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The Joint Committee on Human Rights wrote to the Government and asked how they reconciled their position with their obligation under Article 3 of the Convention on the Rights of the Child. The Government’s reply is worth quoting, although it is not that short:
“We believe it is right that welfare should not be the primary purpose of sentencing and Article 3 of the CRC does not require that it should be. It requires that the best interests of the child shall be a primary consideration. It is. That is why the welfare of the child is specifically mentioned in clause 9 as something the courts must have regard to when sentencing”.
“A justice system exists to tackle crime. Then it must also consider the needs and interests of victims and the wider community which is why punishment must remain a purpose of sentencing.”
The Joint Committee on Human Rights, unsurprisingly, was not convinced by that reply. The committee therefore concluded that the effect of Clause 9 is to subordinate the child’s best interests to the status of the secondary consideration below the primary consideration of crime prevention. The committee therefore recommended that the provision subordinating the duty to have regard to the welfare of the child to the principal aim of the system should be deleted. It also recommended that the Bill should be amended to make it explicit that the welfare of the child should be a primary consideration. These two amendments seek to implement those recommendations. I am glad to support the noble Earl, Lord Onslow.
Baroness Butler-Sloss: I entirely support the amendment spoken to by the noble Earl, Lord Onslow. I consider it important that we should start at some stage to make the welfare of the child, even the child offender, a primary consideration. I am not certain whether it should be the primary consideration.
The Earl of Onslow: Perhaps I may interrupt the noble and learned Baroness briefly. With the greatest respect, it is slightly tautological to have three primary considerations. Primus inter pares is possible, but there can be only one primary.
Baroness Butler-Sloss: Of course, I bow to the noble Earl’s English. He is absolutely right, but it leads me to the point that I am concerned about in the amendment of the noble Lord, Lord Thomas of Gresford. Two points worry me. Perhaps the more important is that it omits punishment of the offender. I believe that sentencing has to take into account that, where appropriate, children have to be punished. We are not in a world where the child’s welfare forbids punishment where it is due. Children, like adults, have to be punished on occasions. Not all children have to be punished for all offences. As I wish to say in respect of a later amendment to the Bill, I hope, as indeed the Government choose, to have diversion of children from the offending court where offences have to be dealt with. But to ignore that punishment must be part of the duty of sentencing is to ignore a basic importance for the protection of the public.
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I have not put in a further amendment, but I would like to see something to the effect of the punishment of offenders “where appropriate”, which would provide the ability to punish or not to punish as might be appropriate for the child. The other perhaps rather more minor point that I would take issue with in the amendment of the noble Lord, Lord Thomas of Gresford, is that I have the impression that he has taken Section 1(3) of the Children Act word for word into the amendment. I am not in disagreement with paragraphs (b) to (g), although I am not certain that (g) is appropriate. I am concerned about (a). I am not sure how far,
which are entirely appropriate in children proceedings, are equally appropriate in criminal proceedings. Of course the child as a defendant and the child whose welfare is to be considered have to be consulted. I am not certain that that needs to be put into primary legislation. That is something that the court would have to do in any event.
My preference is to support the amendment of the noble Earl, Lord Onslow, which probably covers all that is necessary, although I have no objection to the majority of what is said by the noble Lord, Lord Thomas, apart from the two points. However, I feel strongly that one has to keep punishment in, even if it is punishment “where appropriate”, as I would prefer.
The Earl of Onslow: If a child has no conception that it has done wrong; if a child cannot comprehend, then punishment cannot be appropriate. If the child nicks a Mars bar, it has to know that it should not have nicked the Mars bar. Then punishment is legitimate. If the child does not know what it has done wrong, then one has to leave punishment out and go to reformism. Am I wrong?
Baroness Butler-Sloss: I certainly would not see a child who did not have the understanding of the allegation made against him. He is not someone whom one should be punishing in the sense that I was looking at punishment. However, there are children who offend who need to be told that this is unacceptable behaviour and that they have to answer for the consequences of what they have done. We cannot take all children out of the criminal justice system, but there are out there many children who offend as a response to their appalling upbringing and dreadful background. Those children probably need help rather than punishment.
Lord Judd: I support the amendment with the qualification that most of my reasons for wanting to support it were expressed in my remarks on Amendment No. 1 yesterday, and it would be taking a liberty to repeat those arguments all over again. Whatever I think of my noble friend from time to time, most of the time he is a decent chap trying to field a difficult wicket. Having said that, he is literate and he knows very well what we said to Amendment No. 1. It applies equally strongly today. I want to take up warmly the point made by the noble Earl. We are in a muddle conceptually about what we are doing. If a child is not aware that he has transgressed, then punishment is wrong.
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The point is to help the child to understand how they have transgressed. It is a social educational point because society failed that child in one way or another. Even in the context of the family, the child has been failed. It does not have the sense of right and wrong that we all take for granted; not that we always live by it. Sooner or later one has to bare one’s chest: I believe that the concept of punishment has more to do with assuaging society’s emotional needs than with getting the situation right. It is often emphasised to appease the wilfully ignorant popular press. It seems that as one who will never give up on the fight for rehabilitation being the principal objective, because it makes so much sense—I have said it so often that I will not say again why it makes so much sense—of course the noble Baroness is right that there are some people who know perfectly well that they have done wrong and it needs to be pointed out to them that that is not acceptable in society.
I would be happier if we could get back to old-fashioned language in this context and talk more about corrective action to bring a deviant into society: to “come on board”. But I worry about the social and psychological implications of punishment and its real motivation, conscious or subconscious.
6.30 pm
Baroness Howe of Idlicote: Briefly, I support both these amendments. The use of the word “punishment”, as applied to what you do as opposed to the act of sentencing, is where I part company with my noble and learned friend Lady Butler-Sloss. Of course, somebody who is too young and has a lack of understanding and all the other aspects referred to cannot possibly be subject to any form of punishment; correction, maybe. They should be shown a better way of life, and helped and guided not to reoffend.
Above all, we are back to the preventive side of all of this. This is where the effort must be, and where the Government and everybody who speaks on this wish to place emphasis. On this detailed list of additions to Part 2, they are very lengthy and a lot have come up in previous debates. Some could perhaps be cut back a little but, by and large, they underline the important aspects of what sentencers should be taking into account as they decide what to do in the best interests of the child and society. It is about time we faced up to this pretence that you will protect society by sounding fierce, and began to educate the public rather more that the best way to protect them is to ensure that we turn as many young people and their families on to a better understanding of how a better life can be achieved.
Baroness Linklater of Butterstone: I, too, support these amendments. They refer directly back to the important debate we had at the start of Committee, where we tried to address the overarching principles which inform, or should inform, the Bill. They here move from those basic principles to the purposes of sentencing, how the principles are translated into the sort of outcomes we seek, and the practical realities of how they are to be achieved. We come back once again to the central principle and purpose of the
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Article 44 of the CRC requires that:
“A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence”.
That is the fuller quote of what I spoke to in the previous amendment. This articulates exactly the template—if you articulate templates—that we need to guide us through the outcomes we should be seeking for our children, which are, in turn, translated admirably into the amendment before us today. Ideally, I would prefer to swap subsections (2) and (3), putting “welfare” before “proportionate response”, but I will not quibble with that. I am sure that all Members of the Committee would heartily agree with the concluding purposes of reform, rehabilitation, public protection and reparation by offenders. However, I know that the Government’s position is that punishment should form part of the menu of purposes; not only have they, as the Minister has today, said so clearly, it is the first of the list of purposes in the Bill. However, it is excluded from the amendment.
I have listened carefully, and I am not surprised by what the distinguished noble and learned Baroness, Lady Butler-Sloss, has said about punishment, but I do not know that this is necessarily a forum for discussing something so huge and complex as what constitutes “punishment”, what we mean by it and where it comes in a whole range of circumstances, although we must somehow try to nail a little of it in the Bill.
The fact remains that it is largely because of the desire to deliver punishment, which could be characterised in this context as a frightening and unpleasant experience and how you “learn your lesson”, that the alarming rise in child custody has taken place against a fall in offending. We also discussed that at length last night. Children and society are being further damaged; I do not think that there will be dispute over that. The key principles have been departed from.
My experience of rigorous, systematic programmes of reparation and restoration are that they can be difficult, demanding and challenging for children, as well as unpleasant. However, they are also essentially constructive, which is perhaps the difference in this context between reparation, restoration and straight punishment. Punishment is essentially more negative. The punishment of prison is negative both in its application—by which I mean the rupturing of family, home, work or school—and the outcomes for reoffending, criminalising and so on.
I declare an interest as I chair the Rethinking Crime and Punishment initiative—a modest little title—which has been looking at the use of custody and its alternatives in general, theoretical and practical terms over the past five years. In practical terms, we have been doing this in the Thames Valley, Cheshire and, shortly, in London. We have been developing a deeper level of engagement between judges and magistrates, and the programmes and community-based providers of
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The amendment therefore moves us on from a relatively simplistic, knee-jerk recourse to punishment, to something which is not only more appropriate to children’s needs but, crucially, involves making good the damage done. It is a positive response. I am sure that those are the lessons we want all our children to learn. I would argue that we bring up our own children along those principles—not just giving them a really hefty wallop; although I have certainly been known to do that from time to time. Anyway, that is what we want for our young offenders.
Finally, I firmly believe that the belief of politicians in particular, and also the press—whose views feed off each other with their mutual, essentially short-term, interests of holding on to a seat and selling tomorrow’s newspaper—do not represent the broad views of the public, which are far less retributive than they would have us believe. At RCP, we conducted our own poll through Mori which demonstrated that, and there has been a steady stream of similar polls in the past year or so. Most interestingly, last year, for the first time, there was a poll of the victims of crime. It was published by SmartJustice and showed, inter alia, that just under two-thirds did not believe that prison prevents offending and only 38 per cent supported the building of more prisons. What everybody wants above all is that the offender does not do it again—here I echo the noble Baroness, Lady Stern. We all know that prison cannot achieve that, most especially with children, but that community interventions can and do. However, the fact still remains, as we discussed at some length on our first day in Committee, that the current purposes of sentencing are failing to an enormous extent. This amendment represents an important building block in the changes that we need to see.
The Earl of Listowel: I support the amendment tabled by the noble Earl, Lord Onslow. I welcome the strong emphasis on the welfare of children. I recognise what my noble and learned friend Lady Butler-Sloss said about the need for sanctions, boundaries and punishment for children where appropriate. However, considering that there are more than 3,000 children in custody in this country, while France and Germany combined have only 1,300, we have to say that we are not getting the balance between welfare and punishment right. I particularly welcome this amendment because, despite the welcome efforts of this Government in the provision for foster care, social work, psychiatric units and residential care, we still have so much further to go in that. We still lack about 10,000 foster carers, and demand for social workers still exceeds supply. We put the most vulnerable children into children’s homes to
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The noble Lord, Lord Thomas of Gresford, referred to the mobile phone incident and the children who were given a three-and-a-half year sentence. At that time, a young man called Joseph Scholes was in a children’s home. When that response to the mobile thefts took place, he was newly there and went out with a group of his peers. One of the others stole a mobile phone and because of the strength of feeling about that at the time Joseph Scholes ended up with a custodial sentence—that very vulnerable young man. I cannot speak specifically about the children’s home, but I know that generally speaking staff in children’s homes need far more support than they get. If only the staff in that children’s home had had the support to engage that young man and stop him going out in the street. He ended up being sent into custody. It was recognised that he was highly vulnerable, but there was no place for him in an overcrowded system, and he ended up in a young offenders institution. He was put under watch, but it was not good enough, and he hanged himself. I think I am correct to say that there was a history of abuse in the family.
I welcome this amendment, and I look forward to the Minister’s response. This amendment implies that it is no longer acceptable to lock up children as frequently as we do—to put them behind bars as frequently as we do—because of the lack of a decent welfare alternative: foster carers, social workers and residential carers. I hope the Minister will welcome the spirit of this amendment.
Lord Bridges: I follow my noble friend from a rather different angle in supporting the amendment tabled by the noble Earl, Lord Onslow. When I retired from the public service some 20 years ago, I found myself, rather to my surprise, as chairman of the British branch of the United Nations Children's Fund. One of our first tasks in the years that followed was the negotiation of the Convention on the Rights of the Child, to which we made a considerable contribution that was not always well received by Governments in this country. Looking at the terms of Clause 9 in Part 2, which deals with sentencing, I can say that those of us who have operated in the field of international child welfare find it a strange reaction because it appears that we are still concentrating on sentencing rather than on the rights and needs of the child. From my background, that looks like a very odd approach.
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6.45 pm
Lord Kingsland: The more I listen to this superb debate, the more I am coming to the conclusion that the right place for the amendment to Clause 1 tabled by the noble Baroness, Lady Stern, is in Clause 9. I shall go no further than to say that I am extremely sympathetic to the amendments tabled by my noble friend Lord Onslow and the noble Lord, Lord Thomas. However, I wonder whether we ought to reflect further on where we locate the excellent contribution that the noble Baroness made yesterday, because it might affect the way that we approach the question of the primary purpose of sentencing, particularly when details follow that are not consistent with what the noble Baroness wishes.
I shall not pursue that point any further because I want to address the conformity of the clause with our international obligations; a matter upon which I found the JCHR report especially impressive. As your Lordships are by now well aware, the Bill provides that,
- “where a court is dealing with an offender aged under 18 in respect of an offence ... The court must have regard primarily to the principal aim of the youth justice system, that is, to prevent offending (or re-offending) by persons aged under 18 ... The court must also ... have regard to the purposes of sentencing”—
- “the punishment of offenders ... the reform and rehabilitation of offenders ... the protection of the public, and ... the making of reparation by offenders to persons affected by their offences”.
The court must also have regard to the welfare of the offender, as required by Section 44 of the Children and Young Persons Act 1933. That duty is expressly made subject to the new duty to have regard to the principal aim of the youth justice system. It is extraordinary to reflect that in 1933 an Act could take such an enlightened approach in what we regard, perhaps not entirely rightly, as being a less enlightened age.
The Explanatory Notes to the Bill state that:
“The Government does note that Article 3 of the Convention on the Rights of the Child provides that in all actions concerning children their best interests are to be a primary consideration. The duty under section 44 of the Children and Young Persons Act 1933, to have regard to the welfare of the particular child ... will continue to apply”.
However, Clause 9 clarifies that where the court is sentencing a juvenile offender it must primarily have regard to the principal aim of the youth justice system.
Why do the Government consider that that provision is compatible with the obligation in Article 3 of the Convention on the Rights of the Child to ensure that the best interests of the child shall be a primary consideration in all actions concerning children? Their view, as I understand it, is that it is right that the courts should have regard primarily to the principal aim of the youth justice system when sentencing a young offender. The Government see no incompatibility with Article 3, apparently because that article only requires the welfare of the child to be “a” primary consideration in sentencing, not “the” primary consideration. The obligation in the CRC is to ensure that the best interests of the child are a primary consideration in all decisions affecting children.
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