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9.15 pm

Lord Hunt of Kings Heath: My assumption is yes, but I will double-check to make sure and let the noble Earl know.

Let me turn to the question in hand. Although we understand what noble Lords are getting at, we think—as has been hinted at already—that the amendments would set an entry point for custody so high that it could present a real risk to the public. Amendment No. 71 would mean that a young person could be sent

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to custody only where the offence caused or could have caused serious physical or psychological harm and where it is necessary,

of such harm. The proposal could apply to some of the most serious offences, such as manslaughter, rape and wounding with intent to cause grievous bodily harm.

There are provisions to deal with young offenders who are classified as dangerous in Sections 226 and 228 of the Criminal Justice Act 2003. This involves an assessment of whether the offender has committed an offence listed in Schedule 15 to that Act and whether they pose a significant risk of serious harm to members of the public. If someone commits one of the serious offences I have mentioned they will not be automatically assessed as dangerous. Most young offenders who commit such offences are given a sentence under Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.

The provisions in Section 152 of the Criminal Justice Act 2003 apply at present to offenders who have committed one of the most serious offences but are not classified by the courts as dangerous. The amendment would mean that even when the most serious type of harm had been caused and if it could be proved that the young offender had deliberately caused grievous bodily harm with the intent to cause such harm, the court could not impose a custodial sentence unless the prosecution could also prove that, looking forward, it was necessary to protect the public from a demonstrable and imminent risk of serious physical or mental harm. Only then would custody be an option.

There is a risk that if we accepted the amendment, notwithstanding that the prosecution could prove all the elements of the offence, the courts could not impose custody unless the prosecution could also show that there was a demonstrable and imminent risk of serious physical and mental harm. Such an offender would not necessarily meet the criterion of dangerousness in the amendment.

We think that there is a risk that the custody threshold could be raised in a way that prevents the courts protecting the public from young people who have committed serious and violent crimes.

I was very interested in the debate about 18 to 21 year-olds. I remind the Committee that in May last year, the then Minister at the Home Office made a Statement about young adult offenders. He said that,

Although I have some reservations about the amendment, I assure noble Lords that we accept the challenge presented by this age group.

I have been alerted to an error that I made in some of the figures that I gave, for which I apologise. The figures that I gave as a snapshot of the offender population were for young offender institutions only.

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I shall give the overall figure for the young offender population: in June 2007, it was 2,928; in June 2006, it was 2,925. I offer to circulate to all noble Lords the full figures so that when we debate the matter again on Report we are all clear about what we are talking about.

Baroness Linklater of Butterstone: I am grateful for all the contributions. We know simply that the young offender population has teetered around an unacceptable 3,000 for several years. I am grateful particularly to the noble Lord, Lord Judd, for his amendment to my amendment. He was right that nobody knows better than the noble Lord, Lord Ramsbotham, just how even more deprived are these prisoners and how they can deceive us by looking so big, tough, frightening and dangerous. We have only to look at the figures. Well, we looked at the figures for suicides. We looked also at the figures for self-harming, to which nobody has referred today, and which are the biggest and loudest cry for help. It is in this age group that it is the most frightening.

In response to the reservations that have been expressed, I say that the proposed new clause at least offers a strategy for trying to put a lid on what is already such an unacceptably high figure. It might help the Government to focus on this if I said to them that the Ministry of Justice’s figures for December 2007 show that the vast majority—78 per cent—of the 5,291 children aged 15 to 17 who were sentenced to imprisonment in 2006 was not convicted of sexually related offences or violence against the person. They were not those most serious offenders. In other words, this down-tariffing or scooping-up of younger children into custody is one of things that we must find strategies to counteract.

Lord Hunt of Kings Heath: We discussed this matter yesterday. One of the problems is the way in which some of the offences are classified. I think that I undertook yesterday—and if I did not, I do so tonight—to provide noble Lords with further information about that.

Baroness Linklater of Butterstone: I thank the Minister for that. One can nitpick over these things. I suppose that my general argument remains the same: too many children are going in for offences that are relatively too minor.

I was interested in what the noble and learned Lord, Lord Mayhew, and the noble and learned Baroness, Lady Butler-Sloss, said about the narrowing effect of the amendment. Evidence shows that when we had a threshold, it was very successful and brought down custody by nearly half. That is an important experience that we should not ignore.

I appreciate the general support of the noble Lord, Lord Kingsland. I hope that the Minister will perhaps look once again at the proposal. It is not an issue that we will let go. We look forward to returning to it later. In the mean time, I beg leave to withdraw the amendment.

The Deputy Chairman of Committees (Lord Boston of Faversham): Before I put that request to the Committee, I have to deal with Amendment No. 73.

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Perhaps I may invite the noble Lord, Lord Judd, to indicate his intentions with regard to Amendment No. 73.

Lord Judd: Amendment No. 72 was withdrawn from the Marshalled List for a technical reason: it was inadvertently tabled before we realised that you cannot in fact amend the title of a clause. That is what I was led to understand and that is why I withdrew the amendment.

Lord Bassam of Brighton: Perhaps I may assist the Committee. The order of withdrawal has to be something like this: Amendment No. 73 has to be withdrawn, Amendment No. 72 already having been withdrawn from the Marshalled List. The Deputy Chairman puts it to the Committee that Amendment No. 73 is withdrawn; the noble Baroness, Lady Linklater, then has the right of reply to Amendment No. 71. At that point, she will probably seek to withdraw her amendment, and the Deputy Chairman then puts that to the Committee.

Lord Judd: If it helps the Committee, I am pleased at this juncture to say that I beg leave to withdraw my amendment to the amendment.

Amendment No. 73, as an amendment to Amendment No. 71, by leave, withdrawn.

[Amendments Nos. 74 to 77, as amendments to Amendment No. 71, not moved.]

Baroness Linklater of Butterstone: I beg leave to withdraw Amendment No. 71.

Amendment No. 71, by leave, withdrawn.

Lord Judd moved Amendment No. 78:

(a) “, if the court has been notified by the Secretary of State that a remand centre is available for the reception from the court of persons of his class or description, ”, and(b) “and, if it has not been so notified, it shall commit him to a prison.”

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(a) if the offender has been released by virtue of subsection (2), (3), (4) or (5) of section 102 above, at the beginning of the day on which it is passed;(b) if not, either as mentioned in paragraph (a) above or, if the court so orders, at the time when the offender would otherwise be released by virtue of subsection (2), (3), (4) or (5) of section 102.(a) if the offender has been released under Part II of the Criminal Justice Act 1991 (early release of prisoners), at the beginning of the day on which it is made;(b) if not, either as mentioned in paragraph (a) above or, if the court so orders, at the time when the offender would otherwise be released under that Part.(a) to a detention and training order, and(b) to a sentence of detention in a young offender institution,

The noble Lord said: The amendment stands in my name and that of the noble Baroness, Lady Stern, the noble Lord, Lord Dholakia, and the noble Baroness, Lady Howe of Idlicote. I am very grateful to them for their support for the amendment. I am glad, too, that the amendment is grouped together with Amendment No. 119. Of course, the noble Lord, Lord Ramsbotham, will speak to his own amendment. I shall say only that I am very much on board with it, as it seems to me that if young people are in custody, it is important that the local authorities, with all their special responsibilities and experience, continue to feel a sense of engagement with those children, so that they are there to help with rehabilitation when the children or young people are released and there is continuity in the situation. I am glad that the noble Lord’s amendment refers to the importance of trying to provide for continuity not only institutionally but by having the same people going through the same process.



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I do not want to sentimentalise, and I know that I am inclined to talk about this, but my nine years as honorary president of the YMCA had a profound effect on me. One thing that I realised—and I hope that the Committee will forgive my putting it like this—is that if we take rehabilitation seriously, it is important to have someone who takes the hand of the youngster concerned and walks with that youngster through the whole experience of custody, rehabilitation and back into full life outside the institution afterwards. That transition phase afterwards is absolutely crucial in winning the youngster back to society and preventing still further exclusion.

We have had the statistics on the risks. I referred, in mentioning them, to the tragedy of each individual case, but the tragedy does not really sum up the situation well enough. We should think of the mental anguish and despair of the youngster concerned, who has given up hope. This is a terrible reflection—that we can somehow absorb this statistic and not be angry and indignant about it. I should like to feel that the new department with its new approach—and I believe that there is a lot of new thinking going on there, which I welcome—would have right at the top of its priorities how on earth we are going to stop this human tragedy of youngsters dying in custody. It is our responsibility—all of us—and it is essential for us to register what a terrible reflection it is on all of us that this can happen.

My first job in government, a long time ago, was as a service Minister. In those days, there was a Minister for each service. I had the privilege of being Minister for the Navy. We had in the Ministry of Defence a very interesting group. I used to tease them by saying that it was rather like painting the Forth Bridge. They were constantly discussing the future shape of the fleet, trying to assess what the real threats were and what kind of fleet we would need to meet the new threats.

It often occurred to me that, if we were to follow that job through logically and thoroughly, we would send these people off to a country house somewhere with a clean sheet of paper. We should say, “Forget there’s a Navy. Analyse the threats, and come up with the maritime dimension of what you believe needs to be done to meet those threats”. I always thought that there were one or two who would be horror stricken if there were no maritime dimension, but of course there was.

I am a realist, although noble Lords do not always feel that I am. I know that you do not meet trouble half way and you should strike compromises—I believe in compromise—that are constructive, positive and dynamic. You should move relevantly to the future by taking a firm position on what you believe ought to be at the beginning. We are inclined to be too mealy-mouthed in our approach and to compromise too soon. Having said that, to go back to my experience with the Navy, I would then tell them, “When you have done that, look over your shoulder and say, my God we've got this thing called the Navy”. I told them to look at the Navy as it was and try to make the most dynamic, sensible compromise

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between what they ideally wanted, what they inherited and what needed to be done.

Why do I say all that? It is because I am getting to the same point of concern about our penal system. There is a big gap, constantly, between what all the research and evidence demonstrates and what we actually do. More and more, the evidence that is being collected and the work that has been done indicate that most progress towards rehabilitation can be made with people in small units appropriately designed to their particular needs. A variety of opportunities should be available for people with particular kinds of problems.

I know that my noble friend will say that that is misguided as we go into the next phase of vast expenditure on new prisons—which I am inclined to think will end up as warehouses. He will say that because of economies of scale, we will be able to have much better services available within these warehouses to answer the specialists’ needs. But that is the issue. Technically and professionally there may be greater resources—I do not argue against that. I can see in an arid way that there could be economies of scale in that sort of context. But if we take seriously the work that says that you make real progress with small units, and the point that the noble Lord, Lord Ramsbotham, always makes—I hope he will make it again tonight—about the importance of continuity in human relationships in the whole process, it is not much good having technical, professional services and expertise available if that cannot apply in a dynamic, ongoing, complete social experience that makes sense for the youngster concerned.

I go back to my experience with the Navy and the white sheet of paper. I put forward the thesis that if we could miraculously discard ourselves of the whole infrastructure of the penal system now, take a piece of white paper and say, “What do we need?”, we could come up with a tailor-made system to meet all the research and analysis that has been done, which would be not a penny more expensive than what we spend now desperately trying to shore up a system that is not working. I do not believe that we begin to do that rugged, tough exercise of really analysing how far what we have is cost-effective or completely the wrong model. I believe in compromise and am a realist. One has to meet the situation that has been inherited. It is tragic, but one has to. Therefore, there will be compromises, but that is the kind of discipline we need in our thought.

I am very grateful to the experts in drafting, and for their legal advice, who, as good professionals, without committing themselves to my amendment, explained how it must be phrased in order to be watertight in the context of the Bill. My amendment is intended to say that so much is at stake with children and young people, that the governing principle should be that they do not go to prison, or into the kind of custody we have seen too frequently in the past. Noble Lords on the Liberal Democrat Benches, whom I greatly respect, have argued with me that I am being unreasonable because I go too far and what I want would be impossible. I think of one in particular, who is not with us this evening, with whom I quite often find myself in agreement. My anxiety is

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that while you have a system in which there are exceptions to putting someone in prison, there will be a tendency among some sentencers not to use prison as an exception, but as a convenience. It is the easy thing to do. One has, therefore, to introduce the approach that says no.

Of course, society must be protected. Of course, society must be protected. I hope that my having repeated myself comes out in the Official Report because I feel that very strongly. I believe, as we all keep saying, that if society is to be protected, it should not only be in the immediate or short term, but in the long term. That is why the success of rehabilitation work is so vital. I believe that. I accept that in some situations a young person will have to go into custody. In our society, surely, it is only acceptable if, when that happens, it should be into appropriate custody, which is part of the general care system. It has to be secure, but appropriate. I therefore move this amendment with some feeling, because I really have begun to feel exasperated at our failure to take a rugged, robust approach to what is necessary if we are to succeed in our oft-repeated objective of effective rehabilitation. I beg to move.

Lord Dholakia: I am delighted to support this amendment. It was a great privilege to be asked by the noble Lord, Lord Judd, to add my name to it. A number of arguments have been advanced about amending Clause 9 of Part 2 of the Bill, which deals with the purpose of sentencing. The purpose of the amendment is to probe in greater detail the Government’s intentions. The Minister has stolen my thunder, because my last question to him was going to be, “Is there anything in the pipeline that will address the issue of age and suggest remedies?”. He has already answered that, but a number of issues need to be highlighted.

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