HL Deb 03 July 1969 vol 303 cc748-59

7.22 p.m.


My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Stonham.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ROYLE in the Chair.]

Clause 1 [Care proceedings in juvenile courts]:

VISCOUNT ST. DAVIDS moved Amendment No. 1Z: Page 1, line 13, at end insert ("For the purpose of determining this, any constable to whom it is reported that a child or young person has committed an offence may detain him to determine his name.")

The noble Viscount said: This is a simple little Amendment and, what is more, it actually says what it means. I am sure I shall be told that it is wrongly drafted, that it is in the wrong place and is unnecessary, but I have a point which I think should be brought out. Both in Clause 1 and at the beginning of Clause 2 it is somebody's business to find out whether there are grounds for making an order under the Bill. The first thing one has to do is to find out who the offender is—that seems to be a good start, anyway. The difficulty is that in the case of many minor offences—and possibly, after this Bill becomes law, in other offences—there will be no right inherent in the police to ask an offender's name. This is already so on quite a number of minor offences.

Perhaps I may give a small example which occurred to me a day or two ago. A boy hit me on the head with a stone which he threw from a bridge as I was going along in my boat on the canal. I got hold of the youth and dragged him along to a telephone and telephoned to the police. The police came along and asked me whether I was hurt. I said "No, I am not; I have a good tough head and it is not hurt". "In that case", he said, "will you come aside for a moment?" He then said, "It is very difficult, sir, but we have no right to ask this boy for his name. The only way we can find out his name is to bluff him into giving it". As a matter of fact, while I was talking to the policeman his colleague quietly got the boy's name. But I am quite sure that once this Bill becomes law the young lads of the neighbourhood, who are pretty good lawyers one way or another, will discover that if they go be- yond a certain point they will be what they call "put away", and they will discover that their main defence is not to give their names.

I think it must be made absolutely clear in this Bill that the policeman, for the purpose of discovering whether such a child is a young offender in respect of whom care proceedings ought to be brought, must have a right to ask the child's name. If necessary, if the policeman disbelieves the name the child gives—and quite frequently the child at least begins by giving the wrong name—he will take him to the police station and, if necessary, hold him; or he will take the child home and find out whether it is his right name. In my view the right to do this must be put into the Bill; otherwise, to begin with, I do not see how the constable can ever reasonably come to believe that there are grounds for making an order.

Clause 2 starts with the words: If a local authority receive information suggesting that there are grounds … But whom does it receive the information from? Information "suggesting that there are grounds" is, presumably, information that a youngster is misbehaving. Surely even if it is not a ease of an offence which would be an indictable offence as things stand, if the policeman is to give information that the youngster is misbehaving he must know the youngster's name. It is for this simple purpose that I move this Amendment. It may well be, as I have said, that I shall be told this is not a good Amendment for its purpose, but if I am told so I should like to know just how the offender's name is to be discovered and who informs the local authority. I beg to move.


My noble friend said when he began that he was sure he would be told that his Amendment was wrongly drafted, that it was in the wrong place and that it was unnecessary. I can tell him immediately that he was right once out of three—which is not quite up to his usual average. I am not going to tell him it is wrongly drafted, and I am not going to tell him it is in the wrong place; but I hope to convince him that his Amendment is unnecessary.

I think that my noble friend may be under a misapprehension that the Bill raises the age of criminal responsibility, which, as your Lordships know, is fixed, by section 50 of the Children and Young Persons Act 1933, at ten. The Bill does not amend that section. What it does is to provide that a child under fourteen may not be charged with any offence except homicide. A child remains capable of committing an offence, and may be found to have committed an offence, in care proceedings, and powers of arrest without warrant therefore would not be affected. In this sense the Bill leaves the age of criminal responsibility unchanged, but it raises to fourteen the age at which two of the normal consequences of criminal responsibility—liability to prosecution and to punishment—take effect.

My noble friend quoted the example of a boy dropping a stone on his head, and he said that he had a good tough head and was not hurt. Unfortunately, quite recently a boy dropped a stone from a bridge over a railway on to a man's head, or at least near the man, and the unfortunate man was killed. So this is not something that I regard as a light matter by any means. But the point is that dropping the stone on my noble friend's head without causing bodily harm would not be an arrestable offence. My noble friend used the term "indictable offence" but I have no doubt he will be aware that we now have the term "arrestable offence", and no doubt the policeman thought that it was not an arrestable offence, and it now seems that he was right.

A child over the age of ten remains capable of committing an offence, and he can be arrested without warrant for an arrestable offence. In my noble friend's case, if the constable had seen blood trickling down his face or thought he was hurt, he could most certainly have arrested the boy. Subsection (4) of Clause 26, which I shall later ask your Lordships to agree to amend by Amendments Nos. 32 to 34, deals with what happens on the arrest of a child. No doubt between now and Monday my noble friend will look up that subsection. The position under the Bill will be that the police are required to release the child, unless of course the offence is homicide or they consider that he ought to be detained in his own interests or because of the nature of the alleged offence. If a child refused to give his name, so that it was impossible to get in touch with his parents, it would almost certainly be considered in his own interest to detain him until it was found out who he was. In the Bill there are analogous provisions in subsection (4) of Clause 27 about the arrest of a young person.

In short, the answer to my noble friend is this. So far as arrestable offences are concerned, the Amendment is unnecessary; the boy would be detained anyway. So far as non-arrestable offences are concerned, we think it would be wrong, as my noble friend's Amendment proposes, to give the police greater powers over children and young persons—those under 17—than the powers they have in the case of the population at large; that is to say, adults. In other words, if it had not been a boy who dropped the stone without injury, but an adult, the policeman would have been in no different position, whereas what my noble friend is suggesting by his Amendment is that in a non-arrestable offence, if the alleged offender was somebody under 17, the police should have power to detain him. The Government think that would not be right, since there are no such powers in similar circumstances in the case of an adult. I feel sure that, with that explanation, my noble friend will feel able not to press this Amendment.


I thank my noble friend for that reply, which is in many ways a better reply than I thought I should receive—I seem to have done my homework rather better than I expected. While I am proposing to withdraw this Amendment, I might point out to my noble friend that he is rejecting treatment for children because an adult does not receive it, yet the whole purpose of the Bill, surely, is to give different treatment to children from that which an adult receives. It was for that reason that I thought that a clause which provided for different treatment for children would very properly find a place in this Bill. I should like my noble friend to consider possibly an Amendment of this nature at a later stage in the Bill on that basis, especially when he considers Clause 2, where the grounds for bringing care proceedings are not necessarily grounds connected with arrestable offences. Grounds for bringing care proceedings may be something like the child's failure to attend school, or for other reasons, none of which is an arrest-able offence. Surely, if all this sort of thing is to be brought to the attention of the local authority, somebody must find out the name of the boy who is doing it. If a policeman finds a boy who is skulking about somewhere day after day, in school hours, is he not allowed to ask the boy his name? Might it not be a matter which ought to be brought to somebody's attention? That is why I suggested this Amendment.

I am not worried about the arrestable offence; I quite agree that that is covered. But it is the non-arrestable offence which ought to be covered, because the sooner you find out that the youngster is in need of care, the better. If he is in need of care, you do not want the situation to run on and on, and get worse and worse; the sooner it is put right the better, and the sooner you get the machinery turning, the better for the lad. This is for the protection of the lad. I quite understand my noble friend's point about this being something that would not be allowed in the case of an adult. But children are not adults, and this whole Bill has been introduced specifically for that very reason. So I would ask my noble friend to look at that particular point again, if he will.


Perhaps I may say a word before my noble friend withdraws his Amendment. He mentioned that this Bill is about different treatment for children compared with adults; and I agree. But in the main the differences are in a beneficial and protective sense, which I know my noble friend heartily supports. But I would ask him to look again, as I am sure he has looked several times, at paragraphs (a) to (e) of subsection (2). If he does so, I think he will agree that in most of those cases (1 do not say the single throwing of a stone, but he mentioned the boy persistently absent from school) there is power under the Bill, justification under the Bill, for the constable to act in accordance with the first few lines of Clause 1, and take action designed to implement his belief that the child is in need of care. With regard to the educational point failure to attend school is of course dealt with in Clause 26(1). You can see the position in regard to the boy there.

So far as the present position is concerned, my noble friend is probably aware with regard to the non-arrestable offences—and he has already conceded the point about arrestable offences—they are at present dealt with by summons. We have not heard from the police of any difficulties in summoning children. In order to do that they have to try to get their correct names and their correct addresses. I am not saying that they do not fail at times, but they do have this power. I know how much my noble friend's thoughts about this Bill are in accord with the Bill and with my own thoughts, and I will certainly look at the point that he made in his second speech. But he will understand that that is without any commitment that I shall be able to meet him.


I thank my noble friend, and beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

7.42 p.m.

BARONESS BROOKE OF YSTRADFELLTE moved Amendment No. 1: Page 1, line 20, after ("is") insert ("falling into bad associations or is").

The noble Baroness said: To me, this is a small but important point. Under the present law as laid down in 1963, one of the tests is that a child or young person is "falling into bad associations" and is exposed to moral danger. The corresponding test in this Bill makes no mention of falling into bad associations, and I want to ask why. I know there are juvenile court magistrates who have found it valuable in a boy's interests to be able to commit him to care because he has been falling into bad associations, even though it may not be possible to say that he is in moral danger. Apparently, this power is now to be taken away. Do the Government really think that falling into bad associations does not matter? If not, would it not be eminently sensible to accept this Amendment? I move.


I have a good deal of sympathy with the Amendment of the noble Baroness. I cannot see why "bad associations", a. phrase which is in the 1963 Act, should suddenly have been dropped out of this Bill. I think I should have even more sympathy if the Amendment had gone a little further, and added to "bad associations" some such phrase as "or bad habits". I have in mind that this phrase might make it easier for the Government to accept an Amendment which I shall be moving later, about omitting the proviso that finding him guilty of an offence is one of the grounds on which a care order can be made. I should have thought that the important thing in this clause was that one should be fairly flexible; that we should have opportunity to deal with children who are in any kind of trouble or giving trouble, and that there should not be rigid provisions; that so far as possible there should be no rigid finding based on particular incidents but that the general way of life of the child should be the ground for the making of the care order. Therefore I have a good deal of sympathy for the noble Baroness's Amendment, and I greatly hope that the Government will give it serious consideration.


Although I do not know a great deal about children in care, I sympathise with the Amendment because I think that there are a great many things that happen to a child and he or she gets into bad associations without being in any moral danger. To have only "moral danger" seems to me to exclude far too much bad behaviour.

7.45 p.m.


I always think that one Barbara is something to be reckoned with, two Barbaras are impressive, but when they are supported by a Dora as well, it is truly formidable. I was asked whether the Government were not concerned about children falling into bad associations. A lot of this Bill is about children falling into bad associations. But perhaps I can explain why we have dropped those words out of the Bill. "Falling into bad associations", as my noble friend Baroness Wootton reminded us, is in the existing law, in Section 2 of the 1963 Act. It first appeared in this form of words in the Children and Young Persons Act 1932, and it then replaced some conditions in the Children Act 1908. The words in that Act were not "falling into bad associations" but "frequents the company of any reputed thief, or of any common or reputed prostitute." In those days the law attempted to define the cases in which a child could be brought before a court by setting out a long list of specific circumstances. In this way we are moving away from criminal prosecutions of children, and we are moving away, therefore, from this form of words. The condition proposed in the Amendment—that is, the insertion of the words "falling into bad associations"—is extremely wide, and we have omitted it from Clause 1 of the Bill because it is difficult, if not impossible (and I find it impossible) to envisage the situations which it would cover and in which it would be desirable for a court to make an order: that is, situations which are not already covered by the other paragraphs of Clause 1(2) of this Bill.

I would ask the noble Baronesses to consider this point. The Amendment asks us to assume that there are cases where the child has not committed an offence, is attending school, is not beyond the control of his parents, is not exposed to moral danger, where his proper development is not being avoidably prevented or neglected, and yet he is in need of care or control because he is falling into bad associations. I have tried to envisage a situation and I really cannot think of one, and the noble Baroness did not give one. If this Amendment were accepted, it would be possible for four children to be brought before the court in care proceedings, and if the court found that three of them had committed an offence but the fourth had not, it would be possible for the court nevertheless to make an order in the case of the fourth child because he had associated with the other three children.

In short, what is being asked for, and what the noble Baroness has asked us to agree with, is that in the case of children guilt by association shall he enough to justify the use of compulsory powers. That is a proposition that the Government just cannot accept, because we do not believe that this ought to be the law. In our view, the conditions in Clause 1(2) are wide enough to cover the situations where a court order is justified. But the words which the Amendment proposes to insert are a relic of the earlier law. I know that we do not like to discard cherished relics, but these are a relic of the earlier law which did not contain any general criteria of the kind which are now included in subsection (2). These words might well have been necessary in former legislation, but they are certainly not necessary now when, with this Bill, we shall have criteria which, so far as I can see, cover all the likely and I think possible situations.


I must, I think, protest at the noble Lord's vehement assertion that if these words were inserted we should then be making children subject to guilt by association which is a thing that we would never contemplate in adults. I am very surprised that my noble friend is interpreting the whole of this clause as though it has to do with guilt; it has nothing to do with guilt, it has to do with children's need of care. Most of the subsections in this clause do not have to do with guilt; they have to do with whether the child is beyond his parents' control and whether he is in moral danger. This is not a clause designed to distinguish guilty children from non-guilty children. One of the things which may be a danger to children is bad associations, but this is not to say that they have all been held to be guilty by association.


Would my noble friend not agree that the only example anyone could think of where a person was not guilty of any of these other things but was guilty of falling into bad associations is Jesus Christ?


I am grateful to my noble friend; I had not been able to think of one. In answer to the point raised by my noble friend Lady Wootton of Abinger, of course she is quite right in saying that this Bill and this clause have nothing to do with guilt. I did not say that this clause had: I referred to the effect of accepting the Amendment; and I gave an example, which has not been controverted. If there were four children, three of whom were adjudged to have committed an offence (and this is permitted under paragraph (e)) and the fourth one not, this Amendment (because he was associating with the other three and it could be said therefore that he had fallen into bad association) would make it possible for the court, if it so wished, to make a care order in respect of that child. I do not think I have overstated the case by saying that, in so doing, if they did so, under the power which would be granted by this Amendment, they would be assuming guilt by association with the other three.


Would not that be possible already, because the boy in question would be exposed to moral danger through his association with the other three?


That is already covered by the Bill. I have already recited the points, but if my noble friend wishes I will recite them again. I said the Amendment assumes that there are cases where the child has not committed an offence (I am reading down the Bill: he is attending school, is not beyond the control of his parents, is not exposed to moral danger, and that his proper development is not being avoidably prevented or neglected) yet is in need of care and control because he is falling into bad associations. What I am saying to the noble Baroness, Lady Brooke of Ystradfellte, is that this is covered, that these words are unnecessary, and, I think, indeed harmful—or could be harmful.


The noble Lord has replied with much vehemence to the Amendment which I was seeking to move. It is quite clear that there is concern about this not only from myself and on this side of the House but from those who are much more experienced, as was seen in the speech by the noble Baroness, Lady Wootton of Abinger. I am not at this late hour going to continue to press this. I shall beg leave to withdraw the Amendment, but I hope very much that the Minister will consider it and think it over, and we may discuss this again art Report stage.


I am always ready to consider anything, and if I spoke vehemently it is because I feel very strongly about this point, as I feel very strongly about many parts of the Bill, and I may speak vehemently again. However, I would ask the noble Baroness to read these arguments, and if anyone can come up with an example of where they are not covered, then I would be prepared to consider it again. I will read what has been said, but I cannot hold out any hope that I can come back with a different answer than the present.

Amendment, by leave, withdrawn.


The next Amendment in the name of my noble friend Lady Wootton, and the following one in the name of the noble Earl, Lord Jellicoe, are both Amendments which raise matters of fundamental importance which require close and possibly lengthy consideration, and I would suggest that it might best meet the convenience of the Committee if we adjourned our proceedings in Committee now and resumed in full strength on Monday.


I should like to associate myself with what the noble Lord has just said. I am sure this would be better.

House resumed.