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Baroness Linklater of Butterstone moved Amendment No. 71:
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(1) This section applies where a person under the age of 18 years is convicted of an offence punishable with a custodial sentence other than one—
(3) In the title of section 152 (general restrictions on imposing discretionary custodial sentences), after “general restrictions on imposing discretionary custodial sentences” insert “on offenders aged 18 or above”.
(1) A court shall only pass a sentence of custody on a person under the age of 18 as a measure of last resort and where—
(2) The court shall state in open session its reasons for passing any sentence of custody under this section.””
The noble Baroness said: Despite the Government’s protestations that custody should indeed be the disposal of last resort and for the shortest possible time, as is laid down in international human rights law, the fact remains, as we have now said over and over again, that the number of children in custody has steadily risen over the Government’s lifetime. One hopes, when one says these things over and over that the content of the meaning does not get diluted. It is just a serious fact.
It is accepted in theory that because they are children, those who break the law must be treated differently from adults, as we have already been saying at great length today. All those institutions and structures devised to deal with them must take that into account. However, the JCHR in scrutinising the provision in the Criminal Justice Act took the view that the restriction on the use of custody is a general one applying to all offenders rather than specifically ensuring that it is genuinely used as a last resort where children are concerned.
The reason for this amendment is to introduce a more specific safeguard and to create a statutory custody threshold that will act as a barrier to the downward use of custody for lesser offences and be clearly for public protection, except of course where mandatory custodial sentences apply. For the awful truth is that while the crime rate overall is dropping, the numbers of children in custody is rising.
We have rehearsed so often in this House the statistics relating to children that show that on virtually every measure they are the most deprived and damaged in our society. When we add to that the fact that the reoffending rate is the highest of any group and the subsequent life chances are the lowest, it seems clear that we are all losers in the exercise. It is neither logical nor justifiable in any of the outcomes.
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Further, we could just remember that six children have died in custody in the past five years. However, there is evidence that a custody threshold was successful in bringing down the custody figures when it was tried 25 years ago. It resulted in a 54 per cent decrease over a decade on the under-21s given custody for an indictable offence until it was repealed in 1991. Since it cost the YJB £280 million in the year ending March 2007, just think of the possibilities for greater investment, rehabilitation, prevention and restorative alternatives.
The current threshold under the Criminal Justice Act 2003 is too vague, but Section 1(4) of the 1982 Act provided that the courts must not pass the sentence of custody on a person under 21 unless they were,
- “of the opinion that no other method of dealing with him is appropriate because it appears to the court that he is unable or unwilling to respond to non-custodial penalties or because a custodial sentence is necessary for the protection of the public or because the offence was so serious that a non-custodial sentence cannot be justified”.
I recommend most urgently to the Minister that we follow that excellent precedent and reintroduce such a threshold again. I beg to move.
[Amendment No. 72, as an amendment to Amendment No. 71, had been withdrawn from the Marshalled List.]
Lord Judd moved, as an amendment to Amendment No. 71, Amendment No. 73:
The noble Lord said: All of us in the Committee should be grateful to the noble Baroness, Lady Linklater, for the wide scope of things she brings to these debates—her experience is pretty unrivalled—but particularly for having tabled Amendment No. 71. She referred to the unacceptably large number of young people being incarcerated in one way or another. With that statistic goes the reality that the facts speak for themselves: it is not a successful process. The rate of reoffending remains deeply disturbing. Even if there were no other grounds, any sane society would say that we had better look at this because what we are doing is obviously not effective.
The noble Baroness has put the case very well. On the amendments immediately following, we shall touch on the danger to children in custody as well. I therefore applaud Amendment No. 71 and plead with my noble friend the Minister to take it seriously. The purpose of my amendment is simply to say that I am at least as concerned about the 18 to 21 year-old age group. This was brought home to me in the context of the YMCA’s work in young offender institutions, prisons and the rest. That age group is in many ways a particularly vulnerable section of the population, because it is so easy for staff and others to regard them as adults and they are not. Just think of our own children—as I wish we would more often in this situation—and how dependent they are. They may not want to admit it, but they are terribly dependent and reliant. We must therefore be particularly careful about consigning anyone in that age group to custody unless—as we shall come to on later amendments—we are certain about the form of custody into which we are putting them. My amendments are therefore in a spirit of welcoming the
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Lord Ramsbotham: I am glad that the noble Lord, Lord Judd, with his usual prescience, has raised this threshold to 21. It brings to mind the fact that, in the custodial system as it is, there are people aged under 18 in the hands of the Prison Service, and then those aged 18 to 21 of whom there many more, but they are marginalised. They are marginalised because nobody is responsible for looking after them; they are not regarded as adults, they are not regarded as children and nothing is done for them.
That group probably needs our help more than any other which we are not helping. Its members are on the threshold of adulthood; it is the last chance saloon, if you like. Therefore, while we are dealing with children and all the special things that happen, we ought to bear in mind that some establishments known as “split sites” have both groups. If you visit them, you will find that the younger group has facilities like education and work, and the 18-21 year-olds have not because the facilities have been milked to provide them for the juveniles for whom the Prison Service is under contract from the Youth Justice Board.
It has been said that this group of young offenders should go up to the age of 25. That is another debate and another aspect that needs to be considered, but bearing in mind that, as I shall be raising in another amendment, it is now possible for people to remain in care until the age of 21 and remembering the immaturity of some of these people who need all the help that they can get, it is right that the restrictions on custody that the noble Baroness has so rightly raised should apply to the age range raised by the noble Lord, Lord Judd.
Lord Judd: Does the noble Lord agree that the statistic which, to be candid, I gave to the House in the context of an Oral Question this afternoon makes his point very clearly? While it is true that since 1990 30 children have died in custody—that is a disturbing enough statistic—during the same period 201 people aged 18 to 20 have died in custody, including 178 self-inflicted deaths and five homicides. We somehow as a society just say, “Oh well, those are the statistics”. Think of the human tragedy that every case represents and the appalling situation for families, relatives and others. For all those reasons, we cannot overemphasise the importance of the noble Baroness’s amendment. I am very glad to see that she seems to be indicating that she has no difficulty with our proposition that it should be extended to cover the 18 to 21 age group.
Lord Ramsbotham: I accept that. The noble Lord’s figures emphasise once again the importance of looking at all aspects of this—from suspicion to arrest, through every trial, through custody and whatever—holistically with the same thing in mind and not as single issues.
The Earl of Listowel: I strongly support the amendment. I shall not repeat what I have already said about this matter, but shall take this opportunity to
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There are a number of points to make about this. I think I am correct in saying that there has not been a death in a local authority secure unit. Perhaps the Minister will confirm that. If one can reduce the population within the custodial centre, one can concentrate on quality. One could make centres local and concentrate on having the best training and support for staff and really use custody effectively. Currently, there is overcrowding, so there is a high level of churn. That means it is difficult to establish relationships between the young people and the custody officers, which means that a heavy use of force is needed to keep them under control. Again and again I hear from people working in these places that relationships are crucial to managing behaviour, but they cannot be established. We now have a call from the Prison Officers’ Association for prison officers to be allowed to carry batons in these settings.
There are so many good reasons to wish to move in this direction. Before I finish, I want to emphasise the huge cost to the public of locking up all these children. How much better that money might be spent on the community sanctions that the noble Lord is proposing. I hope that the Minister can give a sympathetic reply to the amendment.
9 pm
Baroness Howe of Idlicote: I will be brief but I have no hesitation in backing both the amendment and the amended amendment. This group of children, particularly in today’s world of overcrowded prisons—which, let us face it, it is going to take some time to sort out—is the most vulnerable group. The more we can do to help them the better, by not only encouraging but laying a duty on local authorities and others to see them through into, we hope, a better world with backup and resources provided to help them get into jobs or training. The numbers who take their own lives or self-harm are quite appalling. I would like to ask whether there are any figures for men and women on this but one knows that there are very vulnerable women in these circumstances. The Corston report has made that clear to us. But I certainly back these amendments.
Lord Mayhew of Twysden: I view these amendments with sympathy but not with total acceptance and I would like to say why. In the last couple of days it has become almost a truism to say that there is very little expectation of a successful result from an order of custody imposed upon anybody under the age of 18. I am much in sympathy with what the noble Lords, Lord Judd and Lord Ramsbotham, have said about the special circumstances that affect the under-21s. Over the years we have legislated to provide that custody for a young person shall only be a last resort.
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- “the offence ... could reasonably have been expected to cause serious physical or psychological harm to another or others”,
- “a custodial sentence is necessary to protect the public from a demonstrable and imminent risk of serious physical or psychological harm”.
I think that could be found to be dangerously and impracticably narrow. I would be interested in the noble Baroness’s comment on this point and the Government’s response to it. There may be a case for a restriction on what can be regarded as a last resort but as at present advised I think this is unduly narrow.
Baroness Butler-Sloss: To a large extent I support both sets of amendments. I particularly support the amendment that raises the age from 18 to 21 for that very vulnerable group of children. I also share the concerns of the noble and learned Lord, Lord Mayhew, that there should be a restriction but that this is too narrow. One should be thinking a little more broadly for the protection of the public because the public will not understand if between the ages of 18 and 21 we are treating them exactly the same as children. But even with children one has to be a little careful that this is not too restrictive. I totally agree with the concept but some wording to make it slightly broader would be better than the present.
Baroness Falkner of Margravine: I will not speak about the amendments of the noble Lord, Lord Judd, on raising the age of the custody threshold to 21; I will speak only to those which have my name against them. Anticipating perhaps what the Government’s resistance to this might be, I would argue that one of the problems here is the definition of “so serious”. Section 152(2) of the Criminal Justice Act 2003 requires that:
“The court must not pass a custodial sentence unless it is of the opinion that the offence ... was so serious”.
The problem is that the threshold and the meaning of “so serious” is too vague. That definition necessarily will relate to a person’s age and circumstances, and, dare I say, emotional and intellectual development, on which we have had such a robust debate earlier.
I direct the noble and learned Lord, Lord Mayhew, and the noble and learned Baroness, Lady Butler-Sloss, to international comparisons, which were articulated so clearly yesterday in the opening speech made by the noble Baroness, Lady Stern, on the principles. In this country, we cannot have children who are more feral, who are worse, than comparable children elsewhere—at least in comparable economies, GDPs and populations.
When we talk about the situation in this country we seem to believe that something is particularly wrong with us here—I call it British exceptionalism—which is an admission of defeat. International comparisons clearly show that custody thresholds apply and are successful elsewhere. I shall not answer
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The amendment would enable interventions to be improved. It perhaps is a little too narrow and perhaps we need to think again about whether we can make it more practically applicable. But it would provide interventions for those who need to be locked up for genuine reasons of public protection and would enable the reallocation of resources for more suitable and effective community work. We know that community programmes are not adequately funded. About 70 per cent—£280 million—of the Youth Justice Board’s programmes budget is spent each year on locking up—I know that the Minister is sensitive about those words—children.
Lord Kingsland: We are most sympathetic to the animating theme which lies behind these amendments, although we have one or two hesitations about particular aspects of the detail.
As I think that we have all said in the past two days, custody is known to be one of the least effective and most harmful of criminal justice disposals for children, with eight out of 10 reoffending within two years of release. I note that the Minister in another place, David Hanson, did not object to the concept of custody thresholds, which is not surprising. The Youth Justice Board’s publication, entitled, Strategy for the Secure Estate for Children and Young People, of November 2004, said:
“The YJB expects legislative changes that are due soon to bring greater clarity for courts about the [children’s] custody threshold”.
As Members of the Committee are well aware, YJB policy documents are cleared by Ministers and thus, effectively, become government policy.
The aim of a custody threshold for children should be to ensure that children are only ever locked up as a last resort, principally for public protection. Moreover, a reduction in the number of children in custody would release considerable resources for improved prevention and rehabilitation where it can be most effective, as noted by the Audit Commission, the Public Accounts Committee and many other official bodies.
Lord Hunt of Kings Heath: Perhaps I may refer to a few of the questions that were raised before I come on to the Government’s view of the specific issues. The noble Baroness, Lady Linklater, referred to the downward use of custodial sentencing, which I think is the equivalent of my up-sentencing. We understand what we mean. I just want to stress that this is not the aim. This is about ensuring custody is indeed the last resort. That is why, in the earlier part of the Bill, so much emphasis is put on the YROs. The noble Earl, Lord Listowel, referred once again to the very important question of restraint. As I said earlier this afternoon—it seems many hours ago now—the review that has been commissioned is due to report in April. I hope that will inform the development of a sensible and helpful policy. We will have to see what the review says.
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The noble Earl also asked about deaths in custody. I am very happy to circulate the details that I have. I cannot answer the question, raised I think by the noble Baroness, Lady Howe, about women. I will try to find that information. We have another happy debate only a few hours ahead in relation to the report of the noble Baroness, Lady Corston, and I have no doubt that that is one of the matters that we will discuss. On the noble Earl’s specific question, every death is a personal tragedy. My understanding is there was one death at Hillside SCH in 1998. I will let him have details of that of course.
I also want to provide the figures on young people in custody and the question of whether we are in a stable position. My understanding is that on 30 June 1997, there were 2,479 under-18s in custody. In October 2002 it had gone up to 2,735. The figure for June 2007, which is the latest I have, is 2,426. It is on that basis that I used the word stabilisation earlier. The YJB disposal data published for 2006-07 show that total disposals in that year were 216,000: pre-court were just over 96,000; first tier 73,000; community 39,700 and custody 7,097. The difference is that the figures I gave earlier were the number of people in custody at one point, whereas the latter figures are about the number of disposals during the calendar year. Noble Lords will interpret those figures, but it does put this into perspective.
I will also comment on another interesting question the noble Baroness, Lady Linklater, has raised about the 1982 Act. There was undoubtedly a significant drop in the use of immediate custody between those years for indictable offences for under-21s. This coincided with a corresponding increase in repeat cautioning for offenders, particularly the group aged 17 to 21. For instance, the number of males cautioned for an indictable offence in 1980 was 3,200 and that had risen to 22,500 by 1990. My understanding is that repeat cautioning for indictable offences was deemed not acceptable by the then Government which was why they reversed the position. That is the background to some of the very interesting questions—
The Earl of Listowel: Do the figures include the number of children on remand?
Lord Hunt of Kings Heath: Which figures are those?
The Earl of Listowel: Those given for children in custody over time.
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