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In Committee, I said that custody was probably being used as a last resort only when it was justified on the grounds of extreme seriousness and the danger of real risk or real harm being presented by the child. Subsequently, I had a very helpful letter of about 12 pages from the Minister, for which I am extremely grateful. I appreciate the hard work that went into it. However, it challenged the use that I made in Committee of the statistics that I felt established clearly that we were not using custody as a last resort. The Minister’s letter said that I was incorrect in that respect, so I felt that it would be helpful to put a little of that discussion on the record.

The Minister and some of us here disagree as to whether the children currently locked up have really committed offences that could be described as serious and dangerous. His letter tells us that the children currently in custody have been convicted of offences that could have been serious. It states:

That is so, but I understand that robbery is also the charge used for stealing a pencil case from another child in the playground, with the threat of force or some minimal force of the sort that one can see in many playgrounds at many times of the day.

Although the Minister quite rightly says that many of those currently in custody have committed offences that come under the heading of “violent”, the Standing Committee for Youth Justice says that,

We still have a long way to go in ensuring that we use custody as a last resort, and I agree with what noble Lords have said before me: if this is on the statute book, courts are in a position to have no doubt that they are right to look as hard as possible for some other disposal and to try as hard as they can to keep children under 18 out of custody. I am therefore very happy to support the amendment.

6 pm

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Hunt of Kings Heath): My Lords, I welcome the amendment tabled by the noble Earl,

26 Mar 2008 : Column 575

Lord Onslow, which gives an opportunity to debate these important matters. As ever, he spoke eloquently and with charm. This goes to the heart of our debates about the youth custody system. Again, noble Lords have expressed their concerns about the number of young people in custody and have made comparisons with other countries. While one needs to be a little cautious about international comparisons, I have already made it clear that the Government share the aim of all noble Lords who have spoken in our debates that custody should be the last resort.

I also acknowledge the comments made by the noble Lord, Lord Ramsbotham, about the need for an integrated approach between the Youth Justice Board, the work of YOTs at local level and the contribution that local authorities should make. The noble Lord will know that the youth crime action plan is being developed. He will also be aware of the new arrangements for accountability and the role of the Department for Children, Schools and Families alongside my department in terms of the relationship with the Youth Justice Board.

I would also refer the noble Lord, Lord Ramsbotham, to the new approach to local area agreements with local government, which gives local authorities much more ownership of those agreements and will have the benefit of focusing local authorities much more on the group of young people with whom we are all concerned. While I do not believe that anyone has a magic wand that can produce the resources needed or the quality of service required, I believe that we are facing in the right direction. We clearly need to build and enhance that. The whole purpose of the YRO structure we are debating is to produce a much more rational, co-ordinated approach in which it is clear from the intent that custody is the last resort.

Before responding to the noble Earl, Lord Onslow, in particular, I shall speak first to my amendments, which I hope show that the Government have listened carefully to what noble Lords have said on this matter. Section 174 of the Criminal Justice Act 2003 already places a duty on a court to make a statement giving its reasons for and explaining the effect of a sentence. In particular, where custody is imposed, it must say in accordance with Section 152(2) of that Act, that,

So the court has to explain why it is of that opinion.

The government amendments would supplement this provision to require the court, when sentencing a young person aged under 18 to custody, to include a statement that it is of the opinion that a youth rehabilitation order with intensive supervision and surveillance or intensive fostering cannot be justified for the offence and to explain why it is of that opinion. That goes a long way to providing the safeguard that noble Lords require. The noble Lord, Lord Elystan-Morgan, referred to existing legislation. He said that it is not so much the legislation; it is the practice of sentencers. In our debates on the Bill, we have been to and fro between discretion and direction to sentencers. I hope that my amendment gets the

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balance right. It does not seek to fetter the discretion of sentencers, but gives the sentencers another point to consider. A statement on why the YRO with intensive supervision and surveillance or intensive fostering cannot be justified would have to be made. In that sense, a custodial sentence is justified.

Noble Lords are saying that I do not go far enough, and I am grateful for the conversations that I have had with noble Lords on this matter in the past 24 hours or so. I think that we have agreed on the requirement that a statement should be in writing. My understanding is that that is already a requirement of the law. If the magistrates’ court imposes custody, its reasons must be set out in the warrant of commitment and a transcript of Crown Court proceedings will always be made as there may be an appeal to the Court of Appeal. The noble Earl, Lord Onslow, has already acknowledged that point.

I turn now to the noble Earl’s amendment and its potential to raise the custody threshold, which is our concern. We are concerned that asking the court not just to look at the seriousness of the offence, but also to assess the risk the offender may pose to the public in the future, raises the threshold unnecessarily. I know that noble Lords have argued that if an offender commits an offence they ought not necessarily to have to face custody unless they also pose a future risk to the public, but one has to think about the consequences of that. If an offender could commit a really serious violent offence, as the law stands they could be found guilty perhaps of grievous bodily harm with intent. My understanding of the amendment is that, in that situation, the courts could not impose a custodial sentence unless the prosecution could also prove that the offender is a risk to the public.

It might be argued that if someone commits such an offence, it is axiomatic that they must pose a risk to the public. I understand that argument. But the problem that I have, and the advice that I have received on this, is that similar provisions are already on the statute book in the dangerousness provisions of the Criminal Justice Act 2003. My understanding is that very few offenders are assessed as dangerous—according to the Youth Justice Board, there were only 24 in 2005-06. But the sentencing statistics for 2006, to which I referred in my very long letter of 10 March to the noble Baroness, Lady Stern, show that more than 1,000 young offenders were sentenced to custody for serious violent offences alone. So we have a real concern that if we were to accept the amendment, it perhaps would have the unintended consequence of ensuring that even young people who had committed a very serious offence—where it would not be possible to prove the risk to the public—would not be given a custodial sentence.

I understand why noble Lords are concerned about the number of young people in custody and I accept that this is a genuine concern that many of us have, which is why we want to make custody a last resort. But custody sometimes will be a necessary condition and we would be concerned about the unintended consequences of the amendment proposed by the noble Earl, Lord Onslow. The Government have listened very carefully to the arguments put forward

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in Committee and I hope that noble Lords, on consideration, will consider that my amendment at least meets noble Lords somewhat more than half way. It reflects a shared concern about ensuring that sentencers understand the importance of custody being the last resort.

The Earl of Onslow: My Lords, I apologise for omitting to thank the Minister for allowing me to barge in on his meeting yesterday. I thank him very much indeed. He was very forthcoming and it was helpful, but I think we are now coming to the crunch on agreements.

The Minister said that custody must be necessary. If it is necessary, it should follow that it is the last resort. He said that 24 people had been assessed by the courts as dangerous and that 1,000 people had been locked up. That indicates to me that at least some of those 1,000 should not have been locked up because they were not assessed as dangerous. We should try to keep people out of prison. We know—it has been established by research after research—that prison is, on the whole, not curative. It is rather like being sent to Eton and Oxford to learn how to do crime. I know that the Conservative Party has an old Etonian as its new leader but we do not, I hope, as a country, have to follow him in the Prison Service as well.

We must try very hard to keep people out of prison. Subsection (1)(b) of the proposed new clause, which refers to,

covers the issue. I should like to test the opinion of the House.

6.11 pm

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 72; Not-Contents, 112.

Division No. 1


Addington, L.
Alton of Liverpool, L.
Ashcroft, L.
Astor, V.
Avebury, L.
Bowness, L.
Burnett, L.
Chichester, Bp.
Chidgey, L.
Clement-Jones, L.
Colwyn, L.
Cotter, L.
Craig of Radley, L.
Craigavon, V.
Deech, B.
Dholakia, L.
D'Souza, B.
Dykes, L.
Eccles, V.
Falkland, V.
Falkner of Margravine, B.
Feldman, L.
Glasgow, E.
Goodhart, L.
Greenway, L.
Hamwee, B.
Harris of Richmond, B.
Higgins, L.
Howe of Idlicote, B.
Hurd of Westwell, L.
Hylton, L.
Jones of Cheltenham, L.
Lester of Herne Hill, L.
Livsey of Talgarth, L.
Low of Dalston, L.
Maclennan of Rogart, L.
Maddock, B.
Masham of Ilton, B.
Methuen, L.
Miller of Chilthorne Domer, B.
Naseby, L.
Northover, B.
Norton of Louth, L.
Onslow, E. [Teller]
Paisley of St George's, B.
Palmer, L.
Ramsbotham, L.
Razzall, L.
Rennard, L.

26 Mar 2008 : Column 578

Ripon and Leeds, Bp.
Roberts of Llandudno, L.
Rogan, L.
Roper, L.
Saltoun of Abernethy, Ly.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shrewsbury, E.
Shutt of Greetland, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B. [Teller]
Stevens of Kirkwhelpington, L.
Stoddart of Swindon, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Tyler, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Williamson of Horton, L.


Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Anderson of Swansea, L.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Bhatia, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Borrie, L.
Bradley, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Butler-Sloss, B.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Gale, B.
Gilbert, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
King of West Bromwich, L.
Kinnock, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mallalieu, B.
Malloch-Brown, L.
Maxton, L.
Mitchell, L.
Monson, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Yardley, B.
O'Neill of Clackmannan, L.
Parekh, L.
Patel of Blackburn, L.
Pitkeathley, B.
Ramsay of Cartvale, B.
Royall of Blaisdon, B. [Teller]
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Smith of Gilmorehill, B.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Thornton, B.
Vadera, B.
Wall of New Barnet, B.
Warner, L.
Watson of Invergowrie, L.
West of Spithead, L.
Whitaker, B.
Wilkins, B.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

26 Mar 2008 : Column 579

6.21 pm

Schedule 1 [Further provisions about youth rehabilitation orders]:

Lord Hunt of Kings Heath moved Amendment No. 4:

The noble Lord said: My Lords, with government Amendment No. 4 I will speak also to Amendments Nos. 5, 15, 24, 25, 31, 34, 116 and 117. Amendments Nos. 4 and 5 are technical; they amend references to probation boards to take into account changes made in the Offender Management Act 2007. The amendments ensure that the reference is consistent with the new legislation.

Amendment No. 15 is a technical amendment that changes the minimum time limit for the completion of a youth rehabilitation order with intensive supervision and surveillance. At present, paragraph 32 of Schedule 1 provides that a youth rehabilitation order with intensive supervision and surveillance must specify a date, not earlier than 12 months after the date on which the order takes effect, by which all the requirements must have been complied with. The amendment will change that minimum period from 12 months to six months.

The youth rehabilitation order with intensive supervision and surveillance is based on the Youth Justice Board’s current intensive supervision and surveillance programme. It is the most robust community sentence available to the courts, which is why, when replacing it with the youth rehabilitation order, we have placed statutory restrictions on its use so it is reserved as a direct alternative to custody. Currently, the intensive supervision and surveillance programme most often lasts for six months. We think that the youth rehabilitation order with intensive supervision and surveillance should reflect that current practice.

Amendments Nos. 24 and 25 add the intoxicating substance treatment requirement to paragraph 9 of Schedule 2 so that a reasonable refusal of treatment will not lead to breach action by the courts. That is already the case with a reasonable refusal of treatment under the drug treatment and mental health treatment requirements, and it is appropriate that we bring the intoxicating substance treatment requirement into line.

Amendments Nos. 31, 34, 116 and 117 are minor and technical. Section 161 of the Criminal Justice Act 2003 currently provides for the court to order pre-sentence drug testing where a person aged 14 or over is convicted of an offence and consideration is being given by the court to imposing a community sentence or a suspended sentence. Amendment No. 31 removes the lower age limit of 14 for that pre-sentence drug testing. That reflects what has already been done for the drug testing requirement in the Bill, which may be imposed as part of a youth rehabilitation order by the court as part of its sentence. The other amendments are consequential to that change; they update dependent parts of the legislation and remove redundant delegated powers that relate to the provision in the Criminal Justice Act 2003 that we are removing. I commend these amendments to the House, and I beg to move.

On Question, amendment agreed to.

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Lord Hunt of Kings Heath moved Amendment No. 5:

(c) an officer of a provider of probation services.”

On Question, amendment agreed to.

The Earl of Onslow moved Amendment No. 6:

The noble Earl said: Here we are, my Lords, back at legal representation for minors. The noble Lord, Lord Hunt, sent me an immensely long letter that was well drafted by the Civil Service. I had quite a lot of trouble understanding it because, as with all of these things, I accept that it was designed as much to spread paper as to spread knowledge and light. However, after a bit of digging out it appears that although we said in Committee that it would cost £800,000 to fill this gap, the situation is much worse than was originally thought. In the calendar year 2006, there were 126,000 cases of under-18s being charged. Of those, one-quarter did not apply for, or get, legal aid.

As the Minister said in his letter, if all under-18s applied for legal aid, it is estimated that the additional cost to the Legal Aid Fund would be £17 million. Let us assume for the sake of argument—and I quite concede that this is an assumption off the top of my head—that half of the children who could have applied for legal aid, if they had done so or indeed if they had known about it, would have been given it. That would mean an extra £8 million, not the £800,000 that we were talking about earlier. The Government cannot say that that would cost extra money; that money should have been voted on the assumption that most people who were being charged would require legal aid. The money is theoretically there. If everyone said, “I want legal aid”, and the Legal Aid Board awarded it on the interests of justice test, the Government would be landed with a bill of, let us say, half—which is probably being quite conservative.

This has ceased to be a money argument. The Minister said to me in his meeting, “It would cost 17 million quid and I haven’t got 17 million quid”—I am sure he does not, and I understand the point he is making—but it is there if people want it and apply for it. They are entitled to it, so he would have to find the £17 million. That is the difficulty.

One of the people at yesterday’s meeting said, “This is a means-tested benefit that is not taken up in the way it should be”. I am certain, because this is the way of the world, that the people at the bottom of the heap, the people who are probably in care, disturbed and all those sorts of things, are less likely to apply because they are not canny. Surely it is the duty of us all to look after the most underprivileged, not only for their benefit but for ours. I do not how often I have to go on saying it, but if we catch, treat and help them early enough, there is a chance that some of them might go straight. I do not deny that some of them are quite disgusting—you can picture them: spotty, surly, baseball cap on backwards, with the occasional grunt coming out. One would want either to lock them up or to cover their feet with concrete and dump them overboard; I quite understand all

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that. But they are the most underprivileged people and we have to look after them.

It is on those grounds that I again raise legal representation. I thank the Minister for his informative letter. I am not sure that my amendment is the right way to do it, but the letter has brought to the public’s notice something that we did not previously know or quite understand. I beg to move.

6.30 pm

The Chairman of Committees (Lord Brabazon of Tara): My Lords, there is a mistake in the Marshalled List. The amendment should read as follows:

Lord Judd: My Lords, I support the noble Earl and congratulate him on his perseverance in this matter. His point—that we are dealing with some of the least articulate and most disadvantaged children in our society—is crucial. Whatever they have done, we have to remember that. His amendment speaks of what is necessary for justice. In these days of the predominance of the market, I may be very old fashioned. I am not against the market as a principle, but I think that it needs to be seen in perspective. I therefore cannot accept the argument that a cost that might result from the amendment should make it unacceptable. It is justice that we are concerned about, and justice sometimes costs money. If that can be ensured only by proper representation, so be it. I urge the Minister to take the amendment very seriously indeed.

Lord Ramsbotham: My Lords, I, too, strongly support the amendment, and I should like to explore a few of the circumstances around it.

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