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The noble Baroness said: The purpose of the amendments in this group is to ensure that the breach of a YRO should be dealt with in the youth court when the offender is under 18, or the magistrates’

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court if he is over 18. Unless the Crown Court originally imposed the order and the magistrates’ court then considered that the breach warranted revocation of the order and resentencing of the young person, the youth or magistrates’ court should deal with the breach. The current arrangements are that proceedings for breach of community orders made against children and young people commence in the youth court if they are under 18 or the adult magistrates’ court if they are over 18. However, if the order was originally imposed in the Crown Court, the powers of the lower court are limited. Where the breach is such that the youth or magistrates’ court considers that the order should be revoked and the young person resentenced, then of course the case must be referred to the Crown Court. But national standards require that court proceedings are initiated for a third unacceptable failure to attend an appointment within a 12-month period. Frequently, breach action does not imply that the young person is making no effort to comply with the order. For instance, a young person on a standard six-month supervision order might keep more than 90 per cent of his or her appointments and still qualify for breach action. In many cases, the most appropriate course for the court is to allow the order to continue, perhaps with some additional punishment. At present, no cases of this sort would be heard in the Crown Court, even if the original order had been made there. However, the Bill provides that where a youth rehabilitation order is imposed in the Crown Court, subsequent breach proceedings should automatically commence in that court, unless the judge at the sentencing hearing specifically ordered that any further proceedings should be in a youth or other magistrates’ court. This provision would inevitably lead to a substantial rise in the number of young people processed for breach in the Crown Court, including a significant number whose compliance is such that revocation of the order is not required.

My concerns about the current proposals are as follows. It would be a disproportionately inefficient use of resources to increase the number of breach cases that are automatically dealt with by the Crown Court. The Bill as drafted would inevitably increase the workload of the Crown Court and lead to delays, when relatively minor breaches could better be dealt with in the youth court. Crown Court proceedings are confusing and intimidating, and unjustified for children when no resentencing is required. Finally, the trial of children in an adult court is in contravention of Article 30 of CRC, which states that the system for dealing with children should be distinct from that for adults. The UK has been criticised consistently for our provisions and the current proposals still would not comply with our obligations.

These amendments would ensure that proceedings for breach of a YRO would always start in the youth or adult magistrates’ court, as they do now for breach of a community sentence. They would not, however, affect the authority of the Crown Court in serious instances of non-compliance, where revocation is appropriate and the young person is to be resentenced. It would be more suitable in every way if all lesser cases were dealt with in the youth or magistrates’ court. I beg to move.



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The Earl of Listowel: I wonder what would happen if, for example, a young person left care and moved from his foster parents at the age of 16 to live in something similar to bed-and-breakfast accommodation. If he found himself becoming very lonely and went back to see friends whom he knew he should not spend time with, would just spending time with them be in breach of an order or might their behaviour at that point result in a breach? It might be a circumstance more appropriately dealt with by a lower court, rather than going straight to a higher level of court proceedings.

Recently a chain of children’s homes closed, the implication being that the children lost their stable setting. They might have been there with their peers for 12 months or so and they would suddenly have had to find a new home with new people to adjust to. Therefore, the circumstances in a young person’s life can sometimes be very disruptive. I am suggesting that, as long as the young person acknowledges his fault, perhaps the professionals nearest to him can say, “Okay, we will accept it this once and we will not take you straight to the High Court to deal with it”. However, I do not know very much about the normal processes here; I am simply giving a couple of examples that may be helpful. I look forward to the Minister’s response.

Lord Bach: We are very grateful to the noble Baroness for raising the important issue of a breach of a youth rehabilitation order. As we understand them, the amendments aim to take away from the Crown Court the power to deal with a breach initially and ensure that all proceedings for a breach where the offender is under 18 are commenced in the youth court. These are very important issues and we need to get them right so that the youth rehabilitation order establishes itself as a robust community sentence which enjoys public confidence.

We note the general desire to restrict the role of the Crown Court in the breach process. However, we believe that we need the flexibility provided in the Bill to allow cases to be transferred to the appropriate court for the breach to be dealt with proportionately. Where a Crown Court has sentenced a young offender to a youth rehabilitation order, I believe it is appropriate and sensible for the Crown Court to have the power to refer any breach or other proceedings back to the youth court.

The most serious cases involving young people are heard before the Crown Court. Examples of offences where a juvenile can be dealt with by the Crown Court are homicide or very serious offences where an adult would be liable to a maximum sentence of 14 years’ imprisonment or more, where a young offender is assessed as dangerous and has been convicted of a sexual or violent offence listed in Schedule 15 to the 2003 Act, or where a young person is jointly charged with an adult.

If the offence warranted being tried in the Crown Court because of its seriousness and the youth rehabilitation order had been breached on several occasions—the noble Baroness will know better than I do about the warnings set out in the Bill, which we will debate shortly—or there had been one serious breach, it would be right for this to be brought back

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before the Crown Court, as a custodial sentence for the original offence of more than two years might be necessary and the youth court would not be able to impose that. I rely for that argument on the excellent speech in Committee of the honourable Member in another place, Mr Burrowes, who is on the opposition Front Bench. He said about cases of young persons coming before a Crown Court:

No doubt speaking for his party he says:

He went on to say,

We are grateful for that support and I hope that support is here tonight as well

9.30 pm

However, it may be best for the breach to be dealt with not by the Crown Court, but by the youth court or the magistrates’ court. A young offender may have been dealt with by the Crown Court as a co-defendant of an adult, or another juvenile being dealt with for a more serious offence. Where the Crown Court has made a youth rehabilitation order for the young person, then it might, depending on the circumstances, be entirely proportionate and reasonable for the Crown Court to direct that any further breach proceedings should be dealt with in the youth court.

It is clearly preferable, in these circumstances, that the Crown Court should have the power to direct that the youth court deal with any proceedings that may arise as a result of breach. Also, the youth court retains the right to refer cases back to the Crown Court, where they deem that the case warrants the more onerous sentencing powers of the higher courts. We have given the Crown Courts this power because we think it would be disproportionate in every instance to retain the case in the Crown Court and impose an unnecessary burden on that higher court. We accept that youth courts have the expertise in dealing with young people. Where the Crown Court wishes to refer the matter to the youth court to deal with, it is right that it should have the power to do so. We also believe it right that the Crown Court retains the power to have breach proceedings brought back before it where it may have taken a risk in making a youth rehabilitation order for a very serious offence. Amendment No. 33 would remove the power to amend the youth rehabilitation order on breach and restrict the youth court to either imposing a fine or resentencing

In addition, because every case that might be heard in the Crown Court would first have to be heard in a youth court, the matter of bail would have to be considered. Therefore, it could lead to an increase in

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the use of custody if there are delays in court appearances. We do not believe that that is an acceptable position. For those reasons, having thanked the noble Baroness for raising this important issue, we ask her to withdraw her amendment.

Baroness Linklater of Butterstone: I thank the noble Lord for that explanation. Where we differ is really in a matter of emphasis. Clearly we have absolutely no quarrel if any matters that are serious should warrant an appearance in the Crown Court. It is a matter of dealing with breaches where the matter is not so serious, retaining it within the ambit of the youth or magistrates’ court—where it could be more appropriately dealt with—as well as relieving the Crown Court of what is otherwise a matter which should not necessarily detain it.

I shall read carefully the Minister’s reasons and, for the moment, beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Schedule 1, as amended, agreed to.

Clause 2 agreed to.

Schedule 2 [Breach, revocation or amendment of youth rehabilitation orders]:

Lord Kingsland moved Amendment No. 29:

The noble Lord said: National standards for breach proceedings require the responsible officers to issue warnings for unreasonable instances of non-compliance and to initiate breach proceedings where there are three unreasonable failures within a 12-month period. Currently, there is discretion to depart from this in exceptional cases and with the authorisation of the youth offending team manager. The Bill removes that discretion.

What evidence is there that this change is necessary? Statistics suggest that youth offending teams already take non-compliance very seriously. Between 2000 and 2004, for instance, the proportion of supervision orders returned to court for breach action rose from 7 per cent to 21 per cent. It is not accordingly clear that there is any need to legislate to make enforcement of orders a statutory duty.

I suggest to the Minister that these provisions are damaging in a number of respects. First, they potentially harm the relationship between the YOT staff and the offender. Effective work with young people in trouble is dependent on the establishment of a good relationship between the staff and the young people for whom they have supervisory responsibility. Secondly, the change will lead to a significant increase in court workload, with no evidence of any corresponding advantage. Thirdly, it will lead to court appearances in many circumstances where an offender is genuinely trying to comply but is failing. Fourthly, it will inevitably lead to an increase in the number of children in custody. Fifthly, it will reduce or expunge entirely a number of innovative practices that have grown on the flexibility of the current rules.

Moreover, the Bill will lead to the anomaly of YROs being subject to statutory breach but reparation orders and post-custody supervision for detention and training orders continuing to be governed by national

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standards with YOT discretion, despite being for more serious offences. I add that warnings of these breaches should always be made in writing and there should always be clear evidence that the warnings have been received by the individual who is subject to them. I beg to move.

The Earl of Listowel: I think that the Minister indicated that he might write to me on the comments that I made on the preceding amendments, which I think are also relevant to this amendment. I am not sure whether I understood the Minister’s gesture, but I would be grateful for a response. The concerns that I expressed hold here, too, and I would like reassurance that there will be sufficient flexibility. For instance, if a child has a bereavement or his parents separate, there should be flexibility to enable a discussion in which people can say, “Your behaviour has deteriorated. Why? What’s going on here? Is it necessary for us to come down very hard?”.

Lord Bach: We are always happy to write to the noble Earl, on this occasion as on any other.

I am grateful to the noble Lord, Lord Kingsland, for putting his important points so succinctly. This is an issue on which we disagree, as I think was shown in the debate in another place. I shall try to explain why. We think that placing national standards for breaches on the face of the Bill is important to ensure that everyone—courts, young people, sentencers and the general public—is aware of the standards that apply to community orders and the consequences of inappropriate behaviour. If there were no flexibility in these standards, the noble Lord would have a strong point, but I argue that the degree of flexibility answers his concerns.

Paragraph 3 of Schedule 2 states:

It follows that if there is a reasonable excuse, he does not have to give the offender a warning.

The Bill sets a limit of two formal warnings that may be issued to a young offender in a 12-month period following which, on a third breach in that period, proceedings must be instituted. I repeat that a warning cannot be given unless there is an unreasonable breach. It also allows for immediate court action to be taken by the responsible officer when the breach is so serious that it warrants immediate court action. I do not think that anyone would disagree with that.

The provisions reflect the current national standards of the Youth Justice Board for breaches. They are in the Bill as clear evidence—this is important to the public—that breaches will be pursued vigorously and a consistent standard applied nationally. It was only a few weeks ago when a colleague of the noble Lord, Lord Kingsland, in another place, the honourable Edward Leigh, in his capacity as chairman of the Public Accounts Committee said something that was quoted in the newspapers. The Times states:

We do not have to agree with Mr Leigh, but that is what he in his important position said, and it may be, unless we are careful, what the general public begin to feel. We cannot have the public losing confidence in community sentences. Once that confidence evaporates—

Baroness Falkner of Margravine: That argument is pernicious. Mr Edward Leigh was obviously pointing to a failure of the system, but the Minister seems to be attributing the flexibility in the system which we all want to keep, as the reason, when it is the system that does not work. I imagine that it is the Government’s responsibility to make the system work, and not necessarily to use a sledgehammer to change the law to make it work. The law is there and we believe that it works. If it is not working because certain parts of the executive agencies are not working, that problem must be resolved. It is counterintuitive.

Lord Bach: I take that point, but one of the problems that the National Audit Office pointed out—I am not saying that I agree with the language used by Mr Leigh—was that breaches sometimes were not dealt with. Breaches could occur but no one took any notice of them.

The Earl of Onslow: If breaches occur and no one takes any notice, any number of Acts of Parliament can be written, but if no one pays any attention to the law, the muddle does not go away by creating another law. The muddle goes away by getting people to get their act together. The noble Lord was admitting that acts were not got together. The noble Baroness was saying exactly what I am saying, although she did so in possibly rather more delicate and refined terms—that if something is not working, the Government should not immediately rush to the statute book to change it. One of their faults is that they have been doing that for 10 years. They should get the system to work before changing the law.

Lord Bach: We are putting the national standards in the Bill, so that everyone knows where they stand. The Youth Justice Board’s current national standards are flexible, as I shall come to in a moment. My argument is that it is essential that community sentences are, and are seen to be, rigorously monitored and provide confidence—

9.45 pm

The Earl of Onslow: “It is essential that they should be rigorously monitored”? The noble Lord has just said that they are not being rigorously monitored. Changing the law and putting it in the Bill will not make one jot or tittle of difference to the amount of rigorous monitoring that will go on.

Lord Bach: It will not change it in itself, but it will make one jot of difference. They have to be rigorously monitored and they have to provide confidence. That is the point that I am trying to get across—that

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enforcement action will be taken when necessary. That is what we do by writing it into the Bill, so that everyone knows where they stand. We are determined to ensure that the youth rehabilitation order and, indeed, all community penalties, are rigorously enforced, as we are determined to ensure that they are widely used by the courts. We want them to be widely used by the courts and accepted as robust by the public, as do the noble Earl and the noble Baroness.

It is often a challenge for some young people to comply with some of the most basic elements of a community order—the noble Earl, Lord Listowel, made that point clearly—such as being somewhere at a set time. That is recognised in the flexibility allowed for in the breach process, as the responsible officer makes the decision about what is a reasonable excuse. That allows that officer to take account of the young person’s age and maturity. It also allows the officer to take into consideration the fact that the young person may be dependent on a third party—for example, a parent—to get them to an appointment. I assure the Committee that our expectations are that current practice, as governed by national standards, will and should remain unchanged.

Youth Justice Board national standards provide more detailed guidance to responsible officers to help them assess what is a reasonable excuse. We all know that there has to be a balance between enforcement and local management discretion, especially where young people are concerned, but action must be taken where the breaches can no longer be considered as minor infringements—where there is no reasonable cause for them.

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