if this gross injustice could be rectified.

I come to the second part of this Bill, which concentrates on criminal justice matters. I do not wish to sound disgruntled because the Bill may to a small extent help to reduce the prison population. To me, any criminal justice legislation must be measured against its impact on our prisons and its unacceptably high population; and my noble friend Lord Thomas of Gresford has pointed out our serious concern as to whether that reduction would happen in reality. I have no doubt that the Bill includes a number of provisions that will help to slow down the rapid and alarming increase in the prison population. The most significant of these are the badly needed restrictions on using the indeterminate sentence of imprisonment for public protection. The legislation introducing this sentence was so badly drafted that it has led to large numbers of offenders being given indefinite sentences who are far from being the dangerous offenders for whom an indeterminate sentence is appropriate. Half the offenders who have received these sentences have been given tariffs of 20 months or less, showing that their offences are at the less serious end of the spectrum. At least the Bill will limit these sentences to cases involving tariffs of two years or more and will remove the presumption that indefinite sentences should be passed simply because the offender has a previous conviction for a similar offence. Let us hope

22 Jan 2008 : Column 163

that this will help to prevent the inappropriate use of these sentences for offenders whom it was never envisaged would receive them.

The Bill also stipulates that non-dangerous offenders who have breached their licences should be recalled to prison for a fixed period of 28 days. This may help to prevent the lengthy and disproportionate imprisonment of offenders who have been recalled for missing, or being late for, probation appointments. But again, as my noble friend Lord Thomas of Gresford pointed out, there must be judicial oversight, rather than executive power exercised by the Home Secretary or the Justice Minister. The rising number of prisoners being recalled for breach of licence has put increasing pressure on the prison system—they now make up 11 per cent of the local prison population. Although I welcome the Bill's provisions on this point, I would like to see the Government go further by introducing a graduated scale of punishment for breach of licence, with prison being used only when less severe penalties have been tried. Even more important would be to ensure that there is adequate machinery to monitor the outcomes of such punishments.

The Bill provides for the restriction of suspended sentences to indictable offences and those that can be tried either way. There is evidence that courts too often pass suspended sentences where they could have passed a community sentence. Even where courts use the suspended sentence properly to replace an immediate jail sentence, they often fix suspended periods of imprisonment longer than the immediate prison sentence that they would otherwise have passed. If the criminal reoffends and the sentence is activated, the offender is imprisoned for longer than if he had received an immediate prison sentence in the first place. Let us hope that the Bill will at least limit this damage by prohibiting the passing of suspended sentences for minor summary offences.

The new sentence requiring convicted prostitutes to attend three meetings with a supervisor has been controversial. On the one hand, this would be a better option in many cases than the self-defeating sentence of a fine, which drives the offender straight back to the streets to earn more money to pay the fine. In some cases the new sentence could steer prostitutes towards services that will help them to sort out the drug and housing problems that are usually driving them to solicit. On the other hand, it would be unfortunate if the new sentence led to a procession of women, who have failed to turn up for meetings with supervisors because of their chaotic lifestyles, being brought back to court and jailed for failure to attend meetings.

Some of the Bill's provisions could help to provide more appropriate ways of dealing with young offenders. It is important that we have an effective probation service, with measures that identify a way forward. One is the extension of conditional cautions to young offenders aged 16 and 17, which provides an additional means of diverting young people away from the formal criminal justice system. Also welcome is the requirement that courts passing an anti-social behaviour order on a juvenile must consider imposing an individual support order alongside the ASBO. But do we have the resources

22 Jan 2008 : Column 164

and the probation structures to ensure that this will happen? One of the main problems with ASBOs is that they are entirely negative measures. They prohibit specified behaviour by the young person, but provide no help to the offender or to their family to change that person's behaviour. Individual support orders can provide a degree of help with the problems that contribute to anti-social behaviour, but courts currently use them in only a small proportion of cases. The Bill should help to increase the number of cases in which positive help is provided to young people who are the subject of an anti-social behaviour order.

I have repeatedly expressed my concerns about the impact of the Rehabilitation of Offenders Act. I welcome the extension of the Act to bring cautions, final warnings and reprimands within its scope. This will mean that unconditional warnings and cautions are immediately spent for the purposes of the Act and that conditional cautions are spent after three months. After that, they will not have to be declared when the offender is applying for a job. This is welcome, even though I would have preferred to see it as part of legislation involving comprehensive reform of the Rehabilitation of Offenders Act. However, this does give me an opportunity to introduce reform in a Private Member’s Bill.

Although the Act includes a range of measures that are individually welcome, overall they amount to merely tinkering around the edges of a sentencing and penal system that is in crisis. The prison population is at record levels, the prison system is in a state of extreme overcrowding and the Government's plans to build new, bigger prisons will absorb vast resources that could be better spent on improving prisoners' rehabilitation. I would have preferred to see a Bill that tackled the problem of this country's over-punitive sentencing system head-on. Such a Bill would have legislated to require sentencing guidelines to take account of the capacity of the prison system. It would have removed prison as an option for low level, non-violent crime. It would have prohibited courts from imprisoning offenders, other than the most dangerous, unless they had first tried an intensive community sentence. As it stands, the Bill contains some sensible ideas but fails to take the root-and-branch approach necessary to reform our criminal justice system and to reduce our prison population to levels that are more in line with those of our European neighbours.

5.47 pm

Next Section Back to Table of Contents Lords Hansard Home Page