HL Deb 12 June 1961 vol 232 cc7-21

2.48 p.m.

Amendments reported (according to Order).

Clause 1 [Conditions for and term of sentence of borstal training]:

BARONESS WOOTTON OF ABINGER moved, after subsection (2) to insert: () In dealing with a young person who has attained the age of fifteen years but has not attained the age of sixteen, a court of summary jurisdiction shall have power to order borstal training.

The noble Baroness said: My Lords, the sole object of this Amendment is to prevent young persons of 15 from being remanded for considerable periods in prison pending a possible borstal sentence. May I remind your Lordships that it is not a case of remedying an evil which exists, since such young persons are not in that position under the present law. This is a case of preventing younger people than can now be remanded in this connection from being in a position where this can happen to them. I am well aware that there are some objections to this Amendment, partly on the ground of judicial tidiness, but in considering these objections your Lordships must recall that they have to be weighed against the other evil of putting young people of 15 on remand in prison. The objections to this Amendment cannot be considered in a vacuum: it is a question of a balance between the evil that will be done by allowing young people to spend weeks on remand in prison, against the possible objections—which I hope to convince your Lordships are of a minor character—which may be raised against this Amendment.

The noble and learned Viscount who leads this House has been good enough to write to me setting out some of the objections which are in the mind of Her Majesty's Government in connection with this Amendment, and I should like to say a word or two about the arguments that he has used. The first is that it is desirable to consider the question of eligibility for borstal as a whole, and not to have different arrangements for borstal for different age groups or different classes. I appreciate the force of this argument, but I think that its force has been considerably diminished by other changes which it is proposed to enact in this Bill, notably, now that borstal is no longer a highly specialised form of training, that a borstal sentence is to be a standard sentence for any custodial sentence of an intermediate period. Previously it was necessary to select for borstal training much more carefully, because only certain types of offenders might be suitable for that training. Now it is a matter of administrative decision, after an intermediate custodial sentence has been passed, whether borstal training or imprisonment or some other form of detention is the most suitable.

Moreover, I would remind your Lordships that it is not unknown for people to arrive at the same destination in our penal system by different routes. People arrive in prison as a result of being tried and sentenced by the magistrates. They arrive in prison as a result of being tried and sentenced in one of the higher courts. They arrive in prison as a result of being tried by magistrates and sentenced, under Section 29 of the Magistrates' Courts Act, by quarter sessions. And they arrive also at different destinations, sometimes when an adult and juvenile are tried together, the adult being sentenced in the magistrates court and the juvenile referred to a juvenile court for sentence. In this last case, very considerable anomalies may arise as between the sentences imposed by the two courts to two offenders convicted of the same offence. Admittedly, none of these is exactly parallel to the case we are considering, but I think they are sufficiently close to suggest that the proposal that boys and girls of 15 might be sent direct to borstal from magistrates courts is not an entirely revolutionary departure in our penal structure.

The second objection that is raised to this Amendment is that, in the case of the very young offender, it is particularly important that the most careful consideration should be given to the sentence that is imposed upon him; that it would be a mistake to allow the offender of 16 and upwards to go to quarter sessions to be sentenced while the younger offender is dealt with by the magistrates, and this would be thought to be a case of giving less attention to the needs of the boy of 15 than to those of the boy of 16 and upwards. This is an admirable theoretical argument, but I do not think that it is an argument which would carry a moment's conviction to those who are familiar with the realities.

Quarter sessions differ from a magistrates' court—and here we are thinking of juvenile courts—in that it is only exceptionally that quarter sessions have to deal with juveniles. I know very well, from hearing appeals at sessions from juveniles, that sessions do not have the experience and understanding of juveniles in the ordinary case, which must inevitably come to magistrates at juvenile courts who are dealing with juveniles all the time and who may have a good many years' experience. Without seeking in any way to detract from the great and careful consideration which quarter sessions give to these cases, I would submit that quarter sessions are far less well fitted than the magistrates' courts to judge what is best for a juvenile.

I admit that there will be some anomalies if this Amendment is carried but that is not a unique feature in our penal and judicial system. It is a question, as I said at the beginning, of the size of these anomalies and of the weight to be given to them, as compared with terrible evil of putting boys and girls of 15 on remand in prison when that is not at the moment legal. I would also remind your Lordships that many of these anomalies can be avoided if the power to remit an offender to sessions still remains. I see no reason why this Amendment should override Section 28 of the Magistrates' Court Act and why it should not be left for the juvenile court magistrates to decide in individual cases whether they will take the responsibility of sending a boy or girl of 15 direct to borstal, or whether, not withstanding the horrors of a possibly long remand, they will send him or her to sessions to be sentenced.

I am sure that the Government must have been thinking of the case in which there are perhaps two youngsters concerned together, one perhaps of 15 and one of 16. The Government may be concerned that in such a case, under this Amendment, the 16-year-old might be sent to sessions for sentencing and the 15-year-old could be sent direct to borstal. This Amendment, however, is purely permissive, and if the magistrates felt that that created too great an anomaly, no doubt they would send both offenders to sessions for sentence. But at least the Amendment would make it possible, in the case where a child of 15 is found guilty alone and not concerned with an older person, for him or her to be sent direct to borstal for training straight away. And it is for the immense importance of saving these young people from a period in prison that I would beg your Lordships to support this Amendment.

If only the noble and learned Viscount who leads the House would come and spend an afternoon with me in Wormwood Scrubs, or even a longer period—though I think that his eligibility would be more easily accepted than mine for that particular institution—I suggest, in all seriousness, that he would come to a rather different decision in balancing the possible minor anomalies that this Amendment may cause against the tragic circumstance of putting into prison, even on remand conditions, young people of 15 who at present cannot get there in any legal way. I beg to move.

Amendment moved— Page 2, line 7, at end insert the said subsection.—(Baroness Wootton of Abinger.)


My Lords, I think that it is important to remember exactly how this proposal arises. The noble Lady has said that the sole object of the Amendment is to prevent a young person who has attained the age of 15 but has not yet attained the age of 16 from being committed to prison during the time after he has been dealt with by the magistrate's court and before the court at quarter sessions has decided whether or not to send him to borstal. As an alternative to that, the noble Lady proposes that magistrates' courts should have power to send the young person to borstal.

The noble Lady knows that this question was canvassed on an Amendment moved by her on Committee stage. The difference was that her Amendment then related to young persons between the ages of 15 and 17 and her present Amendment is limited to offenders between 15 and 16. At the conclusion of the debate on Committee, I told her that I would consult the Home Secretary on the issue of whether this narrower group of offenders should be dealt with in this way and would let her have a reply; and, indeed, as the noble Lady has told the House, I did so. But I think that in viewing the narrower question one must remember the arguments which I felt it necessary to deploy in Committee against giving to a court of summary jurisdiction the power to commit to borstal, which is what this Amendment does.

A court of summary jurisdiction has never been given the power to commit to borstal, any more than it has been given the power in relation to older offenders, to sentence people to prison for two years. Borstal is, after all, an institution which can limit in detention the liberty of the subject for up to two years. It is true that a court of summary jurisdiction can order a child to an approved school; but there, as I pointed out in Committee, the educational element is considered to be paramount, and in borstal, although the educational element is present, the punitive element is a very serious element in what is done. It would be a serious departure indeed, I should have thought, to give to magistrates' courts the power to send away to a borstal institution a young person between 15 and 16, a power which is not accorded to magistrates' courts in relation to the older offender.

There are two ways of looking at these things, but I am bound to tell the noble Lady that the way I look at it is this: that it is more serious to send away a child of 15 to 16 to borstal for two years than to send a young man of 17 to 21 to borstal for two years. To say that the magistrates' courts should have the power to do it to the younger one and not to the older one is, at any rate from the point of view of some of us, to invert the order of importance.

Perhaps I may remind the House of the arguments which were finally used by the Advisory Committee on the Treatment of Young Offenders, against the proposal to give magistrates' courts power to commit to borstal. They say, in paragraph 64 of their Report: It would not be appropriate for magistrates' courts to have power to deprive persons of their liberty for a period that may be as long as two years. And secondly they say: The higher courts are subject to direct appeal to [the Court of Criminal Appeal. Magistrates' courts, however, are subject to appeal only to quarter sessions … The effect of what the noble Lady is proposing is, in relation to this particularly sensitive type of case where it is proposed to send a child of 15 to 16 to borstal for up to two years, to take away the child's right of appeal to the Court of Criminal Appeal. We do not think, nor did the Advisory Committee, that this is a good thing to do. What happens in relation to young persons—and, indeed, will happen to all young persons concerned if this Amendment is not carried—is this. Before a young person can be sent to borstal, the court of summary jurisdiction after conviction, has first of all to come to the conclusion that borstal is the only or the best thing; then that opinion has to be checked a second time by quarter sessions before the order is effective. Then, after that, the young person can appeal, or his parents can appeal on his behalf, to the Court of Criminal Appeal. That is three stages. What will happen if this Amendment is passed is that in respect of precisely the young people who are, in a sense, the most sensitive, those of 15 to 16, instead of having three stages, the magistrates will send to borstal, and, while there will be an appeal to quarter sessions, no appeal will lie to the Court of Criminal Appeal.

We have thought about this question as carefully as we can and have decided that, on the whole, it is not a particularly good thing to do. We think that it would give the impression—false, but still dangerous, if it were given—that in deciding whether or not a sentence of borstal training was appropriate greater care was to be taken in the case of the older offender than in the case of the younger. I say that it would be quite false; but, in a sense, it would not be, because there would be these two checks on the older offender and only one on the younger offender.

The fundamental reason for the present law is that a borstal sentence is regarded as a more serious matter than, for example, committal to an approved school, and offenders dealt with summarily should not be so committed unless both magistrates' court and quarter sessions are satisfied that it is necessary. It is generally accepted that the number of cases in which the courts will find it necessary to commit an offender of 15 to borstal may be comparatively small— I should think they would be—but they will be cases in which the decision as to the proper form of treatment is likely to be a particularly difficult one. The Amendment would have the strange result that the only types of case in which such a sentence could be decided upon without the benefit of the second opinion of quarter sessions would be precisely these cases of especial difficulty.

Of course it is an evil that a young person, and particularly a young person of 15 to 16, should be remanded to prison. I think the noble Lady could have said (maybe she assumed that we knew already;, and perhaps we do, but I think it is relevant to remind ourselves) that it is not the policy of Section 28 of the Magistrates' Courts Act, under which these young people will be committed in custody to quarter sessions, that they should be committed in custody to prison. The policy of that Act (and by curious coincidence it is printed on page 8 of the Marshalled List of Amendments) is that wherever a remand centre is available, that is where they should go; and we certainly hope that a remand centre, which is undoubtedly the better place to send them, will be available eventually in every case. It is only failing that, simply for want of a better place, that prison is still possible; and I hope that that will not go on for very long. It seems to me, with respect to the noble Lady, that that is the policy of the Act; that is to say, that the proper place to remand these people to in custody is a remand centre, and not a prison, and that to provide by an Amendment that a magistrates' court should have the power of inflicting the sentence in the first place is really to prescribe a remedy which is worse than the disease.

I cannot help thinking that the noble Lady was influenced by an argument which I should have thought really cuts the other way. She thinks—at least, I think she does, because I understood her to say it in relation to a particular objection which she found in my letter—that the magistrates' court is so experienced in dealing with juveniles that it is more suitable to send these offenders to borstal than are quarter sessions. We do not think that. We think, with all respect to the magistrates' courts, that quarter sessions is the proper place. I do not think it would be right, solely because (to use the noble Lady's own language) there are not remand centres in every case now, and there may be cases where these young people are remanded in custody to prison, to give to a court which we do not think the most suitable court the right to send to borstal, which will limit the right of the subject for freedom to up to two years without resort to the Court of Criminal Appeal, simply as a matter of substantive jurisdiction.

3.10 p.m.


My Lords, the whole of this argument could have been avoided if the Government had seen fit to postpone the operation of the provision giving powers to send children of 15 to borstal before they are ready to deal with them. The noble and learned Viscount said that the effect of this will be that in some cases children will be sent to prison. But is it not common ground that for some years, at any rate—for an indeterminate number of years—all children of 15 will be sent to prison, because there are no remand centres or homes to which they can go? So we are inflicting an agreed evil—because the Bill itself contemplates that it is wrong to send young persons to prison—in order to make this doubtful change.

I have assumed, and my noble friends have assumed, for the purpose of this argument, that it is desirable to send young people of 15 to borstal. But that itself is controversial. There are a great many people who think that it is too young an age at which to send children to borstal. If you couple that doubt—and there is a doubt—with the fact that for some years to come they will have to go to prison because there is no other means of dealing with them in the intervening period, then I think the Government would have been far better advised to have postponed the operation of this provision until they were ready to deal with offenders between the ages of 15 and 16 by way of remand.

Dealing with the merits of this question, the noble and learned Viscount has come back to the point that we have never given power to magistrates to commit to borstal; that it is depriving children of their liberty for a period of two years, and that we should not entrust that to the magistrates. I thought the noble and learned Viscount had put up a fair and a reasoned case, and I am not pretending for a moment that there is not a good deal to be said on his side. But I think he rather brushed on one side and did less than justice to the point that sending people to an approved school is equally depriving them of their liberty. It may be that the emphasis of the approved school is education and, as he says, the emphasis of borstal is punitive. I hope that is not so. I hope the emphasis of borstal will be educational as well. After all, if we are going to send children of fifteen to borstal, surely it is right that the emphasis should be educational rather than punitive. It cannot be that at that age you are going to ignore, or virtually ignore, the claims of education, and make it largely punitive.


I never said that at all.


I know the noble and learned Viscount did not put it as high as that, but I am putting it as high as that. I am saying that if sending a child to borstal is something more serious than sending him to an approved school, you are, in fact, assuming that the emphasis is on punishment, and I think that is wrong. I think the general trend of events is that borstal will be educational for the purpose of redeeming children, rather than have the punitive aspect. If I am right in that, and if it is merely a matter of emphasis, putting it at its highest, then in either case you are depriving a child of freedom for a period of years.

I can see no difference in principle, therefore, between giving a magistrate power to send a child to an approved school and giving him the power to send the child to borstal. In many cases there will be a doubt in the magistrate's mind as to which is the better course. My noble friend Lady Wootton of Abinger put emphasis on the fact that this was permissive. It was not intended that the magistrates should in all cases take it upon themselves to send children to borstal, but where they felt that it was a particularly difficult case—and the noble and learned Viscount referred to difficult cases—I presume that it would be suggested to them that the right course would be to refer it to the sessions. It would only be in what they regarded as straightforward cases that they would take this power.

The noble and learned Viscount stressed the fact that if the magistrates were to be given this power it would be better that they should be given it in the case of older children than of younger ones. I will not pretend that there is no force in that—I think he has a point there. On the other hand, it is in the case of the younger children that it is so undesirable that at the age of 15 they should be spending time, whether it be in a remand home or remand centre, waiting for the decision as to what is to happen to them. That, itself, is an undesirable thing. All of us recognise that punishment should follow the event which calls for punishment as quickly as possible. I think it is particularly serious that young children of 15 should hang around, certainly for weeks, possibly for months, until their fate has been decided upon. I am sure that it is desirable that the magistrates should be in a position to deal with young people of that kind quickly, rather than that they should hang around for long periods and in the meantime wait in prison.

The last point to which the noble and learned Viscount referred was the question of appeal. I do not know in how many cases this right of appeal to the Court of Criminal Appeal has been acted on. I should imagine, however, it would be very few. It would not, I should think, be an appeal against conviction; it would be an appeal against sentence. I do not know whether the noble and learned Viscount has any information on the subject. There would be few cases where this would arise. I cannot imagine that such an appeal could have much validity. A child having been found guilty of an offence, it is very much a matter of discretion as to what is the right course as to whether he should go to an approved school or to borstal, or whether he should be put on probation. But without derogating from the functions of the Court of Criminal Appeal, I cannot imagine that in many cases they would be prepared to set aside a decision of a court which had dealt with the case and exercised a reasonable discretion. So I, personally, would not put very high this point of being able to appeal to the Court of Criminal Appeal. I think the noble and learned Viscount has a debating point on that, but I certainly would not put it any higher. I feel, therefore, taking all the factors into consideration, and agreeing that it is a case which may be argued either way, that on balance my noble friend has made out a case for this Amendment, and that on its merits it ought to be accepted.

3.20 p.m.


My Lords, I should just like to add a word in this debate. I find the noble Baroness's argument very persuasive, particularly the point which she made and which the noble and learned Viscount did not really answer in respect of the expertise of the juvenile court for dealing with these young offenders. I must say, as a chairman of a quarter sessions who frequently have the ordinary type of case under the old law sent forward for sentencing, that I have always been a little doubtful as to whether it was not a great waste of time and expense, without achieving very much in return, to have these cases sent forward. I should have thought the ordinary bench was really just as well qualified as quarter sessions to come to a conclusion whether borstal was reasonable treatment in this sort of case.

While I agree that the argument is fairly evenly balanced, I should have thought in the case of the young offender, where the juvenile court is so particularly well qualified and has such a lot of experience in dealing with the young offender, the case was very much stronger. When the noble Lord says we have come to a conclusion that it is proper it should be dealt with at quarter sessions, I say, with respect, that that is not really an argument unless some sort of reason is given why the juvenile court is not the proper court to handle the matter.


Before you can send anyone to borstal now you have to get both the recommendation of the juvenile court and of quarter sessions, because they have to be sent for borstal treatment to quarter sessions.


My Lords, it is obvious that the court is not going to send the case forward with a recom- mendation for borstal unless it has come to the conclusion that borstal is the proper treatment, but it seems to me that the experience and ability is in the lower court, and in my experience quarter sessions very seldom disagrees—I cannot remember a case where they have disagreed with them. The noble and learned Viscount has pointed out that the Court of Criminal Appeal is in the background and there is a further check there, but I thought that the noble Lord, Lord Silkin, answered that point very effectively. The further you get from the actual trial court the less contact there is with the offender, and although it might conceivably here and there be valuable to have the Court of Criminal Appeal standing in the background as a possible check, I should have thought it was a very unrealistic attitude to attach much importance to it. It seems to me that the court—


My Lords, I do not want to keep on interrupting, but the figures which I gave in Committee were that 20 per cent. to 30 per cent. get different treatment from quarter sessions, having been committed to borstal.


That certainly is not my experience. I should have thought that that was a very exceptional type of case. But I was in fact dealing with the question whether the point about the Criminal Court of Appeal had very much validity, and I should have thought that a great deal of weight should not be attached to it. The central point is that it is the court which handles the offender, hears the probation officer and hears the parents, and is much better qualified than anybody else. The further away you get from the offender, the more difficult it is to handle the problem effectively. For those reasons, I should have thought there was a great deal of reason for accepting this Amendment.


My Lords, I should just like to say these few words. Noble Lords and Ladies opposite seem to have an idea that all juvenile courts have enormous experience of juvenile cases. I come from a good old juvenile court in the backwoods. I think I have been on it for sixteen years, and not once have we had to recommend anybody for borstal treatment. We have no experience at all of people of this sort, and I think it would be the greatest mistake to give courts like ours the power to commit people to borstal. I do not think we have anything like the experience the courts of quarter session have for dealing with these people. After all, sending a case to borstal is a much more serious thing than sending someone to a detention centre, both in kind and time. I do not think that rural magistrates' courts should have the power to commit anybody to borstal.


My Lords, I do not know whether the noble Lady wishes to withdraw the Amendment. The noble Lady is entitled to reply on Report stage if she so desires.


My Lords, the noble and learned Viscount made reference again to the recommendations of the Advisory Council, and on this I do not propose to say anything because the Advisory Council's recommendations refer to the proposal that magistrates should have power to commit to borstal direct at the present age and not at the age of 15. The noble and learned Viscount also reminded us that a proportion of something to the order of 20 to 30 per cent. of those who are recommended for borstal to sessions do not get there, because sessions does not confirm this sentence. I wish that the noble and learned Viscount could break down those figures by ages, because I think he will find that this division of opinion is very much more common in regard to the older ages than the younger age groups; and if he brought the age down to 15 I should be very much surprised if he did not find that sessions follow the example set by my noble friend Lord Chorley, when he

says that in his sessions, in every case he can think of, the magistrates' recommendation was accepted.

The noble and learned Viscount also said that it is not the policy of the Magistrates' Courts Act that young people should be detained in prison pending sentence to borstal. It must be very cold comfort if you find yourself in prison under an Act of Parliament, to be told that it is not the policy of that Act to send you there; and I am surprised the noble Viscount makes use of this argument.

This Bill is in some ways a generous and progressive Bill and I should like to take this opportunity of congratulating Her Majesty's Government upon it. In particular, it is generous and progressive because it raises from the age of 15 to the age of 17 the minimum age at which a young person can be given a sentence of imprisonment. But what the Bill gives with one hand it now proposed to take away with the other, because it proposes to put down the age at which young people will be remanded in prison pending sentence to borstal. We are all deeply concerned with the rise in the figures of juvenile crime, but I beg your Lordships to consider whether there is any more effective way of increasing juvenile crime than giving children of 15 first-hand acquaintance of prison conditions. I myself believe that that is one of the best steps that Her Majesty's Government could take to increase the rate of juvenile delinquency in the younger ages.

On Question, Whether the said Amendment shall be agreed to?

The Lordships divided: Contents, 31; Not-Contents, 43.

Alexander of Hillsborough, V. Listowel, E. Sinha, L.
Amwell, L. Longford, E. Stonham, L. [Teller.]
Chorley, L. Lucan, E. [Teller.] Strang, L.
Colwyn, L. Meston, L. Summerskill, B.
Cork and Orrery, E. Morrison of Lambeth, L. Terrington, L.
Crook, L. Ogmore, L. Uvedale of North End, L.
Douglas of Barloch, L. Pethick-Lawrence, L. Walston, L.
Henderson, L. Ravensdale of Kedleston, B. Williams, L.
Iddesleigh, E. Rea, L. Wise, L.
Latham, L. Silkin, L. Wootton of Abinger, B.
Lindgren, L.
Ailwyn, L. Ashton of Hyde, L. Baden-Powell, L.
Amherst of Hackney, L. Atholl, D. Balfour of Inchrye, L.
Ampthill, L. Auckland, L. Bathurst, E.
Bethell, L. Elliot of Harwood, B. Jessel, L.
Birdwood, L. Falmouth, V. Kilmuir, V. (L. Chancellor.)
Bossom, L. Fortescue, E. Lansdowne, M.
Bridport, V. Goddard, L. MacAndrew, L.
Buckinghamshire, E. Goschen, V. Margesson, V.
Carrington, L. Hailsham, V. (L. President.) Merrivale, L.
Clwyd, L. Hampton, L. Milverton, L.
Cottesloe, L. Harris, L. Newall, L.
Craigmyle, L. Hastings, L. Newton, L. [Teller.]
Derwent, L. Hawke, L. St. Oswald, L. [Teller.]
Devonshire, D. Jellicoe, E. Somers, L.
Donoughmore, E.

Resolved in the negative, and Amendment disagreed to accordingly.