§ 3.2 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair.]
§ Clause 1:
§ Conditions for and term of sentence of borstal training
§ (2) The power of a court to pass a sentence of borstal training under the said section twenty in the case of a person convicted as therein mentioned shall be exercisable in any case where the court is of opinion, having regard to the circumstances of the offence and after taking into account the offender's character and previous conduct, that it is expedient that he should be detained for training for not less than six months:
§ Provided that such a sentence shall not be passed on a person who is under seventeen years of age on the day of his conviction unless the court is of opinion that no other method of dealing with him is appropriate.
§ (3) Before passing a sentence of borstal training in the case of an offender of any age, the court shall consider any report made in respect of him by or on behalf of the Prison Commissioners, and section thirty-seven of this Act shall apply accordingly.
LORD SILKIN moved to add to subsection (1):
Provided that a magistrates' court shall not commit a person under the age of sixteen years with a view to a sentence of borstal training unless paragraph (a) of subsection (4) of section twenty-eight of the Magistrates' Courts Act, 1952 (which provides for the notification of the availability of remand centres) applies to him.
The noble Lord said: I beg to move the first Amendment which stands in my name on the Order Paper. This is an Amendment which relates to the lowering of the age, from 16 to 15, at which young persons can be recommended to be sent to borstal. On the merits of that change I am going to express no opinion. There are divided views as to whether young persons between 15 and 16 should be sent to borstal or not. I personally cannot pretend that I am sufficiently
acquainted with the workings of borstal, or its results, to express any opinion worth while. But I will assume, for the purpose of my argument, that it is the right thing to do.
§ I should like to draw the attention of the Committee to what will be the con- sequences of carrying this out at the present time. A person who is recom- mended by the magistrates' court for borstal cannot be sentenced to go to borstal there and then—it has to be a recommendation to another court. In the meantime, the young person is kept in custody—certainly so far as young persons between 15 and 16 are concerned—until the court (usually, I imagine, it will be quarter sessons) has given a decision as to whether or not they are to go to borstal. This will involve the person being kept in custody for sometimes a substantial period. I suppose it will be a minimum of two or three weeks, but I am told that in an extreme case it could be as much as three months. At the present time there is no place to which such a young person could be sent except prison, so the effect of reducing the age to 15 at the present time will be that during the period when the young person is waiting for the recommendation to be confirmed, or otherwise, he will be kept in prison.
§ The condition of our prisons is such that in the majority of cases there are no facilities for separating the young persons from those who are there serving a sentence. So while we express belief in the principle that young people should not be contaminated by mixing with older and hardened criminals in prisons, in fact the effect of bringing this proposal into operation at once would be that we should be doing the very thing we are setting out to prevent. One of the first things Mr. Butler said, in introducing this Bill on Second Reading in another place, was that its object was to prevent young people from going to prison. Yet the effect of what the Government are now proposing will be that these young people will inevitably go to prison for a certain period. I know that it is not the case that in all prisons they will be mixing with actual prisoners, but in a large number of prisons they will be, because there are no other facilities available.
§ The ideal thing would be that they should be sent to a remand centre or 395 remand home, but these do not exist at the present time; so there is no possibility at the moment of sending them to any such place. These are children who, admittedly, are difficult children, for whom the magistrates are of opinion that a period in borstal is really the only solution. They are presumably children who have been in approved schools, and have not been successful. They have been difficult, and the magistrates, at any rate, are satisfied, or are of opinion, that no other course of treatment is suitable. I would remind the Government, however, that in a great many of these cases where the magistrates take that view quarter sessions take a different view. Not every recommendation for borstal treatment is approved. Therefore, under the Bill as it stands, a considerable number of young people between the ages of 15 and 16 who have been recommended for borstal pending a decision by a higher court, will, of necessity, be sent to prison. That is something the Home Secretary and all of us deplore—that these young people should be contaminated by being sent to prison, and then, possibly, some other form of treatment might be prescribed.
§ This Amendment, or one very much like it, was actually passed by the House of Commons in Committee. It was carried by one vote, though I forget the figures. It was carried with the help of a number of supporters of the Government. It was not treated as a Party measure, but the merits of this particular Amendment were such that it appealed to the Committee. An Amendment to put back the original provision was moved by the Home Secretary at the Report stage, and was accepted by the House on his assurance that he had changed his programme by giving a higher priority to remand homes and remand centres than he had done hitherto, at the expense of detention centres. Maybe that was one of the reasons which appealed to the majority of the Members in another place; or it may be, as was said there, due to the efforts of certain officials of the Government. But the fact remains that the situation we have now disturbs everybody who is at all concerned with this matter.
§ If it be true that these remand centres will be completed in, say, three years— 396 some of them may be completed earlier —what is wrong with the suggestion that, until there are remand centres available to which these young people between 15 and 16 may be sent, the provision about sending to borstal shall not apply? In other words, they should not go to borstal if it would mean their being sent to prison for a period of weeks, ranging, as I have said, from two or three to perhaps twelve, and some other means of dealing with them should be preferred, even though it might not be the best method of dealing with them. It might mean that, for the first three years or so, many young people who might be regarded as being suitable for borstal will not be sent. I hope the Government will see the wisdom of what I suggest; and I think it is the right course. In your effort to do good you may be doing incalculable harm in sending these young people to prison. Would it not be better, in cases where a remand home or remand centre is not available, to leave things as they are; and that, until these places become available—perhaps a portion of an approved school where they can be separated from the other inhabitants; but at any rate until we have some alternative to prison—this provision should not operate? That is the purpose of this Amendment, and I hope that it will commend itself to the Committee generally. I beg to move.
Page 1, line 11, at end insert the said proviso. —(Lord Silkin.)
The noble Lord did not make it quite clear for what purpose they would be remanded. Are they awaiting a vacancy in borstal, or further consideration of their sentence, or what?
§ LORD SILKIN
Under the law as it stands, the magistrates' courts cannot themselves decide that a young person should go to borstal: they can only recommend. The matter then has to go to a higher court. There is in fact an Amendment, No. 3, which is to be moved by my noble friend Lady Wootton of Abinger, which would provide that the magistrates should be able directly to send a person to borstal. If that Amendment were carried, it would be the answer to the problem. But at the moment the other course is the law.
§ THE LORD PRESIDENT OF THE COUNCIL AND MINISTER FOR SCIENCE (VISCOUNT HAILSHAM)
As the noble Lord, Lord Silkin, has pointed out, this is an Amendment which was passed in another place by, I think, a majority of one in the Committee, and was deliberately expunged again on the Report stage, on further consideration, for reasons which I hope the Committee will find wholly acceptable. Indeed, although I do not want to prejudice the other Amendment to which the noble Lord has just adverted, if it was essential to deal with this situation in any way I am not sure that the other alternative would not be a good deal more acceptable than the one proposed by the noble Lord.
§ LORD SILKIN
Perhaps the noble Viscount will forgive me. If in fact he were proposing to accept the other Amendment, I would immediately withdraw this one.
§ VISCOUNT HAILSHAM
Obviously, we should have to do something about it, but perhaps we can defer the discussion of the other Amendment until we come to it, because it is something which merits discussion upon its own merits. But this one, in my submission to the Committee, does not really make sense. It points to a very real deficiency of the present situation and to that extent it must command sympathy, but by a curious and, in my view, wholly circular argument it provides a remedy which is little better than the disease.
If I may first of all deal with the fundamental point raised by my noble friend, the position, of course, is that you start with the proposition that the petty sessional court cannot commit to borstal; it can only send the accused to quarter sessions, who have the jurisdiction to send to borstal, to exercise that jurisdiction. That is to say, after conviction of an offence for which borstal treatment can be prescribed, the petty sessional court has a night only to send the case on for sentence: it cannot itself prescribe the sentence. At the moment, as the noble Lord said, it can do so only from age 16. The Bill, if passed, will reduce the minimum age to 15 instead of 16—that is effected by subsection (1) of Clause 1, to which this is an Amendment. But if you then look at the proviso to subsection (2) you find that 398 nobody under 17—that is, either of 16, the lowest year of the existing age group who can be sent, or of the additional year 15 to 16—can be sent at allunless the court is of opinion that no other method of dealing with him is appropriate.That is to say, you are dealing only with people for whom the court which despatches the prisoner is of the opinion that nothing else but borstal will do. It is true, as the noble Lord, Lord Silkin says, that it does not follow that quarter sessions will take the same view, but we start with the assumption that the despatching court says that nothing but borstal will do for the young person concerned.
The question then arises: what is to be done with the young person between the time he is sent to quarter sessions and the time when he gets there to be sentenced? The noble Lord's Amendment would say that nobody can exercise this right in relation to those between 15 and 16, although they can exercise the right in relation to those between 16 and 17, as at present; nobody can exercise the right as regards the first year, a person under 16, unless the intervening time is spent in a remand centre. That, at first sight, looks very reasonable, and undoubtedly it would represent the policy of the Government, if there were such a thing as a remand centre in existence. But there is not; there are no remand centres at the moment. The problem, therefore, is to know what to do in the interval of time before the remand centres are built.
The effect of the Amendment, therefore, is that in dealing with people who ex hypothesi are considered, rightly or wrongly, to be such that only borstal will do, nobody will be sent to borstal at all. That is the situation: that a group of people, for whom ex hypothesi it is thought borstal is the only sentence, will never be sent to borstal at all; that is the result of the circular argument that, unless these people spend the time in the remand centre—though there is no remand centre—they cannot be sent to borstal.
§ Lotto SILKIN
Would the noble Viscount make it clear that I am referring only to people between 15 and 16? When he said nobody at all that is rather too sweeping; it is between 15 and 16.
§ VISCOUNT HAILSHAM
The noble Lord is mistaken. I did, in fact, make that very clear indeed. It is, of course, perfectly clear those are the people we are dealing with, those in the first year, between 15 and 16, although the evil, such as it is, would be permitted to continue between 16 and 17. That is the rather circular argument. I had originally thought it was such a circular argument that the noble Lord was using it in a laudably Machiavellian way to bring pressure on the Government to produce enough remand centres, which I think would be laudable, although the means would be open to criticism. But of two unattractive alternatives of how to deal with young offenders of whom, ex hypothesi, it can be said that only borstal will do, far better sentence them to something which, ex hypothesi, is acceptable, that they should be imprisoned for two or three weeks or a short period pending the time when they are dealt with at quarter sessions. I should have thought it was fairly clear that it is better to take the right course and submit them to this evil for a time as regards the one year, than to take the wrong course altogether. That, I would say, is the answer to the Amendment.
But I think it is fair to the Committee to say that there is a genuine deficiency in our system, and to tell the Committee what is the situation as regards the provision of remand centres. I think there is every prospect of their being available fairly soon, despite the difficulties to which the noble Lord, Lord Silkin, referred, including that of the building programme, and despite the fact that that programme has many other urgent needs and needs no less urgent than remand centres—for instance, the completion of the detention centre system, the construction of new borstals and the construction of new prisons, all of which are equally important as the need that we are now discussing.
Good progress has been made in meeting these essential needs and, as the noble Lord, Lord Silkin, said, it has been decided that in the further development of the programme high priority should be given to the provision of remand centres for young offenders. Until recently the policy has been to provide a series of remand and observation centres, each of which would take remand prisoners, of all ages and both 400 sexes, in separate wings. One centre has been designed and practical work already begun at Risley, near Warrington. The provision of all-age centres of this kind to cover the whole country will, of course, take a long time, and therefore it has been decided to provide in the first place centres for young offenders only. As my right honourable friend informed another place on the Report stage, the first of these, covering the London area, will be set up in premises at Ashford which were intended for a borstal allocation centre. This will be opened as a remand centre about next July.
It is estimated that about a further seven centres will be required and they will of course have to be purpose built, as the current phrase has it. Sites for all seven are in view, five on the Prison Commissioners' property and two on other Government land. As the noble Lord correctly said, the building programme will take about three years. Three of the centres will adjoin, but will be entirely segregated from, local prisons. In the other four cases the intention is to site and design the centre in such a way that it can be extended later for adult offenders if that is thought desirable.
Women and girls on remand outside London will be accommodated in the all-age centre at Risley and three other centres to be built as annexes to the young offenders' centres. The accommodation of women and girls in London depends on the future of Holloway, and this depends, in turn, on the success of the efforts which are being made to provide an alternative security prison for women within reach of the London area. I therefore hope that the noble Lord will accept that we realise and sympathise with the situation to which he has drawn attention, but the particular remedy which is proposed in the Amendment is not one to which we can give our adherence.
§ LORD SILKIN
The noble and learned Viscount has really not applied himself to the particular point. He has confirmed the facts which I have given, and I am most grateful that we are in agreement about that. But the real issue is: what is to happen to these young people between 15 and 16 who will inevitably have to be sent to prison if this provision comes into operation at once? All I am 401 suggesting is that until these facilities, which I am happy to hear are being provided rapidly (I make no criticism of that), become available, we should not send anybody to prison but should carry on as we are now. This is an entirely new thing, sending people under 16 to borstal. Why not carry on for a year or two longer until we have the remand centres available? That is the suggestion, and I can see so little objection to it that I wonder why the Government are so adamant about it. I do not want to bring in irrelevancies, but it is quite on the cards
|Airedale, L.||Iddesleigh, E.||Rea, L.|
|Alexander of Hillsborough, V.||Kilbracken, L.||Silkin, L.|
|Amwell, L.||Latham, L.||Sinha, L.|
|Burden, L.||Listowel, E.||Stonham, L. [Teller.]|
|Colwyn, L.||Longford, E.||Summerskill, B.|
|Cork and Orrery, E.||Lucan, E. [Teller.]||Uvedale of North End, L.|
|Exeter, L. Bp.||Macpherson of Drumochter, L.||Walston, L.|
|Faringdon, L.||Meston, L.||Williams, L.|
|Fraser of North Cape, L.||Raglan, L.||Wise, L.|
|Harvey of Tasburgh, L.||Ravensdale of Kedleston, B.||Wootton of Abinger, B.|
|Ailwyn, L.||Freyberg, L.||Merthyr, L.|
|Allerton, L.||Geddes, L.||Mills, L.|
|Ashton of Hyde, L.||Gladwyn, L.||Milverton, L.|
|Astor, V.||Grenfell. L.||Montgomery of Alamein, V.|
|Auckland, L.||Hailsham, V. (L. President)||Mowbray and Stourton, L.|
|Baden-Powell, L.||Hamilton of Dalzell, L.||Newton, L. [Teller.]|
|Bathurst, E.||Hampton, L.||Robins, L.|
|Buckinghamshire, E.||Hastings, L.||St. Aldwyn. E. [Teller.]|
|Casey, L.||Hawke, L.||St. Oswald, L.|
|Cohen, L.||Howard of Glossop, L.||Salter, L.|
|Courtown, E.||Jellicoe, E.||Somers, L.|
|Croft, L.||Killearn, L.||Spens, L.|
|Crookshank, V.||Kilmuir, V. (L. Chancellor.)||Strang, L.|
|Dynevor, L.||Limerick, E.||Teviot, L.|
|Ferrers, E.||Margesson, V.||Thurlow, L.|
|Fortescue, E.||Merrivale, L.||Twining, L.|
§ 3.35 p.m.
The Bill provides that nobody shall be sent to Borstal under seventeen:unless the court is of opinion that no other method of dealing with him is appropriate.I have a little experience of courts and, to the best of my knowledge and belief, no court ever does pass a sentence on anybody unless it considers that that sentence is the most appropriate. The effect of this provision, if it is left in the Bill, will be to suggest to the courts throughout the country that they are under no sort of obligation to consider what sentence is the most appropriate unless it is a sentence of borstal training. I think that would be most unfortunate, 402 that this Bill will not go through at all this Session. If it went through next Session the difficulty would hardly apply. Therefore, I cannot see why the Government should not concede this point. The noble and learned Viscount has really not applied his mind to the objection to conceding it.
§ On Question, Whether the said Amendment shall be agreed to?
§ Their Lordships divided: Contents, 31;
§ Not-Contents, 48.
and so I propose to leave out the words referred to and to insert those suggested by the Howard League: namely, the court shall not pass sentence unless it
has first considered a full social and medical report on him"—
that is, the person under consideration. I beg to move.
Page 2, line 6, leave out from ("court") to the end of line 7 and insert ("has first considered a full social and medical report on him.")—(Lord Raglan.)
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
I should like, with your Lordships' approval, to examine my noble friend's Amendment, first from the point of view of the actual wording—because, with great respect, I do not think that my noble friend has appreciated the full force of the wording as it exists. If 403 your Lordships remember, I listened carefully to what my noble friend said on Second Reading. He then said [OFFICIAL REPORT, Vol 230 (No. 72), col. 1099]:I should have thought that that was the duty of every court in every case.He went on to say that he had been for 33 years chairman of a bench of magistrates, for which I am grateful to him, and then continuedand in no case did I pass sentence, or be a party to the passing of a sentence, unless I was satisfied that there was no way of dealing with the case that was more appropriate.I want to point out to my noble friend —and I think he will appreciate that this is important—that what the proviso requires is not simply that the court should consider no other method more appropriate; that requirement must be understood to apply in every case, as my noble friend said on Second Reading. But the proviso goes further and requires the court to be of opinion that no other method is appropriate or in other words that every other method is inappropriate. Therefore, the proviso is not an empty form of words, but imposes a real restriction on the powers of the court. I should like to assure my noble friend that it is not unprecedented. There are already similar provisions in the Statute Book: for example, Section 54 of the Children and Young Persons Act, 1933, in its present form, or if my noble friend has a copy of the Bill in his hand and would be pleased to look at page 37, lines 13 to 15. he will see the amended version:the court may, if it considers that no other method of dealing with him is suitable, commit him to custody"—in that case, in a remand home.
Now I would turn to the other point of my noble friend's Amendment with regard to obtaining a report on the offender. I entirely agree with my noble friend that it is certainly important that the court should have before it all the information it needs to make a decision. In some cases the offender is found guilty by a juvenile court, or occasionally by an ordinary magistrates' court, and sent to quarter sessions with a recommendation for a borstal sentence, as we heard in the last Amendment. I should like to point out to my noble friend that juvenile courts are required by Rule 11, sub-rule (ii), of the Summary Jurisdiction (Children and Young Per- 404 sons) Rules of 1933, except in cases of a trivial nature, to obtain such information as to the general conduct, home surroundings, school record and medical history of an offender as may enable it to deal with the case in his best interests.
Now the Committee presided over by my noble friend Lord Ingleby have recommended that a similar rule should apply for offenders under the age of 17 who are dealt with by magistrates' courts other than juvenile courts, and that the information obtained should be transmitted to the court to which an offender is committed for a borstal sentence. In other cases the offender will be convicted at assizes or quarter sessions. The Streatfeild Committee, on which the noble Baroness, Lady Wootton of Abinger, was good enough to serve—and I have already expressed my gratitude for the work of that Committee—have recently put forward proposals for ensuring that these courts are provided with fuller information about the offenders with whom they have to deal, and have urged that no sentence should be passed without the court considering comprehensive and reliable information about the offender which is relevant to their objects in sentencing him. The Government hope in due course to arrange for the implementation of these recommendations of both Committees—that is, of the Ingleby Committee and the Streatfeild Committee—and the result will be that in a wide range of cases, and not only in the category to which this proviso applies, the court should have before it adequate information of the kind my noble friend Lord Raglan has in mind.
The Government and I myself sympathise with the object of the proposed Amendment, but I doubt whether, by itself, it would achieve its object. Arrangements for providing the superior courts with appropriate information—and, in particular, for providing it in time to avoid the post-conviction adjournments that the Streatfeild Committee considered injurious—have still to be worked out. Noble Lords who have considered the matter will realise that they will require some working out, and that that will not be time wasted. It would be better to deal with the matter as part of the much wider provision that the Government hope to make in pursuance of the recommendations of the 405 Ingleby and Streatfeild Committees. With this assurance, with the sympathy I have expressed for the wording that my noble friend would like to see, and with the course which we hope to follow, I hope that, on this occasion, my noble friend will see fit not to press his Amendment.
§ On Question, Amendment negatived.
§ 3.44 p.m.
BARONESS WOOTTON OF ABINGER moved, after subsection (2) to insert:
() In dealing with a young person who has attained the age of fifteen years, a court of summary jurisdiction shall have power to order borstal training.
§ The noble Baroness said: I hope the noble and learned Viscount who leads the House has not already damned this Amendment with faint praise by indicating that it appears to him slightly less unattractive than that moved by my noble friend Lord Silkin. I prefer to think that, in making that observation, he was coming to meet my Amendment at least half way. The importance of this Amendment is, I think, greatly increased by the proposal in this Bill to reduce the borstal age to 15. There would be much to be said for an Amendment on these lines, even apart from that change but if the age at which a borstal sentence may be passed is to be reduced to 15, the case for this Amendment becomes very much stronger still—and very must stronger, too, since the defeat of the Amendment moved by my noble friend Lord Silkin. For unless this Amendment is passed, young boys—and, it may be, young girls—of 15 years of age will have to be remanded in custody in prison while awaiting a sentence of borstal to be determined at quarter sessions. Surely, nothing could be more contrary to the spirit of this Bill.
§ Later in the Bill it is proposed to raise the minimum age for a sentence of imprisonment from 15 to 17; but by the reduction of the borstal age to 15 (which, of itself, I do not oppose), and by requiring borstal sentences still to be imposed only by quarter sessions, we are compelling children of 15 to spend a number of weeks on remand in prison. I do not think, even, that remand centres would be a complete answer to the objections to that, because it is not merely the prison environment which is indeed the worst evil: it is the fact that there is a long delay before anything at all is done 406 for the rehabilitation of these young people. They appear before a magistrates' court—or, if at the age of 15, normally a juvenile court—and if it appears to the magistrates' court that a sentence of borstal training is called for, they are obliged to remand in custody for a period which may be, and which has been, as much as twelve weeks, and which is always a matter of several weeks. These young people, as a rule, have already been remanded in a remand home for two or three weeks for the purposes of obtaining information.
§ I know that the Advisory Council on the Treatment of Offenders expressed itself as opposed to this change, but the grounds which they gave are not, I think, relevant to the present situation. They said, first of all, that they did not think it right that a magistrates' court should have the power to deprive persons of their liberty for such long periods as a borstal sentence would involve. Are children of 15 persons or not?—because magistrates' courts already have the power to deprive children of 15, and younger, of their liberty for periods much in excess of any borstal sentence. In sending them to approved schools, magistrates' courts are already depriving them of their personal liberty for longer periods than a borstal sentence—particularly the borstal sentence as reduced under this Bill. Secondly, the Advisory Council said that they did not contemplate with satisfaction the consequence that if magistrates' courts could commit direct to borstal, the only appeal would lie to quarter sessions; but they gave no reason for this rather surprising distrust of the efficacy of the appeals committees of quarter sessions. Most important of all, the Advisory Council were not thinking of candidates for borstal of an age as young as 15.
§ I find it difficult to believe that your Lordships would willingly contemplate that children of 15 should spend several weeks in prison, or even in a remand centre, waiting until they can go before a higher court, labelled as convicted persons and with nothing whatever being done for their rehabilitation. Those precious weeks taken out of their lives will never come again. The proposal contained in this Amendment was put forward unanimously by the Ingleby Committee, and the reasons which they gave in support of it were very much 407 the reasons which I have tried to put before the Committee this afternoon. I would add, as the Ingleby Committee pointed out, that in about 80 per cent. of the cases the sentence which the magistrates recommend is in fact confirmed at quarter sessions.
§ It is on those two grounds, and most particularly because of the conflict between raising the minimum age for imprisonment on the one hand, and providing for children of 15 to spend periods in prison awaiting borstal on the other hand, that I ask your Lordships to support this Amendment. I beg to move.
Clause 1, page 2, line 7, at end insert the said subsection.—(Baroness Wootton of A binger.)
As the noble Lady knows very well, an approved school is a school, whereas a borstal is a kind of prison. I think it would be most undesirable that children of 15 should be sent to borstal at all. It is very difficult to imagine that any court will consider that a child of 15 would be better off at borstal than at an approved school. I very much oppose any attempt to extend the powers to sentence to borstal children so young.
§ 3.53 p.m.
§ VISCOUNT HAILSHAM
This is a question which has been debated between criminologists for a very long time. I think one can say, after that very long time, that finality is not likely to be achieved. Two schools of thought, of a very highly reputable kind, have existed, and all I can ask the Committee to do is to take account of the arguments on both sides, and to come to the conclusion which I beg them to do on the balance of argument.
The Amendment proposed by the noble Lady would give, at any rate in respect of a young person who has attained the age of 15 years, power to a court of summary jurisdiction to order borstal training. As will be remembered from my discussion of the first Amendment, in answer to a question by my noble friend Lord Hawke I said that the essence of the present situation is that a court of summary jurisdiction has not at the moment the power to order borstal training the proposal is that it should have the power, 408 but limited to a young person—that is a person between the ages of 14 and 17 years—and not to defendants otherwise within the borstal range. This was the proposal of the Ingleby Committee, as the noble Lady has said. It was equally hotly rejected by the Report of the Advisory Council on the Treatment of Offenders, who said that it would not be appropriate for magistrates' courts to deprive persons of their liberty for a period perhaps as long as two years, and that the higher courts are subject to direct appeal to the Court of Criminal Appeal.
In order to show how evenly balanced opinion has been (there are two advisory bodies, who have taken directly the opposite point of view to each other), I would point out that the same recommendation that the noble Lady now makes, or a similar one, was contained in the Report of the Departmental Committee on the Treatment of Young Offenders in 1927. It was therefore included in the Criminal Justice Bill of 1938, which was ultimately withdrawn on the outbreak of war, but the proposal in that Bill had already failed in Committee in the House of Commons and had been withdrawn by the Government. In the 1948 Bill, an Amendment to the same effect was moved in the House of Lords by my noble friend Lord Raglan, but was not carried. So one can really show that opinion is very evenly divided, and nobody can be condemned for differing from other authorities about it, because both schools of thought have a very solid basis of authority.
However, I think that two or three things need to be kept clearly in the forefront of one's thinking. The first is that of those who are sent to quarter sessions by petty sessions for sentence to borstal, between 20 and 30 per cent. receive some other form of punishment when they get there. The noble Lady put it perfectly fairly, as she always does, but she put it the other way round. She said that the House ought to accept this Amendment because in 89 per cent. of the cases borstal training is in fact imposed. It is at any rate for the consideration of the Committee whether the opposite conclusion is not the right one. If, in fact, in 20 to 30 per cent. of the cases sent by petty sessions to quarter sessions borstal is not inflicted by the 409 court in whom the noble Lady rightly has such admiration as a court of appeal, I should have thought the argument was that the petty sessional court ought not to be given the absolute power of sending an offender to borstal for that very reason.
Secondly, it is true that in every decision of the petty sessional court you have a court of appeal in the shape of quarter sessions, but some thinking has been on the other side— and personally it is that which I think, on balance, is the better—that quarter sessions, sitting as a court of first instance, is superintended by the Court of Criminal Appeal. There is a very great safeguard for human liberty in the power of the Court of Criminal Appeal to superintend sentences. One of the reasons why certain sentences—whether it is prison for a certain length of time, or other sentences—cannot be imposed by petty sessions is precisely because certain kinds of punishment are considered to be a sufficient infringement on human liberty to make it desirable that the court of appeal should not be a court of magistrates sitting in quarter sessions, admirable as they are, but the Court of Criminal Appeal itself. That right would be taken away, and taken away irreparably, if the noble Lady's Amendment were passed.
Then the noble Baroness says (and again, says with great force, as she always does) upon this difficult question: "Ah!, but the petty sessions have the right to deprive a child or a young person of his liberty for an equally long period in the case where they send him to an approved school." That is a perfectly fair argument to put; I am not criticising it as unfair in the least. But it is a question of the inference you draw from it. The inference that we draw is that which my noble friend Lord Raglan drew: that, on the whole, with the approved school the emphasis is upon the schooling rather than the punishment—although there are in fact, as we all know, elements of both in sending a person to an approved school —whereas in the case of borstal, which is quite a tough kind of place, the emphasis is at least as much on the punishment as on the education. Borstal approximates, therefore, a little more to prison than does the approved school.
410 I should have thought myself that the arguments which I have presented were, on balance, superior to those of the Ingleby Committee and those of the noble Lady. There are a number of other arguments, some on each side, which have to be taken into account but which I should personally have thought were of less importance. The first is the purely temporary argument about the delay in prison which may take place, and indeed must take place at present, after the decision has been taken by the petty sessional court to remand a person to quarter sessions for sentence, and before the defendant is dealt with at the quarter sessions by being sent to borstal, or by some other treatment. That, of course, is the point we discussed in the first Amendment, and I fully agree that is a great disadvantage. But it is, after all, purely temporary, if what I said on the first Amendment is correct, as I hope and believe it is—namely, that the remand centres will be provided within a period of three years. I should not think it was right to come to what was otherwise a wrong conclusion simply because of this which will happen as an evil over an interim period of two to three years.
The noble Lady then says that this is not the whole case. The delay, she says, is always bad, whether there is a remand centre or not. Of course, this is true. It is undesirable to take two or three weeks— "precious weeks", as the noble Lady says—out of a person's life, whether he be a young person or not. The question is how much importance you attach to that argument in relation to the disadvantages I have put forward. I do not think that this is an unfair argument. Whether it is conclusive or not depends on how much weight you attach to it. I put it before the Committee that the right conclusion is that on the whole the important thing is to get a right sentence rather than to avoid delay. Undesirable as delay may be, the rightness of sentence and the safeguard of the Court of Criminal Appeal are sufficiently important to outweigh that particular disadvantage.
There is another argument of a countervailing kind that can be put on the other side. Again I do not put it forward as conclusive. It is very much a question of how much weight you attach to it. While I think that there 411 is a genuine disadvantage in this Amendment in that it proposes, and inevitably proposes, to give this power only in respect of young persons in a range less than that of the total borstal range—that is, between the years of 14 and 17: that is the proposal of the noble Lady and of the ingleby Committee—it would not be practicable or sensible, at any rate so the Government think, to confer power only in relation to some age groups in the borstal range and not in relation to others.
Apart from other questions—and I should have thought that there were other questions—there is the complication of offenders of different ages convicted jointly of the same offence. Where the magistrates' court consider a borstal sentence appropriate for both, it would have power to impose borstal on one immediately and commit the others to quarter sessions where a borstal sentence may or may not be passed. I should have thought that it was desirable that one court should deal with both cases, otherwise there might be divergencies of views as to the way in which an actual offence was regarded, leading to different types of sentences arising out of the same circumstances. Again, it is a question of how much weight you attach to this argument in relation to others. For this and other reasons I have given, and recognising that there is a very respectable body of opinion on both sides of this particular fence an that ultimately your Lordships will have to decide between one view or the other, I should have thought that on balance the Government's view, which is against the Amendment, would prevail. But I do not want to treat this Amendment as one for which powerful arguments cannot be advanced.
§ BARONESS WOOTTON OF ABINGER
The noble Earl's arguments are so finely balanced on this occasion that I cannot help thinking that it would take only a small puff of wind to blow them over on to the opposite side. I appreciate the point put by the noble Lord, Lord Raglan, that a borstal sentence is a deprivation of liberty and that an approved school sentence means being sent to a school, but I think that this distinction is increasingly one without a 412 difference. There are open borstals and closed borstals and in either case the person who receives a sentence is required to stay in the institution, willy nilly, for the prescribed period.
The argument which the noble and learned Viscount gave, that if a case has to go to quarter sessions, quarter sessions may decide differently, seems to me to be rather a strange one. Any sentence which is passed by a lower court may be reversed on appeal to a higher court. In this instance, what it comes to is that there is, so to speak, an automatic appeal from the magistrates' court—I know that it is not so in law but it is in substance. If a similar automatic reference to a higher court took place in other cases, there might well be as many as 20 to 30 per cent. of differences. The argument seems to me to be specious.
§ VISCOUNT HAILSHAM
I am afraid that the noble Lady has not quite got my argument. I was dealing with the case of two or more persons charged with offences arising out of one crime.
§ BARONESS WOOTTON OF ABINGER
I think that the noble Viscount made the other point at an earlier stage. There is nothing new in the question of two or more offenders sentenced together. This already happens. Two or more offenders are tried together in an adult court and if one of them is under 17 the normal practice is to remit him to a juvenile court for sentence, and, because of the differences in age, there are two different court sentences and the sentences may indeed express different views of the same offence. But the most serious omission from the noble Viscount's remarks is that he did not take into account the fact that the Advisory Committee on the Treatment of Offenders was thinking of offenders from 16 to 21 and was not thinking of borstals for which the age would be brought down to 15. It is that which I think makes all the difference. I would ask the noble Viscount whether the Government would accept a restriction of the scope of this Amendment to offenders between 15 and 16, if we cannot persuade them to accept it as it stands.
§ VISCOUNT HAILSHAM
Of course, this is a new question put to me, and all I can say to the noble Lady is that I will consult my right honourable friend whether this would be acceptable and let 413 her know the result. I do not want to give her the conviction that I am likely to be able to give a favourable answer. I have not been in consultation with my right honourable friend on the particular narrow point, which is not the point contained in the Amendment but which certainly arises out of it, but I will endeavour to give her an answer before the next stage of the Bill. That is as far as I can go on this last question.
§ BARONESS WOOTTON OF ABINGER
On the assurance that this point will be considered before the next stage of the Bill, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ 4.9 p.m.
§ LORD STONHAM
moved, in subsection (3), after "court" to insert:shall be, required to obtain and consider a report as to his home surroundings, school and work record, health and character and".The noble Lord said: I hope that it will suit your Lordships' convenience if I discuss with this Amendments No. 7 and 9, which, although they amend different clauses of the Bill are essentially on the same point. We on this side of the House did not intervene to support the noble Lord, Lord Raglan, in his Amendment asking for a full social and medical report, certainly not because we were opposed to it, but because these three Amendments are wider in scope, deal with the whole age group, and not only with those under 17, and are more specific in their requirements. I was disappointed and somewhat surprised to hear the noble and learned Viscount who sits on the Woolsack say that the Government accept the recommendations of the Ingleby and Streatfeild Committees on this point and that they hoped to implement them in due course. Why cannot they implement them now, by accepting this Amendment and putting these words into the Bill? No doubt the noble and learned Viscount will make that point clear afterwards.
We are extremely concerned lest there should be what we regard as an unnecessary and quite dangerous delay, because the present requirement of the Prison Commissioners to supply a report on the suitability for borstal training is quite inadequate, being frequently made after the most cursory interview with the boy by the prison governor or the medical officer. In 414 our view, it is only if the court is provided with a report on the home surroundings, the school and work record, the health and character of an offender, on the lines of reports made to juvenile courts, that it will be in a position to decide whether he is physically and mentally suitable for borstal. The reports, in our view, should be made by qualified social workers, or, where a psychiatric report is required, by a medical practitioner with psychiatric qualifications or experience. I understand that there are only six medical officers, out of a total of over 100 listed in the Prison Commissioners' Staff Directory, who have psychiatric qualifications; and then it is the Diploma in Psychological Medicine. The Prison Commissioners, therefore, with the best will in the world, are not in the position to make the kind of full report which is necessary if the court is to make the right decision.
This is a decision which is going to affect the young person's whole future life. The Prison Commissioners' report on an offender's physical and mental condition is usually based on a superficial examination, with no psychiatric examination. There may be a brief police report on the home background, but seldom one from a probation officer or a social worker; in fact, if the offender has been out on bail, the prison officials will not have seen him at all, and therefore there is virtually no report of any kind. This clause already insists that no sentence of borstal training should be passed on an offender under the age of 17 unless the court is of opinion that no other method of dealing with him is appropriate. But how can the court know that borstal is the only method appropriate if they do not have a full report about the young person? However important it is to make the punishment fit the crime, it is supremely important, if we are not to turn the delinquents into criminals, that the punishment should fit the delinquent.
The Home Secretary must exercise his own judgments on the reports that have been submitted to him, but on this particular point the Ingleby Committee and the Streatfeild Committee are quite unanimous and extremely firm. The noble and learned Viscount said that the Ingleby Committee made this recommendation only in respect of young persons up to the age of 17, but that was the age group with whom they were 415 dealing: they did not have a remit to make suggestions in regard to older people I heir recommendations on this are most impressive, and in about half a dozen paragraphs they come to this point again and again. For example, paragraph 356 says:No order removing a child from his home should be made unless the court has received and considered full reports on the child's personal and social history, including medical and, where necessary, psychiatric reports…That observation was made with particular reference to orders for borstal training. In paragraph 269 the Ingleby Committee note that, under Section 35 of the Children and Young Persons Act,…when a child is to be brought before any justice or justices in respect of any offence that he is alleged to have committed, or is to be brought before a juvenile court in need of care or protection, the local authority is obliged to prepare reports about his school record, health and character; and either the local authority or a probation officer, to prepare a report about his home surroundings, to assist the court in dealing with him; and the rules that govern juvenile court procedure provide for these background reports to be received and considered.It seems to me extraordinary, since that was laid down so long ago—28 years—in the Children and Young Persons Act, and is approved by everyone, that people of the same age can come before a variety of courts where there is no requirement for a report at all other than the one from the Prison Commissioners. For example, a young person may appear before the appeals committee of quarter sessions, before the Court of Criminal Appeal and at assize courts, yet there is no absolute requirement for a report of the kind for which we are asking.
The Streatfeild Committee made a very decisive comment on this point, although in their case it was extended to the age of 30. Their recommendation wasthat, where practicable, a probation officer should prepare a pre-trial report on every defendant…What is the difficulty about? Is it that the Government are of opinion that there are not sufficient probation officers or social workers; that the machine cannot be ready for the Bill amended in this way by the time it comes on to the Statute Rook? If that is the real reason for non-acceptance of these Amendments, then I should hardly think that my noble friends and I would regard it as a tenable one. We have already been told by the 416 Lord Chancellor, and welcomed it, that the Government accept these recommendations and propose to implement them. Apparently, the only point at issue between us is, when? We ask for them to be implemented statutorily in this Bill, and I hope that the answer will be, Yes. I beg to move.
Page 2, line 9, after ("court") insert the said words.—(Lord Stonham.)
§ THE LORD CHANCELLOR
I would say at once that the reason for not accepting the Amendment is not the physical reason which the noble Lord, Lord Stonham, mentioned, and I shall try and develop the reasons in the course of my argument. I should like to say this preliminary word. Although I have said that we accept the recommendations by the Ingleby Committee and the Streatfeild Committee in this regard, I should not like the public to gather from the noble Lord's speech that the information given to the court that is sentencing is inadequate in a large number of cases. I take his point about the difficulties of the Prison Commissioners' report, but I should have thought that before a court sentences a prisoner, in the vast majority of cases it ensures that adequate information is available. If I may tell the noble Lord my personal experience, I was recorder of a Lancashire industrial town for six years, and during that time I received information from the various sources available to me. In that six years only one man whom I put on probation, and did not send to prison, let me down and committed another offence. I think the noble Lord will say that that is not a bad test for the information that was given to me. I say nothing about my own part.
§ LORD STONHAM
I should say it is much more a tribute to the noble and learned Viscount's judgment of his fellow men than to the excellence of the report submitted. My point was that there are good reports, but that in many cases the reports which are received have little value because they are not, and cannot be, compiled by experienced people.
§ THE LORD CHANCELLOR
I can only say that it is not mock modesty which makes me say that I received 417 very good reports and, of course, obviously a very good prognosis as to what would happen to the man. I say that only because I do not think it is fair to the Judiciary of this country that it should go out that they themselves would be content with inadequate information before imposing a serious sentence.
I want to come to the other point. The noble Lord, Lord Stonham, dealt with the Ingleby Report, and I am sure that he has in mind, as I have, paragraphs 269 to 271 and 355 and 356, one of which he quoted. The Committee recommended that the magistrates' courts rules should be assimilated to those relating to juvenile courts, and should provide that an adult magistrates' court should be required, except in cases of a trivial nature, to obtain and consider background reports in any case where an offender below the age of 17 appears before them, unless they remit the case to a juvenile court. But, as the noble Lord pointed out, the Committee were concerned only with the procedure in relation to children and young persons, and their recommendation is of much more limited effect than that in the present Amendments.
But there are some objections that go deeper than that argument as to whether the Committee is covering the same ground. The Streatfeild Committee have made a thorough survey of the whole question of providing the superior courts with reports on the background of offenders to enable them to select the most appropriate treatment when passing sentence. They have made, if I may say so, a comprehensive set of recommendations suggesting what these reports should contain and the cases in which they should be made. In principle, they think that every sentence should be based on comprehensive information about the individual offender; and in particular they have recommended that probation officers should make inquiries before the trial about the background of all accused persons under 30. But I would point out to the noble Lord that that is subject to an important qualification: that the accused should consent to the inquiries being made. It is a fact that, however unjustifiably, some accused persons might think that such inquiries would be prejudicial to their case. Where 418 inquiries are not made before the trial, either because the accused objects or because there is no time, there can be a remand for them to be made afterwards.
As I pointed out on the previous occasion when I addressed your Lordships, it must be kept in mind that justice should be dispensed speedily, and that sentence should follow as soon as possible on conviction. There will therefore be, even under the Streatfeild recommendations, straightforward cases in which, in the interests of speedy justice, courts will feel able to pass sentence without waiting for a report. As I said, the Government welcome the Streatfeild Committee's approach to this subject. They believe that it is a practical and significant piece of pioneer work. They are at present considering how best the recommendations and the related proposals by the Ingleby Committee can be implemented. When they have made the necessary arrangement, and if, as they hope, the courts act in the spirit of the Streatfeild recommendations, the evident aim of these Amendments will be secured, since in no case should sentence be passed on a young offender without a full report on his background being obtained, where that is necessary to enable the appropriate sentence to be passed.
I should like to raise two particular points of objection to the Amendments. First, by requiring reports in every case, as they do, they may create a pressure for pre-trial inquiries in cases where the accused person is reluctant to consent. The Streatfeild Committee as the noble Baroness is well aware, dealt with this issue with great care, if I may say so, and were anxious, on grounds of fairness to the accused, that he should not be put under any pressure. It is understandable that a young offender should not want inquiries to be made of his employer about this character before his guilt has been established At the other end of the scale, the effect of the Amendments would be, where inquiries are not made before the trial, to necessitate delays between conviction and sentence to enable the inquiries to be made after the trial. In clear cases this delay, which is always undesirable, may be quite unnecessary.
The second objection is this. The requirement on the courts, fettering their 419 discretion to act as the differing circumstances of each case demand, is in principle undesirable and should be avoided unless it can be shown to he essential. Your Lordships will observe that these Amendments would not only bind the courts to obtain and consider reports, but would require the contents of the reports to conform to the prescribed pattern. This, in turn, would fetter the discretion of the probation officer preparing the report. The Amendments are much more restrictive in this respect than their model, Section 35 (2) of the Children and Young Persons Act, 1933, which requires the authority submitting a report onlyto make such investigations and render available.to the court such information … as appear to them to be likely to assist the court.In short, the Amendments would introduce a rigid and inflexible procedure for the courts and their officers in a field where the exercise of discretion is highly desirable. In this field, the Streatfeild Report has given an admirable and clear lead to the courts, and there is no reason to suppose that they will not follow it and so achieve the objects which the sponsors of these Amendments have in mind.
I realise the anxiety of the sponsors of the Amendments, and I have tried to consider them as carefully as I can. It might be that some people think that there is a particularly strong case for the second of these three Amendments, which would apply to the most serious cases in future where imprisonment of a young offender is contemplated. For those who have approached it in that way, may I point out that Section 17 (2) of the Criminal Justice Act, 1948, already obliges the courts, before imposing imprisonment on a person under 21, totake into account any information before the court which is relevant to his character and his physical and mental condition.That seems to me to go as far as is necessary, and it substantially covers the points. I hope that the noble Lords and the noble Baroness who have sponsored this Amendment will see, on consideration, that there are a number of difficult points which have to be considered before what they desire can be applied or, to put it in other words, before the recommendations of the Ingleby Committee and the Streatfeild Committee can be implemented.
420 I do not think it is unreasonable that we should consider these matters very carefully before they are passed into law. I am willing to consider any points, but I should suggest, with diffidence, that the arguments I have put forward are serious and important arguments. The noble Lord might consider between the stages whether he thinks that they have all the weight which I attach to them. If he feels they are not conclusive he can put down an Amendment again. I want him to know that this is not simply a question of time for physical arrangements. There are real difficulties, in our view, but, of course, if we can be reassured on those difficulties we will consider the matter again.
§ 4.32 p.m.
§ BARONESS WOOTTON OF ABINGER
It would seem that the two noble and learned Viscount opposite are not wholly synchronised in what they are singing in the same duet. In reply to an earlier Amendment, the noble and learned Viscount who leads the House laid great emphasis on the importance of getting a right sentence; indeed, he argued that it was worth while keeping young people, sometimes of an age of as little as fifteen, if necessary in prison for periods of two or three or even up to ten or twelve weeks in order to arrive at a right sentence. The noble and learned Viscount who has just spoken takes the opposite view. He points out, as indeed the Streatfeild Committee recognised, that some defendants may be reluctant to give information in response to pretrial inquiries. I myself, having had my magisterial experience in London, where pre-trial inquiries are taboo, have great difficulty in accepting pre-trial inquiries, but I have come to recognise that the conditions which prevail in London are not comparable to conditions in the rest of the country, and if information is to be obtained, a great deal of it must be got pre-trial. But the Streatfeild Committee recognised that if a defendant has the faintest reluctance to give information before trial then it may be necessary to remand him for information after trial. The remand for this information after trial is unlikely to be comparable in length with the remand which the noble and learned Viscount who leads the House dismissed so cheerfully when replying to a previous Amendment.
421 The noble and learned Viscount who has lust spoken also said, and I think we all accept it, that in the majority of cases the courts are supplied with sufficient information, or at any rate as much as they can use. But we have no wish to legislate for the majority of cases where this already happens. We are well aware there is a minority of cases where it does not happen and where only the most exiguous information is available to the courts, and it is for that minority we want the legislation. Your Lordships must remember that unless some Amendment on these lines is passed, boys and girls of fifteen may be deprived of their liberty—in the full sense, not merely sent to an approved school—for periods between six months and two years, with practically no information available about their homes or families or mental condition or ability, the only information available being that which relates to their offence. This is not a situation which we can contemplate with equanimity.
§ LORD STONHAM
I am most grateful to the noble and learned Viscount, the Lord Chancellor, for his very careful reply, but I would ask him to appreciate, as I am sure he does, that my concern is not to insert a particular form of words into this clause but to try to secure a way whereby those presiding over courts which are trying young people shall be placed in possession of all the information that is necessary for them to assess the character, the background and the home circumstances; in other words, to make some kind of assessment of the disease which afflicts the young person in order that the court might be able to decide which of a variety of treatments they might give would be most likely to effect a cure. I am sure that is the objective of all of us. My difficulty is that the form of words we have proposed in this Amendment is, by and large, what is necessary in the reports which are conveyed to the juvenile courts. I find it extremely difficult, therefore, to see why it should be so difficult to accept the same principle, if not the words that I have put forward, in the three Amendments we have under consideration.
I must confess that I am rather concerned, because during discussions on this Bill in another place the right 422 honourable gentleman the Attorney-General, when these points were being considered and the recommendations I have made were being proposed, said that the Government must consider these reports as a whole—for example, in the reorganisation of the whole system of the higher courts. I find that most alarming, because it might he years before these higher courts have the kind of reports which I am sure all of us feel they ought to have. I listened carefully to the suggestion made by the noble and learned Viscount. If I might be allowed to put somewhat less weight on the first of his objections about the compulsory pre-trial reports and more weight on his objection to the precise form of words, I should then feel—if he would think about it, and my noble friends and I will also think about it—that we might between us arrive at a form of words between now and Report stage which would achieve our objective and, at the same time, not be open to the objections which the noble and learned Viscount put forward. If that is the general understanding he tried to make, I would be in agreement, and I am sure my noble friends would agree that I should withdraw this Amendment.
§ THE LORD CHANCELLOR
As the noble Lord knows, I cannot go further than say I will give most careful consideration to these points, and if he cares to suggest any modification I will consider that, and so will my right honourable friend. I want to say only one other word, because this came in incidentally: the noble Lord used the expression, in eloquence rather than because it was part of his argument, that it might be years before the reorganisation of the courts took place. I should like to make clear to him that it is my intention and the intention of my noble and learned friend, the Lord Chief Justice, that there should be no such delay, and the noble Lord will realise that that is one method of meeting the points that have been worrying the noble Baroness, the noble Lord, Lord Silkin, and himself, that if we can reorganise the courts there will not be the occasions for these long delays before cases come to quarter sessions or assizes. I want him to believe that we consider that that is an urgent matter, both from Ole aspect of the crime we are considering at the moment and from every other. I should not like it 423 to be thought that we would treat that as a matter that might be delayed for years.
§ LORD STONHAM
I am most grateful to the noble and learned Viscount. I can assure him it was not eloquence, but honest belief, when I said it might be years; it might be never. I take the point. I realise that there is no rigid assurance. We will look at it in the OFFICIAL REPORT, and if he will look at it, in the light of what he has said I hope we may come to an agreement; and on that I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Clause 2 [Serious offences by children and young persons]:
§ 4.40 p.m.
LORD SILKIN moved to insert as a new subsection (1):
() In subsection (1) of section fifty-three of the Children and Young Persons Act, 1933, as amended by subsection (3) of section nine of the Homicide Act, 1957 (which prohibits the sentence of death on a person under the age of eighteen years), for the words ' eighteen years" there shall be substituted the words 'twenty-one years '.
§ The noble Lord said: I beg to move the Amendment standing in my name. The purpose of this Amendment, although written in somewhat obscure language, is to ensure that nobody under the age of 21 can be sentenced to death or hanged. At the outset, I want to make it quite clear that in raising this matter I am not raising the general question of capital punishment. That is not an issue at all; nor would it be in order under the terms of this Bill, which is substantially confined to offenders under the age of 21. So it is quite consistent for people who take the view that capital punishment should be retained, nevertheless to agree with me that, even if it is retained, it should not be retained for people who are under 21 years of age.
§ This question of the age at which capital punishment should be imposed has a long history. It will be familiar to most of your Lordships, but I will refer briefly to it. Until 1908, I think, there was no age below which capital punishment could not be imposed. Theoretically, it could have been imposed at any 424 age at all. But although, in fact, for a number of years it had not been imposed on very young people, the Children Act of 1908 provided that there should be no capital punishment for anyone under the age of sixteen. In those days that was regarded as a great advance. It was one of the first actions that the Liberal Party took, and we are most grateful to them. No doubt the age of sixteen represented the then climate of opinion. I do not know whether ally noble Lords in this House will remember that there was considerable objection taken even to that course. It was thought to be a dangerous innovation; that it was removing what the Attorney General in another place described as a "unique deterrent", and that there would be an enormous increase of capital crimes in people over sixteen.
§ In 1931 a Select Committee reported on the same subject, and they recommended that the age should be raised to 21. It was not; and it was not until we had the. Criminal Justice Act, 1948, that the age was raised to 18. In 1949, the Royal Commission on Capital Punishment were appointed and they reported in 1953. Among the matters they considered was this same question of the age below which capital punishment could not be imposed. They recommended by a majority that the age should be 21. So we have advanced in stages—1908, sixteen; 1948, eighteen; and I submit to the Committee that the time has arrived, when we are considering a Bill which distinguishes clearly between persons over 21 and those under 21, that the age for capital punishment should be raised to 21.
§ The arguments for this step are familiar, and the arguments against are equally familiar, and I will merely summarise them. Those who support my proposal take the view that a person under the age of 21 has not reached maturity—physically, perhaps; but mentally, emotionally, spiritually, no: that normal people of 21 and under are in an emotional state, activated by emotion, and are not likely to be influenced by deterrents, whether it be the deterrent of the birch (which we are going to discuss later), long terms of imprisonment or capital punishment. Moreover, 21 is the age which the law accepts as the age at which a person is regarded as responsible. Up to 21 he has no vote; he is not 425 entitled to get married without consent; he cannot make a will; he cannot be sued, or sue, except through a personal representative, and he suffers many other legal incapacities. Further, there is the question, which is a general one, of the possibility of mistake. I admit that that is not particularly confined to people under 21; the possibility of mistake can arise at any age, and hanging is irrevocable. It is not only a unique deterrent, it is an irrevocable mistake.
§ Those are the arguments that have been put forward in one campaign after another for the abolition of capital punishment under the age of 21. The objections are the same. I have seen three lots of objections put forward at different times. They really amount to the same thing—namely, that this is not the time. Before the Royal Commission one witness (he was the Under-Secretary of State for Home Affairs) said that the arguments for raising the age to 21 were perfectly logical, but not in present circumstances. It never has been the right time; and, from the point of view of objectors, it never will be the right time. If it be regarded as wrong to deprive a young person of his life at a time when he is not fully responsible for his actions, when he has not reached, emotionally and spiritually, the age of full responsibility, then the right time is any time. There is no such thing as the wrong time for doing the right thing.
§ It is suggested that owing to the increases in crime this is the wrong moment; that it might encourage further crimes. But those who take that view have to establish—I think the onus is on them to establish it—that capital punishment really is a deterrent. I have seen no evidence whatever that capital punishment is a deterrent. I recognise the argument that has been put forward, that you cannot establish a deterrent because the people who are deterred do not commit the crime of murder and you cannot set them out. But over a long period—I beg your Lordships not to look at the short term, but to take a long-term view over this—it has been established quite conclusively, that the lowering of the age and the abolition of capital punishment for certain crimes has not had the effect of increasing the number of capital crimes at all, and that, whereas one would have expected the number of such crimes would increase when you 426 reduce the age to 18 or when you reduce it to 16, that has not turned out to be the case.
§ It is said that those who advocate this course are soft, are sentimental, sympathise with the criminal rather than with the victims, and, to use the eloquent language of one noble Lord, that those who take this view are a lot of "Cissies". The noble and learned Viscount looks up; that was a statement actually made in this House. However, I can assure noble Lords it is nothing of the kind; of course not. We have every sympathy with the victims of murder. But hanging the murderer does not help the victims. It does not bring back to life the person who has been murdered. If it is arty compensation to the: family, it is really an unworthy compensation to feel that another life has been lost in exchange for the life of the member of their family. We really cannot take the view that we do this out of revenge. The only reason for hanging a person under 21 would be that it is a deterrent and, as I say, that has not been established.
§ This course has been supported at the various inquiries by large numbers of members of the medical profession, including four prison medical officers; by representatives of the Institute of Psycho-Analysis, and by a considerable number of people in public life, including a number of former Home Secretaries, although I recognise that a number of ex-Home Secretaries have been against this. I recognise also that where the Royal Commission has reported in favour it has been by a small: majority. Nevertheless, I think that the trend of events is towards taking a deadline at the age of 21. Twenty-one is regarded as the age of responsibility, although I would admit that there are people under 21 who are responsible and mature, just as there are people over 21 who are irresponsible and immature. I feel that, by and large, we should be justified today in taking 21 as the age and in recognising that no one under 21 should suffer capital punishment.
§ That is not to say that punishment should not be inflicted. One honourable Member in another place asked what the alternative would be, and I think he was prepared to accept the abolition of capital punishment under 21, or he rather hinted so much, if the alternative was a long term of imprisonment. Well, 427 that is a matter which might be considered. I certainly have not the same objection to a long term of imprisonment if it is thought that that is the right thing to do as an alternative. But, at any rate, it is for the Government, if capital punishment under 21 is abolished, to consider what is the right thing to do with people who commit capital crimes below that age. But I hope the Committee will recognise that we have now reached the time when we can take a step forward in the direction in which we have been moving for over half a century, the logical and reasonable step which the introduction of this Bill gives us the opportunity to take. I beg to move.
Page 2, line 22, at beginning insert the said subsection,—(Lord Silkin.)
§ 4.55 p.m.
§ BARONESS WOOTTON OF ABINGER
It will be 37 years next Sunday since a foul and brutal and entirely senseless murder was committed by two young men of the age of 19 and 18. These youths were tried for their lives, but in their country the death sentence is not obligatory. They were, in fact, not sentenced to death but sentenced to imprisonment for life. Ironically, one of these young men died some years later by the violence of a fellow prisoner. The other still lives. He is now a man of 56, and I should like to read to your Lordships what he said at the age of 30:I am now 30 and I have spent 10 of my 30 years in prison. The central fact of my psychology is remorse, regret for the terrible thing I have done. The thought that I have cut off a Young life haunted me. I have done an irreparable wrong. I could not restore the life I had taken. If you have stolen something you can at least repay it. Even if you have injured someone physically, there is always the possibility to make up to him, however inadequately. What, then, could I do? Nothing, I just had to live with it as best I could. Right or wrong, I decided that the best thing I could do by way of expiation was to try to be useful in whatever small ways were open to me.For the remaining years that this man spent in prison he tried to do that very thing. He was a man, he is a man, of great intellectual gifts. He set to work to teach his fellow prisoners. He taught the illiterates to read; he taught those with a better equipment foreign 428 languages. He taught them mathematics. He even engaged in some important work, subsequently published under another name, on the subject of criminology prediction. He qualified himself to be a laboratory technician to assist in medical research, and when volunteers were wanted to try some prophylactic against malaria during the war he would not rest until he had himself been inoculated with malaria in order to test the efficacy of this prophylactic.
This man, now at the age of 56, has enjoyed freedom for a matter of a year or two, and he works as a laboratory technician in a hospital and public health service run by a religious foundation. What has 'happened once can happen again. There could be even now a second Leopold under sentence of death and in our own country. But so long as we continue to hang boys of 18 we not only deny them life but we deny them the opportunity of this practical repentance. I know no argument which compares in force with this, and I do not propose to elaborate it further.
§ 5.0 p.m.
§ LORD PARKER OF WADDINGTON
The noble Lord who moved this Amendment was at pains to say that he was dealing with only the case of the under 21, and not intending to raise the question of general principle as to the death penalty, but as he proceeded it seemed to me that it was quite impossible to divorce the two. I for one oppose this Amendment because it seems to me that it is tinkering—and I do not use that word offensively—with the great problem with which we are all concerned and the problem which I venture to think will be debated in this House next year: at any rate, next year will have seen the Homicide Act in force for some five years. I say "tinker" because, quite apart from the fundamental issue as to the death penalty, this Amendment will leave and preserve the serious anomalies that arise under the Homicide Act.
Thus, whatever age is taken as the age below which a young man cannot be hanged, there will always be the cases (and we have had them) of two prisoners: the one, and the less culpable, one month over the fixed age, whatever it is, and the other, far and away the most culpable, one month 'under the fixed 429 age, who will go to prison and not hang. Those anomalies offend one's reason. Nor do I believe that this Amendment can he validly advanced on the ground that a youth who is just over 21 is, and a youth just under 21 is not, to be held responsible. We all grow to maturity at different ages; and again it seems to me to offend against reason that you should take any fixed date of that sort and say that above it a man is responsible and below it he is not.
§ THE EARL OF LONGFORD
Could I interrupt the Lord Chief Justice for one moment? At present we have the age of 18. Surely he will agree that some date must be taken.
§ LORD PARKER OF WADDINGTON
Certainly some date must be taken so long as the death penalty is in force. All I am saying at the moment is that the general principle of the death penalty will be debated in this House very soon. When the time does come to debate it, I shall myself feel bound, in duty to the House, to point out the grave anomalies and the grave difficulties which are raised by the Homicide Act.
Whatever the result of the debate may be, and whatever may be the feeling in the House as regards abolition, I certainly should oppose abolition except it be on the terms of a life sentence being more like a life sentence. In other words, I feel that ultimately this comes down to a question of abolishing, if it is to be abolished, not merely the death penalty but the life sentence as we have it now. A life sentence today, we are told, is a mere average of nine years; and if imprisonment is the proper way to deal with these people—and there is, I appreciate, a very strong argument in favour of that, and of the death penalty —then it must be a life sentence which approximates more to life, and a sentence which will have to be, as it seems to me, subject to the Prerogative, fixed by the judge who tries the case. At least, he can indicate whether, in his view, he looks upon it as a very bad case or not. Therefore, I oppose this Amendment on the ground that, in the words of the noble Lord who moved it, this is not the time, though not for the reasons he gave. I say this is not the time for it because the whole matter must he debated within the very near future.
I wish to support this Amendment in every possible way. I understand that Her Majesty's Government take the view that the Homicide Act, 1957, has been in operation for only four years, and that they are unable, in that time, to form a concluded opinion upon it. By the process of capital execution it takes a quarter of a second to launch a person from this world into eternity, from which there is no return; and I submit to your Lordships, as strongly as I possibly can, that it is absolutely erroneous and farcical to say that it takes four years to form an opinion upon this barbaric practice. I am going to call a spade a spade. I say that, whether a person is under 21 or whether he is over 21, the practice of capital punishment is absolutely barbaric. It will be regarded so in years to come, and people will look back on this practice with horror and disgust.
Now, whether a person is under 21 or over 21, there are always three arguments advanced in opposition to the abolition of capital punishment. It is said, first of all, that it is a deterrent. That is a very serious argument and one that we should regard very seriously. I have great admiration for everybody in this country who is responsible for the administration of justice, and for those who administer justice in courts of law, but I feel that heavier sentences should be passed in cases of violent assaults, cruelty to children and, I may add, cruelty to animals. I feel that if heavier sentences were passed in all these cases we should get a greater degree of deterrence than we do at the present time. At the present time, when a person goes out to commit a crime he does not intend, generally, to murder a person; he intends merely to get his own way in any circumstances. If he shoots at a person and that person is severely injured, then indeed it is a very serious crime. If he shoots at a person and that person is not only severely injured but dies from his injuries, then, of course, a different state of affairs arises altogether. I feel that if the whole temptation to commit acts of violence was deterred in the earlier stages, there would be a larger degree of deterrence than there is to-day.
The second argument is that the police forces would not be safe. Exactly the same arguments which I have already 431 advanced under the previous heading apply here. I have never heard it said in the Scandinavian countries, or in West Germany, that the policemen go about in terror because there is no capital punishment. The third argument beats me altogether. I am informed by some of your Lordships—I see that the noble Lord who generally advances the argument is not here to-day, but somebody may take his place and advance it—that if we abolish capital punishment we shall be thinking more of the person who has committed the crime than of the wretched person who has been killed. I am quite unable to understand how anybody can advance that argument.
There are certain absurdities which arise to-day which I should like to mention. Some time ago, in the Midlands, a young man—I do not know whether he was under 21 or over 21—killed a girl by stabbing her fifteen times. He was sentenced to life imprisonment. The whole case took only a couple of minutes: there was simply nothing in it. If that young man had stabbed the girl only the once and had then taken half-a-crown out of her handbag, quite different considerations would have arisen. I can only say, in conclusion, that I think the whole practice of capital punishment, whether the person be under 21 or over 21, is absolutely barbaric. I have a completely clear conscience on the subject, and T only hope your Lordships have an equally clear conscience which coincides with mine.
I entirely agree with the noble Lord, Lord Meston, that capital punishment is barbaric, but I cannot see that it is more barbaric to hang a murderer of 18 than it is to hang a murderer of 21. The Act of 1957 was intended to delay the abolition of capital punishment by restricting its incidence. This Amendment is intended to further restrict the incidence of capital punishment, and I feel that if it were passed then it would still further delay abolition.
§ 5.10 p.m.
§ LORD STONHAM
I do not intend to talk about the abolition of capital punishment, which is outside this Amendment, and I think it would be useless to do so this afternoon. In my view, most people, because of certain inherent characteristics, are either opposed to hanging or are 432 in favour of hanging. I am hopeful that, as there sometimes is, there is a movement of opinion toward those who are opposed to it. On the particular point we are now discussing, whether the minimum age at which a person can be hanged for a capital crime should be raised to 21, I believe that a very large number of people in the country, generally speaking, would be prepared to have adults hanged but are very seriously troubled indeed about these younger people under 21. The noble Lord, Lord Menton, dealt with the point of the deterrent. These people between 18 and 21 are minors. They are children in law, and, so far as my experience of them goes, they are children in fact. Anyone who is the father of a teen-age son will be well aware that, however tough his exterior, when it really conies to it he is a child in fact.
What we are now deciding, or shall decide if we go to a Division on this Amendment, is whether or not we shall continue to hang children: it is just that blunt point. If you examine some of the cases which have occurred in the past, cases in which young persons have been convicted of capital murder, and examine the kind of people they were, it would be fantastic to suggest that the death penalty would have deterred them from their horrible actions. There is a young man under sentence of death now. If do not know him, but I have read about him and what he has done, and I have no doubt at all that there have been times in the last few months when he has regarded his present position as his finest hour—a miserable individual of that kind. There is no deterrent there whatsoever, and we cannot pretend that, in allowing the law to stay as it is, we shall really be protecting innocent people, because that is not so.
The noble and learned Lord, the Lord Chief Justice, gave as one of his reasons for opposing this Amendment that it was "tinkering". If by this bit of "tinkering" we could, in the next year or so, save the national conscience from one or more of the tragedies which happened when Bentley was hanged, then it would be very well worth while indeed. It is the case, as the Lord Chief Justice said, that there are grave anomalies in the present law with regard to hanging, and that if this Amendment is accepted it would create more 433 anomalies which, as he said, offend one's reason. That may be true. But whether it is or is not true does not matter. What I am far more concerned with is that the law as it stands offends humanity and offends one's conscience.
This is the kind of subject, generally speaking, which you are either for or you are not. There is probably no amount of argument which will convince. But there is this one section, this small age-group of 18 to 21, which is a special case. It is quite true, as the noble and learned Lord said, that you might get another case where an offender was 21 years and one month old and another was 18 years old, and they would both be dealt with separately. I do not think that, of itself, is an answer to our case, because one would then have to say: "Well, where do you fix the age? There will always be some over and some under". The plain fact of the matter is that in this Amendment we are dealing with children, and we are asking your Lordships to say that we shall end the hanging of children. I do not think there is anyone here, whatever his general views may be about the death penalty, who, if there is another case of another child being hanged, would not feel that it is utterly wrong and something (however his vote may go on this Amendment) that he cannot support.
§ 5.15 p.m.
§ LORD DENNING
If it be permissible to retain capital punishment at all, which I gravely doubt. I suggest that it should be retained for the present age group. Because the ultimate justification of any punishment is that it is the emphatic denunciation by the community of a crime. It is said that in the present state of public opinion there are some crimes which demand the most emphatic denunciation of all—namely, capital punishment. What are the crimes we are considering? We are considering those for which capital punishment is now retained—killing by shooting, murder in the course of theft, murder of a policeman. We are not considering sex crimes at all. When a person takes out a gun or a revolver and commits a robbery, when you are going emphatically to denounce a crime can you draw any real sensible distinction between the ages of 18 and 21? Some persons are more mature than others at that age. Is 434 it not right, and I suggest correct, to leave it to the prerogative of the Home Secretary, so that he, in those circumstances, can judge aright the conscience of the nation? Such, I suggest, is the present position, leaving aside for the moment the great question whether or not we should abolish capital punishment altogether.
§ VISCOUNT ASTOR
I think we can all agree that the present situation as regards capital punishment is wholly anomalous and produces nothing but anomalies. It was the result of a most unsatisfactory compromise engendered by the political situation of the day. You can be hanged for poisoning a person painlessly, but not for boiling them slowly; and a person a few days older than another can be hanged, but a person a few days younger cannot. There are bound to be these anomalies so long as we retain capital punishment; indeed, that is so in any system in which certain punishments are imposed at a certain age. It will always be anomalous when, if you do something a month earlier, instead of a month later, the treatment which may be imposed upon you is variable. Therefore, so long as there must be these anomalies, surely we must try to reduce them and put them on the most logical basis possible. If we say that a person is not responsible enough to vote at art election of a rural district council, is not responsible enough to make a will to provide for the small savings he may have, is not responsible enough to marry without permission, surely it is equally logical to say that 21 is the age at which the full criminal responsibility of the death penalty should come into operation. It is because I hope that by raising the age to 21 we shall reduce the anomaly, and put this matter on a more logical basis with other parts of our national life and our legal system, that I beg support for this Amendment.
§ THE EARL OF LONGFORD
It is difficult for any convinced supporter of the abolition of capital punishment to argue this matter with, perhaps, complete candour, because there is no doubt that many of us who will vote for this Amendment regard capital punishment, as the noble Lord, Lord Meston, said, as utterly barbarous and totally incompatible with civilised or Christian life 435 as we try to live it in our imperfect way in this country to-day. But, as my noble friend Lord Silkin has said, the case to-day must be argued in a slightly different fashion, because, however much the supporters of full abolition may regret it, the argument for it would be outside the terms of the Bill. None the less I would make it plain that those who are supporting this Amendment regard it not only as worth while, but also as a kind of moral minimum, even if we are told that no other form of abolition could ever be introduced. On its own merits, this Amendment is imperative to-day. It would save human life from judicial murder, even though in a much smaller number of cases than we could have wished to make possible.
The history of this matter has been described by my noble friend Lord Silkin, but there is one point which he did not mention, which I think is interesting. He mentioned that as long ago as 1931, a Select Committee recommended that as 21 is the age when full civil responsibility is assumed, it should also be the age below which no one should be sentenced to death. They said that, were capital punishment to be maintained, they would urge the adoption of that age limit. That was 30 years ago, when our ideas were supposed to be a good deal less advanced, and when certainly the Churches were far less hostile to capital punishment than they are to-day, judging by debates in your Lordships' House.
It is interesting to observe that this attitude was taken up by representatives of the Home Office 30 years ago. I hope that the Home Office is not found to go backwards, though it does not go forward as fast as some of us could wish. I think that this is a point which should be placed before the distinguished representatives of the Home Office. It shows that this is not a bright idea which has occurred to us in connection with this Bill. We are repeating what was said by learned people and, on occasion, said on behalf of the Home Office.
I do not think that anybody could have failed to be moved by the speech of the noble Baroness, Lady Wootton of Abinger, when she pointed out that, if 436 we did not pass this Amendment, we should deprive some young people of any chance of earthly repentance. I have known young men who have been convicted of murder. I knew one, not very well; but I met him more than once. His name will be known to your Lordships—Craig, who shot a policeman. As he was under 18, under the present law, he was not sentenced to death, and he is now making good, as anybody can find out by inquiring at Wormwood Scrubs. We must think of the fact that a young man like that, if he had been over 18 years of age, would have been liquidated by the State. Another young man, Forsyth, was executed the other day. I had a letter from the master of his approved school, who said that he liked Forsyth very much and that he had received a brave letter from Forsyth before his execution. Forsyth did as brutal a thing as anyone could well imagine, yet there was much good in that boy. But we have taken his life and removed from him any chance of repentance.
We can argue whether people under 21 are more unstable than people over 21, and I think that most of us would agree that they are. Obviously, they are more immature, otherwise we should confer on them responsibilities which we deny them until they are 21. If we take the one point of violence, we have seen schoolboys and undergraduates beating up their fellows and doing violent things, sometimes under the influence of drink, which, if done by their fathers, would shock us; but if they are done by our own sons or nephews, we make excuses for them. In other words, we do not condemn a violent action on the part of a boy of 18 in the same way as we condemn such an action on the part of a man of 30 or 31. Whatever words we use, we do not pass the same condemnatory judgment. I think we shall all agree with the noble and learned Lord, Lord Denning, that in punishment there should be condemnation, but if we are honest with ourselves we cannot pass the same degree of condemnatory judgment.
Finally, we shall be told perhaps something about the deterrent effect. We argued this aspect at great length in our general discussion about capital punishment some years ago, and I cannot help wishing, when it comes to these arguments about 437 deterrence, that we could go, not into Committee but into sub-committee. It is impossible to explore statistics even in a relatively small body such as your Lordships' House. I defy anybody, coming dispassionately to the figures and facts, not to draw the conclusion, which must seem very probable if not irresistable, that capital punishment is not a unique deterrent. Certainly no one could argue from any collection of facts that capital punishment is a unique deterrent. It is possible to say that the facts are indecisive, but I think that no one, looking at them dispassionately, would deny the possibility is that it is not a unique deterrent—and some of us would put it much higher than that.
But in this case deterrence hardly comes in. Since the Homicide Act was passed two young men under 21 have been executed, and a third may be executed, so that we are asking the Committee to avoid committing judicial murder on that scale. Perhaps we shall be told in reply that it is necessary to take that action as a deterrent. Is it seriously argued that to execute two or three men in four or five years can really make all that difference? Is it really going to restrain other young men from violent acts of this sort? And if there are a few more reprieved, you have only a handful, and no one can seriously say that capital punishment has a deterrent effect.
I recognise that the sincerity on this side is equalled by the sincerity and depth of feeling on the other side. That goes without saying in this House. But I believe, with the noble Lord, Lord Meston, that years hence the time will come when we shall say (or it may be said of us by our children) that it is unbelievable that we could have hanged young men of 18 or 19—as unbelievable as that we once hanged children of 8 or 9 years old.
§ 5.30 p.m.
§ THE LORD CHANCELLOR
I think your Lordships will appreciate that, although the noble Lord, Lord Silkin, disavowed the intention of the general argument, it has been raised by every other speaker who has spoken in favour of this Amendment, except the noble Baroness, Lady Wootton of Abinger, with whose argument I will deal separately. Even so, I do not think your Lordships would wish to hear from me a repetition of the general argument. 438 Your Lordships have already heard that on two occasions: when I moved rejection of what is known as the Silverman Bill five years ago, and when I introduced the Homicide Bill some eighteen months later.
I want to say this to your Lordships. The general arguments have been advanced that mistakes may arise; that hanging is no deterrent; and that a belief in capital punishment is incompatible with a true view of the Christian life. I have considered these arguments over and over again. I have rejected them during all the time that they were put to me for consideration, and I reject them equally strongly to-day. But I do think we ought to try, however difficult it is, to focus our minds on the present Amendment, and not on our general feelings. I think it is convenient, in so doing, to start from the argument of the Royal Commission on Capital Punishment on this very subject. As the noble Lord, Lord Silkin, indicated, the Commission were unable to reach agreement; six members were in favour of the present Amendment and five against it. I want your Lordships to believe that this matter has been given careful consideration, and I should like to summarise, I hope fairly and objectively, the points each way.
The first argument that has been repeated to-day is that youthful immaturity is so general among persons who have not attained the age of 21 that they ought to be classed not with adults, but with those under 18, whose youth is considered a sufficient reason to substitute another punishment. The second argument is that almost all young people under the age of 21 are in a state where the process of mental and emotional development is still active; that that produces a condition of instability, and that their judgment is defective, as is their self-control. It is to that argument that support is advanced, and has been advanced to-day by the noble Lord, Lord Silkin, and my noble friend Lord Astor, by taking: the use of the age of 21 in other spheres, such as that of voting, of making a will or the like.
The majority of the Commission said that the argument that 18 is the age for compulsory military service is irrelevant. Their view was that it did not follow that, because at that age most persons are physically fit for military duties, they 439 are necessarily capable of exercising full responsibility in all spheres. It is more difficult to put that argument on one side so easily, when one remembers those between the ages of 18 and 21 who had charge of the lives of 30 men, at least, and probably many more, and performed that function not only with the greatest courage but with the greatest skill. So I do not think it can be put aside so easily. But I mention it because the Commission did. Then the next argument is that, as I appreciated it, of the noble Baroness: that as character is not yet set, there is a chance of improvement—I put it quite generally; but that was, I think, the moral of her speech. Finally, it has been advanced by all the speakers for the Amendment that the repugnance to the death penalty shows itself all the more when we are thinking of these earlier years.
Let us consider these arguments. "Immaturity" is an ambiguous term. If a particular offender under 21 is immature, in the sense that he is less mature and responsible than the average person of the same age, that may well be, and often has been, a proper reason for use of the prerogative of mercy. But not all persons under 21 are less mature than adults, and it would not be right in this group to exclude the operation of the death penalty by a rigid rule attached to a particular age. In my view, each case should be considered individually on its merits. But I do repeat that the youth of the offender is an important factor to be taken into account in considering whether the prerogative of mercy should be exercised. One of your Lordships referred to a case in which I had to consider that. Whilst I do not intend to go into that particular case, I do say that every Home Secretary I have known—and I myself—has always regarded youth as an important matter for consideration before he made up his mind.
We come now to the other aspect of the position. Even when the Royal Commission were dealing with the matter (and I have already supported their argument), and when they reported in 1953, the grave increase in violent crimes committed by persons aged between 17 and 21 did not appear to have passed its peak. So the minority took the view that, although the deterrent 440 value of capital punishment could not be measured or precisely evaluated, it would be wrong to raise the age limit. Such action, they believed, would inevitably be regarded by public opinion as both dangerous and inopportune. I was a member of the Government of the day, and we accepted the minority view, mainly on the ground of the prevalence of crimes of violence among young people. And attempts to raise the age limit were resisted.
I come now to the question of the number, to which the noble Earl, Lord Longford, has drawn attention. The first point we have to remember is that the number of persons between 17 and 21 convicted of offences of violence against the person, including murder and robbery, has continued to increase. Would it be desirable (I cannot see how it could be so considered at the present time, when there is so much public anxiety and concern about the prevalence of violent crime by young offenders) to remove this sanction against the gravest form of such crime—a sanction which the vast majority of people, like myself, believe has a deterrent effect?
Let us consider the position since the Homicide Act was passed. Only four persons under the age of 21 have been convicted of capital murder in England and Wales. Of these, two were executed, and two were reprieved. The noble Earl, Lord Longford, said, "That is a very small number." But the one thing that is perfectly clear in consideration of this matter is that it is impossible to tell how many young criminals may have been deterred from using excessive violence, or from carrying weapons, by the existence of this penalty. I remember that when I made this point on the Silverman Bill, the most reverend Primate the Lord Archbishop of York said. "But that can only be your opinion." Of course, on this subject it can only be one's opinion. All I can say is that I have observed ordinary criminals for a period of 30 years, and as Home Secretary I have considered them from another angle. To brush this argument aside is, in my view, a very frivolous proceeding.
§ THE EARL OF LONGFORD
May I interrupt the noble and learned Viscount? I do not know whether he was referring to me as having brushed it aside, but I have, I hope, studied all the 441 facts we have about this matter as closely as anybody, even perhaps as closely as the noble and learned Viscount.
§ THE LORD CHANCELLOR
Yes, but one comes, in the end, to one's assessment of the mind of the criminal; and my assessment of the mind of the criminal is that the housebreaker or burglar would either carry a gun or would take a chance of hitting an old lady over the head much more readily if there were no death penalty. That is my assessment of the criminal mind. I do not resent anyone else having a different assessment, and I should be the last—
§ THE LORD CHANCELLOR
May I deal with the noble Earl, Lord Longford, for a moment, and then I will give the noble Lord every chance. I should be the last to denigrate in any way the noble Earl's assessment. All I can say is that from my experience and observation it is not my assessment, and I cannot help being human enough to believe that my own assessment is right.
May I ask the noble and learned Viscount whether he could tell us what his assessment is of the human failings and human mind in the Scandinavian countries, in West Germany and in other countries where they have successfully abolished capital punishment?
§ THE LORD CHANCELLOR
We have argued these figures over and over again. The noble Lord, Lord Silkin, especially asked us not to argue the general point to-day. As I have said to your Lordships, I have examined all these figures and I do not believe that they give a conclusive argument. I do not want the noble Lord to think that I am avoiding him. I have argued this point in both Houses of Parliament over and over again, and I would ask him to look up my old speeches rather than ask me to repeat them on this occassion, because I think we ought to keep to the point.
I should like to deal with the matter from the point of view of the limitation of capital punishment that was made under the Homicide Act. As my noble and learned friend Lord Denning reminded us, the main effect of that is to 442 confine capital punishment to murders committed in the course of theft, or in the course of an attack on the agents of law and order, or by the use of firearms. I told your Lordships, when I introduced this measure into your Lordships' House, that in my view these are the types of murder which strike especially at the maintenance of law and order, and on which the deterrent effect of capital punishment is most likely to operate—for the very reasons I gave your Lordships a short time ago. It is important to deter young persons from carrying firearms. If they were exempted from the death penalty, not only would there be likely to be an increase in the use of firearms by young men acting on their own, but criminals would be able to arrange that on any joint enterprise one of their number should be a person under the age of 21 who could carry a gun which he could use, in the sure knowledge that he would not be liable to the death penalty.
Your Lordships might make the obvious riposte to me that that might occur with someone below the age of 18. All I say is that it becomes the less likely to occur as one descends in the age. The risk would be greater if immunity from the death penalty were extended to those between 18 and 21. Undoubtedly to raise the age limit would seriously weaken the safeguards against armed criminals which the Homicide Act sought to retain.
I should like to assure your Lordships again that every consideration is given, and will continue to he given, to the factor of youth in deciding whether a person convicted of capital murder shall be reprieved. But there are, in our view, no sufficient grounds to justify the Government in changing their view that persons under 21 ought not in all circumstances to be free from liability to the death penalty. Apart from these specific objections, the Government remain of the opinion that it is too soon to draw conclusions from the results of the Homicide Act, 1957. As I said to your Lordships, my right honourable friends the Home Secretary and the Secretary of State for Scotland are taking into account the statistics and the happenings, and they will continue to give the working of the Act the most serious consideration. But we believe that the amendment of the law of murder generally would 443 not at present be justified. I respectfully agree with my noble and learned friend the Lord Chief Justice, that it would be undesirable to single out this particular aspect of the law of murder for amendment. For these reasons, I ask your Lordships to reject the Amendment as proposed.
§ LORD TEVIOT
My Lords, I should like to intervene for one moment. The word "deterrent" has been used a great deal. But has not the noble Lord, and other noble Lords who have spoken so much about "deterrent", ever thought that these people we are talking about are so brutal, so wicked, that "deterrent" means nothing to them? I think that is worth considering. "Deterrent" is a word which would affect same people, but not those who commit these appalling crimes. I hope that some noble Lords on the other side of the House will appreciate that. Because of the brutality and wickedness of these people, they sweep aside a deterrent as being nothing of interest.
§ 5.50 p.m.
§ LORD SILKIN
My Lords, I hope that we can now come to a decision on this matter, because, as my noble friend Lord Longford says, it is most improbable that anybody has been very much influenced by the speeches that have been made. I just want to say two things about the debate that has taken place. The first is on the question of deterrence. I hope that it can be agreed, at any rate, that those who think that the retention of capital punishment is a deterrent are saying this subjectively, without any evidence that they can produce statistically. Indeed, the noble and learned Viscount who has just spoken said two things which I thought rather confirmed this. He said, first of all, that it was impossible to say how many young people have been deterred, and he said that there was no conclusion that could he drawn, no conclusive argument on the question of the number of crimes, and so on.
If that is so, is it not wrong to assume that hanging is a deterrent? Those who
§ want to retain hanging surely have to establish that it is a deterrent, and a unique deterrent. As it is, I imagine that both the noble and learned Lord, the Lord Chief Justice, and the noble and learned Viscount who has just spoken, have not seriously assessed this question of a deterrent. It is a hunch on their part, a general feeling that it must be a deterrent. On the other hand, the noble Lord, Lord Teyiot, thinks that people who commit these crimes are not deterred at all. I would only say further that the increase in the number of crimes that have taken place must surely cause one to doubt whether there is a deterrent at all. An increase in crime is certainly not evidence that the existing punishments operate as a deterrent.
§ The only other thing I want to say, having listened to the arguments put forward against this Amendment, is that every single argument could have been made equally well, and no doubt was made equally well, equally forcibly, against the raising of the age to 18, and no doubt was equally made against the raising of the age to 16. They were both put forward as dangerous innovations which would increase the number of crimes and do all the things the noble and learned Lord, the Lord Chief Justice, feared that this would do. I have no doubt, also, that it was said, as the noble and learned Lord, Lord Denning, said, that, after all, we can leave it to the Home Secretary; that in proper circumstances he will recommend the right thing about these people; that if the men sentenced to death were immature, well, he would know and he would recommend a reprieve. That argument, of course, is not new; and I believe that the case for raising the age to 21 remains quite undisturbed, so far as I can see, and without prejudice at all to the general question as to what we should do about people over 21. For these reasons, I hope that the Committee will see its way to accept this Amendment.
§ On Question, Whether the said Amendment shall be agreed to?
§ Their Lordships divided: Contents, 35; Not-Contents, 63.
|Faringdon, L.||Lucan, E. [Teller.]||Sinha, L.|
|Harmsworth, L.||Merthyr, L.||Stonham, L.|
|Harvey of Tasburgh, L.||Meston, L. [Teller.]||Summerskill, B.|
|Henderson, L.||Morris of Borth-y-Gest, L.||Terrington, L.|
|Latham, L.||Ravensdale of Kedleston, B.||Walston, L.|
|Lawson, L.||Rea, L.||Williams, L.|
|Listowel, E.||Shackleton, L.||Wootton of Abinger, B.|
|Longford, E.||Silkin, L.|
|Ailwyn, L.||Fraser of North Cape, L.||Merrivale, L.|
|Albemarle, E.||Freyberg, L.||Mills, L.|
|Allerton, L.||Grenfell, L.||Milverton, L.|
|Ashton of Hyde, L.||Guest, L.||Montgomery of Alamein, V.|
|Auckland, L.||Hailsham, V. (L. President.)||Mowbray and Stourton, L.|
|Baden-Powell, L.||Hampton, L.||Newton, L. [Teller.]|
|Bathurst, E.||Hastings, L.||Parker of Waddington, L.|
|Birdwood. L.||Hawke, L.||Perth, E.|
|Blackford.L.||Howard of Glossop, L.||Radnor, E.|
|Brand. L.||Iddesleigh, E.||Raglan, L.|
|Carrick, E.||Jellicoe, E.||St. Aldwyn. E. [Teller.]|
|Carrington, L.||Jessel, L.||St. Oswald, L.|
|Chelmsford, V.||Killearn, L.||Somers, L.|
|Chesham, L.||Kilmuir, V. (L. Chancellor.)||Spens, L.|
|Colyton, L.||Kinnoull, E.||Strang, L.|
|Cork and Orrery, E.||Lansdowne, M.||Swinton, E.|
|Denning, L.||Limerick. E.||Teviot, L.|
|Devonshire, D.||Lucas of Chilworth, L||Thurlow, L.|
|Dynevor, L.||McCorquodale of Newton, L.||Tweedsmuir, L.|
|Exeter. M.||Mancroft, L.||Twining, L.|
|Ferrers. E.||Margesson, V.||Waleran, L.|
§ Resolved in the negative, and Amendment disagreed to accordingly.
§ Clause 2 agreed to.
§ 6.3 p.m.
§ BARONESS WOOTTON OF ABINGER moved, after Clause 2 to insert the following new clause:
§ Age of criminal responsibility
§ The noble Baroness said: The minimum age of criminal responsibility is not a precise term. It can have several meanings. It can mean the age at which a person can be brought before an ordinary criminal court such as judges adults. It can mean the age at which a person is liable to all the penalties which may be imposed by a criminal court on adults, or it may mean the age at which a person can be the subject of any criminal process of any kind. It is in the third sense that the term is used in the Bill which this Amendment proposes should be amended, and it is the third sense to which I wish to direct your Lordships' attention.
§ It is, of course, true that where there are no special courts for dealing with juveniles the age of criminal responsi- 446 bility, in the sense of the age at which a person comes before the criminal courts, tends to be higher than where special courts, as in this country, are provided for juveniles. Nevertheless, the first point I want to put before the Committee is that the minimum age at which a person can be the subject of a criminal charge is most strikingly much lower in this country than in most of the countries of Europe and, indeed, a great part of the civilised world. In this country children of 8 can be brought before what is, after all, a court of summary jurisdiction and made the subject of a criminal charge. The corresponding age in Israel is 9; in Greece it is 12; in France, 13; in Poland, 13. In West Germany, Austria, Belgium, Italy, Norway, Switzerland, Czechoslovakia, and Yugoslavia, it is 14. In Sweden, and Denmark it is 15, and in Finland it is 16. I will not weary you with a further recital. I am asking only for 12, and, as your Lordships will see, from the countries I have named the age of 14 is very much more common.
§ It will, of course, be said that some provision must be made for unruly children under the age of 12 who break the law. I would submit that provision is made. May we remind ourselves of the really formidable apparatus which is 447 already provided in this country for difficult children of school age? First of all we have child guidance clinics; then, under the Education Act, provision is made for children to receive boarding-school education if for any reason their education in an ordinary day school is undesirable. Provision is made under the Education Act for special schools for maladjusted children, and also for children who are educationally subnormal. This Act has been on the Statute Book for seventeen years, and if its provisions are still a dead letter we ought to ask ourselves what is the value of legislation. But even that is not all. Under the Mental Health Act passed in 1959, a child can be diagnosed as mentally ill, can be diagnosed as subnormal, can be diagnosed as severely sub-normal or can be diagnosed as psychopathic. With boarding school education, with schools for the educationally sub-normal, with schools for maladjusted children, with child guidance clinics, with hospitals for the mentally ill, severely sub-normal, sub-normal and psychopathic, one would really think we had sufficiently provided, without criminal process, for little children between 8 and 12 years of age.
§ Nor, I think, can it be argued that it is for the protection of the public that we should bring these children before the criminal courts. The number of children who are brought before these courts and are actually sent away to remedial institutions, to approved schools, is very small indeed. With regard to children under 14 years of age—not under 12 but under 14 years of age—in the last year for which figures were available, some 1,250 children were sent to approved schools. Much less than half that number would have been children under the age of 12—if it were more than one or two hundred, that, I think, is putting it very high. And that is out of a total population of that age group of something not far short of 3 million. We are not asking for protection against thugs of 16, 17 and 18; we are considering what protection is necessary against children under 12 years of age.
§ It is also our experience that these children only exceptionally commit offences on their own; they are nearly always parties to some group escapade. If the courts were to apply as strictly as perhaps they should the rule of doli 448 incapax, a high proportion of these children (perhaps a higher proportion than actually are acquitted) would be acquitted, because when children under the age of twelve engage in some joint escapade in my experience they seldom appreciate joint common responsibility. The usual type of escapade is a thieving excursion. If you see these children afterwards—perhaps they come to court again for some further offence—and you ask them what happened on the previous occasion, they will say, "Oh, I was with some boys who took some things." They are unable to appreciate the fine point at which being with people who break the law involves guilt for yourself as well.
§ A small proportion of children who have broken the law—as, indeed, I suppose a large number of children between 8 and 12 have—never appear in the courts at all. Most of us manage to cope in our families and in schools with the tendency of young children to ignore rather, as they see them, curious adult rules about property, about what you may do, about when you may hit somebody and when you may not. Most of us manage for our own children, but for a small number of other people's children we apparently still think the criminal process to be necessary. I have seen many hundreds of these children and I have dealt with them—I should say that I have dealt even with thousands of them by now—and I have become strongly convinced that by bringing them before courts, even the best of juvenile courts, we probably create far more offenders than we cure or deter, because what we do is to introduce them to a delinquent community. They become something apart, from the moment that they enter the waiting room at the juvenile court. They become part of a community which has its own hierarchy: it begins with probation, it goes on perhaps to an attendance centre; for those who rise higher in the hierarchy it leads to a detention centre; it may lead to borstal and it may lead to prison. It is a community of children who are aware of their difference and whom we label as different.
§ In the light of my own experience of these children, I would say that, even if we did nothing about them at all but what their ordinary schools and their families do, we should probably diminish, rather than increase, juvenile delinquency by taking them out of the 449 courts. But, as I have already said, we do not need to do anything about them; we have large apparatus for dealing with difficult children under 12, either through the educational system or, in the most difficult cases of all, through the mental health institutions. The essential factor is that what these children get from a court experience is initiation into a delinquent community, not deterrence—their minds do not work in this simple, material, calculated way—from what they see and hear in court. As we know from our own children, children learn from those whom they know and whom they see day in, day out, and whom they come to respect and perhaps to love; they do not learn by being paraded before strangers.
§ I would ask your Lordships again to consider whether it may not be true—it is an experience which I know is shared by many people who have served as juvenile court justices—that the sense of apartness, of a certain distinction, of association with the other delinquents, far outweighs in effect any homily that may be read by the courts or any penalty that may be imposed. I am speaking not of children even up to 13 or 14; I am speaking of children of the age of 8 to 12 who, in other civilised countries, would not be the subject of criminal processes. I beg to move.
After Clause 2 insert the said new clause.—(Baroness Wootton of Abinger.)
§ THE EARL OF LONGFORD
This is one of the subjects that the noble Baroness has made her own, and I think it would be simpler for me to say "Ditto" and to leave it there, because she has put the whole thing so much better than I could attempt to put it. But it seems appropriate that others who feel strongly in her support should make use of one or two additional points in argument. I hope that the noble and learned Viscount, who I know will consider this with great human sympathy, because obviously it is a human point which will appeal to him, will not tell us that it is too early this afternoon to make up our minds about it. Of course, I must leave him to make his own speech, upon which then it will be possible to comment. But there is no doubt that we have, in a broad way, the Ingleby Report on our side, we have the experience of foreign countries, and I think 450 we have the general opinion of almost anybody who has given much attention to this subject.
Indeed, I think that the retention of the age of 8 for criminal responsibility in this country is one of those things which most people in England simply do not believe exists. If they are told, they think about it, and conjure up reasons why it exists, and think that perhaps it is a good plan. But most people not familiar with the courts would not believe that this country lays it down that the age of 8 is the age at which criminal responsibility commences. Yet there it is. In the eyes of most of us, it is quite unrelated to any psychological or moral judgment that we are likely to apply in the case of our own children.
I suppose most of us, more readily perhaps than most of the population, have means of keeping our children out of the courts, in the sense that they are under the care of schoolmasters and others. But if any or many of us had children who found their way into the courts at 8 or 9 we should simply refuse to regard them as criminals. I hope I shall not make a class point—it is a piece of inverted snobbery if it is anything at all. I would say that if the House of Lords had many children who strayed into the courts, then the whole procedure we adopt in the country would be altered to-morrow. But this is something that has grown up in the past, and there it is.
I agree entirely with what Lady Wootton of Abinger has said: that these are not criminals who are in between the stages of maturity_and immaturity. Nobody pretends that a child between 8 and 12 is very mature. We shall be told, or may be told, and have been told, that they know the difference between right and wrong. That, I think, is so. They may have a different conception of what is right or wrong from that possessed by an older person. I do not think a child knows the moral significance of breaking a criminal law. If a child of 8 or 9 goes and steals, I simply do not believe that any of us regard that at all as being something equivalent to a similar theft on the part of a young person or an adult. It is quite a different psychological thing, or whatever words we may like to apply to it. None of us really calls a little child of 8, 9 or 10 451 a criminal, or whatever the word is. I do not believe that anyone would ordinarily use those words of a child.
I agree very much with what my noble friend Lady Wootton of Abinger said (she put it much better) about the label put on the child, which does more harm than the deterrent. The child tends to be tainted. I have invoked the Ingleby Report on our side, but I cannot pretend I feel that it handles at all happily the question of what use is to be made of reports on a child's criminal conduct. It treats that, it seems to me, in a very clumsy and ineffective way. The simple fact is that if a child acquires any sort of record it is extremely hard to shake it off later in the eyes of the world and in the eyes of all sorts of future employers who may find out about it. More seriously—and I think this was more serious in Lady Wootton of Abinger's eyes—the child tends to be tainted inside. It tends to join the delinquent group, to see himself or herself belonging to that little part of the community, and to come to the conclusion that that little part of the community is not such a bad little part either. More harm is done that way than externally.
It has all been said better than I am saying it now by my noble friend Lady Wootton of Abinger. I hope that the noble and learned Viscount the Lord Chancellor, or the noble and learned Viscount the Leader of the House, or whoever is to reply to this Amendment, will express sympathy and do rather more than express sympathy. I hope he will tell us that after mature reflection the Government agree with my noble friend Lady Wootton of Abinger and the Ingleby Report that the time has come to abolish this extraordinary and rather discreditable anomaly in the British system.
§ BARONESS SUMMERSKILL
Although I have not the experience of my noble friend Lady Wootton of Abinger, may I just add to the picture she has given us and remind your Lordships that we are talking about a child who is regarded as so immature that in some crowded main streets the police and street wardens stand at certain stated intervals to help it across the road, to take it by the hand, because it is known that a child of this age is an irrational creature? Its actions are un- 452 premeditated, and it may well rush across the road, risking its life, and perhaps adding to the casualties of the country. This is the child we are talking about, a child who demands our maximum protection, because it cannot possibly anticipate the effects of its actions. In this country this child is regarded as a person who is fully capable of understanding its actions and must be brought into the criminal machinery. It is said that as the twig is bent, so the tree inclines.
§ BARONESS SUMMERSKILL
If she had said it of the noble Viscount's child it might help a little. May I just remind your Lordships of this? The noble Lady, when she describes her great experience in the courts and the fact that we in this country are allowing a child of eight to come into the machinery of the law, is giving a picture of what actually happens in the courts. But the child who lives in a crowded street has a background which is not a secret to the family. Within two or three days hundreds of people in the street, and in the next street, know that this child is marked; that here is, as they might whisper, a potential criminal. I would say that the reaction of a child of this kind may well be, "Well, they treat me as a naughty boy. It's rather exciting. I'm marked out as having done something exciting. Now, what else can I do?" I would say that some of these children are almost dared by the community to do worse.
Therefore, when those of us with children think of our own children at the age of eight and of the things they did in their childhood, and that they have developed into normal, well-balanced citizens, we might ask what would have happened if our child had been treated like this; generally marked among its fellows; generally known at school to have done something which was considered outrageous and which could be spoken about only in whispers. What would have happened to our children? 453 I ask the Committee to treat a child of eight in these crowded streets, who needs our help so much, as we would have our own child treated.
§ LORD AUCKLAND
I have a great deal of sympathy with this Amendment. I can speak with a little experience because my children are both well under the age of eight. I think that the parents of children of this age who misbehave seriously should themselves, in certain cases, be liable to some form of punishment. May I qualify this? Only the other night, when I was returning home from your Lordships' House at quite a late hour, I saw two children, both under the age of 10, playing near the railway bridge in my village. When I looked at them in a rather old-fashioned manner, they looked hack at me as if to say. "Mind your own business." Had I tried to remonstrate with them because they were up late I should probably have received a very "dusty" answer, as indeed my wife did some months previously when she herself saw two children playing in the road late at night. She was promptly told by the parents of these children to mind her own business.
I agree that children under 12 should not have to face the full force of the juvenile court. I think sometimes the village policeman or police sergeant could be called in to give a child a good talking to. He is probably the father of three or four children himself and can do a lot more good, perhaps, to the child, and even possibly to the parents, than could a magistrates' court. I do not think the onus can be placed on the teachers. There is already a shortage of teachers and existing teachers have enough problems as it is. I support the Amendment which the noble Baroness has so ably moved, but I should like to see some kind of legislation for punishment for the parents of the more wayward and constantly wayward children of these age groups.
§ VISCOUNT HAILSHAM
The noble Baroness, Lady Summerskill, really treated this Amendment, if she will forgive my saying so, as part of the perennial war between light and darkness in which she is always anxious to fight on the side of light—which is as it should be. The noble Baroness who proposed the Amendment speaks on the subject of children and their treatment with very 454 great authority. I must say that I was impressed with all she said; but I do not think she succeeded in conveying, to either of her noble friends who spoke exactly what is involved in this Amendment which she proposed. It is quite likely that I have it wrong, too; but if have it wrong too, it is very much better that the extent of my error should appear in the light, and then at any rate we shall know what we are arguing about.
I shall have to tell the noble Baroness, and I may as well tell her now, that apart from any other troubles we may be in the advice I have received is that this particular Amendment is outside the scope of the Bill. This, I am afraid, will give very small comfort to anybody, and it is always an unpopular line to have to take; but it is, nevertheless, the advice I have received, and I hope that my other arguments, which will be directed much more to the merits of her Amendment, will give her some food for thought as well.
§ VISCOUNT ALEXANDER OF HILLSBOROUGH
May I ask a question? It is very important on these legal points— and, of course, the noble Viscount has all the necessary qualifications to deal with it. When we are dealing with a Criminal Justice Bill, I cannot for the life of me imagine what other legislation would be the right place in which to get the very urgent and necessary reform that the noble Baroness, Lady Wootton of Abinger, has asked for.
§ VISCOUNT HAILSHAM
Let us discuss, first of all, whether it is urgent or necessary, because I think it is rather important that we should know what we are talking about first. I start with this proposition. We all know that children between the ages of 8 and 12 quite frequently take part in conduct which, if it was done by persons of fully adult age, would amount to a crime. Indeed, younger children than that do also, but they are treated as conclusively incapable of any form of crime. It is also common ground, I think, between everybody, that they sometimes have to be dealt with by the public authorities in some way. The noble Baroness who proposed the Amendment recognised this as much as anybody else. She wants them dealt with solely by family or social agencies, and not by the courts at 455 all—child guidance clinics, under the Education Act, sent to boarding schools, special schools or, if sub-normal, perhaps treated in another way or under the Mental Health Act. Of course, all those agencies exist and are suitable. Whether they are suitable in all cases is a matter of doubt.
I have known a case—and I do not say more than this—when the child said that it had not done it, and it turned out to be right. I remember I had to defend a child in a juvenile court before the war, and they were going to send the poor little thing away under these lovely social agencies. The only thing was that the child said that it had not done the conduct for which it was going to be sent away. Of course, it would never have been discovered whether this was true or untrue if the ordinary social agencies had been left to it, because there would have been no proper investigation. Fortunately, that child was tried by a juvenile court, as the noble Baroness now proposes it never again shall be, and it was found out that its own story of complete innocence was true, and that the very plausible case which was made against it was being invented by adults. That child would have been permanently damaged if this Amendment had been carried out. So, if one is going to fight this war of light and darkness, one has to be very careful that one is fighting on the right side.
Now it is common ground that there are occasions when conduct has to be dealt with by public agencies. The question is: what is the public agency, and in what circumstances and how should it act? It seems to me that the noble Earl, Lord Longford, was blissfully unaware of the extent to which the noble Baroness—who speaks, as I say, with the utmost authority, and to whom I listened with the greatest respect—was out on a limb in this matter, and how radically she differs from the proposals of the Ingleby Committee in the same matter.
§ THE EARL OF LONGFORD
May I interrupt? That. I am afraid, is quite incorrect. I am sorry, as always, to have failed to convey my meaning. The noble Baroness, as the noble Viscount may or may not know, wrote an article in the Spectator criticising the Ingleby 456 Committee quite sharply, and I hope I thoroughly drank in the wisdom of that article.
§ VISCOUNT HAILSHAM
I was going to make the same observation myself; but in that case I find it all the more difficult to understand why the noble Earl led your Lordships to suppose that he was entitled to call the Ingleby Report in support of the noble Baroness's proposal. It is, in fact, quite inconsistent with the noble Baroness's proposal, and if the noble Baroness's proposal is accepted we shall have rejected the Ingleby Committee's Report. As a matter of fact, the situation is really this—and this is what led me to say of the noble Baroness, with all her great authority, that she really had failed to convey to her noble friend what this Amendment is about: it is quite true that the Ingleby Committee made proposals which verbally appear rather similar to this—that is to say, one of the three proposals they were going to make would have involved the proposition that in law, and as a matter of substantive law, a child between 8 and 12 would not be held morally guilty, or would not be found guilty of an offence under, say, the Larceny Act—but what they proposed was radically different from what the noble Baroness is proposing here.
What the noble Baroness is proposing is that such children should always be dealt with by family or social agencies and never by the courts. This is not what the Ingleby Committee wanted, and, in fact, it is radically inconsistent with it. It is true that, as the first of three proposals, the Ingleby Committee recommended that a child under the age of 12 should no longer be liable to be prosecuted for, and found guilty of, a criminal offence; but they went on to say, secondly, that a child under that age—that is, under the age of 12—who (and here I quote)acts in a manner which would render a person over that age liable to he found guilty of an offence should be liable to be dealt with as in need of protection and discipline".It goes on to explain that this would be a category which would also include those who would now be found—and here I am again using a phrase which will be familiar to those familiar with the Children's Act—to be in need of care and protection. In other words, under 457 that category people who would be found guilty of, say, larceny under the existing law would still be dealt with by the juridical apparatus and not solely by the social agencies. In other words, they would be brought before the court, but not for the kind of reasons that the noble Baroness, Lady Summerskill, was putting forward. They would not be treated as criminals: they would be brought before the court and found in need of care and protection, and no conviction would be recorded against them.
It went on to say, as a third proposition:The methods by which a court might deal with any child who is found to he 'in need of protection or discipline', whether or not as a result of having committed what would now be a criminal offence, should include all those now available for a child found guilty of an offence except fining and conditional or absolute discharge".In other words, what the Ingleby Committee was saying, although for reasons which may or may not be adequate, was that although the offenders ought not to have a conviction recorded against them, there ought to he a proper investigation before the existing court and the offenders ought then to be liable to be dealt with by various methods which the existing court would now use.
There is, in fact, a very great deal to be said for these three recommendations. It is quite true that, in a letter to The Times, I think, and it may be in an article in the Spectator as well, the noble Baroness wrote saying that the Ingleby Committee was quite wrong and that you ought to confine yourself entirely to social agencies. This is not a proposition which I would accept without more thought on it, because my experience has been that children are sometimes telling the truth when they say they are absolutely innocent of the conduct of which they are accused. It may be that people do not attach importance to the word of a child, but, personally, I do. However, whether the noble Baroness is right or whether the Ingleby Committee were right, there is one thing which was abundantly clear: the noble Earl, Lard Longford, was utterly wrong when he suggested that you could call the Ingleby Committee in support of the noble Baroness's Amendment.
§ THE EARL OF LONGFORD
Am I allowed to interrupt or not? Since I am 458 being referred to, I suppose one may occasionally. The Ingleby Committee Report said that the minimum age of criminal responsibility should be raised to 12, with the possibility of its becoming 13 or 14, at some future date, and the Amendment which I was seeking to support says:In section fifty of the Children and Young Persons Act, 1933 (which fixes the age of criminal responsibility) for the words 'eight years' there shall be substituted the words 'twelve years'.I will not interrupt the noble Viscount again—at least, I hope not to—but that is what I was trying to say.
§ VISCOUNT HAILSHAM
The noble Earl was, as I was trying to explain (I will not repeat it, except in a sentence), entirely wrong and was really misleading the Committee in calling the Ingleby Committee in support of the noble Baroness's proposal. Because that Committee's recommendation, as I tried to show, was not that you should do what the noble Baroness proposes, but that you should continue to carry out the existing procedure, with the solitary exception that you would not record a conviction against the child. In other words, it was a proposal for a radically different kind of handling of this kind of case. It went on to point out that the reason for the figures, with which the noble Baroness began her speech, showing that in other countries the age of criminal responsibility is different from, and higher than, that in this country, was that the phrase "the age of criminal responsibility" had in other countries a meaning which was radically different from that attached to it in this country; in other words, that in other countries the age of criminal responsibility means the age at which a person is liable to be dealt with in the ordinary criminal courts and exposed to the full penalties of the law, which in this country is, for some, 14 and not 7, and for others 17 and not 7. Our comparable figures are exactly the same as, anti not different from, those of other countries.
All this only leads me to say this. What the noble Baroness proposes is, of course, a matter which needs very careful consideration. It means that large numbers of children who are now charged with offences would be left to he dealt with by their parents or by social agencies, of one kind or another, without express 459 powers to treat delinquency as such. The numbers involved would be of the order of 30,000. That is the number of boys and girls under 12 years of age who were known to have committed during 1959 what would at a higher age be categorised as offences, and were either cautioned after admitting their guilt or were found guilty by the courts. At the moment this subject would obviously, in the light of what I have said, raise important issues. The Ingleby Committee proposed a radically different course, linking their recommendations about the age of criminal responsibility with recommendations about "care and protection" proceedings and the provision of a new procedure for dealing with children who are at the moment charged with offences. The Ingleby Committee's recommendations are certainly beyond the scope of this Bill, and they are still the subject of consultations.
I should have thought everyone would agree that it is far to soon, despite what was said by the noble Earl, Lord Longford, to reach a firm conclusion on this, and much too difficult, even if the recommendations were within the scope of the Bill (which they are not), to implement them in this context. I think this debate has done a very great deal of good in drawing attention to what is a difficult problem and in ventilating opinions about it. It is far too early for me to say that my right honourable friend will not ultimately come down on the side of the noble Baroness and against the Ingleby Committee—I do not know. But, he will certainly study the views that have been expressed to-day, and I am sure he will be greatly helped in reaching his own conclusions in due course. Therefore, I would ask the noble Baroness, in view of the fact that her own suggestion, among others, is being considered in what I would suggest is a far more appropriate context, not to press her Amendment this afternoon.
§ 6.44 p.m.
§ BARONESS WOOTTON OF ABINGER
The noble and learned Viscount has given us a very learned disquisition on the contents of the Report of the Ingleby Committee. I think your Lordships may be under the impression that we are discussing the Report of 460 the Ingleby Committee, not discussing the Committee stage of the Criminal Justice Bill. I do not propose to pursue the matter of the Ingleby Committee, if only because the noble and learned Viscount dismissed out of hand a recommendation of the Ingleby Committee in support of a previous Amendment. It is therefore obvious that the Ingleby Committee is a stick which the noble Viscount can raise when convenient to him, and can lower when it is inconvenient.
So far as I can see, the noble and learned Viscount gave only one substantive argument against the raising of the age of criminal responsibility, and that was an argument which I admit has great weight, and by which, at one time in my long and inglorious career as a magistrate, I was disposed to be convinced. That is the argument that appearance before a court gives an innocent child—using "innocent" in the technical sense—a chance of acquittal. I have come to the conclusion that although, in the technical sense, this is true, it is exceptional; that there are also many occasions on which the acquittal is wholly contrary to substantive justice, and I cannot feel that this fact outweighs the arguments in favour of dealing with these children through their homes or through social agencies.
After all, innocent children run the risk of being punished for things they have not done in other contexts. They run this risk at school; they run this risk at home. And although parents and schoolteachers doubtless do their best to ascertain whether the child has in fact done the act complained of, they do it by their own crude methods, but with sympathy, with understanding, and by getting as near to the truth as they can. I think, on the whole, they do it quite as effectively as the formal courts of justice which deal with juvenile delinquents.
§ VISCOUNT HAILSHAM
Is the noble Lady really arguing in favour of this position: that a child of 9 in fact innocent of an act which, with adults, would be stealing, should be sent away to a boarding school against the consent of its parents on the hypothesis that it has stolen, when in fact it has not?
§ BARONESS WOOTTON OF ABINGER
I should never argue in favour of sending a child of 9 away to a boarding school because it has stolen on a single occasion.
§ BARONESS WOOTTON or ABINGER
Not at all. I was arguing purely the question of a finding of guilt on a particular occasion. A child of 9 should be sent away only in very extreme circumstances, when it is quite obvious that the home, or the day school, and perhaps the child guidance clinic, are unable to cope with it. Children of 9 are not sent away for single acts of stealing, but only if they are thoroughly maladjusted. If they are not capable—
§ VISCOUNT HAILSHAM
It may be that I did wrong in putting the emphasis on a child of 9. But is the noble Lady trying to say that whether the child is 9, 10, 11 or 12, it would he right to send it away to a boarding school on
|Alexander of Hillsborough, V.||Harmsworth, L.||Ravensdale of Kedleston, B.|
|Arran, E.||Henderson, L.||Shackleton, L.|
|Auckland, L.||Latham, L.||Silkin, L.|
|Burden, L.||Longford, E.||Stonham, L. [Teller.]|
|Carrick, E.||Lucan, E. [Teller.]||Strang, L.|
|Crook, L.||Merthyr, L.||Summerskill, B.|
|Faringdon, L.||Raglan, L.||Wootton of Abinger, B.|
|Abinger, L.||Ferrers, E.||Milverton, L.|
|Ailwyn, L.||Grenfell, L.||Mowbray and Stourton, L.|
|Albemarle, E.||Hailsham, V. (L. President)||Newton, L. [Teller.]|
|Allerton, L.||Hastings, L.||Perth, E.|
|Amwell, L.||Howard of Glossop, L.||Radnor, E.|
|Ashton of Hyde, L.||Iddesleigh, E.||St. Aldwyn, E. [Teller.]|
|Bathurst, E.||Jellicoe, E.||St. Oswald, L.|
|Blackford, L.||Killearn, L.||Selborne, E.|
|Carrington, L.||Kilmuir, V. (L. Chancellor.)||Spens, L.|
|Chesham, L.||Kinnaird, L.||Swinton, E.|
|Chester, L. Bp.||Lansdowne, M.||Teviot, L.|
|Colyton, L.||Limerick, E.||Thurlow, L.|
|Crawshaw, L.||McCorquodale of Newton, L.||Waldegrave, E.|
|Devonshire, D.||Merrivale, L.||Waleran, L.|
|Exeter, M.||Mills, L.|
§ Resolved in the negative and Amendment disagreed to accordingly.
§ Clause 3 agreed to.
§ Clause 4 [Detention of offenders aged 14 to 20]:
§ LORD SILKIN
In view of the assurance which has been given on a similar Amendment to an earlier clause, I do 462 the hypothesis that it had stolen, when it had not?
§ BARONESS WOOTTON OF ABINGER
I had already answered the exact point just repeated by the noble Viscount in identical terms. I am not dealing with the single offence of stealing. I think this is the only substantial argument in favour of the present position, and I would once more put to your Lordships the view that the rare occasions on which a child is blamed—not sent away, but blamed—and is punished in some way—put on probation, perhaps—for something it has not done (and there are miscarriages of justice) are not so important as to outweigh the damage that is done to a far greater number of children who are brought before the courts and treated as delinquents in the community.
§ On Question, Whether the said new clause shall be agreed to?
§ Their Lordships divided: Contents, 21: Not-contents, 44.
§ not propose to move Amendment No. 7, but I reserve the right to put it down again if we cannot come to an understanding.
§ 6.58 p.m.
THE EARL OF LONGFORD moved, after subsection (2), to insert:
() The staff at each detention centre shall include one or more social workers".
§ The noble Earl said: I hope that this Amendment, which I regard as highly desirable in itself, will draw from the noble and learned Viscount the Lord Chancellor, or whoever represents the Government, a much clearer statement than we have yet had, either here or in another place, about the policy behind the detention centres. Detention centres are all the fashion nowadays. They are the only large addition, I suppose one can say, to our penal equipment, despite all the discussions that have been going on in recent years; and some people are inclined to hope for the best and simply assume that the detention centres are going to do a great deal of good and have already started to do a great deal of good. I have nothing but esteem for those who are in charge of detention centres, or are starting totem, but I have a completely open mind as to whether, a few years from now, we shall feel that these detention centres have proved a valuable experiment. I think that it is far too early to say. But one thing is certain: we shall not succeed in this experiment of detention centres unless those in charge of them are given much clearer guidance than I imagine they have been given up to the present time.
§ We are told by some people that the main purpose is to be punitive, as compared with the purpose of reform. I regard that distinction, drawn in this way, as highly dangerous. It seems to me quite wrong to punish young people—and often they have to be punished—without a great deal of attention to the effect of that punishment on their characters. I do not think that anybody in your Lordships' House, and certainly not the noble and learned Viscount, would seriously justify an inhuman kind of treatment which was supposed to be so frightful that nobody would ever dream of offending again if he had either experienced it or heard of it, and which at the same time made no effort to improve the characters of the people. I hope, therefore, that we may take it from the noble and learned Viscount the Lord Chancellor that, while the purpose is punitive, in the sense that it is intended to bring home to the people that they have done wrong and to dissuade other people from doing likewise, the purpose is also reformative.
§ I do not want to go over the ground I covered the last time, when I dwelt at 464 great length on the errors contained in a particular television film. The Lord Chancellor took a great deal of trouble on that occasion, and at the end of the day explained that the film in no way represented the ideas of the Prison Commissioners or the policy being followed in the detention centres. But I think it is strange that that film should have been perpetrated; that some excellent producers, and others associated with television, who have, on the whole, run a very good series in "Probation Officer", should have made this one extraordinary error in the case of detention centres. I do not think that it could have been a coincidence. I believe that the truth has got about that these are pretty brutal establishments.
§ I hope that I do not do the Government an injustice (Governments, collectively speaking, sustain injustices every day without actually disintegrating) if I say that it has been rather convenient for the Government and the authorities generally that there has been this fairly widespread misapprehension about the nature of these places. Because the "hanging and flogging school", if I may speak of them in that way (that may be offensive; I mean, to put it more politely, and perhaps more sensibly, the people concerned mainly with the more severe punishment) are happy to think that here really is a very rough sort of treatment indeed. And at times it may even be that those who advocate forms of corporal punishment are held at bay by the news that corporal punishment is really nothing to the sort of thing that is being "dished out" in a slightly different way —not in the form of physical violence—and nothing to the sufferings which these young people are undergoing in the detention centres. I do not think it would have been possible to make a film like that without some widespread misunderstanding of what goes on.
The truth is that these establishments are in the care of those who are very much concerned with improving the character of youth; and that, indeed, is brought out by something that is said in the Report of the Advisory Council on the Treatment of Offenders. On page 10 the Council say, talking about the detention centres:
The system has already shown some flexibility in expanding the original conception of a
régime based primarily on deterrence to include elements of positive personal training".
§ So from that Report it does seem that these detention centres are undergoing a change in the right direction. I readily concede that, and I believe it to be true. But we are entitled to ask: if one of the main purposes is reform, can we expect the full purpose of reform to be served without some addition to the existing staff? I have not the details of every detention centre, but I think one will usually find a warden in charge (an excellent man in the case I know best, and I expect in every other case); then a principal officer and various other members of the subordinate staff. You will not usually, or perhaps ever, find a housemaster under the warden; and you will not usually, so far as I know, find a social worker attached.
§ Without more ado, therefore, I ask the noble and learned Viscount the Lord Chancellor to tell us whether reform is a leading purpose of these establishments; whether he feels that a social worker would be of material assistance in serving the purpose of reform; and whether he will consider favourably the idea of accepting an Amendment of this kind. What we do about it to-day will partly depend on his answer. It may be that he will not be able to give a definite answer to-day but that before the next stage he will be able to favour this proposal. I beg to move.
Page 4, line 10, at end insert the said subsection.—(The Earl of Longford.)
§ THE EARL OF IDDESLEIGH
I hope that we are not going to make the mistake that we made during the war. Before the war, and in the first year of the war, a man's welfare was the responsibility of his company commander. The company commander knew the man, and with the help of his platoon commanders knew the background of the man. He was responsible for his welfare problems and could well attend to them. Then the War Office started a Welfare Department, and in battalions a welfare officer had to be appointed. Theoretically this officer became responsible for the welfare problems of the troops. The good company commander carried on much the same as before: he continued to deal with the welfare problems of his troops, and he expected his platoon commanders 466 to help him. But the slack company commander, when a man brought him a problem—it might be a financial problem or a marital trouble—was under a temptation to say: "This is welfare. Go to your welfare officer and he will deal with it". I am all in favour of a detention centre—or a housemaster, if the place is so large as to require smaller groups—having some assistance from social workers where it is needed by the boys under his charge; but I am anxious that it should remain quite clear that these social workers are not there to administer a specialised department of work, but are there purely as assistants to the head of the establishment, whose work should and must include final responsibility for the social welfare of his young people.
I should like to say to the noble Earl, Lord Longford, that these social workers do not exist. I can say that from experience.
§ LORD CROFT
I should like briefly to support this Amendment. I believe that social workers would be extremely useful in collecting material about the background of the offenders, with a view to helping the implementation of the compulsory supervision and after-care for which the Bill provides in Clause 13. I agree also with the noble Earl, Lord Iddesleigh, that their rôle should be that of welfare officers.
§ 7.10 p.m.
THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR THE HOME DEPARTMENT (EARL BATHURST)
The noble Earl, Lord Longford, in moving his Amendment asked me to say something about the principle of these detention centres, but my noble and learned friend the Lord Chancellor in his speech a little while ago gave a considerable description of them. It is quite true that these centres are for punishment—those who go there are wrongdoers—but they are also for the training of young people. I dare say that one of the worst punishments which a young offender will undergo in these centres will be in meeting the requirement to keep up a high standard and the requirement that he should do his best. That is one of the cardinal principles 467 laid down throughout the syllabus in the short term (it is only a few months) spent at such establishments. I am not going to say that there is no punishment element in these centres, but at the same time there is a high standard of training and I think that that training is reformative. I can tell the noble Earl that the housemaster principle is operated in practically all these centres, if not all.
§ THE EARL OF LONGFORD
What does the housemaster principle mean? Can you have a housemaster principle without a housemaster, which is the case certainly in some of these places?
I understand that there are houses, or the equivalent of houses, in these centres, and that the housemaster is responsible for a given number of boys. That is my information, but I will certainly look into it if the noble Earl disbelieves me. I am informed that the housemaster principle is used in almost all these centres.
Offenders have to keep clean and tidy, which is a considerable punishment to such youths. They have also to be punctual, and they must tell the truth. That is a considerable effort for some offenders, and is not always a pleasant phase of the training, as most of us have found out at one time or another when under discipline. But I assure the noble Earl that it is the responsibility of all the staff at these centres to look after the rehabilitation of the offender. I do not think that the noble Earl would like it to be thought that these places are brutal establishments just from seeing one film. These films are meant to be entertaining, and I do not think the noble Earl would wish us to draw a conclusion from that film. I do not think it would be right to say that the inmates in these places are undergoing great suffering, as I think the noble Earl to a certain extent suggested.
§ THE EARL OF LONGFORD
I did not quite hear. Could the noble Earl repeat that? I never said they were undergoing great suffering.
The noble Earl definitely mentioned—I have it written down—suffering, presumably for these young offenders in such establishments.
§ THE EARL OF LONGFORD
I am afraid that some noble friend of the noble Lord's must have distracted his attention, or it may be my incurable inarticulateness. I was making it plain that there was a widespread impression that there was suffering, which did not exist, and I was asking for clarification.
I quite agree. I am also asking that that impression should cease to exist. It would be wrong for people to think that it does, simply after seeing one film about which we had a great deal of discussion last time.
Can we now get back to the Amendment in the name of the noble Earl? I should like to tell him straight away that the experiment at Kidlington, a junior establishment, about which I am sure he knows, has been considered a great success, and it is definitely the intention to increase the numbers of social workers, and, when possible, to see that social workers are attached to these centres. The noble Earl, Lord Iddesleigh, mentioned that a social worker might be regarded in the same light as the welfare officer of one's Service days. That is not really a correct synonym at all. These social workers, when they are available—and I note what my noble friend Lord Raglan has said—are specially trained in their activities, and they deal particularly, as the noble Earl knows, with home life and the problems that are mentioned in the later clauses of this Bill, of resettlement and supervision. That is the reason for having these social workers. It is true, of course, that they look after many problems which the boys may have in the centre. It could be said that they are in some way a buffer: they are the person to whom the boys should turn. Nevertheless, I do not want your Lordships to think that that will in any way detract from the responsibility that is laid upon the staffs for rehabilitation. There is no reason why a boy should not go with his problems to any member of the staff of the establishment. I wish to make it quite clear to the noble Earl that it is the headmaster, or the manager, of that establishment who is responsible.
The effect of the Amendment the noble Earl is putting before your Lordships would be to lay down in an Act of Parliament who was to be employed in such a detention centre; indeed, one 469 would probably have to lay down exactly what those people would have to do. It would be a difficult precedent, and it might be unwise to legislate for this. I assure the noble Earl that it is the policy to extend the work of the social workers to all these centres. The experiment in the junior centre at Kidlington has been a great success, and it is hoped to go forward to the senior establishments as well. With that assurance I hope that the noble Earl and his noble friends will see fit to withdraw their Amendment.
§ THE EARL OF LONGFORD
I am obliged to the noble Earl. It seems to me that he has conceded, in effect, what we were asking for. He says that the policy is to extend the employment of social workers to all the detention centres. As that is what we are asking for, I think it would be rather churlish of me not to thank the noble Earl and the Government for doing what seems to be in our minds. I will not take a moment, but I should reply to the noble Earl, Lord Iddesleigh. I know that he was in a "crack" regiment, and it may be that he did not require social workers to the same extent that delinquent young people do. If you take normal people (if one can call Members of the House of Lords "normal"), I do not think we need a social worker to attend on us. But if you take a disturbed population, or a delinquent population, then the role of the social workers becomes more urgent. I place that thought before the noble Earl.
I agree with what the noble Lord, Lord Raglan, said, if he was referring to the number of social workers. That raises another colossal problem. Here we are talking of comparatively small numbers, and I do not think it should be difficult to find them. I will not get into an argument with the noble Earl (although I should be glad to have an argument privately) about the housemaster principle without housemasters. There might be a difference of fact there, but to the best of my belief they will not always be found to he housemasters. Some of these are borstal housemasters, and would he applying the same methods. In fact, I should say these detention centres were understaffed at the top level. I do not think that you will find a housemaster in a detention centre of 80 people. If I am completely wrong, I 470 will of course apologise, and put down an Amendment especially to give me the opportunity of apologising. I am grateful to the noble Earl and the Government for the way they have received this Amendment, and I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ 7.20 p.m.
§ LORD STONHAM moved, in subsection (4), after "training" to insert: "or a previous term of detention in a detention centre." The noble Lord said: I beg to move this Amendment. Your Lordships will see that under subsection (4) of Clause 4 an order for detention shall not be made in respect of a person who is serving or has served a sentence of not less than six months imprisonment or a sentence of borstal training. The Amendment seeks to insert the words about a second sentence of detention, to prevent a second sentence of detention from being served, because the Government obviously accept the view that it is no use ordering a sentence of detention for anyone who has already served six months' imprisonment or a borstal sentence. The argument behind the Amendment is that, equally, it is useless or almost useless to order or allow a second sentence of detention if the first one has not proved effective.
§ There has been a good deal of research into this matter, and all the authorities are in favour of the Amendment. The noble Earl, Lord Bathurst, rightly quoted with considerable approval the work that has been going at Kidlington, and I have in my hand the figures which are the result of research at Campsfield House undertaken by Dr. Max Grunhut and published early last year for the British Journal of Delinquency. This was a study of 434 boys, received into the first junior centre of Campsfield House, at ages of 14 to 17. Of that number, 329 boys who had not previously been in a penal institution had not been reconvicted two years after discharge, which is very high percentage; whereas, of the 105 junior boys who had had previous experience in an institution, 65 were reconvicted—about two-thirds. The point I am making with regard to these junior boys is that the effect of the detention centre service was excellent. In two cases out of three they did not come back, or at least they did not come 471 back over a period of two years. They were not reconvicted. But in cases where the boys had served a sentence of detention, then, two-thirds of them did come back for more, showing that to give them more was useless.
The position in the senior centre at Blantyre House with the older boys was almost exactly the same. There 144 cases were studied, and the figures show that two-thirds of those who had not had any previous institutional experience were not reconvicted after they had served their term, but where they had already served a term, then, two-thirds were reconvicted. In fact, the Prison Commissioners' report for 1957 quotes this conclusion which Dr. Grunhut wrote:
The original proposition is confirmed that punitive detention appears suitable for boys with a more or less substantial criminality not due to deep-rooted personal factors or seriously adverse home conditions, for whom detention is the first experience of any form of institutional treatment.
§ Since detention centres were first opened, the Prison Commissioners' reports have shown persistently a much higher rate of reconviction for boys and youths with previous borstal or other institutional experience. It is the case that wardens of detention centres who, after all, should know a great deal about the prospects of success, are opposed to having boys or youths sent for a second term of detention to a detention centre. I think that is understandable.
§ The whole idea behind the detention centres is of a short, sharp sentence, a shock if you like, with the hope of awakening in the boys an answer to the challenge of discipline, awakening in them a sense of responsibility—even, if you like, of esprit de corps and some pride in physical achievement, however unwillingly they first of all undertake it. It is the case that there is a high degree of success, about two-thirds, but if they have their dose and come back it does not work a second time, and quite understandably so, and obviously other methods must be tried. Therefore we seek to insert the words on the paper to add, after borstal training, "or a previous term of detention in a detention centre". We feel that, if those words are accepted, it will save unnecessary applications for a second time of 472 treatment which, having failed, is then unlikely to succeed. I beg to move.
Page 4, line 20, after ("training") insert the said words.—(Lord Stonham.)
§ BARONESS WOOTTON OF ABINGER
I think the essence of my noble friend's argument is incontrovertible. It is that two failures are more than twice as bad as one.
I think it can be said that I come out to bat on a somewhat sticky wicket, in view of what the noble Lord, the noble Lady, and my noble friend with expert knowledge have said, but I ask the noble Lord who has proposed this Amendment to remember that, when the power of the courts to impose short sentences of imprisonment is eventually abolished, detention will he the only alternative to an indeterminate sentence of between six months and two years, or a longer sentence of imprisonment. The whole point of this Bill is to try to train and to rehabilitate—we have used that word before—the young offender. I know that the noble Lord opposite, and his friend the noble Baroness, claim that a second try in a detention centre is not as useful as the first one. He has mentioned figures which he believes will prove his case, but I do not think they can be used as an argument about the sort of offenders who should now go to the detention centres; and to say that after they have had one spell in a centre, those offenders should then be arbitrarily sent for one of these longer and indeterminate sentences, either in borstal or in prison, is entirely wrong. It is, of course, up to the discretion of the court. An offender may be so bad that such a sentence for a second time is wrong. But we do not believe that this will be so in all cases. We hope that courts will take advantage of their power to send an offender for a second short, sharp treatment in a detention centre, as the noble Lord has described it.
We do not see that there is any reason to delay the proceedings. There could be a report from the Prison Commissioners, and so forth; but we see no reason for that in the case of an offender 473 who, clearly, could be suitably punished by attendance in a detention centre. We do not believe that there will, in fact, be the difficulty the noble Lord and the noble Lady envisage with regard to these offenders going into a detention centre for the second time, because already there are plenty of second offenders in these detention centres.
Although possibly the results are not so impressive as the noble Lord has quoted, nevertheless, there will be no great difficulty in the organisation of the detention centre. It may, of course, be necessary, when these schemes have really got under way, that there should be special categories of detention centres, possibly for second offenders or even third offenders, or there may be special categories for certain types of offender. That would to some extent look after the problem which the noble Lord envisages.
§ BAROYESS WOOTTON OF ABINGER
Is the noble Earl envisaging continuous and progressive failure in detention centres?
If the offender is so bad and shows no sign whatever of taking advantage of the training in rehabilitation at a detention centre, then the court might have to send him up to the next higher sentence. But, in fact, there is no intention that the detention centre should be the bottom rung of an escalator of punishment. The detention centre should be sufficient punishment for a particular type and age group of offender. He may go there a second time; I should not like to say he would go a third time—one would hope not—but the court has a discretion then to send him to a more serious form of punishment. We can see no reason why the courts should not have this discretion to send an offender a second time to the detention centre, and for that reason I am afraid I cannot accept the reasoning of the noble Lord's Amendment.
§ LORD STONHAM
I find the noble Earl's reply both disappointing and somewhat difficult to understand. He said that he could see no reason why boys should not go to a detention centre a second time, and, although he hoped it would not be necessary, even a third time. But the Bill as it now stands prohibits the award of detention to a boy who has already served a borstal sen- 474 tence or a sentence of six months imprisonment. There we have the case where the lad in question must have been convicted more than one. It is extremely unlikely he would have gone to borstal on a first offence; almost certainly the boy would not have gone to prison on a first offence. So we are considering people who are second or third offenders already, and in the one case the Government has decided that they shall not be sent to detention for the obvious reason that they think it would not do them any good. That is in the clause already. I know there is the qualification unless there are special circumstances.
What we are asking for in our Amendment is that the same philosophy shall be followed. It is unlikely that the first time a boy conies before the magistrates he will be sent to a detention centre. He will have been convicted of an offence more than once before he goes to a detention centre, and he is sent there only in the hope that the shock will do him good. We are saying that when a young person has already had one sentence of detention the Government should be logical and consistent and apply the same thinking they have already applied to those who have served 'a borstal or prison sentence. They should not waste any more time in the probably overcrowded detention centres but should leave them for first-time people who might get some good from them. That seems to me common sense. I rather feel that perhaps the noble Earl had not previously considered the full implications of what he said, and I wonder whether the point could be looked at again before we reach the next stage.
With great respect to the noble Lord, he is asking me to say that a second sentence at one of these detention centres is comparable to a second offence which has been punished by a term in either borstal or prison. Our view is that it is a very different affair indeed. We hope, too, it will be a very different type of offender, whether it is a boy or girl. In fact that is really the whole point of this Bill, as was explained by my noble and learned friend. We believe that by keeping the real and hardened young criminals out of the detention centre the sort of training that will be received by the offender 475 in a detention centre will enable him to rehabilitate himself and take up a useful life afterwards, as well as provide punishment for his offence.
But when the noble Lord says that the Bill is inconsistent, I must beg him to remember that a sentence of borstal or prison will be for a very considerable time, whereas the detention centre sentence may be quite a short time and at maximum only six months. I ask him to consider that argument. I will, of course, as always, look at what he has said. I assure him that all he has said in this debate and in all debates is always most carefully looked at. But naturally I cannot give any assurance that my views could be changed.
§ On Question, Amendment negatived.476
§ VISCOUNT HAILSHAM
I understand from those who convey information of this kind that it would be convenient to noble Lords opposite if the House now resumed. If that is so, I beg to move that this House do now resume.
§ Moved, That the House do now resume.—(Viscount Hailsham.)
§ On Question, Motion agreed to, and House resumed accordingly.