EFFECT OF CHILD'S SILENCE AT TRIAL (Hansard, 23 June 1998)

§ Mr. Clappison
I beg to move amendment No. 63, in page 26, leave out lines 16 to 20.
We now come to the question of removing the right to silence for children aged under 14. The Criminal Justice and Public Order Act 1994 permits a court or jury to draw such inferences as seem proper from a defendant's failure to give evidence or a refusal to answer any questions. That was described as ending the right to silence, and I adopt the same description now. The provisions of the 1994 Act on the right to silence were restricted to defendants aged over 14. Defendants aged under 14 still enjoyed what has been described as the right to silence.
In view of what the Labour party said during the passage of the 1994 Act, we are slightly surprised that the Government are now proposing to abolish the right to silence for children. Having opposed and voted against ending the right to silence for adults, the Government now propose to go a step further and end the right to silence for children.
We are surprised by that, because in 1994—not all that long ago—the opposition to the ending of the right to silence was led by the then shadow Home Secretary, who is now the Prime Minister. He regarded this as a most serious matter to which he gave deep consideration. He told the House of Commons that the right to silence was a fundamental principle and that the case for changing it had not been made. He said: We go further, and say that it is more than merely a matter of high constitutional principle. There is a serious and substantial risk that, in the manner in which the Government have proceeded, we will not merely fail to convict more of the guilty, but that we are in danger of convicting more of the innocent. Those who are in primary danger from the changes will not be, as has been said, the professional and the hardened criminal, but they could well be the weak, the inadequate and the frightened."—[Official Report, 13 April 1994; Vol. 241, c. 261-62.]
Labour Members may latch on to the phrase in the manner in which the Government have proceeded as though it is a get-out clause. I advise Ministers that they should not see it as a get-out, because the position I described in my opening remarks is precisely the same as "the manner" to which the then shadow Home Secretary was referring. The effect of the Government's proposals for children is precisely the same as that of the 1994 proposals for adults. If there is any attempt to seek a get-out, I shall read out the then shadow Home Secretary's description—although I note that comments from hon. Members on the Treasury Bench have now subsided. That get-out has been closed off.
This is a serious issue, because the position of children in courts is special. A high-profile campaign has recently been launched by the National Society for the Prevention of Cruelty to Children about the way in which children who are victims are dealt with in courts. Some of the same considerations must also apply to children of 10 or 11, or 12 or 13, who are defendants. The 1994 Act recognises that special considerations apply to them.
Children of those ages stood trial at the Old Bailey on serious charges. The case was reported in The Times on 16 January 1998 under the headline: Old Bailey becomes classroom for rape trial of 10-year-olds". 908 The report begins: Court 12 at the Old Bailey has been transformed like a stage set into a modern primary school classroom. The only thing missing is a sandpit, a lump of Play-doh or a large frieze showing the letters of the alphabet. Yesterday in the court two boys aged ten became the youngest children to be tried for rape. Their alleged victim was a nine-year-old pupil, raped in the lavatories of their primary school. A third nine-year-old boy escaped prosecution because he was too young to face criminal charges while two others are accused of indecent assault. Four square tables have been arranged in the middle of the room, each with five or six chairs, just as at school. Each of the ten-year-olds sits at a separate table with his barrister, the barrister's junior, a parent and a child liaison officer. The first thing that strikes you is how very tiny the little boys are. One of them looks no more than seven. If they had to stand in a dock they would be invisible. Clause 35 would create similar scenes. If the clause is passed unamended, children will lose the protection of the right to silence, which they currently enjoy under the 1994 Act.
We think that special considerations should apply in the cases of young children, and are surprised that the Government are taking such a course. Although we are glad that they have repented of their opposition in 1994, one surely cannot repent of holding what the then shadow Home Secretary described as "high constitutional principles" or of seeking to avoid the terrible risk of convicting the innocent—which also was dealt with eloquently by the then Home Secretary. We think that such considerations should apply particularly strongly in the case of young children, for the reasons that I have given.
The Government are taking a very surprising course, which will have to be examined and justified further.

§ The Parliamentary Under-Secretary of State for the Home Department (Mr. Mike O'Brien)
Amendment No. 63 would remove clause 35 from the Bill entirely. The hon. Member for Hertsmere (Mr. Clappison) made a rather confusing argument in its favour.
The purpose of clause 35 is to amend section 35 of the Criminal Justice and Public Order Act 1994, which deals with the inferences may be drawn at a trial, if the defendant chooses, in certain circumstances, to remain silent. Currently, such inferences may not be drawn when the defendant is under the age of 14, when the guilt of the accused is not an issue, or when the defendant's physical or mental condition makes it undesirable that he should give evidence.
It is the Government's intention, as effected by clause 35, to remove the age restriction from section 35 of the 1994 Act, so that the provision may apply equally to all juveniles and adults. The remaining restrictions in section 35 will not be affected.
There are two principal reasons for making such a change. The first is consistency with the Government's intention to abolish the rebuttable presumption of doli incapax—a proposal which has met with an extremely favourable response among practitioners in the arena of youth justice. Abolition of the presumption may result in a conviction, which will allow a formal opportunity for intervention in what may very well be the beginning of an offending career, so that the young person may be 909 turned away from such a path at the earliest opportunity. Such intervention is a key principle behind our proposals. If offending behaviour occurs, our objective is to intervene early, so that we may begin turning that young person away from offending behaviour.
In keeping with that thinking, clause 35 will allow a court or jury to draw inferences from the silence of a defendant between the ages of 10 and 13. We concluded that the defendant is responsible for his or her behaviour. Consequently, in most cases, it is eminently reasonable to conclude that a child between those ages will be able—if the circumstances are clearly explained to him or her—to understand the consequences of refusing to answer a question in court, or of refusing to speak up on his or her own behalf.
It is particularly important that a young person should provide any innocent explanation, should there be one, for his or her conduct. To allow a young person to evade that responsibility does him or her no favours. Our whole programme is about getting young people to face up to their offending behaviour, and part of that responsibility is explaining that behaviour. When it seems to the court or the jury that a child does not understand, he or she will still be able to be protected by the provisions of section 35 of the 1994 Act, which allow the court not to draw inferences if it considers that the child's mental or physical state makes that undesirable.

§ Mr. Clappison
Is not doli incapax an entirely separate issue? Moreover, if that safeguard has been removed, is there not a stronger case for examining even more carefully the need for other safeguards?

§ Mr. O'Brien
The answer to that question is no. Although doli incapax is another matter, it is related to the one that we are debating. If we are to have consistency and logic in what we do, our proposal should follow as a further change.
In most cases, it is right and appropriate that young people should face up to their responsibilities and give an account of themselves, and that any refusal to do so should be regarded in the same way as would, for example, the refusal of a 14 or 15-year-old to provide an account. Either we should treat young people as responsible for their actions or we should not. If they are responsible, they should be able to provide an explanation for their actions. Amendment No. 63 is effectively a charter for irresponsible behaviour by young offenders.
The second reason for retaining clause 35 is, once again, to achieve consistency—not, this time, with the Government's new legislation, but with current provisions on juvenile justice. Under section 34 of the 1994 Act, there are no restrictions on drawing inferences from the failure of 10 to 13-year-olds to mention facts when charged or questioned by police. Similarly, all children above the age of criminal responsibility are already treated equally, under section 36 of 1994 Act, which deals with the failure or refusal of the accused to account for objects, substances or marks, and under section 37 of that Act, which deals with the failure or refusal of the accused to account for his or her presence at a particular place. Clause 35 simply brings the position of those young people in court into line with current related provisions.
By treating all juveniles in the same way, except where individual circumstances clearly merit different treatment, we can ensure an efficient and effective approach to all 910 offenders over the age of criminal responsibility, and can nip their offending in the bud at the earliest possible stage. We are not talking about getting a conviction and imposing a draconian penalty on a young person. Our objective is to tackle offending behaviour and divert young people from further offending, and to ensure that the courts have the ability to effect our objectives.
In the light of that explanation, I hope that the hon. Member for Hertsmere will not press his amendment.

§ Mr. Clappison
I am not entirely satisfied by the Minister's explanation. He said that abolition of doli incapax has received a broadly favourable reaction. As he knows, the Committee carefully considered abolition and took the view that the Government's course on the issue was right. However, not everyone took that view. The Minister should know that we received representations from organisations that were concerned about abolition.
In another place, on the abolition of doli incapax, Baroness Mallalieu—who was one of the counsel in the case at the Old Bailey that I mentioned—said that she hoped that the Minister will not lightly dismiss the concerns of many who practise at the criminal bar about the abolition of this rule."—[Official Report, House of Lords, 19 March 1998; Vol. 587, c. 833.] The Minister would do well to bear in mind those concerns.
We weighed up the arguments and thought that abolition of doli incapax was the right course to take. We thought that it should not be necessary for the prosecution effectively to have to prove that the child knew the difference between right and wrong. However, we do not think that that belief in itself makes the case for abolishing a child's right to silence in court. The issues are quite separate. If one is removing a safeguard such as doli incapax, the case for carefully examining other existing safeguards—such as the right to silence—is strengthened.
The Minister was right to say that children do not have the right to silence in other settings, such as when being interviewed by police. However, although that was the position under the 1994 Act, a special view was taken of children in court—because giving evidence in court is different from being asked questions in other circumstances, such as in a police station. With the best will in the world, courtroom proceedings can be very daunting for little children. As I said, in its campaign, the NSPCC has recognised the difficulties of child victims who have to give evidence in court. Realistically, we have to recognise the special circumstances in cases involving young children.
We wonder why the Government have proposed such a change without consultation—or much fanfare. It would be interesting to know what issues might have been raised if there had been consultation. A bit of fanfare has surrounded the Bill—I do not think that anyone could say that it has been undersold. Perhaps "never knowingly undersold" would be the best description of the Bill. Nevertheless, we are concerned by the way in which the Government have undertaken the change.
I have expressed our concerns on the matter. However, in order to allow the House to make some progress on other subjects, I shall not press it to a vote. As I said, the Government have taken an extraordinarily contradictory position on a matter that the Prime Minister himself as a matter of high constitutional principle. If principles can 911 be abandoned so lightly, we wonder what message will be sent, and what will happen to the principles that the Government are currently espousing.
I beg to ask leave to withdraw the amendment.