RESTRICTIONS ON THE IMPOSITION OF CUSTODIAL SENTENCES ON OFFENDERS UNDER 21 (Hansard, 31 March 1987)

§ Mr. Soley
I beg to move, That the clause be read a Second time.
This new clause is designed to consider the problem of locking up young people. We know that in this country we lock up more young people than any other comparable country in the Western world. We also know that the failure rate—the number of people who are reconvicted within two years of release— is incredibly high, far higher than that for almost any other form of disposal. The failure rate varies between 70 per cent. and 80 per cent., although occasionally it falls a little below 70 per cent. Therefore, by any standard, it is a pretty disastrous form of treatment for young people which does little other than to teach them to live in an institution, and perhaps make it that much easier for them to return.
It is in all our interests to reduce the number of young people in custody and to use other sentences wherever possible. That is not to avoid the obvious problem that some young people, like some older people, can be a danger to society. If that is the case, they must be locked up. However, from all the evidence from the Home Office and elsewhere, we know that we lock up far too many people. Successive attempts have been made to tighten up this issue. The new clause tightens up the guidelines that a court must apply before imposing a custodial sentence on a young person under 21 years of age.
I expect that the entire House, including Ministers, will join me in thanking the parliamentary all-party penal affairs group which is behind the thinking on this. I should like to thank also Mr. Paul Cavadino, who has done work of a high standard for that Committee. I understand that that does not always receive the recognition that it deserves.
917 The new clause spells out—as has been spelt out on other occasions— that a young person should not be locked up unless

"(i) he has a history of failure to respond to non-custodial penalties and the court is satisfied that he is unable or unwilling to respond to non-custodial penalties; or

(ii) no other sentence would be adequate to protect the public from serious harm; or

(iii) the offence was so serious that a noncustodial sentence cannot be justified."

The new clause continues by adding to existing Acts of Parliament. It states: (4) Where a court deals with a person under 21 years of age by a method whose use in the case of such a person is restricted by section 1(4) above, it shall state in open court the reasons why, having taken account of those restrictions, it is satisfied that no other method of dealing with him is appropriate.
As I have already stated, the new clause clarifies the statutory guidance currently governing the use of custody for young offenders, contained in section 1(4) of the Criminal Justice Act 1982. In practice, the criteria contained in that section of the 1982 Act have been of some use in guiding the courts. However, many courts have applied them loosely and that has considerably reduced their usefulness. Most magistrates and justices' clerks appear to welcome the idea of more detailed statutory reasons for custody. A research study by Elizabeth Burney, conducted in 12 magistrates courts, concluded that the principle of giving statutory reasons in court was on the whole welcomed, especially by the justices' clerks. It was felt that, as guidelines, they set the right tone, encouraged the right approach and (taken together with rules about legal aids and social inquiry reports) provided a series of hoops through which sentencers must pass before they could take the dire step of depriving a young person of his liberty. 4.45 pm
As I have already stated, it is not just a question of the dire step of depriving a young person of his or her liberty, but a recognition that that is often one of the least effective ways of dealing with a young person, if our interest is in preventing that person from re-offending— which I assume is the case for us all.
Elizabeth Burney's study continues: The process 'concentrates the mind and stresses accountability' in the words of one justices' clerk; and a chairman added that it could also be a useful check on 'the odd wayward magistrate' who would otherwise want custody regardless of finer points". However, other research has shown that the three criteria that I quoted from section 1(4) of the 1982 Act are interpreted differently by different courts, and often much more widely than was intended. In the first instance—that is to say, because it appears to the court that he is unable or unwilling to respond to non-custodial penalties"— it has been suggested that, although there was a good deal of agreement between those interviewed about how that criterion might apply, on detailed interpretation there was considerable scope for individual differences in sentencing.
A study by Frances Reynolds, of juveniles sentenced in a Northamptonshire juvenile court in 1984, included a case in which the magistrates justified custody on that criterion because other disposals such as cautions or conditional discharges have not been successful". 918 We are attempting to deal with such issues in these provisions.
A study of a juvenile court in the north-east of England stated that some magistrates used the phrase "unable or unwilling" to send a juvenile into custody when his only previous disposal was a conditional discharge … another juvenile had previously had an attendance centre order and the report was recommending either a community service order or supervision as the means of disposal for the current offences". No-one who supported the 1982 Act could have conceived that a custodial sentence could be justified on the ground that an offender has re-offended if his only previous disposals had been cautions, a conditional discharge, or an attendance centre order.
Turning to the second criterion mentioned in the 1982 Act— because a custodial sentence is necessary for the protection of the public"— the phrase "protection of the public" is open to wide interpretations. Elizabeth Burney commented: Some defined it narrowly as relating strictly to the dangerousness of the individual offender in terms of physical harm threatened to another, or else to the public at large on account of pathological behaviour … some sentencers preferred to ascribe 'protection' to the supposed deterrent effect on the individual of receiving a custodial sentence. That is a different interpretation from what is normally meant, either in this place or in the higher courts when they are considering the protection of the public. Elizabeth Burney continued: In other courts however—and one in particular-there was a very definite view that 'protection of the public' embraced general deterrence. In other words, the courts considered the deterrent effect on other people. Therefore, those provisions have proved ambiguous.
The third criterion in the new clause is: because the offence was so serious that a non-custodial sentence cannot be justified". Different definitions of seriousness were used by magistrates. For some offences, for which custodial sentences were justified on "seriousness", the grounds were not nearly as serious as many committed by numerous recidivists in the sample by Frances Reynolds who were given non-custodial sentences. Therefore, the Act as it now stands has been widely interpreted.
One way of improving matters would be for the Court of Appeal to step in and lay down guidelines on the way in which the courts should interpret section 1(4). Indeed, following the research studies to which I have referred, in a series of judgments the Court of Appeal has begun to lay down guidance on the "seriousness of the offence" criterion—for example, for offences of violence, arson, robbery and burglary which do or do not satisfy the criterion. However, few cases so far have shed any light on the "protection of the public" or the "unable or unwilling" to comply criteria.
The parliamentary all-party penal affairs group had hoped that the process of judicial guidance would continue. I think that we would all join in that hope, as it would increase the effectiveness of section 1(4). However, some of the other suggestions of this new clause would also help.
The new clause makes the following principal changes in the three criteria contained in section 1(4) of the 1982 Act. First, on the criterion because it appears to the court that he is unable or unwilling to respond to non-custodial penalties", 919 the new clause specifies that the need for circumstances such that if the offender were aged 21 or over the court would pass a sentence of imprisonment should be an additional requirement for that and the other criteria. That is designed to met one of the earlier points that I raised—that, as presently formulated, it has been stated that the criterion can suggest, at least to a bench of magistrates insufficiently advised, that the fact that other non-custodial dispositions have already been tried and 'failed' is a sufficient reason to resort to a custodial sentence regardless of the seriousness of the present offence. We believe that that will meet the problem.
Secondly, a requirement of a history of failure to respond to non-custodial penalties has been added to the above. The word "history" is used in other parts of the 1982 Act and it cannot reasonably be interpreted as a failure to respond to a single conditional discharge, for example, as the present criterion has been interpreted in some cases.
To the second requirement, that a custodial sentence is necessary for the protection of the public, we have again added the phrase "serious harm" which has been used in mental health legislation and is interpreted as relating to serious offences against the person. It would prevent courts from using this criterion to justify custody for such offences as shoplifting, as has happened on some occasions.
The third requirement, that the offence was so serious that a non-custodial sentence cannot he justified", has been left unaltered, because the Court of Appeal has already begun the process of usefully clarifying this criterion and will no doubt continue the process in future judgments. The all-party group favours this approach as a way of reinforcing and building on the criteria established in 1982 which the Court of Appeal has begun to refine and to which its judgments have increasingly drawn the attention of the lower courts.
Finally, the new clause requires that courts shall state in open court, having taken into account all those restrictions, the reason why it is satisfied that no other method of dealing with the offender is appropriate. I hope that that will meet many of the problems that courts have found in interpreting the Act. I hope that it will lead not only to a reduced use of custodial sentences for young people when they are inappropriate and counterproductive but to a more consistent form of sentencing for young people.

§ Mr. Mellor
As the hon. Member for Hammersmith (Mr. Soley) has made clear, the new clause is the work of the parliamentary all-party penal affairs group. It seeks to replace part of the 1982 Act, which was brought about by that same group winning a vote against the Government during consideration of the legislation in the other place. At that time, the Government were doubtful whether statutory restrictions of this type were effective, and we are still somewhat sceptical. However, we see no objection to these proposals being accepted as a refinement of the thinking behind the 1982 Act. I shall recommend to the House that it accepts the new clause.
The 1982 Act simplified and rationalised the structure of sentencing for juveniles and young offenders, in effect replacing the mish-mash of custodial sentences, many of which were indeterminate, with two sentences, youth custody and detention centre, while creating a framework in which alternatives to custody could continue to be 920 developed. Community service was extended to 16-yearolds and some 2,000 orders were made in 1985, showing it to be a useful extension of the courts' powers; and the courts' power to make supervision orders were strengthened. The Government have lent their support to the growth in the use of caution. The number of young offenders cautioned for indictable offences increased from 98,000 in 1982 to 122,000 in 1985.
The hon. Gentleman argued that the 1982 Act has led to an increase in the use of custody, but I am not sure whether that is the case. In 1982, the last year of the old arrangements, some 7,100 juveniles went into custody, which represented 7.5 per cent. of all sentences and cautions. In 1985, 5,900 juveniles went into custody, which represented 6.1 per cent. of all sentences and cautions, and therefore a decrease. He is on superficially stronger ground in the case of young adults. In 1982, 22,100 young adults went into custody, which represented 17.9 per cent. of all sentences and cautions. In 1985, 24,400 young adults went into custody which represented 20.1 per cent. of all sentences and cautions.
It is worth bearing in mind that the 1982 Act abolished suspended sentences and imprisonment, so we must add to the 1982 figure the 5,500 suspended sentences of imprisonment imposed on young adults, many of which undoubtedly would have been imposed as imprisonment as a result of further offending. The picture is by no means as clear-cut as the hon. Gentleman asserted. There is plenty of evidence that the 1982 Act has worked well overall. I have not the slightest objection to changing the criteria. The PAPPAG has had second thoughts and we are happy to endorse them, if the House is.

Mr. Deputy Speaker
Before we move to the next proposed new clause I have a brief statement to make. Mr. Speaker has asked me to inform the House that he has reconsidered his selection of amendments and has decided to add new clause 20. That new clause will now be called immediately after new clause 19 and grouped for debate with it are amendments Nos. 60, 61 and Government amendment No. 62.