§ GENERAL RESTRICTION ON CUSTODIAL SENTENCES
§ Lords amendment: No. 6, in page 2, line 14, at end insert
"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".3.58 pm
§ The Minister of State, Home Office (Mr. Patrick Mayhew)
I beg to move, That this House doth agree with the Lords in the said amendment.
Clause 1 provides that no court shall impose a custodial sentence on a young offender unless it is of the opinion that no other method of dealing with him is appropriate. The amendment elaborates on that provision by requiring the court to base its opinion on one of three possible grounds, which are the failure of non-custodial penalties, the need to protect the public, and the seriousness of the offence.
Amendments on these lines were debated at considerable length during the passage of the Bill through this House. The Government have throughout sympathised with the intention behind the amendments, but we take the view that they place no further effective restriction on the passing of custodial sentences on young offenders. That is because they reflect accurately the existing principles by which the courts already exercise their sentencing jurisdiction custodially.
Our preference would be to leave the courts to develop their sentencing practice according to the guidance that they will undoubtedly receive from the Court of Appeal on the basis of the application of the legislation to actual cases. Nevertheless, the Government do not seek to disagree with the Lords amendment.
§ Dr. Shirley Summerskill (Halifax)
As there are 295 Lords amendments to the Bill, I should assure the House that the Opposition Front Bench will not speak on them all. However, it is important to speak on those that make significant changes in the Bill, and amendment No. 6 is one of the most significant.
The Minister of State said that he had reservations about the amendment, and the Government voted against it in another place. So strong were their reservations that they became positive opposition. Fortunately, right prevailed and the Government were defeated on the first amendment debated in another place. Many other successes followed.
It is an important amendment because, although the Opposition have taken the view throughout the passage of the Bill that no offender under 17 should receive a custodial sentence, we feel that the amendment will help young people who are put into custody.
There must be a range of facilities, regimes and punishments—alternatives to custody—to provide education, training and preparation for the future. That will also 513 serve to reduce the numbers held in custody, which is still over 44,000. We want to save as much money as possible by keeping as many people as possible out of custody.
Although the Government rejected the view that we should keep the under-seventeens out of prison and custody, the next best thing is to ensure, as I hope the amendment will, that unless the offence is extremely serious courts will take more time to satisfy themselves that the alternatives to custody will not be responded to by the young person concerned. The recidivism of young people who are sentenced to custody in borstals and detention centres is notoriously high. It is clear that for most of them custody is not a deterrent, because 76 per cent. of young people leaving detention centres, and 83 per cent. of those leaving borstals, are reconvicted within two years.
We therefore welcome the fact that courts will now have to apply their minds—far more, perhaps, than they do at present—to the nature and background of the young persons being sentenced. It will not be easy to make this assessment and judgment, but surely it is worth making every effort to decide whether that person is either unwilling or unable, by his or her nature, to respond to non-custodial penalties.
Let us put the first emphasis on non-custodial care and control and use custody only as a last resort when non-custodial penalties fail. That, after all, was the philosophy of the Children and Young Persons Act 1969, with its emphasis on prevention and welfare. We hope that the amendment will put that into practice.
In its reference to the necessity to impose a custodial sentence to protect the public, the Lords amendment echoes the view expressed by the Home Secretary, who said that custody and prison should be reserved for those who are a danger to the public. Among European Community countries, this country has the highest number of children and young people in custodial care. We lock up three times as many young people under the age of 17 as we did 20 years ago, yet there is no evidence that we are more successful than those other countries in reducing crime. The guidelines to the courts provided by the amendment could lead to a gradual shift from custodial to non-custodial care and a far more sensible approach to the treatment of young offenders.
§ Mr. Robert Kilroy-Silk (Ormskirk)
The Minister and the House will be aware that, for the past 10 years or more, a fairly unanimous opinion has been expressed by all those who are concerned and knowledgeable about the penal system that we should shift the emphasis and resources away from custodial care to treatment in the community, and that that is particularly appropriate for young children and juveniles. Nevertheless, while making that commitment, the practice has been for an increasing number of younger and less delinquent young people and juveniles to be committed to custodial care.
It was for that reason that I and some hon. Members from both sides attempted in Committee to lay down strict statutory criteria which had to be complied with before the courts could impose a custodial sentence. Throughout the Committee stage, the Government resisted such amendments. They did not argue against the terms or the principles of the amendments either here or in the other place. The amendments that we are now discussing, which were made in another place, were eventually accepted on a Division against Government opposition. Therefore, I 514 wholeheartedly welcome the amendments, which lay down detailed statutory criteria for the imposition of custodial sentences on young people, which were proposed in another place by members of the parliamentary all-party penal affairs group.
As I said, those amendments were carried on a Division against the wishes of the Government. It is fair to add that, although the Government opposed the amendments, they did not oppose them on their merits. They took the view that it was better for the Court of Appeal to lay down the criteria than to include them in legislation. Having lost the vote, the Government, to their credit, announced their acceptance of the principle underlying the amendments. If the criteria in the amendments are to be strictly adhered to in future and applied by the courts, they could have a significant impact, as my hon. Friend the Member for Halifax (Dr. Summerskill) pointed out, on the number of young people given custodial sentences.
There is a myth, to which Government spokemen sometimes give credibility, that courts resort to imposing custodial sentences only as a last resort: that it is only when all other options have failed and all other alternatives have been explored and found wanting that the courts resort reluctantly and unenthusiastically to custodial sentences.
The facts demonstrate that the practice is different. For example, Home Office studies have shown that more than one-third of young people received into borstals have not received a previot s probation or supervision order made against them. The percentages of those entering detention centres who have not had a previous probation or supervision order are even higher. The studies show that we are prepared to impose, and in fact do impose, custodial sentences on younger and less delinquent young people today than we did 10 years ago, even when we have not attempted to use non-custodial measures such as supervision or probation orders. The Home Office figures clearly demonstrate that fact.
The figures also show that offenders who have not been subject to a previous attempt to deal with their difficulties or delinquency in the community are convicted of not particularly serious offences. For example, only one in five offenders under the age of 21 years given custodial sentences have committed serious offences involving violence, sex or robbery.
It is common ground among all parties that penal institutions do not reform or rehabilitate. They are largely ineffective in turning offenders into law-abiding, positive and constructive members of the community. Again, the figures on recidivism bear that out, with well over 70 per cent. of young people sent to penal establishments committing further offences within two years of their release. The evidence clearly shows that putting young people into penal establishments does them no good. Nor does it do anyone else any good. The real way to deal with their problems and difficulties and to turn them away from their lives of delinquency and criminality is to deal with their problems where they have their roots—in the community.
Thus, any measure, such as the one we are debating, that is designed to restrict the conditions under which a number of young people are put in custodial establishments is to be welcomed. These amendments should help to guard against what I believe is one of the greatest dangers in the Bill involving the new short detention centres. It is desirable in principle that young people may 515 be sentenced for three weeks instead of three months, but it may have the potential of ensuring that more young people who otherwise might receive a non-custodial sentence will now be given a detention sentence. At least these criteria may prevent that and ensure that fewer young offenders receive custodial sentences in future.
Of all the changes that have been made to part I in this place and in another place, this amendment, in my view, is by far the most important and the only one which has any prospect of reversing the disastrous and inappropriate trend of the past 10 years of putting more young people in custody. For that reason alone, I welcome and endorse the amendment.
§ Question put and agreed to.
§ Lords amendment: No. 7, in page 2, line 18, leave out subsections (6) and (7).
§ Mr. Deputy Speaker Mr. Paul Dean)
With this it will be convenient to take Lords amendments Nos. 8, 246 and 273.
§ Mr. Mayhew
These amendments give effect to an undertaking which the Government gave on Report in response to pressure to provide that a court should always and invariably consider a social inquiry report before imposing a custodial sentence on a young offender. That created difficulties, because there could sometimes be cases in which a rigid requirement of that kind would be inappropriate. Such a case might arise where, for example, the court, after a long trial, had a great deal of information about the offender and his circumstances and where the offence was so serious that a substantial custodial sentence was unavoidable.
It would clearly be wrong if, in such circumstances, the court had to adjourn the case before passing sentence simply because that information did not happen to be in the form of a social inquiry report. After long debate, there was general agreement that a court should normally consider a social inquiry report before passing a custodial sentence on a young offender, but that it should be able to dispense with the requirement where, in the circumstances of the case, it thought such a report unnecessary. That is the provision which the new clause makes.
We took the opportunity offered by these amendments to rearrange slightly the opening clauses of the Bill. The new clause incorporates the provisions which appear in subsections (6) and (7) of clause 1, and those are accordingly deleted by amendment No. 7. Clause 1 sets out the general principle that a court may not impose a custodial sentence on a young offender unless it is of the opinion that no other method of dealing with him is appropriate. The new clause elaborates on that provision by providing that the court should usually consider a social inquiry report and that it must take into account any information before it which is relevant to the offender's character and his physical and mental condition. A magistrates' court must state and record the reasons for its opinion that no other method of dealing with the offender is appropriate and, if necessary, its reason for dispensing with a social inquiry report.
516 The clause improves and strengthens the Bill in a way that will be apparent to the House. I do not think I need say more.
§ Mr. Matthew Parris (Derbyshire, West)
My hon. and learned Friend thinks that we should agree with the amendment, and I shall take his advice. However, I have one slight misgiving which I should like to take this occasion to express.
When I was at university, a group of rowdies from the boat club got drunk, smashed up a restaurant and assaulted several people in the town. To everybody's surprise, they were sent to prison for a short while. That was an excellent idea. It helped to repair relations between the university and the town and it set a good example to other undergraduates who might have considered behaving in a similar way.
A social inquiry report on those young men would probably have concluded that they came from good backgrounds, with supportive families, and that that was errant behaviour and that they were unlikely ever to offend like that again. Yet that seems to me to be a good example of where a custodial sentence is appropriate.
I realise that if the courts think that a custodial sentence is necessary for the protection of the public they can still impose such a sentence without a social inquiry report, but the Lords amendment goes even further than the Bill towards discouraging all but the most strong-minded of magistrates' courts from imposing custodial sentences in any circumstances. As I say, I have a slight misgiving about that.
§ Question put and agreed to.
§ Lords amendment No. 8 agreed to.