§ COMPUTATION OF CUSTODIAL SENTENCES FOR YOUNG OFFENDERS
§ Lords amendment: No. 11, in page 8, line 19 leave out "subsection" and insert "subsections".
§ Mr. Deputy Speaker (Mr. Paul Dean)
With this we shall also discuss Lords amendment No. 12, in page 8, line 27, at end insert—(6) The reference in subsection (1) above to an offender being committed to custody by an order of a court includes a reference to his being committed to a remand centre or to prison under section 23 of the Children and Young Persons Act 1969 or section 37 of the Magistrates' Courts Act 1980 but does not include a reference to his being committed to the care of a local authority under the said section 23",and the amendment standing in the name of the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), at end addsave where the offender is placed in accomodation provided for the purpose of restricting liberty for the period or part of the period of commital to care, which period shall be treated as a period of custody for the purpose of subsection (1) above.".
§ Mr. Mayhew
Section 67 of the Criminal Justice Act 1967 provides that a period of imprisonment shall be treated as reduced by time spent in custody on remand before sentence. That provision does not apply to detention centre orders and sentences of borstal training. The announcement made in the White Paper on young offenders that time spent in custody on remand would serve to reduce the new young offender custodial sentences was widely welcomed.
Clause 9 provides that section 67 of the 1967 Act is to apply to detention centre orders and youth custody sentences as it applies to sentences of imprisonment. Amendment No. 11 provides that when a juvenile is committed on remand to a remand centre or to a prison the time spent there on remand will serve to reduce a subsequent custodial sentence, but when he is committed on remand to the care of a local authority that will not count towards his sentence. The need for this amendment was discovered at a late stage of the passage of the Bill and it derives from complex statutory provisions with which I do not think it necessary to weary the House.
When a juvenile under the age of 17 is remanded to the care of a local authority under section 23 of the Children and Young Persons Act 1969 the local authority decides on the appropriate placement under the general powers applying to children in care. It may be placement in ordinary residential accommodation or in secure accommodation or it may be with a parent, guardian, relative or friend or boarded out. Although remanding in care means that the local authority takes over responsibility for the young person and may involve, to a greater or lesser extent, restrictions on his freedom, it is quite different from the position where a defendant is remanded in a custodial prison establishment.
Whereas an adult held in prison before sentence has spent a period in custody, this does not apply in the case 522 even of a juvenile who is placed by the local authority, in the exercise of its discretion, in secure accommodation. Certainly the restriction on his liberty may be severe, but placement in secure accommodation is a professional decision taken by the local authority social workers. It is a decision that may be taken in relation to any child in care and it has in itself nothing to do with whether the young person is an offender or on remand. We do not, therefore, agree that placement in secure accommodation should count towards sentence, which is the policy advocated in the Opposition's amendment.
§ Mr. Kilroy-Silk
The hon. and learned Gentleman says that the Government do not agree that placement in secure accommodation is comparable with remand in a remand centre or prison, but does he not accept that conditions in local authority secure units are virtually identical to those in remand centres or prison? The hon. and learned Gentleman is nodding his head. I visited the regional observaticn and assessment centre in Fazakerley in my region only last week. There the secure unit accommodation is referred to as cells. There are bars. The rooms are locked. The whole plan is probably drawn analogous to the precise plans that were laid down for the Risley remand centre. In those circumstances, while the hon. and learned Gentleman may not regard the placements as comparable, the young boys concerned see no difference between that kind of custody and the custody of a remand centre or an adult prison.
§ Mr. Mayhew
I shall cast my mind back as best I can to the question that preceded most of the hon. Gentleman's intervention and deal with it shortly. I was coming to that point. Of course I agree that secure accommodation is secure accommodation, and it imposes a greater restriction upon the liberty of the child in care than is imposed by the ordinary care order. But even the ordinary care order imposes some restriction on a child because he is not able to live in a way that conflicts with those conditions.
Having said that it is a professional decision taken by the local authority social workers, I was going on to say that remand in care is not in itself a reason to hold a youngster in secure accommodation. We have to consider who is placed in secure accommodation. More often than not it is someone whose conduct is so unruly, to use the words in the Act, that an order is made by reason of unruliness and he is placed in secure accommodation. Therefore, it would be invidious to provide by law that a period spent in secure accommodation by reason, for example, of unruliness while on remand should count towards sentence, while other remands in care, where the remanded young person had behaved well, should not count towards the subsequent sentence.
Having considered carefully what would be the best solution to the difficulty, the answer that we reached was that the place to draw the line in law was between custody on the one hand and care on the other. The placement in secure accommodation is used as sparingly as possible, and that is another practical and important point.
In some instances juveniles are placed in secure accommodation for short periods—perhaps for only a matter of hours. When youngsters are kept in security they may spend part of their time outside the secure accommodation. That flexibility is an important part of the arrangement and it is very different from the custodial 523 accommodation and the custodial orders mentioned by the hon. Member for Ormskirk (Mr. Kilroy-Silk). Flexibility is a very important part of the arrangement.
Therefore, we think that it would be wrong to base the legal calculation of sentence length on a distinction between time spent in residential care and time spent in secure accommodation. That is not to say that we propose to remove the distinction between the two. We think that it is highly desirable that the courts should know the circumstances of the remand in care and that, for the reasons I have given, it would be wrong for such time or part of it to count towards sentence automatically, but the courts ought to be able to take it into account in deciding on the right sentence. Accordingly, that is why we propose that the local authority should inform the courts of the placement of youngsters remanded to their care when they come up in court for sentence, so that the courts will always know whether they are dealing with a case where a youngster has spent some time in secure accommodation. We think that that will ensure that the courts will be able to take adequate account of the offender's circumstances on remand in deciding the length of sentence.
It would be easy to make a long speech, but I do not think that I would make the distinction between the two sides on the issue—the Opposition's amendment and the Government's acceptance of the Lords amendment—any clearer by doing so. I entirely understand what lies behind the amendment, but I believe that the practical difficulties will be best met if we ensure, as we propose to do, that the courts will always know whether a child or other young offender has spent time in secure accommodation. We are satisfied, and I hope that the House will accept, that in practice it would be wrong and not really workable to make the distinction that the amendment seeks.
§ Mr. Deputy Speaker
I detected a little bewilderment in the House when I called the amendment. Perhaps it would be helpful if I were to explain the rather complicated procedure. It will be in order to debate amendment No. 11, amendment No. 12 and the amendment to amendment No. 12. At the end of the debate the House will come to a decision on amendment No. 11. If the Opposition then wish to move their amendment to amendment No. 12, I shall give them an opportunity to move it formally so that a decision can be reached on it. I hope that that is clear to the House.
§ Mr. Arthur Davidson (Accrington)
I am grateful to you, Mr. Deputy Speaker, for clearing up what seemed to me to be a procedural jungle. I shall address my remarks to the amendment to Lords amendment No. 12, which has been tabled by my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley).
We welcome the provisions in the Bill which state that time spent by young offenders in custody on remand shall count towards sentence in regard to detention centre orders and youth custody orders. We have no hesitation in supporting those very sensible provisions. However, we do not agree with the Lords amendment which establishes that remands in care are not remands in custody, so that time spent in care, whether in ordinary residential accommodation or in secure accommodation does not 524 count towards sentence—in other words, there is no time off the ultimate sentence in respect of the period spent on remand in care. We think that that is discriminatory and unfair. The Opposition's amendment seeks to ensure that remands spent in secure accommodation shall be treated in the same way as other remands which deprive the defendant of his liberty and shall count towards his sentence in the same way.
Our amendment deals with young people between the ages of 10 and 17. The deprivation of the liberty of someone that young, the curtailment of the freedom of someone that young, is the same to him in its effect whether his freedom is restricted as a result of being in secure accommodation or in a remand centre. The young person affected is most unlikely to understand the fine legal distinction between the two. He is unlikely to understand, for example, why a co-accused of the same age who is remanded in custody to a remand centre should be treated more favourably than himself with regard to remission. In our view, it could lead to an added sense of grievance and injustice at a very sensitive time in the young person's life. He will find it particularly difficult to understand why a young offender, whom he may well know, who has been sent to some place where the regime is more severe than secure accommodation because of his bad, unco-operative and unruly behaviour, should get a remission of sentence, whereas in his own case, although he had behaved well in secure accommodation, he will not be able to get it.
The European Court of Human Rights has laid down that the same procedural guarantee should apply to someone in detention, whatever the circumstances of the detention. Perhaps that will cover the point about envisaging that the right to remission should be the same in the various circumstances of detention.
I accept what the Minister said when he said that he intended that the court should be told of the fact that the accused, when he comes up for sentence, is in secure accommodation, so that the court should therefore be enabled to use its own judgment and take that into account when passing sentence. However, we believe that the matter is of such importance that it should be enshrined in legislation. Therefore, I hope that the House will accept our amendment to the Lords amendment.
§ Mr. Kilroy-Silk
Lords amendments Nos. 11 and 12, which I welcome, make it clear that time spent on remand in local authority care does not count towards a custodial sentence in the way in which remand in custody does. In our report entitled "Young offenders: A Strategy for the Future." which we published in 1981, the parliamentary penal affairs group accepted that it would be inappropriate to equate time spent on remand in local authority care with time spent on remand in prison department establishments. We recommended that the courts, nevertheless, should be asked to take into account time spent on remand in care when determining their sentences. In Committee the Minister of State agreed to consider issuing a circular to that effect. When the amendment was tabled in the other place the Government announced that they would ask local authorities to give the courts details of the placements of youngsters who had been remanded in care and that, if necessary, they would amend the court rules to the same effect so that that would be taken into account when the 525 sentence was passed. That announcement and that amendment met the recommendations of the parliamentary group and they are, therefore, to be welcomed.
I also support the amendment to amendment No. 12, tabled by my right hon. Friend the Member for Sparkbrook and spoken to by my hon. and learned Friend the Member for Accrington (Mr. Davidson). No one has used the word "child" yet. We are talking about individuals who are still legally children. The amendment provides that when a child is remanded in local authority care, any time that he or she spends in secure accommodation should count towards the later custodial sentence. Government amendment No. 12, which provides that remand in local authority care should not count towards a later custodial sentence, is reasonable. When a child is remanded into local authority care the authority can place him in a community home or with foster parents or it can leave him at his own home under supervision. Those circumstances are qualitatively different from a period spent on remand in a prison department establishment in prison department custody. We believe that the Government's view that time spent in those circumstances should not count towards a later custodial sentence but should instead be taken into account by the courts when passing sentence is right.
However, when the young person has spent all or part of his time on remand in local authority care in a secure unit or secure accommodation, which is cell-like, that, as my hon. and learned Friend has argued, should be equated with remand in custody because the overriding feature of both is the physical deprivation of the liberty of the individual.
As I tried to say in my intervention in the Minister's speech, when he supported Lords amendment No. 12, but opposed my right hon. Friend's amendment, those of us who have visited secure units either in local authority community homes or observation and assessment centres cannot but be struck by the enormous similarity of those secure units to cells in remand centres and prisons. I visited one last week, which was the last of many. The single accommodation is referred to as cells. Upon the walls is written "cell 1", "cell 2", "cell 3", "cell 4" and so on. The boys are aged 10 to 16. The cell doors are heavy metal, with a lock. There is a little spy-hole grill. The cell itself is bare and made of concrete. It has steel bars at the windows. By any definition that is a cell.
Some 2,000 boys a year aged 10 to 16 are housed in those circumstances at the discretion currently of a local authority social worker, not the courts. They are held for an indefinite period—not days, but weeks. In the unit that I visited the period was months. Those are prison-like conditions. There is no way in which the Minister can pretend that somehow that is similar to placement in an ordinary open local authority home, a foster home or the boy's own home under supervision. In those circumstances the boy is allowed out. He is allowed to watch television, to go out with his friends to the youth club and to meet his girlfriend and other friends. He is allowed out into the streets. In secure accommodation, in a cell, he has none of those opportunities. It is wrong for the Minister to suggest that the conditions are comparable.
My hon. and learned Friend is right. The House must agree with him that if we are to put young boys into cell-like accommodation in secure homes and if it is right that boys in remand centres in similar conditions will have that time spent on remand counted towards later sentences, it 526 is equally right that the time spent in secure accommodation in a single cell should be counted against the time given for a later custodial sentence.
§ Mr. Arthur Davidson
One of the arguments against remission for those serving in secure accommodation is that it would be invidious because the same would apply to anyone in care. Does my hon. Friend agree that there is a much more marked distinction between the regime in residential and secure care than there is between the regime in secure accommodation and a remand centre?
§ Mr. Kilroy-Silk
I agree with my hon. and learned Friend. That is a variant of the point that I made earlier. The point that I am making, which my hon. and learned Friend made in a different way, is that the single principle by which we must be guided is whether the individual is being deprived of his liberty. Is he being locked up? We accept that there are different forms of deprivation of an individual's liberty. The Minister tried to suggest that placing a child in local authority care in a foster home is a deprivation of liberty. It may be, but only at the margins. None of us is arguing that that is in any way comparable to holding someone under lock and key for 24 hours a day in a cell in Risley remand centre or, in the same circumstances, in a cell in an observation and assessment centre 50 miles down the road. The latter two are virtually identical. Therefore, the same conditions should apply to both.
The Government's only real argument, which was adduced here and in the other place against the amendment, which is identical to the amendment debated in the other place, is that computing the time spent in secure accommodation would cause practical problems. I accept that. It is because children in secure accommodation are allowed out from time to time, either out of the cell into an association area or to visit their relatives or friends. That is different from remand centres. The difference is that they are allowed out of the secure unit only for hours at a time, certainly not for days.
Whatever the problems, they are not insuperable. If we have the will they can easily be overcome. There is no reason why the fact that a child has been allowed out of a secure unit for a specific purpose for a minimal time needs to be taken into account when the court is informed that he has spent a certain number of days in security. Local authorities should be told that the time spent in secure accommodation can be calculated to the nearest number of days.
We all agree that the physical conditions in the institutions are virtually identical. The Government wish to be considered compassionate. For them to say that they would like to make the change but they cannot because occasionally a boy in secure accommodation is allowed out for a few hours does not further that image. The hours are so few that they can be ignored, or, alternatively, the local authority can be told to knock off a few days. If the Government have the will, the difficulty can simply be overcome.
Whenever society takes the grave step of physically depriving a child of his liberty, the period spent so detained should count against a later custodial sentence, whether he is locked up in a penal establishment, a remand centre or a secure unit within a community home system. Anyone who has talked to boys in such institutions—who 527 have often been in both types—know that they do not see the difference. They see it as unfair and unjust that the time spent in one institution does not count against time that they will have to spend locked up in another.
I hope that on reflection the Minister will feel that he has made a mistake and will accept the amendment. If not, I hope that we shall be joined in the Lobby by hon. Members on the Conservative Benches.
§ Question put and agreed to.
§ Lords amendment:No. 12, in page 8, line 27, at end insert—
"(6) The reference in subsection (1) above to an offender being committed to custody by an order of a court includes a reference to his being committed to a remand centre or to prison under section 23 of the Children and Young Persons Act 1969 or section 37 of the Magistrates' Courts Act 1980 but does not include a reference to his being committed to the care of a local authority under the said section 23."
§ Read a Second time.
§ Amendment proposed to the Lords amendment,at end add
§ 'save where the offender is placed in accommodation provided for the purpose of restricting liberty for the period or part of the period of committal to care, which period shall be treated as a period of custody for the purpose of subsection (1) above.'—[Mr. Arthur Davidson.]
§ Question put,That the amendment to the Lords amendment be made:—
§ The House divided: Ayes 83, Noes 126.528
|Division No. 316]||[5.00 pm|
|Abse, Leo||Jones, Barry (East Flint)|
|Alton, David||Kerr, Russell|
|Archer, Rt Hon Peter||Leighton, Ronald|
|Atkinson, N.(H'gey,)||Lyon, Alexander (York)|
|Beith, A. J.||McCartney, Hugh|
|Benn, Rt Hon Tony||McDonald, Dr Oonagh|
|Bennett, Andrew(St'kp't N)||McKelvey, William|
|Bidwell, Sydney||McWilliam, John|
|Booth, Rt Hon Albert||Marks, Kenneth|
|Bottomley, Rt Hon A.(M'b'ro)||Milian, Rt Hon Bruce|
|Campbell-Savours, Dale||Morton, George|
|Cocks, Rt Hon M. (B'stol S)||Newens, Stanley|
|Cook, Robin F.||Orme, Rt Hon Stanley|
|Crawshaw, Richard||Palmer, Arthur|
|Crowther, Stan||Parry, Robert|
|Cryer, Bob||Pavitt, Laurie|
|Dalyell, Tam||Pitt, William Henry|
|Davidson, Arthur||Prescott, John|
|Deakins, Eric||Price, C. (Lewisham W)|
|Dean, Joseph (Leeds West)||Race, Reg|
|Dormand, Jack||Roberts, Allan (Bootle)|
|Dubs, Alfred||Robinson, G. (Coventry NW)|
|Dunnett, Jack||Rooker, J. W.|
|Dunwoody, Hon Mrs G.||Ross, Stephen (Isle of Wight)|
|Eastham, Ken||Rowlands, Ted|
|Faulds, Andrew||Sever, John|
|Field, Frank||Shore, Rt Hon Peter|
|Foot, Rt Hon Michael||Spearing, Nigel|
|Foster, Derek||Steel, Rt Hon David|
|Foulkes, George||Stoddart, David|
|Freeson, Rt Hon Reginald||Summerskill, Hon Dr Shirley|
|Garrett, W. E. (Wallsend)||Thorne, Stan (Preston South)|
|George, Bruce||Tinn, James|
|Graham, Ted||Wardell, Gareth|
|Grimond, Rt Hon J.||Wainwright, R.(Colne V)|
|Hamilton, W. W. (C'tral Fife)||Welsh, Michael|
|Hardy, Peter||Rt Hon A.(S'sea W)|
|Harrison, Rt Hon Walter||Wilson, William (C'try SE)|
|Haynes, Frank||Wright, Sheila|
|Hughes, Robert (Aberdeen N)||Tellers for the Ayes:|
|Jay, Rt Hon Douglas||Mr. James Hamilton and Mr. Joan Evans.|
|Alison, Rt Hon Michael||Lloyd, Ian (Havant & W'loo)|
|Ancram, Michael||Lloyd, Peter (Fareham)|
|Aspinwall, Jack||Loveridge, John|
|Atkins, Rt Hon H.(S'thorne)||Lyell, Nicholas|
|Bendall, Vivian||McCrindle, Robert|
|Benyon, Thomas (A'don)||McNair-Wilson, M. (N'bury)|
|Berry, Hon Anthony||Madel, David|
|Biggs-Davison, Sir John||Major, John|
|Blackburn, John||Marlow, Antony|
|Blaker, Peter||Mates, Michael|
|Boscawen, Hon Robert||Mather, Carol|
|Bottomley, Peter (W'wich W)||Maude, Rt Hon Sir Angus|
|Bright, Graham||Maxwell-Hyslop, Robin|
|Bruce-Gardyne, John||Mayhew, Patrick|
|Bryan, Sir Paul||Moate, Roger|
|Budgen, Nick||Morrison, Hon C. (Devizes)|
|Chapman, Sydney||Murphy, Christopher|
|Clark, Hon A. (Plym'th, S'n)||Needham, Richard|
|Clarke, Kenneth (Rushcliffe)||Neubert, Michael|
|Cope, John||Newton, Tony|
|Cranborne, Viscount||Osborn, John|
|Crouch, David||Page, Richard (SW Herts)|
|Dickens, Geoffrey||Patten, Christopher (Bath)|
|Douglas-Hamilton, Lord J.||Pattie, Geoffrey|
|Dover, Denshore||Percival, Sir Ian|
|Dunn, Robert (Dartford)||Proctor, K. Harvey|
|Dykes, Hugh||Rathbone, Tim|
|Elliott, Sir William||Rhodes James, Robert|
|Faith, Mrs Sheila||Ridley, Hon Nicholas|
|Fenner, Mrs Peggy||Ridsdale, Sir Julian|
|Fisher, Sir Nigel||Rossi, Hugh|
|Fletcher-Cooke, Sir Charles||Rumbold, Mrs A. C. R.|
|Forman, Nigel||St. John-Stevas, Rt Hon N.|
|Fraser, Peter (South Angus)||Shaw, Sir Michael (Scarb')|
|Gardiner, George (Reigate)||Shelton, William (Streatham)|
|Garel-Jones, Tristan||Silvester, Fred|
|Goodhew, Sir Victor||Sims, Roger|
|Goodlad, Alastair||Smith, Tim (Beaconsfield)|
|Gorst, John||Speed, Keith|
|Greenway, Harry||Speller, Tony|
|Griffiths, E.(B'y St. Edm'ds)||Spicer, Jim (West Dorset)|
|Griffiths, Peter Portsm'th N)||Stainton, Keith|
|Grist, Ian||Stanbrook, Ivor|
|Gummer, John Selwyn||Stanley, John|
|Hamilton, Michael (Salisbury)||Stradling Thomas, J.|
|Hampson, Dr Keith||Taylor, Teddy (S'end E)|
|Haselhurst, Alan||Temple-Morris, Peter|
|Hawksley, Warren||Thomas, Rt Hon Peter|
|Hicks, Robert||Thompson, Donald|
|Higgins, Rt Hon Terence L.||Thorne, Neil (Ilford South)|
|Holland, Philip (Carlton)||Trippier, David|
|Hunt, David (Wirral)||Viggers, Peter|
|Hunt, John (Ravensbourne)||Waddington, David|
|Hurd, Rt Hon Douglas||Ward, John|
|Johnson Smith, Sir Geoffrey||Warren, Kenneth|
|Jopling, Rt Hon Michael||Watson, John|
|Joseph, Rt Hon Sir Keith||Wells, Bowen|
|Kellett-Bowman, Mrs Elaine||Wells, John (Maidstone)|
|Kershaw, Sir Anthony||Wheeler, John|
|Knight, Mrs Jill||Winterton, Nicholas|
|Lang, Ian||Wolfson, Mark|
|Lee, John||Tellers for the Noes:|
|Lester, Jim(Beeston)||Mr. Peter Brooke and|
|Lewis, Kenneth(Rutland)||Mr. Archie Hamilton.|
§ Question accordingly negatived.
§ Lords amendment agreed to.