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Section 37 of the Children Act is used by judges and magistrates in family cases in private law proceedings to investigate the family background of a child where it becomes clear that the child will need help beyond the ordinary. To provide this power to the youth court would give it discretion to decide whether the child’s alleged offence, not yet proved, might need to be dealt with in the criminal court by a plea of guilty or a trial, or might be adjourned before the plea is taken for a social worker to report on the family background and the child. This step could be taken only if the court was given relevant information about the child at the beginning of the hearing before the trial. It is not intended to require a local authority to do more than is required of it in the family court by the making of a Section 37 order. After receiving the report, the magistrates could either try the case or dismiss it on the basis of a formal intervention by social services such as an application to the family proceedings court for a care order, or of an informal intervention by social workers or possibly by YOTS to help the family, or it could adjourn to see how the child progressed without going through the court procedure.

The purpose of this is to divert the child from offending without their having a finding of guilt and going through the criminal process. I beg to move.

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Lord Thomas of Gresford: We support the amendment moved by the noble and learned Baroness. However, in her Second Reading speech, she talked of transferring the proceedings from the magistrates’ court to the family court. There is no machinery in her amendments that would permit that to happen. Perhaps she could explain whether that is required or whether existing provisions would enable that to happen.

The purpose behind the proposed new clauses is simply that of trying to avoid imprisoning young children. We have in previous debates pointed out how much out of step we are in that regard with the rest of the nearby jurisdictions in Europe. It is right that the local authority should be involved, as local authorities have a duty towards children. There

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should be an investigation by the local authority, particularly in relation to children under the age of 14, to which Amendment No. 118 refers. The court should take an informed decision that is in the best interests of the child and is understood to be in the best interests of the child.

Baroness Howe of Idlicote: I warmly support the intentions behind these proposals, although I do not know whether they meet all the legal requirements to deliver what the noble and learned Baroness, Lady Butler-Sloss, proposes. It has been argued forcefully that this period is one in which children’s behaviour can be changed. A great deal of flexibility is needed, but it is possible to deter young people with the appropriate action from further wrongdoing and offending.

Lord Campbell of Alloway: I support the intention of the amendments, but why is there a difference between the two? Which of them does the noble and learned Baroness prefer? Does she prefer the age of 14 or of 18? Why does she create a divergence in that regard?

Lord Hunt of Kings Heath: I am sure that the noble and learned Baroness will answer the noble Lord in due course. I am sure, too, that the Committee is grateful to her for bringing forward these important matters, which in one sense could encapsulate the debate that noble Lords have had right from the beginning of these debates, which seems an awful long time ago, when we first discussed these important matters with regard to the youth justice system.

The Government sympathise with the underlying aim of the amendments. I understand why she has tabled the two amendments, so that we might consider more specifically the particular needs of the younger age group, which is why I suspect that she allowed us to have two options in this debate—to anticipate her answer to the noble Lord, Lord Campbell of Alloway. Although the Government have reservations about the particular amendments in terms of what has gone before, the noble and learned Baroness will know of the work being done across government on the development of a youth crime action plan. I am very hopeful that that action plan can reflect a number of the important points being raised by noble Lords, especially in the way in which young people should be dealt with in the youth justice system.

As the noble Baroness has already said, in effect, her amendments replicate for criminal courts the power under Section 37 of the Children Act 1989 for a court dealing with family proceedings to direct the relevant local authority to undertake an investigation of a child’s welfare needs. The results of that investigation must be reported to the family court and include any proposals by the local authority for future action in relation to the child. The Government’s difficulty is that we do not consider such a power to be appropriate for the criminal courts. We see the primary purpose of the criminal court to deal with the offender for the offences that they have committed. We had extensive

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debate on the purpose of sentencing in Clause 9 of this Bill. Certainly, we consider the welfare needs of the child as important. That is why the courts are required to have regard to the welfare of the child under new Section 142A(3)(b) inserted by Clause 9. We do not believe, however, that they should override the courts’ duty in respect of administering justice.

The noble Baroness’s amendments would provide a power for the court to direct a local authority to undertake an investigation of the child’s welfare needs over a period of up to eight weeks. As she said, the criminal proceedings would be adjourned pending its completion. I understand why the noble Baroness is proposing that, but she needs to take into account the practical impact of adding to the court hearing process and potentially undermining the considerable efforts that are being expended on speeding up that process. It is generally accepted that young offenders should be dealt with as quickly as possible, and we have seen a reduction from 142 days to under 71 days in the average time for young offenders to have their cases heard before a court. We would not wish to see that set back.

A power under Section 9 of the Children and Young Persons Act 1969 places a duty on local authorities to investigate a child’s circumstances where they have been notified that they are appearing before a court. In addition, Section 9 provides for the court to request that the local authority undertakes such an investigation and makes it the duty of a local authority to comply with such a request. I understand that that power is rarely used. That might be taken to reflect acceptance by the criminal courts that youth offending teams now serve as a primary means by which information is provided about young people appearing before the court. As we discussed last week, the information is provided by the court by way of a pre-sentence report.

Under the Crime and Disorder Act 1998, the youth offending team has the responsibility to prepare reports on young offenders, assess their needs and make recommendations to the court on appropriate interventions. There is a serious discussion to be had about the standard of pre-sentence reports. The noble Lord, Lord Thomas of Gresford, took me to task last week when I read a passage from the inspection of youth offending teams. I pointed out that those inspections had raised some problems as well as generally commending the work of youth offending teams. I did so in order to illustrate that there is a proper process of inspection and, following that, efforts to improve the whole process of pre-sentence reports and the work of youth offending teams.

I also suspect that behind the noble Baroness's amendment is a concern about whether one of the impacts of the role of youth offending teams has been the distancing of some children's services from young people drawn into the youth justice system. That point was made by a number of noble Lords last week. I do not agree with some of the suggestions that, in some ways, local authorities are cost shifting. However, I accept that more can always be done to

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ensure that local authorities, particularly children’s services, are as focused on the needs of this group of young people as they are on their general responsibilities.

I emphasise that I am sympathetic to the general tenor of the noble Baroness’s remarks. She spoke eloquently about the troubled background of many of these young people and about the positive impact of early intervention. I mentioned that this whole matter is under review. The Children’s Plan announced by the Government in December includes the development of the youth crime action plan. This action plan is looking at what happens in other jurisdictions both in the British Isles and in other countries—picking up points that noble Lords made about international comparisons—to see how those systems work and whether they have elements from which we can learn. As part of this work we are considering whether under-15s should be treated differently from the older age group.

I acknowledge the very eloquent way in which the noble Baroness put forward her views but I invite her to withdraw her amendments on the basis that the Government are taking forward this work. I also invite the noble Baroness to discuss this further with the Government.

Baroness Butler-Sloss: I thank the Minister and am grateful to him for listening to what I have been saying. However, I am not alone in saying this. I am very interested in the idea that under-15s might be dealt with slightly differently. That seems to me well worth exploring. I say to the noble Lord, Lord Thomas of Gresford, that I felt the transfer to the family proceedings court was a step too far, and since Section 37 is also a step too far, I took the view that it would be unwise to include it. To apply Section 37 to the youth court would be extremely easy from a legislative point of view but it is difficult for the Government to accept that this should happen. The trouble is that the Government talk about dealing with the offender and then go through the mantra, “But, of course, we consider welfare”. I should like offending and welfare to be considered as equally important rather than putting offending before welfare. The particular point about which I am concerned is not to criminalise a young child of 10, 14 or 15 whose bad background, unhappy circumstances or whatever has created the atmosphere in which the child offended. That child should not necessarily have to plead guilty, have a finding of guilt and therefore become part of the criminal justice system.

At Second Reading I said that I hoped very much that we could put in something, before the child ever got to the youth court, so that he could be diverted from it if a group of people, chaired preferably by a magistrate or judge, thought that he needed help rather than going to the youth court. If that were possible, Section 37 would not be needed. However, it would be a very useful back-up for magistrates, who would not use it all that often but would certainly use it more than Section 9 of the Children and Young Persons Act, which to my knowledge has never been used. That is why I thought that Section 37 might be a more sensible approach.

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I am sad that the Government do not think that this would be a useful tool; a lot of youth court magistrates think that it would be. As regards the question asked by the noble Lord, Lord Campbell of Alloway, I would prefer to see clearly in the legislation “under 14” or “under 15”. But aware as I am that it is often preferable from the point of view of drafting legislation to be in line with the rest of the magistrates’ courts, “under 18” might be a preferable way of putting it, as the Minister appreciated.

Purely and simply, I was trailing my coat with the hope that I would get the Minister to be attracted to one if not the other. I am comforted by some of what he said; I am sad that my suggestion has not found favour but, in the circumstances, with the hope of discussing a bit further—

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The Earl of Onslow: Before the noble and learned Baroness takes the plunge of withdrawing the amendment, I should say that I heard the noble Lord, Lord Hunt, talking about cross-government discussions. Presumably when those discussions are going on, a need for some form of legislation will appear, so you will have the criminal justice youth offender Bill number 17,423. Why could it not have been done in time for this Bill? It is not a new problem; it is a very old problem that has been talked about for a long time. It is a great pity that it was not got together before the Bill. The Bill has had all these muddles going through it, and it is perhaps not a good example of how to do legislation. When will the government consultation be finished?

Lord Hunt of Kings Heath: I have received a lot of advice in the past few weeks on government and legislation. As I have said, I am sure that there are always lessons to be learnt about how to improve the legislative process. The noble Earl is such an experienced Member of your Lordships’ House that he knows that I cannot answer his question. I think that the development of this plan across government gives us a real opportunity to produce an integrated approach, which I hope would meet a number of the concerns expressed by the noble and learned Baroness. I repeat my invitation to her that we would very much welcome an opportunity for discussions with her on these matters.

Baroness Butler-Sloss: I say to the noble Earl, Lord Onslow, that if I got what I wanted I would not mind if it was Bill number 17,423; it would be well worth while. I very gratefully accept the opportunity for further discussions with the Ministry of Justice. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 118 and 119 not moved.]

Clauses 109 and 110 agreed to.

Clause 111 [Compensation for miscarriages of justice]:

Lord Thomas of Gresford moved Amendment No. 120:

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The noble Lord said: In this group of amendments, we move on to the question of miscarriages of justice and compensation for miscarriages of justice currently available under the previous Act. That Act permits an independent assessor to assess what the damages or compensation should be. For many years, the noble Lord, Lord Brennan, with all his enormous experience of damages litigation, has been the independent assessor. A miscarriage of justice is a wrong inflicted by the state for which the state is directly liable, for which it has accepted responsibility and for which it has an obligation under international law to provide compensation. That is in Article 14.6 of the United Nations International Covenant on Civil and Political Rights.

It so happens that when I was a pupil barrister far too many years ago, in the very first murder case that I was ever involved in, I was asked by my pupil master to make an application to take a case out of the list, which I did. Fifteen years later, by which time I was a Queen’s Counsel, I represented that defendant on his appeal. It was sent back to the Court of Appeal because of something very unfortunate that had been discovered. The forensic scientific evidence had been cooked up by a scientist from the Midlands. A whole series of appeals followed my appeal as a result of what he had done. I remember vividly talking to the governor at Leeds prison, who told me that my client would have been released many years before if only he had admitted what he had done. However, he had not admitted it: he had been a nuisance; he had been on the roof throwing slates; and he had protested for the whole of that time. Although in those days a life sentence meant that on average a person served 12 years, 15 years had gone by and he was completely innocent.

In the Bill, the Government are proposing to limit the rights to compensation granted to people such as that former client of mine by imposing a number of restrictions: he should have only two years from the date of the successful appeal to bring an application for compensation, no matter what sort of state he is in; the amount of compensation should be limited to £500,000—I have to tell your Lordships that where a person has been held in custody for very lengthy periods, generally speaking the compensation is considerably in excess of that—and his claim for loss of earnings should be limited to 1.5 times the median annual gross earnings of people throughout the country. Therefore, in this clause the state is seeking to impose an artificial limit on its own liability.

In order to justify that, when the Bill was put forward the Ministry of Justice said in its press release that the intention was to,

It refers to victims of crime because compensation for victims of crime has now been limited to a maximum of £500,000, regardless of the circumstances. But of course there is absolutely no parity between a person who is a victim of crime caused by a criminal who could—at least, in theory—be sued in the civil courts and a person who is subjected to miscarriages of justice caused by agents of the state. There is no

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reason at all to equate the two. To suggest that there is some sort of rational connection between the level of compensation paid to a victim of crime and that paid to someone who is subject to a miscarriage of justice is, in my submission, quite wrong; it is an entirely different situation. Therefore, the amendments in this group seek to remove the artificial limits on the amount of compensation that the independent assessor can award.

Your Lordships are aware of the cases of Angela Cannings and Sally Clark, which demonstrate that full financial compensation is not in itself enough to enable people to rebuild their lives after having been wrongfully convicted and possibly having suffered an extremely long period of imprisonment. Those who are wrongfully convicted frequently suffer severe psychiatric injury in the form of irreversible personality damage or post-traumatic stress disorder. They suffer loss of their home and other assets, serious damage to family relationships, loss of income while in prison and often permanent incapacity to earn.

We submit that these limitations on compensation for victims of miscarriage of justice are now being imposed for a purely financial reason—in order to limit the amount of money that the Government have to pay. To give the Committee some idea of how many people are involved, I should say that I think that last year some 35 cases were sent by the Criminal Cases Review Commission to the Court of Appeal, 70 per cent of which were allowed. We are talking about 20 to 30 people a year where it is established that there has been, for one reason or another, a serious miscarriage of justice. A person in that position should be put as nearly as possible in the position in which he or she would have been had there been no injustice. That is the principle that we seek, through these amendments, to uphold. I beg to move.

Lord Hunt of Kings Heath: I thank the noble Lord, Lord Thomas, for the way in which he has introduced the debate. The changes were foreshadowed in a Written Statement made by my right honourable friend the then Home Secretary in April 2006 and formed part of wider changes and reforms to the system for compensation paid for miscarriages of justice. As my right honourable friend then said, the purpose of those reforms was,

I shall go through each amendment one by one, because they deal with some specific and separate matters. Amendment No. 120 would extend from two years to six years the proposed time limit for making a claim for compensation in relation to a miscarriage of justice. Currently, compensation applications can be made many years after a conviction has been reversed as there is no time limit. That means that important documents may not be available, thus making it very difficult to make proper and fair decisions about whether, beyond reasonable doubt, there has been a miscarriage of justice, as the law requires. Clause 111(3), therefore, introduces a time limit for making an application for compensation, of two years from the reversing of the conviction or a

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pardon being granted. I should stress that the time limit applies from the date that the conviction is quashed or the date of acquittal at retrial and not the actual date of conviction. Two years is also the time limit for making an application for criminal injuries compensation.

Clearly, there may be exceptional circumstances which could delay an application. In exceptional circumstances, therefore, the clause provides that an application made outside the two-year limit may be regarded as having been made in time. Exceptional circumstances in this context might include the physical or mental incapacity of the applicant. While every application would be considered on its own facts, we do not expect mere ignorance of the existence of the compensation scheme to be regarded as an exceptional circumstance. Therefore, we think that the two-year time limit, with the possibility of an extension in exceptional circumstances, is entirely reasonable. The application form is fairly straightforward. It has a maximum of 10 pages. In normal circumstances, there is no reason why it could not be completed within the two-year period.

On Amendment No. 121, I know that the noble Lord, Lord Thomas, is concerned about the proposed £500,000 limit. He is right to say that there is no limit on the amount of compensation payable for a miscarriage of justice at the moment. He is also right to say that in recent years a number of awards have exceeded £1 million. The highest ever award was more than £2 million. I know that the noble Lord says that there is no logic in making comparisons between the amounts payable for miscarriage of justice and the amounts paid for compensation of victims of violent crime. The Government do not agree. Compensation for victims of violent crime is currently capped at £500,000, no matter what the severity of the injury or its long-term nature. That scheme is probably one of the most generous in the world, in any case.

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