HC Deb 09 June 1969 vol 784 cc1020-57
Mr. Carlisle

I beg to move Amendment No. 2, in page 2, line 2, leave out from the beginning to "then" in line 4.

The Amendment raises again one of the major issues of controversy on the Bill, one which was referred to by my right hon. and learned Friend and many others of those who took part in debate on Second Reading, a matter which took up one full sitting of the Committee on the Bill. It is this. We are moving over, for those of younger age, from criminal proceedings as such to care proceedings instead. The question is whether it is necessary, before we make such an order, to prove that the child has committed an offence and also is in need of care and control which he is unlikely to receive; or whether, as the Ingleby Committee recommended, that the commission of the offence in itself should be ground for bringing a child before the courts.

I appreciate that the Bill has changed in certain important matters since the Second Reading debate, and, of course, I appreciate that in Committee a major Amendment was made, or was undertaken to be made, and that the Government now propose to limit the inability to prosecute under the Clause to children up to the age of 12, rather than 14, and that any further rises above the age of 12 to the age of 14 will be done by affirmative Resolution of both Houses. So in the very short term we are now, on Clause 1, talking only about children of 10 or 11; but the House must take cognisance of the fact that the Bill envisages the raising of the age of criminal responsibility up to 14, and it will then be not only those of 10 or 11 but also those of 12 and 13 in respect of whom proceedings will be open to be taken under Clause 1. Therefore, although in the immediate future the importance of the Amendment will be of less significance than it was at the time we moved it in Committee, it is still a matter of principle and still a matter of major importance.

I regret that, unfortunately, the hon. Member for Oldham, East (Mr. Mapp), who was here earlier, is now absent—I hope for only a short while. I regret it because he was the one hon. Member on the Government side who on Second Reading expressed great criticism of Clause 1, and he attempted to become a member of the Committee on the Bill so that he could express that criticism again in Committee. Unfortunately, for reasons which I need not go into now but which were gone into thoroughly, even if it was out of order to do so, in Committee, he was in the end excluded from the Committee and could not take part in that debate.

This is the Amendment which raises the question which has been described as that between the child who comes from the good home and the child who comes from the bad home. For reasons which I expressed in Committee, I do not necessarily believe that the conflict is best described by distinguishing between a good home and a bad home. I would prefer to say that there is a grave danger of distinction between a child from what appeared to be a satisfactory home and a child from what appeared to be an unsatisfactory home.

6.30 p.m.

It would be necessary under the Bill as it stands, before taking proceedings against a child, to show that the child has committed an offence and also that he is in need of care and control which he is unlikely to receive unless the court makes an order in respect of him. The Under-Secretary knows that this double burden of proof is something which is wholly opposed by the Magistrates Association and, I believe, by all those who are involved in the administration of justice. It is also, in my experience, substantially opposed by a great many members of the probation service and by the chief probation officers.

The basic ground of objection is that if the Bill is passed in its present form it will bring a sense of injustice into the administration of the criminal law as it affects young children. I do not propose to go over at length the arguments which have been adduced on two previous occasions, but I remind the House of the example that has been given to show the danger that may arise. Two children from different homes who go out jointly and commit an offence are caught committing that offence. If one of them apparently comes from what might be described as a satisfactory home, he will not be brought before the court because it could not be proved that he was in need of care and discipline which could not be enforced within his home; whereas if the other child comes from what might be described as an unsatisfactory home, which might be unsatisfactory only because his father has been away and has not been able to exercise discipline, then that child will be brought before the court.

To bring one child before the court and not bring the other will produce a sense of injustice in the child brought before the court which will far outlive any sentence or form of treatment the court may impose upon him. It will also produce a sense of injustice in the parents, and it will make the child, at an age when he is sensitive to justice, quite possibly for the rest of his life, feel that there is injustice in the laws of this country.

This argument has been criticised by those who say that there is bound to be a distinction in the way in which different children are dealt with. This criticism, which has been made particularly by the child care officers, comes from a complete misunderstanding of the injustice which we believe will be caused by the Bill.

Of course it is true, and has always been accepted, that if several children appear before the court for the same offence they may not necessarily all be dealt with in the same way. The hon. Member for Watford (Mr. Raphael Tuck) nods; as a practising member of the legal profession he well knows that day after day in the courts persons, whether they be adults or juveniles, who have committed the same offence have been dealt with differently because their backgrounds and previous records are different and different sentences are appropriate. Everyone, whether it be an individual, or in the case of a child, a parent, accepts the rightness of that. What parents do not accept, and what they will not appreciate, is the rightness of a system whereby little Johnny, their child, is brought before the court but little Billy, the other person's child, does not come before the court. It is a wholly different type of injustice. There is a difference between treating children differently and one child being brought before the court and the other not.

It is because we feel that this requirement to prove the offence and then to go on to prove something further will lead to this distinction in bringing children before the court and to the danger of injustice that we have attempted on many occasions to remedy it.

This is what the Ingleby Committee recommended. That Committee sat between 1956 and 1960. It was a highly skilled committee and it considered the whole matter of dealing with children through the courts. The committee recommended to a large degree what the Government have here done. It recommended doing away with criminal prosecutions against younger children and, instead, bringing care and control proceedings; but the committee made it abundantly clear, and it was a recommendation, that if that was done, the committal of an offence must in itself be evidence of a child not being properly in care and control, thereby avoiding the danger of the injustice inherent in the Bill. There will be the feeling that one child has managed to get away with it whereas another child is punished. I know the Under-Secretary hates the word "punishment" when dealing with children; he prefers to talk about means of treatment, or that horrible phrase "method of disposal by the courts".

Second, the requirement to prove both guilt of the offence and that the child is in need of care and control which he will not otherwise receive will inevitably lead to the stigmatisation of the parents in front of the child. Evidence will have to be called in court in front of the child that the parent is not an adequate parent. What more stigmatism, what more danger, could there be in bringing before a child the fact that his parent has failed him and is to a large extent responsible?

Mr. Peter Mahon (Preston, South)

Would not the hon. Gentleman consider that a parent who is so reprehensible as to neglect his child so that the child has the misfortune to indulge in wrongdoing should be castigated even before his own child?

Mr. Carlisle

In answer to the hon. Gentleman, I do not think that parents wherever possible should be castigated before their own children, because I do not believe that this can ever do good to the parent-child relationship. Of course, there may be cases of appalling neglect. I am referring not to those but to cases where it is necessary to prove that there is lack of care and control in the home. The parent may not be morally reprehensible; it may be that, because of the father's occupation, he is called away from home and discipline has fallen down. It may be that the parents do not exercise the adequate care and control that they should. This does not mean that a child cannot be brought before the court unless there is reprehensible moral conduct by the parents, and, even if it did, I still would not like to see castigation in front of the child.

In Committee I pointed out that difficulty might arise if one part of the process were proved but not the other. I referred, in other words, to the case of the child who had been brought before the court on the belief of the local authority that there were grounds for making an order but after evidence had been called to the effect that the child was in need of care and control the magistrates said that they were not satisfied with that claim. In those circumstances the child, who might be 11 or 12 years old, would hear that he had been found guilty of an offence but that, for various reasons which he might not understand, the court was unable to do anything about him. He would get the impression that although he has committed, and had been told by the court that he had committed, a wrong, he was able to get away with it.

There are, therefore, three objections to the Government proposal as drafted which would all be met by the acceptance of the Opposition Amendment. The major point which causes concern to all those concerned with the administration of justice, including the hon. Member for Oldham, East, is the possibility of injustice being bred between children.

Mr. Raphael Tuck (Watford)

It is with considerable regret that I intervene to make my position clear, for I have certain remarks to make about the new Clause and I trust that the Under-Secretary will carefully heed the remarks of the hon. Member for Runcorn (Mr. Carlisle).

Not only a child but any citizen should be brought before the court for an offence alone and not for an offence coupled with the fact that he is in need of care and control. As the hon. Member for Runcorn said, the fact that a youngster is in need of care and control can be dealt with by the court at a later stage. That should not be the deciding factor when considering whether or not to bring somebody before the court, and I fear that, if it is, a sense of unfairness and differentiation will be created in the minds of youngsters in respect of perhaps the same offence.

The deciding factor in bringing somebody before the court should not be a good or had home. If two juveniles are jointly charged with the same offence and one is in need of care and control while the other is not, the child from the good home will go home with no action having been taken against him while the child from the bad home will have had action taken against him, and the sense of grievance on the part of that child and his parents cannot be over-emphasised. These double criteria applying to joint offenders are bound to create an undesirable state of affairs. The temptation to yield to corruption might be great, and this must be borne in mind.

If this matter is taken to a Division, I fear that I shall not be able to vote for the Government. In informing my hon. Friend that I shall abstain, I urge him to remember that magistrates, who have great experience of these matters, can, having considered the offence, then consider whether a juvenile is in need of care and control. Care and control should not be the deciding factor. The deciding factor should be the offence.

6.45 p.m.

Mr. Miscampbell

For a number of hon. Members this is the third time that we have debated this subject. For that reason I intend to be brief, although I feel it important that my views should be stated for the third time.

As my hon. Friend the Member for Runcorn (Mr. Carlisle) pointed out, we recognise that a very different point now arises in view of the indication which was given in Committee by the Under-Secretary on this matter. We know that the Government regard the age of 12 as being an age at which to strike a balance, moving to 14 as and when facilities are available. Nevertheless, we know that it is the intention to move to 14 as quickly as possible. In addition, we must consider the Seebohm recommendation that 15 would be the right age, with 16 as a possibility later. I suspect that when we have got to 14 it will not be long before there is agitation to move to 15 and then 16. Certainly we shall arrive at the age of 14 as quickly as possible.

We are, therefore, dealing with a group of young persons aged 12 to 14 who are, unfortunately, capable of committing serious offences. One need only visit a magistrates' court in any part of the country to see that this is so. This is agreed among all those with experience of this subject, including most of the probation officers with whom I have talked, as well as those who practice in the courts.

It is a pity that, as a result of the Clause, we shall lose the principle of certainty in the criminal law. It is a pity that the distinction between right and wrong is not being firmly held, so that when a person commits a criminal offence—I accept that he may be very young—he must be brought before the court and be dealt with.

I agree with what has been said about the Clause giving rise to a feeling of injustice. This feeling is likely to arise largely because the decision whether there is need for care and control will be an administrative one. It will not be left entirely to the local authority, which must prove the matter before the court. There will be reports from a number of officers, and the family and its background will be investigated. This will, therefore, be largely an administrative decision, and I fear that we are not imposing it in the realm of the law and the court. Because investigating officers must consider the family's circumstances, injustice is bound to be felt and there will be a feeling of unfairness between different young persons.

For these reasons I question whether the advantage, which we acknowledge, of keeping people away from the court will, in the present climate of opinion—the feeling that we must do something about offences at all levels—outweigh the clear disadvantages which will result from the Government proposal.

Mr. Charles Mapp (Oldham, East)

The form of words which we are considering has always troubled me, and I fear that it will trouble the courts in future. I say that having had some years' experience of sitting in courts. It is being said, in effect, that nine out of 10 youngsters will, having gone through the machinery of scrutiny and study, not appear before the courts whereas in the past they would have appeared. This means that we are dealing with the very difficult type of case that has always troubled the bench.

We are suggesting that if a child or young person aged up to 17—it is the young person aspect that particularly worries me—is guilty or is likely to be guilty of one of five offences and is unlikely to receive proper care and control from his parents, certain things should happen. I wonder how many magistrates sitting in juvenile courts over a period of time feel sure in their minds when deciding whether children appearing before them have had the kind of parental control which those of us in this Chamber would exercise. There is often a split form of control, where the father is absent from his duties and responsibilities and the mother tries desperately hard to put her child on the right road but lacks leadership. That is bad enough in ordinary cases, but we are concerned now with the more difficult ones.

Unless magistrates know their districts extremely well, how can they say whether a home is the right sort of background for a boy or girl appearing before them? They can pay the closest attention to the reports that they receive, but there must always be an area of doubt in their minds about whether there is an absence of care or control.

To make matters worse, when there is a series of boys and girls appearing before a magistrate having acted together in an offence, one of the difficulties of the magistrate is that, having found the leader of the escapade, he must then make sure that justice appears to be done in his final decision. What happens then if the boy comes from what is called a good home, as distinct from a home where there is an absence of parental leadership?

As matters now stand, the magistrate will be faced with a difficult decision. He will try to deal with such cases in the light of the law and in the light of the humanities of the world in which we live. There will be occasions when magistrates will feel that the proposed words make the chances of recovery of a boy or girl to society much more difficult than would otherwise be the case. Because of that, once a juvenile court has satisfied itself that the boy or girl appearing before it is guilty of one of four or five offences and is in need of care and control, I feel that certain events should follow. What do magistrates do with a boy from a good home who has apparently had all the parental care and control possible but who is completely out of hand? Do they necessarily have to find some other treatment? What about the cases which one meets frequently where a couple of boys from good homes go to a football match and join up with two or three hooligans and, in the excitement, behave just as badly as those hooligans? Are the magistrates to discriminate between them?

These words will hamper magistrates, and I feel that this is not the kind of Clause to which I can subscribe. When I say that, I reiterate what I said on Second Reading, and my view arises from my experience of dealing with this kind of case in the courts.

When children and young persons are involved in offences, it is vital that magistrates, armed with the law and legislative powers, should still have a measure of discretion. In the long run, they should never take refuge in what the law allows. In my experience, magistrates always try to find the answer and then see whether the law lets them take that course. Magistrates want first to ask themselves, "What is the answer to the problem which is before us as magistrates?" and then, "Will the law permit us to do it?" Having decided that the law permits them to do it, they act with humanity.

I think that this wording will be found to hamper magistrates, and it would be advisable to withdraw it. I shall not vote on this matter for reasons that I have explained to my hon. Friend the Under-Secretary of State. I am in fact "paired" today. However, I feel that it is right to express my view that, as they stand, the proposed words would be better deleted from the Clause.

Mr. Goodhart

The hon. Member for Oldham, East (Mr. Mapp) speaks with forthrightness and a great authority on this subject. He and my hon. Friend the Member for Runcorn (Mr. Carlisle) both assume that the reports which will be received from children's officers on children brought before courts will be full and thorough. However, I wonder whether that will be the case in the future, in view of the increased case load which is to be put on the children's department by the provisions of this Bill.

Some years ago a research worker in Greater London made a study of the amount of time that the average children's department could give to problem families in its area. The answer was 27 minutes a week. I have made a study of what the children's department of the Greater London Borough of Bromley can do in one week. The department has a staff of 16 children's officers, of whom 12 are trained. In a recent week, it had to cope with 19 cases of after-care from approved schools, with 157 children supervised under care and protection regulations, with 43 children pending adoption, with 33 inquiries in connection with the adoption agency, with 34 children supervised fir other authorities, with giving advice and guidance under the Children and Young Persons Act, 1963, to no fewer than 471 families, and with supervising eight children under court orders. That is the sort of work load carried by a children's department of 16, and it is reckoned that in order to cope with the increased pressure of work stemming from the proposed legislation, the number of children's officers will have to double.

In Committee, the Under-Secretary of State gave us some figures of the increased flow from the training school. I appreciate that the number is increasing, that it will double next year and substantially increase the year after that. But, with the additional work which the Bill will impose, children's officers will not have sufficient time to give the detailed amount of investigation necessary if magistrates are to have adequate material on which to work. It is likely that young girls coming from university, with a sociology degree perhaps, will be flung willy-nilly into trying to unravel the most difficult complex family situations. Inevitably, they will be influenced by the material circumstances of the home and the superficial appearance of the relationship between the child and his parents, and they will not have the experience or time to probe deeply into these cases.

7.0 p.m.

One other problem worries me. The old idea that delinquency stems from bad home conditions is breaking down under the impact of drugs. Just as the introduction of the motor car brought large sections of the middle class who in the past would never have been likely to come into conflict with the police, directly into conflict with the law on a number of occasions, so the spread of drugs in the juvenile world will bring to the attention of the police a lot of children who would not otherwise come to their notice.

Recently, I went to the United States of America and visited my old school—one of the best in the United States. I was appalled to find that a drug ring had been uncovered there two terms ago with children not only using drugs but selling drugs to their fellow pupils. The daughter of a friend of mine asked not to go back to her school—again one of the best schools in that part of America—

Mr. Speaker

Order. I hesitate to interrupt, but we are getting a little wide of the Amendment, which seeks to do a specific job.

Mr. Goodhart

I am seeking to show that in all these cases the children using the drugs came from families where there could be no doubt that the parents, in the normal course of events, were well capable of providing good care and discipline over their children.

With this new circumstance of drugs in America—which I fear will happen here—I am coming lower down the age scale with children of 12 and 13 becoming habitual drug users. It may happen that parents, well capable in the normal course of events of providing for their children, will have within their home children who have become delinquents in this area. So we shall find that the old classification, whether a home can provide adequate treatment, will go by the board, and I do not think that the children's officers that we shall get in future will be able to unravel this problem.

Therefore, I hope—but I do not expect—that the Government will give ground on the Amendment. I know that the Government wish to keep children out of court as much as possible, but here we have a clash with the higher interest of keeping children not only out of court but out of trouble.

Mr. Arthur Davidson (Accrington)

I agree with some of the arguments which have been advanced against the Clause. As has been said by the hon. Member for Runcorn (Mr. Carlisle) and others who have spoken, this is the third time that we have discussed the pros and cons of the Clause.

I agree that there is likely to be a sense of resentment by the parents of a child who is brought before the court, as there will indeed be a sense of relief felt by the parent whose child is not brought before the court. That is a strong argument against the Clause. It would be an even stronger argument if there was no sense of resentment already among parents and, indeed, among those who have ever appeared before a court in this country. But there is this sense of resentment. There is always a sense of resentment and of injustice when apparently two different sentences are meted out for what appears to be the same crime. There is a sense of resentment and of injustice about the disparity of sentences between one court and another for what appears to be the same crime.

I cannot see why the sense of resentment brought about by the Clause will be any greater than the sense of resentment which already exists among the parents of children appearing before the courts. For my part, I hope that my hon. Friend will stand firm on the Clause. The opponents of the Clause appear to be saying that, just because there is or may be a sense of resentment or injustice felt in one quarter, we must willy-nilly bring before the court a child who could reasonably be kept out of the court and whose name could reasonably have been kept out of any sort of criminal record. This seems to be an argument in favour of the equality of injustice rather than the equality of justice.

Mr. Raphael Tuck

My hon. Friend mentioned the child who could reasonably be kept out of court who comes from a good home. Suppose that child has committed larceny, has beaten up another little child and has run amok Because he comes from a good home, would my hon. Friend say that he could reasonably be kept out of court?

Mr. Davidson

Of course not. I do not think that is a very pertinent intervention. If the child is as bad as my hon. Friend says, I should hope that he would be brought before the court and punished heavily, as he would deserve, if the necessary care and control was not there, as no doubt it was not in the case postulated by my hon. Friend. I therefore hope that, despite the arguments which have been advanced against this provision, the Government will stick to their guns.

Sir Eric Errington (Aldershot)

I am greatly attracted by the technical point of view. I sit as a magistrate. I see difficulty arising from the effect of the Clause as it stands, unless the Amendment is accepted. It involves, first, the difficulty of proving that the person is in need of care or control which he is unlikely to receive unless the court makes an order'. My hon. Friend the Member for Beckenham (Mr. Goodhart) spoke of the considerable amount of work which inquiries along this line will entail.

It involves, second, the fact that there are two offences rolled into one. The effect might well be that, if the bench did not accept that the evidence was sufficient to prove that he was in need of care or control which he is unlikely to receive the case might fall, because there would then be no second half to the facts coming before the court. If this is so, the silly position arises where somebody may think that it will be possible to prove to a court the question of the exercise of care and control by the parents. If he fails to do so, the case falls.

Mr. Edwin Brooks (Bebington)

I want first to refer to the intervention made by my hon. Friend the Member for Watford (Mr. Raphael Tuck) in the speech of my hon. Friend the Member for Accrington (Mr. Arthur Davidson). As I heard my hon. Friend the Member for Accrington, he said that in a case where the offence was manifestly a serious one—I now quote him—"no doubt the care and control will not be there". If I correctly understand the wording of the Clause, there is no supposition that these two things will so automatically be related.

This is one of the aspects of the Clause on which for some time I have had great anxieties. For example, I have never quite understood, although no doubt the members of the Committee, who are far more learned than I, satisfied themselves of the logic of this, why homicide should be excluded. If it is argued that homicide is a particularly serious offence—none of us will dispute that—in these days of votes at 18 and puberty at 12 or 13 one can envisage other offences of considerable gravity being committed by comparatively youthful children.

Mr. Speaker

Order. We are not amending that part of the Clause.

Mr. Brooks

With respect, we are discussing the basic criterion which will enable us to decide, irrespective of the nature of the offence, whether the child concerned shall be brought to court. My point is that it is possible for a child to have committed very serious offences, but because of the disqualification involved in this wording that child might never see the inside of a court.

What my hon. Friend the Member for Accrington said—no doubt on reflection he will wish to qualify his remarks—has gone to the heart of our anxieties. Whether we like it or not, those who are assessing whether the child needs care or control will take into account not only the home and environmental circumstances generally but also the nature of the offence. I strongly suspect that the commission of a severe offence will be taken as prima facie evidence that the child is beyond the care and control of his parents.

Mr. Arthur Davidson

I was replying to a specific intervention on a mythical and hypothetical case. I accept that in certain circumstances a child who has committed a reasonably serious offence might well not be brought before a court.

7.15 p.m.

Mr. Brooks

I am not quite sure that I am much comforted by the fact that my hon. Friend was apparently referring to an allegedly mythical and hypothetical situation. The sorts of situation which were envisaged by my hon. Friend the Member for Watford are the very situations which the courts and the girls with social science degrees will have to investigate in some detail.

If this matter goes to a Division, I shall be unable to support this form of words. I have at least a qualification to speak on this subject which was apparently used by those who justified their interventions on Second Reading. I have five children. My wife is a juvenile court magistrate. I have for some time been concerned about this problem of children appearing before any court unnecessarily. Although the endeavour to prevent this is a very laudible objective, I am not sure that it is necessarily better as an alternative to have a queue of social workers turning up at the door of the home where the child lives.

I have a vision at times of children who are involved in some way with the arm of the law being subsequently pestered, and their parents being pestered, for long months by people trying to ascertain whether the parents are competent to act as parents. It will be small consolation to the child to know that perhaps at the end of the day he will not appear in court if in the meantime his parents have to suffer the possible humiliation of having their credentials investigated in depth.

Apart from these practical difficulties, I do not believe that the fundamental point of principle which arises has been satisfactorily answered in the numerous exchanges which have occurred. It has been asserted that resentment and a sense of injustice are caused when different courts mete out different punishments for apparently the same offences. We all know that at the moment there is ample pretext for this sense of injustice in the administration of justice. However, it is not sound to argue that this in some way favours perpetuating and institutionalising a new type of injustice and one built into the very machinery of the legal process.

We are inevitably discussing the question whether a child shall be brought before a court at all, not how he shall be subsequently dealt with by the judicial process. It is thoroughly misguided to say that a child, because of what must necessarily be a subjective judgment about the care or control which might be exercised upon him in the future, shall not be brought before a court at all for an offence, no matter how serious.

The hon. Member for Runcorn (Mr. Carlisle) rightly referred to the difficulties which might arise if, after a child had been brought before a court and found guilty, it was then found that he should not have been brought before the court in the first place because further examination disclosed that he was in any case subject to proper care and control. Such ambiguities and possible differences of opinion by different institutional bodies are intrinsic to this form of words.

My view is that there will be difficulties here in defining what we mean, not only because of the problem which is usually touched upon of parental control, but because, clearly, this is not the end of the matter. The wording is: that he is in need of care or control which he is unlikely to receive unless the court makes an order …". This should obviously include the care and control which he receives at school. It should, clearly, involve the care or control which it is possible for his parents to exercise in a given social environment.

If it is know that the parents are living in a poor and squalid area of the town in which there are hordes of drug addicts in the all-night café bars, I should have thought that with the best will in the world those parents, no matter how devoted they were to the child, would find it difficult to exercise due care and control. It might then properly be said, "We should take this child away from that environment because his parents are willy-nilly unable to exercise care and control. This is not a reflection upon them; things are too much for them to cope with."

But will not the general public interpret the situation as one where the parents are defined as incapable of exercising care or control because of their own inadequacies? I was speaking about this to my local children's officer during the weekend. I am reminded that the views of the associations are not necessarily views which are shared by all hon. Members, but she herself drew attention to the very serious point that we shall have women or men, with or without degrees, having to make judgments about the competence of parents on what will inevitably be subjective criteria. To give local government executive officers this sort of power in circumstances where the decision will depend upon whether the child goes to court at all is a most sombre blurring of the distinction between the Executive and the judiciary.

I am sorry that I have spoken for so long, but I hope my hon. Friend realises that it is not only those who served on the Committee who feel great anxieties about this part of what in general I regard as a Bill which is helpful and certainly of good intent.

Mr. Grieve

It is always difficult to intervene in a debate in which almost all that can and should be said on both sides has been said. But it is sometimes helpful if one makes one's point if only because one makes it in a slightly different way which may affect the judgment of those who are making up their minds about the point at issue.

I found myself in complete agreement with the sentiments expressed and the reasoning behind them of the hon. Member for Bebington (Mr. Brooks). The Clause at present erects into a condition precedent to the administration of justice something which is properly taken into account and should be taken into account when justice has been administered and the time has come to decide what shall be done with the person who is found to have committed an offence. It is no good saying that when a court has to decide between three or four people who have committed the same offence and disposes of them differently, the impression of injustice may be created. It may, but injustice has not been done, or at least the court has done its best to see that injustice has not been done. The court has taken into consideration all the mitigating circumstances, the background and the record of those concerned and has decided what is the appropriate treatment in each case. That is one thing.

I cannot believe that the Minister will now be able to tell us that there is a juvenile court in the country which, in deciding what is the right course to take with a juvenile who is found to have committed an offence, does not now consider what kind of home he has and what are his needs in care and control. Of course, the courts takes those matters into consideration. They have been working admirably in that way for a long time. They should be permitted to continue in that way and to have regard to those important factors in deciding what the sentence shall be and what shall be done with any erring person, be he juvenile or adult. But to erect that into a condition precedent to the administration of justice, which is what this is doing, is to interfere with the intention of justice.

Instead of a person being brought before the court and dealt with by the court because he has committed an offence, extraneous factors have to be taken into consideration as a result of this Clause. I think that is wholly wrong. It is striking at the foundations of justice itself. For those reasons, I hope very much that the Minister will listen to what has been said and will accede to the Amendment.

Mr. Elystan Morgan

Although I cannot agree with the sentiments of hon. Members who have supported the Amendment, I have the greatest respect for them.

I think the first thing I should do is to seek to correct the misconceptions that might have arisen from the speech of the hon. Member for Runcorn (Mr. Carlisle) who suggested that there appears to be a very substantial consensus of opinion against the provisions of Clause 1. It is only proper in the circumstances that I should point out that these bodies have expressed their support of Clause 1: the Association of Municipal Corporations, the County Councils Association, the Police Federation, children's officers and child care officers—with reluctance in their case, because they felt that they would like to make it even more difficult for this type of case with which we are dealing to be brought to court.

I should like to put to the House three main arguments in support of the contention that this Amendment should be rejected. The first turns on the principle of dealing with young offenders outside the courts, wherever that is possible. I am sure that nearly everyone in this House, whether or not he agrees with all the provisions of the Bill, has expressed agreement with the aim of dealing with young offenders outside the courts whenever that is possible. Yet it is the very words which this Amendment would delete which would achieve this aim in the cases covered by Clause 1. The deletion of these words would be inconsistent with the main principie of Part I of the Bill. It is inconsistent to profess a belief in the object which these words would achieve and yet to propose their omission, without suggesting any alternative whatsoever.

Secondly, the question of the need for guidance. The words proposed to be deleted provide the necessary guidance to the police and local authorities in deciding whether a child should be brought before a juvenile court. All they said is this: If court proceedings are necessary because the child's situation or behaviour is such that it cannot be dealt with adequately without a court order, then court proceedings may be taken and an order may be made. If, on the other hand, the situation could be dealt with adequately without an order, then there is no need for court proceedings at all. If the child is, nevertheless, taken to court, no order should be made. That is all that these words say. It is difficult to understand why so many people are worried about a provision which is no more than a declaration of simple common sense.

Mr. Raphael Tuck

Does it not boil down to this? It is not very nice to say, but if a child is brought before the court and, because his father has enough money, he comes from a good home, he will not be proceeded against. But if he is brought before the court and, because his father does not have so much money, he does not come from such a good home, he will be proceeded against. It is a question of money.

7.30 p.m.

Mr. Morgan

No, Sir. I think that is a very narrow and wholly distorted view of the situation.

By the third argument it is alleged to be unfair that some children should be taken to court for an offence while others involved in the same or similar offence should not. Yet those who argue this case agree that it is right and proper for courts to distinguish in the treatment of children after a finding according to the circumstances and the background of each child. Everyone agrees that there must be discrimination at some point. If it is also agreed, as seems to be the case, that not all children in trouble should be taken to court, it follows automatically that someone other than a court must make the choice of who should go to a court and who should not. This is discrimination in the favourable sense of the word.

Those who disagree with such pre-court discrimination are simply saying that they do not agree with Part I of the Bill and that all children without exception should be dealt with by the courts. That is not a tenable proposition. Over one-third of all indictable and non-indictable offences by children are dealt with by caution, not to mention the many offences dealt with informally by parents and others which do not appear in the statistics. There is no question of it being sensible or practicable to take all those children to court.

I shall deal with the good homes and the bad homes. This perhaps the most important point of all. It should be remembered that the positive side of keeping children out of court is the encouragement of parental responsibility and the giving of more help to parents in doing their job. Those who suggest that subsection (2) of Clause 1 will mean that children from bad homes will be taken to court have totally mistaken its effect.

There is no reference to good or bad homes in the Bill. This provision will keep out of court many children who now are taken to court. Most of the children kept out of court will be children from unsatisfactory backgrounds. This is because under the present system children from poorer backgrounds are most likely to be taken to court.

Mr. Peter Mahon

Does my hon. Friend agree that the stigma of delinquency is just as great whether a child goes to court or not and whether he comes from a bad home or not? In trying to solve this problem we are endeavouring to bring about a set of circumstances where there will be less delinquency than at present.

Mr. Morgan

I could not disagree with my hon. Friend. Once an act has been committed and once any other person is aware of the fact that the act has been committed, a stigma attaches to the person who committed the act. There could not be two views about that.

This subsection seeks to reduce discrimination by offering more help and support to dealing with children out of court. I do not think hon. Members have paid sufficient attention to the one central fact that of 120,000 offences committed by children and young persons under the age of 17 every year—indictable and non-indictable—over 30,000 are dealt with by way of caution. The Magistrates' Association, in a very closely argued memorandum, has stated quite categorically its wish never to see a case taken to court unless it is necessary that that should be so. Everyone agrees with that, but how do we arrive at a standard of determination—by guesswork, by intuition, or by drawing up some set of criteria?

Everyone who thinks carefully about this question—police, magistrates and persons concerned with the welfare of children—has a rough criterion in this connection. The criterion is whether or not the child or young person will get the care and control he needs. The basic question is not the background of the child but the needs of the child. In considering the case we must consider why the child committed the offence and in that context his home background will be relevant. Again, in the context of the assistance and guidance he will get, his home background is relevant. Having decided what his needs are, we apply our minds to finding the best way in which we can help him.

By including these words in subsection (2), which the Amendment seeks to remove, we have done nothing more than to set out plainly the criterion which most reasonable men have in mind in deciding whether or not it is necessary for a child to be brought to court. Therefore I hope that this Amendment will be rejected.

Mr. Quintin Hogg (St. Marylebone)

I wish I could persuade the Under-Secretary that he is wrong about this. I have been puzzling myself all this afternoon and when I read the reports of the Standing Committee as to why the Government should have made such a point of their objection to the criticisms that have been offered.

I am not going to argue about what organisations have said or have not said—some are for this proposal and some against it—but I shall deal with the arguments presented to the House. Apart from one intervention, which I suppose was helpful to him, by his hon. Friend the Member for Preston, South (Mr. Peter Mahon) and the speech which was certainly intended to be helpful by the hon. Member for Accrington (Mr. Arthur Davidson), the Under-Secretary has had a thoroughly disagreeable reception in the House, because no one else has spoken a word in favour of the Government's view. On this occasion I side with the majority, not because it is a majority but because I think it right.

I realise that probably the Under-Secretary has considerable limits to his instructions such as Under-Secretarys have to stick to. I am not therefore intending this as a personal criticism when I say that he was speaking to a brief. The Home Secretary explained to me that he could not be present this afternoon. This rather engenders in my heart the hope that when the Under-Secretary reports to the Home Secretary he may be giving rather different advice to his colleague than he has given this afternoon to the House. I should like to put the matter in rather plainer language than he put it.

Of course, no one on either side is saying that children ought to be prosecuted every time they commit offences. There is common ground between both sides on this. But I do not at all agree with the Under-Secretary that the only criterion of whether a child should be prosecuted is whether a care and control order should be made. That seems a crude over simplification. If I were giving guidance to a police officer about what should govern him in starting a prosecution, I should say first the seriousness of the offence has a great deal to do with it, and secondly whether it is one of a series or an isolated incident, and thirdly the strength of the evidence if the matter is in dispute on which the prosecution is founding its case. Those are all matters which a wise police officer would take into account before taking proceedings. I agree that one of the factors would be the appropriateness of an order, but it is not the only factor. I do not see why it should be elevated into the only factor by this Clause.

Let us see how it will work on the ground. I was tremendously struck by a document sent to my hon. Friend the Member for Runcorn (Mr. Carlisle) by the Clerk to the Warrington Justices. The Under-Secretary should consider this concrete case sent by the Clerk to the Warrington Justices to show that a similar situation to that which will arise under the Clause unamended can already arise under ordinary care and control proceedings. What he wrote strikes me as tremendously cogent. He said: If you think my comments are exaggerated, let me give you an example of some care and protection proceedings which took place when I was in Gloucestershire, and there have been similar examples here in Warrington. Some police cadets committed serious indecent assaults on some girls in the Gloucestershire area. A number of the cadets were under 17, and care and protection proceedings were taken. You have here an identical position to Section 1 of the new proposed Bill. They had been 'guilty' of a serious offence and on the face of it were unlikely to receive the necessary care or control unless the court made an appropriate order. All the cadets, however, came of good background"— and this is where the Clerk agrees with the hon. Member for Watford (Mr. Raphael Tuck)— and their parents simply said that (a) they did not know that it was happening, (b) they were giving, and had given, adequate instructions on matters concerning sex, (c) that they were previously of exemplary character, and (d) they would instruct them in the future. The High Court held that no order could be made by the justices because they were receiving proper care and guidance. Suppose that,"— says the Clerk to the Justices as a comment— in similar circumstances, under Section I of the new Bill an identical situation ensued. No order is made because the court is prohibited from making such an order because of good or reasonable home surroundings and, prima facie, adequate care or control. Then the boy goes out and, as I have said, commits another serious offence. Someone has then been injured, a situation which could and ought to have been avoided. One of the golden principles of criminal law is the protection of the public, a principle which may in certain circumstances only be followed after a second injury is caused. Where the Under-Secretary is wrong about this is that he seems to think that by putting these words into the Bill, or keeping them in it, he is giving useful guidance to police officers and local authorities so as to enable people to know when children should be brought to court or not. Now I disagree with him about that on principle as I have said because I think that he is elevating one factor out of others. But not only do I disagree with him about that, but he is wrong about what the Clause does. It does not give guidance; although it is true that it is introduced into the Bill by subsection (1) as guidance to the prosecuting authority, its use in this connection which we are discussing is not as guidance to prosecuting authorities before proceedings are brought but as a limitation on the powers of the court. It is precisely there that we fall foul of the hon. Gentleman.

Mr. Elystan Morgan

Would not the right hon. and learned Gentleman agree that up to now he has put the case as if the only possibility in the circumstances was a care and control order, and that in the case he mentioned there is the concurrent and eminently reasonable alternative of proceedings under new Clause 1 or the old Clause 5? There is no reason in the circumstances he described why those concerned should not be prosecuted, since they were over the age of 14.

Mr. Hogg

Of course, if they were of the appropriate age. But that begs the whole question. We are dealing with the commission of a serious offence by people of the appropriate age. It is true that the police cadets were of the wrong age to be affected by the Clause, but that case was given as an example of what can happen.

7.45 p.m.

The answer to the hon. Gentleman, therefore, is that the age here is irrelevant. One must suppose, in order to apply the Clause at all, that the offence is of an appropriate character committed by boys of the appropriate age. The basic vice of the Clause was well pointed out by my hon. and learned Friend the Member for Solihull (Mr. Grieve), and it was expressly the ground upon which the Ingleby Committee came to the opposite conclusion. It said in paragraph 86 of its Report: In cases coming within category (iii)"— that is the case where an offence has been proved— the parents' position would fall to be considered when the court came to decide the method of treatment, if any, to be ordered; if the case were proved, the child would be found to be in need of protection or discipline', and subject to be dealt with, and the court would then have to satisfy itself that It was necessary to make an order to ensure that the child would receive the treatment that he needed. In other words, the time at which the court should be asked to inquire whether some form of order is the appropriate method of dealing with it is not before it deals with a case, but after it has found the case proved.

I would point out to the Under-Secretary the extraordinary situation which would arise in practice if he insists on what seems to me to be an unreasonable position. It is elementary, whether one is dealing with a child or an adult, that if guilt is disputed the record cannot be taken into account until the order is made. Let us consider the case of a child of the appropriate age proceeded against under the Clause for a serious offence, the fact being that a previous series of offences of the same kind has been committed. Everybody in the House who has heard the debate will realise that to establish that the child was in need of some kind of order one would have to bring those previous offences into account before the magistrates, in order that the magistrates could deal with the case at all, because this would be the evidence that the child was in need of care and control. This means that in cases of disputed guilt the hon. Gentleman is undermining the fundamental principle of British justice that one cannot bring in previous offences where guilt is disclosed before conviction. In order to give the magistrates jurisdiction to deal with the case at all, they will have to be shown this.

Mr. Elystan Morgan

I would be grateful if the right hon. and learned Gentleman would direct his attention to Clause 3(1)(c). He will see there that the offence will not be assumed to have been committed. It says: disregarding Section 4 of this Act he would if charged with the offence be entitled to be discharged under any rule of law relating to previous acquittal or conviction.

Mr. Hogg

That means that he can only plead autrefois acquit or autrefois convict. It does not mean anything in relation to the point which I have been making. The hon. Gentleman must face it. In order for the court to have jurisdiction to deal with a juvenile of the appropriate age, it must be satisfied of two things: first, that the offence has been committed, and, second, that the child is not receiving the supervision it requires. That is what the Clause says.

If the only evidence which establishes the second point is a series of previous offences, it follows that as a matter of certainty the court will have to apprise itself of the previous series of offences so as to give it jurisdiction to deal with the case. The hon. Gentleman cannot ride away with a lot of Home Office briefs when he is dealing with an important point.

Mr. Elystan Morgan

In my impetuosity I quoted the wrong words, which are almost identical. I should have quoted the following words in Clause 3 (3) which describe the offence condition is proved … disregarding section 4 of this Act, it would have found him guilty of the offence if the proceedings had been in pursuance of an information duly charging him with the offence… In other words, every rule of evidence is exactly the same with regard to the finding of an offence as if it were in criminal proceedings.

Mr. Hogg

But see where that brings the hon. Gentleman. Now he says—and this makes it even less acceptable, at any rate to me—that in cases where a serious offence is committed and in which the evidence of want of proper supervision consists in a previous series of convictions, the court cannot take account and, therefore, must discharge the person altogether because it will not have jurisdiction to deal with it under Clause 1. That is a much more harmful horn of the dilemma for the hon. Gentleman to impale himself upon but if he chooses to sit upon that horn, then let it enter deeply into his soul.

We must face the fact that, although no one wants children to be prosecuted in every case of an offence they have committed, and although it be true that, before an order is made, the court should satisfy itself that the order is appropriate, if necessary by looking at the record, the moment to do that is after it has found guilt or innocence on the question of whether the offence is proved, and the

fallacy of introducing this idiotic system, which is designed as a limitation upon the jurisdiction of the court under the plea that it is really only intended under subsection (1) as a guidance to police oflicers and local authorities as to when to prosecute, shows the extraordinary confusion of thought into which the Home Office and its advisers have fallen.

The result of this will be a feeling of injustice. I am unimpressed by the argument of the hon. Member for Accrington that in some cases people feel injustice as it is. Why that should be a reason for adding to the feeling of injustice he never explained. But I will explain to him the difference. It is that in the case he supposed, when two people are given different sentences because their cases are different, the feeling of injustice is thoroughly undeserved and unreasonable. In this case, where one child who happens to have an unfortunate family background is brought to court while another, who may have been the instigator, cannot be brought to court at all, the feeling of injustice is well founded and would perhaps receive complete support, if it were not for the Home Office, from almost every hon. Member.

I do not want to score off the Under-Secretary of State, although he provokes me into indiscretion, perhaps, by intervening, although I am glad that he does so. We are not trying to make him feel that he has made a mistake about this. I merely beg him to take back this debate to the Home Office and use his power and influence upon his colleagues and civil servants to say, "We had a bad debate about this. Let us look at it again." If they beat us in the Division which we must now have, the Government should put forward an Amendment in another place in the sense that perhaps their critics on this issue are right. If they do so, I shall not taunt the hon. Gentleman—not more than is reasonable, at any rate, and certainly without rancour—with having changed his mind and having shown wisdom in abandoning a thoroughly unworthy cause.

Question put, That the Amendment be made:—

The House divided: Ayes 125, Noes 182.

Division No. 234.] AYES [7.54 p.m.
Astor, John Bell, Ronald Berry, Hn. Anthony
Atkins, Humphrey (M't'n & M'd'n) Bennett, Sir Frederic (Torquay) Biffen, John
Balniel, Lord Bennett, Dr. Reginald (Glos. & Fhm) Biggs-Davison, John
Black, Sir Cyril Hill, J. E. B. Pounder, Rafton
Boardman, Tom (Leicester, S. W.) Hogg, Rt. Hn. Quintin Prior, J. M. L.
Boyd-Carpenter, Rt. Hn. John Holland, Philip Ramsden, Rt. Hn. James
Boyle, Rt. Hn. Sir Edward Hordern, Peter Rees-Davies, W. R.
Brinton, Sir Tatton Hornby, Richard Renton, Rt. Hn. Sir David
Brown, Sir Edward (Bath) Howell, David (Guildford) Rhys Williams, Sir Brandon
Buck, Antony (Colchester) Hunt, John Rodgers, Sir John (Sevenoaks)
Bullus, Sir Eric Iremonger, T. L. Rossi, Hugh (Hornsey)
Burden, F. A. Irvine, Bryant Godman (Rye) Russell, Sir Ronald
Campbell, B. (Oldham, W.) Jenkin, Patrick (Woodford) Scott, Nicholas
Campbell, Gordon (Moray & Nairn) Jopling, Michael Sharples, Richard
Carlisle, Mark Joseph, Rt. Hn. Sir Keith Shaw, Michael (Sc'b'gh & Whitby)
Clark, Henry King, Evelyn (Dorset, S.) Silvester, Frederick
Clegg, Walter Knight, Mrs. Jill Sinclair, Sir George
Costain, A. P. Lane, David Smith, John (London & W'minster)
Cunningham, Sir Knox Legge-Bourke, Sir Harry Speed, Keith
Dance, James Lewis, Kenneth (Rutland) Stainton, Keith
Deedes, Rt. Hn. W. F. (Ashford) Longden, Gilbert Tapsell, Peter
Elliot, Capt. Walter (Carshalton) Lubbock, Eric Taylor, Edward M. (G'gow, Cathcart)
Elliot, R. W. (N'c'tle-upon-Tyne, N.) McAdden, Sir Stephen Taylor, Frank (Moss Side)
Errington, Sir Eric MacArthur, Ian Temple, John M.
Eyre, Reginald Mackenzie, Alasdair (Ross & Crom'ty) Thatcher, Mrs. Margaret
Fortescue, Tim McNair-Wilson, Michael Turton, Rt. Hn. R. H.
Glover, Sir Douglas McNair-Wilson, Patrick (New Forest) Vaughan-Morgan, Rt. Hn. Sir John
Godber, Rt. Hn. J. B. Marten, Neil Vickers, Dame Joan
Gower, Raymond Maude, Angus Wainwright, Richard (Colne Valley)
Grant, Anthony Mawby, Ray Walker, Peter (Worcester)
Grant-Ferris, R. Miscampbell, Norman Walters, Dennis
Gresham Cooke, R. Montgomery, Fergus Ward, Dame Irene
Grieve, Percy More, Jasper Weatherill, Bernard
Hall, John (Wycombe) Morgan, Geraint (Denbigh) Whitelaw, Rt. Hn. William
Hamilton, Lord (Fermanagh) Morrison, Charles (Devizes) Wilson, Geoffrey (Truro)
Hamilton, Michael (Salisbury) Munro-Lucas-Tooth, Sir Hugh Winstanley, Dr. M. P.
Harrison, Brian (Maldon) Murton, Oscar Wood, Rt. Hn. Richard
Harrison, Col. Sir Harwood (Eye) Noble, Rt. Hn. Michael Woodnutt, Mark
Harvey, Sir Arthur Vere Onslow, Cranley Worsley, Marcus
Hastings, Stephen Page, Graham (Crosby)
Heald, Rt. Hn. Sir Lionel Page, John (Harrow, W.) TELLERS FOR THE AYES:
Heath, Rt. Hn. Edward Percival, Ian Mr. Timothy Kitson and
Hiley, Joseph Pink, R. Bonner Mr. Hector Monro.
Abse, Leo Dell, Edmund Hughes, Roy (Newport)
Allaun, Frank (Salford, E.) Dempsey, James Hunter, Adam
Alldritt, Walter Diamond, Rt. Hn. John Hynd, John
Anderson, Donald Dickens, James Irvine, Sir Arthur (Edge Hill)
Archer, Peter Dobson, Ray Jackson, Peter M. (High Peak)
Armstrong, Ernest Doig, Peter Johnson, James (K'ston-on-Hull, W.)
Ashton, Joe (Bassetlaw) Dunnett, Jack Jones, Rt. Hn. Sir Elwyn (W. Ham, S.)
Atkins, Ronald (Preston, N.) Dunwoody, Dr. John (F'th & C'b'e) Jones, T. Alec (Rhondda, West)
Atkinson, Norman (Tottenham) Eadie, Alex Kelley, Richard
Bacon, Rt. Hn. Alice Edwards, William (Merioneth) Kenyon, Clifford
Bagier, Gordon A. T. Ellis, John Lawson, George
Barnett, Joel English, Michael Leadbitter, Ted
Bidwell, Sydney Ennals, David Lipton, Marcus
Binns, John Ensor, David Loughlin, Charles
Blackburn, F. Evans, Fred (Caerphilly) Luard, Evan
Booth, Albert Evans, Ioan L. (Birm'h'm, Yardley) Lyon, Alexander W. (York)
Bradley, Tom Fernyhough, E. Lyons, Edward (Bradford, E.)
Bray, Dr. Jeremy Fletcher, Ted (Darlington) Mabon, Dr. J. Dickson
Broughton, Dr. A. D. D. Fowler, Gerry McBride, Neil
Brown, Hugh D. (G'gow, Provan) Fraser, John (Norwood) McCann, John
Brown, Bob (N'c'tle-upon-Tyne, W.) Freeson, Reginald MacDermot, Niall
Brown, R. W. (Shoreditch & F'bury) Garrett, W. E. McGuire, Michael
Buchan, Norman Ginsburg, David Mackenzie, Gregor (Rutherglen)
Gregory, Arnold Maclennan, Robert
Buchanan, Richard (G'gow, Sp'burn) Griffiths, David (Rother Valley) McNamara, J. Kevin
Butler, Herbert (Hackney, C) Griffiths, Eddie (Brightside) Mahon, Peter (Preston, S.)
Callaghan, Rt. Hn. James Griffiths, Rt. Hn. James (Llanelly) Mallalieu, E. L. (Brigg)
Carmichael, Neil Hamilton, James (Bothwell) Mallalieu, J. P. W. (Huddersfield, E.)
Carter-Jones, Lewis Hamilton, William (Fife, W.) Manuel, Archie
Coe, Denis Hamling, William Marks, Kenneth
Coleman, Donald Harper, Joseph Maxwell, Robert
Concannon, J. D. Harrison, Walter (Wakefield) Mellish, Rt. Hn. Robert
Conlan, Bernard Haseldine, Norman Mendelson, John
Crawshaw, Richard Hazell, Bert Millan, Bruce
Crossman, Rt. Hn. Richard Heffer, Eric S. Milne, Edward (Blyth)
Dalyell, Tam Herbison, Rt. Hn. Margaret Mitchell, R. C. (S'th'pton, Test)
Davidson, Arthur (Accrington) Houghton, Rt. Hn. Douglas Molloy, William
Davies, G. Elfed (Rhondda, E.) Howell, Denis (Small Heath) Morgan, Elystan (Cardiganshire)
Davies, Dr. Ernest (Stretford) Howie, W. Morris, Alfred (Wythenshawe)
Davies, Ifor (Gower) Hoy, James Morris, Charles Rt. (Openshaw)
Delargy, Hugh Huckfield, Leslie Moyle, Roland
Neal, Harold Probert, Arthur Thomas, Rt. Hn. George
Newens, Stan Rankin, John Thomson, Rt. Hn. George
Ogden, Eric Rees, Merlyn Tinn, James
Oram, Albert E. Roberts, Gwilym (Bedfordshire, S.) Varley, Eric G.
Orbach, Maurice Rodgers, William (Stockton) Wainwright, Edwin (Dearne Valley)
Orme, Stanley Roebuck, Roy Walker, Harold (Doncaster)
Oswald, Thomas Ross, Rt. Hn. William Wallace, George
Owen, Will (Morpeth) Rowlands, E. Watkins, David (Consett)
Paget, R. T. Shaw, Arnold (Ilford, S.) Watkins, Tudor (Brecon & Radnor)
Palmer, Arthur Sheldon, Robert Whitaker, Ben
Pannell, Rt. Hon. Charles Shore, Rt. Hn. Peter (Stepney) Whitlock, William
Parker, John (Dagenham) Short, Rt. Hn. Edward (N'c'tle-u-Tyne) Wilkins, W. A.
Parkyn, Brian (Bedford) Short, Mrs. Renée (W'hampton, N. E.) Williams, Alan Lee (Hornchurch)
Pavitt, Laurence Silkin, Rt. Hn. John (Deptford) Williams, W. T. (Warrington)
Peart, Rt. Hn. Fred Silverman, Julius Wilson, Rt. Hn. Harold (Huyton)
Pentland, Norman Slater, Joseph Wilson, William (Coventry, S.)
Perry, George H. (Nottingham, S.) Small, William Woof, Robert
Prentice, Rt. Hn. R. E. Snow, Julian
Price, Christopher (Perry Barr) Spriggs, Leslie TELLERS FOR THE NOES:
Price, Thomas (Westhoughton) Steele, Thomas (Dunbartonshire, W.) Mr. Alan Fitch and
Price, William (Rugby) Taverne, Dick Mr. Ernest G. Perry.
Mr. Elystan Morgan

I beg to move Amendment No. 4, in page 2, line 17, leave out from beginning to end of line 20.

I take it, Mr. Deputy Speaker, that it would be convenient also to discuss Amendment No. 19, in Clause 3, page 6, line 12, at end insert: (6) Where in any care proceedings the court finds the offence condition satisfied with respect to the relevant infant and he is a young person, the court may if it thinks fit and he consents, instead of making such an order as is mentioned in section 1(3) of this Act, order him to enter into a recognisance for an amount not exceeding twenty-five pounds and for a period not exceeding one year to keep the peace or to be of good behaviour; and such an order shall be deemed to be an order under section 1 of this Act but no appeal to quarter sessions may be brought against an order under this subsection.

Mr. Deputy Speaker (Mr. Harry Gourlay)

That is agreed.

Mr. Morgan

These Amendments replace an Amendment made in Standing Committee added to the orders which a court may make in care proceedings an order requiring a young person to enter into a recognisance to be of good behaviour and to keep the peace. The hon. Member for Runcorn (Mr. Carlisle) accepted that power to make such an order should be limited to cases when the offence condition in Clause 1(2)(e) had been proved and that one year would be the appropriate maximum period for such a binding over. The Amendments provide accordingly.

Mr. Carlisle

I am grateful to the Under-Secretary for this re-drafting. This is the Amendment which in a way we kindly got from the Home Secretary almost to celebrate his birthday. On that occasion he was magnanimous.

As the Government have accepted this Amendment, however, why have they tucked it away in Clause 3? This is a matter of some importance. In Clause 1 it was clearly laid down as one of the orders which a court could make. I appreciate the argument about the offence condition, but now it is to be in Clause 3 and the chances are that when a court considers what orders it can make, it will look at Clause 1 but never think of looking at Clause 3(5). It would be better to leave the change in Clause 1, accepting that certain words have to be changed, than to tuck it away in Clause 3.

I notice that in future a person will be able to be bound over only with his consent. I am not sure what the present position is. I suppose that with a certain offence committed by certain ladies who from time to time spend short periods in prison there undoubtedly has to be consent. However, despite what the Bill says, under the Children and Young Persons Act, 1933, a parent does not have to consent to be bound over. I should have thought that it would be more useful to bind over the person who was recalcitrant rather than only the person who consented.

I notice that the limit is to be £25. Are the Government happy with that figure in all the circumstances?

Mr. Elystan Morgan

By leave of the House, we shall deal later with the figure of £25.

Amendment agreed to.

Mr. Worsley

I beg to move Amendment No. 5, in page 2, line 20, at end insert "or (g) if the court is of opinion that the condition in paragraph (e) of subsection (2) of this section is satisfied and the offence is an indictable offence within the meaning of the Magistrates' Court Act 1952, an order under section 19 of the Criminal Justice Act, 1948, as amended by section 10(2)(a) of the Criminal Justice Act, 1961, requiring him to attend at an attendance centre". Before our last Division we were discussing what happened before the decision of the court. We are now discussing the powers of the court. We have suggested a power which we think the courts ought to have and which we invite the Government to consider again. We have heard something of the Home Secretary's birthday spirit on a previous occasion and perhaps it may overflow a little to the Report stage, because this would be a useful, although not broad, power.

We appreciate that attendance centres will continue to exist under the new dispensation, but it would be simpler and neater if, instead of a supervision order being needed for a child to go to an attendance centre, the court had a right in an individual case to say that it was clearly an attendance centre case and that it need not bother with the whole machinery of a supervision order, that it was not necessary at that stage to bring in the children's officer, for children's officers were overworked and scarce, so that the court had the right to use the attendance centre machinery at once and without further ado.

Flexibility was much discussed in Committee and by the Home Secretary on Second Reading. I appreciate that in many ways the Bill increases the flexibility of the facilities at the disposal of the courts and of the children's officers. Here is a case where the system is relatively inflexible. The court has either to use a supervision order or a care order, or something of that sort, when if we put into the Bill the simple provision an attendance order could be put into effect straight away.

In 1967 this method was used in 9.5 per cent. of all cases of conviction on indictable offences for children under 14. It is a procedure which has been found extremely useful and it would be worthwhile to continue. I say this all the more strongly because of the Government's apparent intention in a later Amendment to put back into the hands of the children's officers the power not to carry out the instructions of the court. If the Government had accepted the good commonsense of the Committee and struck those words out I should feel considerably less enthusiastic about this Amendment. It would be an advantage for the court to be able to say that an attendance centre was the right treatment, there could be no doubt about it, no other choice, and there would be no question of the children's officer not carrying it out or doing something different. It would be another useful weapon for the courts and I commend the idea in the Amendment, that we should keep the power of the courts to award attendance orders.

Mr. Elystan Morgan

Under Clause 7 (3) the powers of the court to make attendance centre orders in respect of young persons found guilty of offences will be gradually withdrawn as suitable alternative facilities become available in schemes made under Clause 19. It is difficult to think of any good reason why attendance centres should remain available to children and young persons dealt with for offences under Clause 1 but should not remain available for young persons prosecuted in accordance with new Clause 5.

Any arguments for one are equally arguments for the other. In 1967 3,309 attendance centre orders were made in respect of young persons aged between 14 and 17 and 3,047 orders were made in respect of children under 14. Under the Bill it is likely that a high proportion of these young persons who break the law and are taken to court would be prosecuted rather than dealt with by way of care proceedings under Clause 1. Thus the effect of the Amendment would be to preserve the attendance centre system for about half its present clientele at the most.

Mr. Carlisle

Under which Clause is the attendance centre order being withdrawn?

Mr. Morgan

Clause 7. In practice it is unlikely that the use of the attendance centres will shrink much more than this. The Opposition will probably argue, as they have done in Committee, that there will be cases where there is no need for a supervision order but the court thinks that attendance at a centre not combined with supervision would be appropriate. This was a main ground on which it was suggested that attendance centre orders should be retained as a separate system in their own right, distinct from the facilities included in schemes under Clause 19.

8.15 p.m.

Under Clause 1 it is not likely that many children will be taken to court at all in circumstances where no continuing supervision is required. The courts will be reserved for situations in which a child is unlikely to receive the care or control which he needs unless an order is made. The Opposition Amendment would result in retaining the attendance centres for perhaps no more than one-tenth of their present customers, nearly all of them children under the age of 14. On merits the Government do not see any justification for this course. In the great majority of cases where court proceedings have to be taken in respect of children under 14 so as to secure compulsory powers, a period of supervision would be needed, and a few periods of attendance on Saturday afternoons clearly would not suffice.

It is far better therefore to concentrate available resources on schemes in Clause 19, and this is what the Government propose. Schemes of this kind should be able to operate on a more varied and flexible basis than at present, for example operating over the whole weekend and not necessarily tied to one centre. They should also form part of a wider system in which the local authorities, probation service, magistrates and voluntary organisations all have a part to play, as well as the police. This would be possible under Clauses 12 and 19. It is not possible under the present law, and that is the very system on which the Amendment seeks to preserve. For that reason I hope that hon. Gentlemen opposite will not feel constrained to press the Amendment to a Division.

Mr. Carlisle

We certainly do not propose to press this Amendment to a Division, but I must reply to what the Under-Secretary has said. His argument was incredibly weak. What he said was that because we have not got an Amendment down to retain attendance centres in offence cases, therefore they should not be retained for those who appear in care proceedings under Clause 1. My reaction to that is to say that I hope very much that when the Bill goes to another place an Amendment will be tabled to Clause 7(3) which will retain attendance centres.

I admit to having been under a complete misapprehension. Until 1 read the Clause I thought it was detention centres which Clause 7(3) removed, not detention centres and attendance centres. I knew that the Home Secretary was intending to do away with detention centres for the younger offenders, and I had wrongly thought that Clause 7(3) was limited to achieving that object. I find it all the harder to understand what is the objection to attendance centres, which I thought had been generally accepted as being a good means of punishment available to the court for people who were non-sophisticated criminals. It is a great pity that this power is being removed.

It could be a term of the supervision order, but if we then give the supervising officer a power to ignore an order of the court then the effect of doing it that way is very small. The Under-Secretary may have heard, if he has time to listen to the wireless, an interview that I heard a day or two ago, I think on "The World At One" with Mr. Alan Hardacre, the Secretary of the Football League. He complained bitterly about football hooliganism and the way in which the courts dealt with this. He said, "I am not saying that it is the fault of the courts. If the powers of the courts are defined by Parliament, then Parliament should change the law".

I am afraid that the Bill does just that, because Mr. Hardacre's argument was that the best way to deal with young hooligans was to prevent them from going to football matches and to send them to attendance centres for two hours on the six following Saturdays. Mr. Hardacre's fears are confirmed by the fact that by not being prepared to accept the Amendment the Government are taking from the courts the power to order a young football hooligan of 13 or 14 years of age—and there are football hooligans of that age—to undergo what would probably be the most appropriate sentence, namely, attendance at an attendance centre for the next four Saturdays rather than making nuisances of themselves at football grounds.

Amendment negatived.

Mr. Miscampbell

I beg to move Amendment No. 6, in page 2, line 32, leave out paragraph (a).

Mr. Deputy Speaker

It will be convenient to discuss at the same time Amendment No. 15, in page 4, line 38, after 'infant', insert 'or his parent or guardian'.

Mr. Miscampbell

Amendment No. 6 seeks to remove the requirement that when the court wishes to make a binding over the parent or guardian should consent, to enter into a recognisance to take proper care of the child. I hope that we shall have an answer from the Under-Secretary of State, because an answer was sought in Committee but was not forthcoming. The hon. Gentleman missed the opportunity of giving an answer on the Government Amendment which we dealt with a moment ago.

The point simply is this. Why is it necessary to have the parents' consent? Section 62 of the 1933 Act gives power for binding over but requires no consent. Why is it necessary to have it in the Bill? If the parent consents in any case, it would appear to be almost unnecessary that he should enter into a recognisance. Section 91 of the Magistrates' Courts Act, 1952, empowers a court to impose a six-months' sentence on a person who does not enter into a recognisance when asked to do so. In Committee it was thought that this might be too severe. There is no reason why that sentence should be imported into the Bill. That can be got over by a technical change. We should like to know why it is necessary to have these words in the Bill.

We were promised in Committee that all would be vouchsafed to us. That promise was given on the Home Secretary's birthday, but in the euphoria of the moment perhaps we did not give much thought to whether it would be fulfilled. We were told two days later that it was the birthday of the Under-Secretary of State. We were told that by the Whip on duty, so it was not necessarily right. But in neither case has it been of assistance to use. We hope that today we shall be told why these words are in the Bill.

Amendment No. 15 is consequential on the success of Amendment No. 6. If the parent or guardian is bound over unwillingly, Amendment No. 15 raises the possibility of his appeal. If the Government were to accept Amendment No. 6, would Section 84 of the Magistrates' Courts Act allow a guardian to appeal if he was bound over unwillingly? I suspect that it would. I emphasise that that arises only if the Government accept Amendment No. 6.

Mr. Elystan Morgan

The reasons for retaining the requirement that the parent should consent are twofold. First, the court is likely to exercise its power to bind over parents where there is not much wrong with the parental care or control but the parents have got a bit slack and the court considers that they need to be reminded of their responsibilities. In these circumstances, the parents are likely to agree to be bound over. Indeed, if they refused, it would probably be an indication to the court that something more was required—for example, a supervision order.

The second reason is that the Amendment would have no teeth unless a provision was added to attract Section 91 of the Magistrates' Courts Act, 1952, to enable parents who refused to be bound to be committed to prison for six months or until they sooner complied with the order. This power is not often used with adult offenders, and if it were used in relation to parents refusing to enter into recognisances it would hardly improve the family situation. It would probably be necessary to commit the child to care or receive him into care. It is doubtful whether, in the event of refusal by a parent to be bound over, the court would actually send him to prison. It would be more likely to make some other order. Thus, while in theory binding over under the present law is compulsory, in reality it is virtually voluntary. Clause 1(5)(a) simply recognises this reality.

The Opposition have not put down an Amendment to provide for committal to prison for refusal to be bound over; they may think that there would be advantage in the court having power to make an order but not power to enforce it if the parents refuse to sign the recognisance. The act of binding over calls for the signing of the recognisance sheet by the person agreeing to be bound over. I invite the House not to accept the Amendment. If it were accepted it would create the anomalous situation that the court would have power to order a person to sign the sheet, but if he blandly refused to do so it would have no sanction against him.

Mr. Miscampbell

In view of the explanation of the Under-Secretary of State, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

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