Criminal Justice Bill

HL Deb 07 June 1982 vol 431 cc4-72

2.44 p.m.

Lord Elton

My Lords, I beg to move that this Bill be now read a second time. I bring this important measure before your Lordships' House for the first time in the wake, as it were, of two highly relevant debates. The first was introduced by my noble friend Lord Renton and dealt with law and order. The second was introduced by the noble Earl, Lord Longford, and dealt with the prison system. Each issue is a matter of very real concern. On the one hand, there is the concern that private citizens shall be able to live at peace, protected from criminality by the police and the law. On the other, there is the concern, no less real, that the criminals who are apprehended for the protection of those citizens shall serve out their time in conditions that are acceptable by humane modern standards.

Individually, each debate demonstrated the very real anxiety of your Lordships on either score. Taken together, they highlight the central problems at present facing our penal system. We are the heirs, simultaneously, first of a steady growth in criminality which is shared by every developed Western country (and properly explained by none), and, second, of 40 years of total neglect of new capital provision for the prison service that has to contain the criminal when he has been caught.

Pragmatism alone, therefore, suggests that here are conflicting pressures, which together point to a change of policy. But pragmatism alone would not suffice to justify the new, coherent sentencing strategy which I now bring before your Lordships as the central feature of this Bill. Policy must be based upon principle as well as upon pragmatism. There is, I think, a growing recognition of the limitations of imprisonment as a sanction and, in particular, of any rehabilitative effect which it may have. Your Lordships need look no further for the clearest possible statement of the principles on which sentencing policy should now be based than to the speeches of the noble and learned Lord, Lord Lane, the Lord Chief Justice, in the debates to which I have referred. He said, in effect, that a sentence of imprisonment must be a last resort and that, where it was unavoidable, it should be for as short a period as possible. The Government share that view and their responsibility, therefore, is to ensure that those principles are reflected in the statutory framework of sentencing powers and that, as a necessary corollary, the courts must have available to them a wide range of non-custodial sentences in which they have the fullest confidence so that where possible an offender can be dealt with within the community. It is in response to these considerations, my Lords, as well as to the very serious pressure upon our prison system, that the Government have now brought forward this Bill.

Part 1 of the Bill deals with young offenders, who are rightly the cause of special concern. It gives effect to the proposals set out in the White Paper on young offenders (Cmnd. 8045) published in 1980. It opens in Clause 1 with a clear statement of principle. No court may impose any custodial sentence on a young offender unless it is satisfied that no other method of dealing with him is appropriate. This is reinforced in Clause 2 by the provision that no court shall pass a custodial sentence on a young offender who has not been legally represented. I can tell the House that we shall also be bringing forward an amendment— as a result of an undertaking given in another place— to provide that, as a general rule, a court should consider a social inquiry report before passing a custodial sentence on a young offender.

There will still, of course, be cases in which a custodial sentence is unavoidable. The courts must then be able to match their response to the circumstances of each individual case. At present their sentencing powers in relation to young offenders are too circumscribed. Part 1 of the Bill abolishes imprisonment for young offenders. It also does away with the much resented restrictions that Section 3 of the Criminal Justice Act 1961 placed on the passing of sentences of between six months and three years in duration. It abolishes also the indeterminate sentence of borstal training in which the power to decide how long should be spent in custody lies with the executive and not with the courts. These sentences are all replaced by a new, more flexible, structure of detention-centre and youth-custody sentences. The length of these will be determined— within statutory limits— by the courts. We wish to keep custodial sentences as short as possible, and we recognise that it is the first few weeks of custody that are likely to make the most impact on an offender. We have therefore reduced to three weeks the minimum period of custody which courts may impose in a detention centre order.

The basic framework of this new sentencing structure is set out in Clauses 3 to 6 of the Bill. It was another noble Lord— and a mythical one— who said that his "object, all sublime" was "to make the punishment fit the crime". In our more enlightened day, we have another priority, and, if I could for a moment adopt the idiom of Gilbert and Sullivan's Mikado, it would be to say that "our object, less subliminal", is "to make the punishment fit the criminal".

The courts will therefore continue to bear in mind the type of régime that an offender will undergo when they are determining the sentence. Detention centres will continue to provide a distinctive régime designed for young men and boys who are reasonably fit and who have little or no previous experience of custody. Under Clause 11, a young male offender who is given a youth custody sentence of more than the usual minimum, but not more than 18 months, will be detained in a youth custody centre. That guarantees a training régime and it applies to a wider effective sentencing band than the present borstal sentence. All young offenders released from custody will, under the provisions of Clause 15, be supervised for a minimum period of three months.

Part I of the Bill also strengthens the non-custodial disposals for young offenders available to the courts. Community service orders are of proven value, and Schedule 12 contains provision for their extension to 16-year-olds. Clauses 16 to 19 deal with attendance centres. For the most part they consolidate existing provisions; but they make certain changes in line with the continuing expansion of the attendance centre system. Hitherto the power to make an attendance centre order was restricted to the magistrates' court. Clause 17 now extends that power to the Crown Court as well. As a result of an amendment made in another place, such orders may, in special circumstances, be made on a young offender who has already had custodial experience.

Clause 20 strengthens the supervision order in a way which has, I think, been widely welcomed. Such an order may often represent the most suitable way of dealing with a juvenile offender even in the case of quite a serious offence. But for the courts to make a supervision order in such circumstances they must have the fullest confidence in its use. Clause 20 gives them new powers under which they will be able to specify in the order itself what requirements the juvenile will be asked to comply with. This will be decided in consultation with the supervisor. The overall objective of the clause is to seek a more purposive, co-ordinated approach to the use of such orders. To reinforce this objective we will be moving an amendment to ensure that before attaching requirements to an order a court will consider a report from the supervisor. This objective is carried through to Clause 21 which provides for better local co-ordination of facilities for the supervision of juveniles. The provision of such facilities has hitherto been the responsibility of the children's regional planning committees. This will now fall upon local authorities and they in turn will be obliged to consult probation committees about the arrangements to be made. There is also provision in Schedule 9 to enable the probation service, for the first time, to provide from its own resources facilities for juveniles under supervision.

The Government's objective is to remove all unnecessary restrictions to the development of community based facilities and to give the two supervising authorities— the probation service and the local authorities— the greatest flexibility in developing provision. The new requirement for consultation will ensure that development is properly co-ordinated.

Clause 22 gives effect to our commitment to introduce a residential care order. There has been criticism of this provision on the grounds that it will increase the use of residential disposal for juvenile offenders. That is not our intention. The care order is a flexible disposal which enables the courts to avoid custody for the under seventeens. It places the discretion over how the young offender should be handled with the local authority social services department. That is right and proper. But the care order is a serious intervention and needs to be backed up by sanctions. if an offender in care commits a further offence, the courts need to be able to take action.

The point of Clause 22 is to enable the courts to take such action by requiring that, except for short periods of leave, the offender should not be allowed home for a period of up to six months. The object is to give the courts a new option in circumstances where custody may at present be their only option. It is intended, in other words, to catch the young offender on the way, as it were, to prison and to contain him somewhere preferable. This is an option which the courts have been seeking for a long time and the result should be less imprisonment, not more.

I should add that it is our intention to make available to local authorities the additional resources which they will need as a result of these changes to the supervision and care order as soon as possible. And we have undertaken that these provisions will not be brought into effect before then.

The Bill also forcibly brings home to parents their responsibilities in relation to children who offend. Clauses 24 to 26 clarify and strengthen the powers of the courts to order parents or guardians, in certain circumstances, to pay fines, compensation or costs awarded against juveniles.

The relentless problem of juvenile crime is obviously a matter of fundamental importance for the future of our society. But the problems facing the criminal justice system do not arise from young offenders alone. There is, rightly, deep public concern about the level of crime at all stages. At the same time there is a growing awareness of the critical state of our prison system. Part II of the Bill goes right to the heart of the Government's response to these problems.

Central to that response has been the knowledge and conviction that Parliament and the courts are at one in seeking a reduction in the overall use of imprisonment. We have already seen the evidence of the court's determination to reduce the length of sentences, however appropriate they may be. The Court of Appeal gave the lead in cases like Upton and Bibi, and information now becoming available for 1981 confirms that it is being followed by both the Crown Court and the magistrates' courts. Analysis of the prison population through 1981 shows that the number of offenders serving medium sentences of 18 months to four years has declined significantly. These are welcome signs, though with the prison population at around 44,000 the pressure of overcrowding remains severe.

The Government have been considering ways in which this welcome movement could be reinforced. We came to the conclusion that the most effective way of doing this was to implement a power already provided for in the statute book. This is the power to suspend part of a prison sentence which is contained in Section 47 of the Criminal Law Act 1977. There have of course been doubts about this provision in the past. There has, in particular, been concern that the partly suspended sentence would be used not to reduce the effective period of custody served but rather to replace full suspension, or that it would be used simply in cases where a short sentence— without any element of suspension— would have been appropriate. That is certainly not its purpose. As the Advisory Council on the Penal System said: We see it not as a means of administering a ' short, sharp, shock ', nor as a substitute for a wholly suspended sentence, but as especially applicable to serious first offenders or first time prisoners who are bound to have to serve some time in prison, but who may well be effectively deterred by eventually serving only a small part of even the minimum sentence appropriate to the offence ". The noble and learned Lord the Lord Chief Justice has given clear and authoritative guidance to the courts on these lines in a recent court of appeal judgment in the case of R v. Clarke, and we have the fullest confidence that the partly suspended sentence will make a contribution towards the reduction of sentence lengths and therefore to a reduction in the prison population. Clause 27 of the Bill is designed to enhance its effectiveness by giving statutory effect to the principle that I have already adduced: namely, that the sentence should only be used in place of full imprisonment. And it extends the scope of the provision to ensure that the courts can make maximum use of the power— by lowering the minimum sentence to which it may be applied from six months, to three, and by reducing the minimum period of custody that must be served to 28 days. It also enables these minima to be altered by subordinate legislation, subject to parliamentary approval, in the light of experience.

The implementation of the partly suspended sentence is consistent with the principle that it is for judges and magistrates to impose the sentences they deem appropriate in each particular case. The new power will strengthen the courts in their avowed policy of reducing sentence lengths where possible— but at their own discretion. The comments we received on the proposal for a scheme of automatic release of short sentence prisoners on supervision after one-third of their sentence which we canvassed in the Review of Parole last year convinced us that the approach we have taken is the proper one. Automatic reduction would have confronted the courts with a dilemma where the full period of custody could only have been achieved, where necessary, by increasing the initial sentence. Partial suspension leaves the determination of sentence to the court.

A more familiar means of reducing the actual length of sentences is provided by parole. It was observed in the Review of Parole that a large proportion of the prison population were excluded from the benefits of parole and that this arises from the fact that, at present, a prisoner does not first become eligible for parole until he has served 12 months of his sentence. We are now putting in hand a further detailed study to see whether a reduction in the minimum qualifying period for parole would be practicable, without undermining the principle of careful selection on which parole is based. I cannot say what the outcome of this review will be, but, as a gesture of prudence, we have taken the opportunity to introduce, in Clause 29, a power to reduce the 12-month threshold by statutory instrument. We make no commitment on this. The essential point is that if it should prove possible to extend the possibility of parole to more prisoners the discretionary element of the system, which is one of the reasons why it commands public confidence, would be retained.

We believe then that it would be wrong in principle and counter-productive in practice to interfere with the exercise of the discretionary powers of the courts and the Executive in relation to the sentencing and release of offenders, except in an emergency. What we cannot afford, however, is a breakdown of the prison system, with the disastrous consequences that would have for the rest of the criminal justice system— including the work of the courts themselves and, of course, of the police.

We came close to that point as a result of the industrial dispute in 1980. Parliament then passed the Imprisonment (Temporary Provisions) Act, which included a number of drastic powers for the Secretary of State to reduce the prison population by executive action. We would not propose that such a framework of powers should form part of our permanent legislation. But it is necessary in the last resort for the Secretary of State to have, in an emergency, the means to control the prison population in the interests of the proper functioning of the criminal justice system as a whole.

It is in order to enable the Government to deal with that sort of emergency that Clause 28 of the Bill provides a power for the Secretary of State to release prisoners early. The measure enables prisoners to be released up to six months earlier than would otherwise be the case. It is therefore important to make known to your Lordships' House the kind of exceptional circumstances in which the power might be used.

This might become unavoidable for two broad reasons: either because of a marked and unpredictable loss of accommodation, or because of a general or localised increase in the population which was such that the system, or the affected part, could not contain it. The first type of emergency might result, for example, from fire, riot or disease at one or more establishments. With the prison population already more than 5,000 higher than capacity, such loss of accommodation might make it necessary to release prisoners throughout the system as a whole to make room for the prisoners whose accommodation had been lost.

The Government might also be driven—I emphasise the word "driven" — to propose early release if there were a substantial or sudden upsurge in the prison population at a time when the system was already overstretched. Use of the power might be necessary as an alternative to the opening of emergency camps, which experience has shown to be expensive and to make heavier demands on manpower than the system could necessarily meet.

Something similar can occur at local level. In London, for example, a combination of circumstances has from time to time made it necessary to accommodate unsentenced prisoners in police cells; shortly before Easter as many as 180 prisoners were being held in police cells at one time. The extensive and prolonged use of police cells, creating severe problems for the prison system, deflecting police manpower from its proper task and placing prisoners in inappropriate accommodation, is not something any Government can accept with equanimity. This is just one example of a case where the slight advancement of dates of release by a few weeks over a short period and in a particular locality might make an indispensable contribution to solving a very serious problem.

Nonetheless, the early release of prisoners is a grave matter. It could only be countenanced if no alternative were possible; and the use of the power would of course be kept to the minimum. Although the Bill provides for release up to six months early, the order seeking Parliament's approval would not, of course, necessarily bring release forward by that much. Moreover, during the passage of the Bill in another place we have introduced further safeguards to ensure that the public is not endangered by its use. Clause 28 and Schedule I now exclude from early release prisoners who have committed offences of violence. And we have provided that if Parliament were not sitting, so that prior approval of an order could not be given, such an order should be limited in its effect so that only prisoners who are serving the final month of their sentences could be released under it. I believe that these changes will reinforce public confidence that this power will not be used lightly and that it will only be used in extremis.

I turn now to the remaining provisions of the Bill in Parts III to V. They, too, rest upon the need to preserve the sentencing options of the court by ensuring that the alternatives to custody are effective and useful sanctions; the need to restrict the use of imprisonment to those for whom it is really necessary; and the need to make the most efficient use of prison resources.

Part III of the Bill (for England and Wales) and Part IV (for Scotland) lay the basis for a more cohesive and rational structure for the level of fines. I do not have to emphasise to this House the importance of the fine as a penalty. To keep the use of the fine at its present high level it is essential to ensure that the maxima for individual offences are not so undermined by inflation that they lose their impact. If they do, the courts will look to other, less cost-effective sanctions. The provisions in the Bill introduce a standard scale of fines for summary offences and assimilate to that scale all maxima in existing Acts. The scale can be altered subsequently by order to reflect changes in the value of money. Some adjustments of the broad effect of these provisions in relation to particular penalties are carried out in Parts III and IV and in Schedules 2 to 8.

Clauses 49 and 51, Part V of the Bill and the associated schedules should help to increase the use made of the two other major sentences which represent alternatives to custody; the probation order and the community service order. Clause 49 and Schedule 11 relax some of the controls over the probation service that are now exercised by central Government. They are intended to allow the service to operate more flexibly and to be better able to use new opportunities. There are also certain deficiencies in the existing law on probation which were revealed by the recent decision of this House in its judicial capacity in the case of Cullen v. Rogers.We shall be bringing forward amendments to the Bill in order to enable the courts to continue to attach a wide range of requirements to a probation order.

Clauses 53 and 54 abolish imprisonment for vagrancy offences and for soliciting for the purposes of prostitution. These were inserted into the Bill in another place and reflected what is now the prevalent view that imprisonment is not an appropriate sanction for such offences. Clause 48 which, together with Schedule 10, provides for a court to be able to release, subject to conditions, a person whom it has recommended for deportation, and Clause 52 which provides for maximum periods of imprisonment that can be imposed by the Crown Court in cases of default of payment of a fine, are two other provisions which are justified on the grounds of principle and which also have the effect of guarding against the unnecessary use of custody.

The Government have always recognised that a corollary of a penal strategy which aims to make effective use of custody must be that the resources of the prison system itself should be used as efficiently and economically as possible. That is the objective behind Clause 47 and Schedule 9. They amend the Magistrates' Courts Act 1980 to make it possible for three successive remand hearings to be heard in the absence of the accused. Remand hearings— which your Lordships will know take place every eight days— are often very short and the attendance of the accused no more than a formality.

Yet these weekly appearances in court are costly in terms of the police and prison manpower expended in preparing the offender for the appearance, escorting him to and in the dock and in the necessary formalities on his return. Both the Select Committee on Home Affairs of another place and the Parliamentary All-Party Penal Affairs Group have suggested that a provision on these lines should he made as a means of remedying this. And we believe that Clause 47 and Schedule 9 should provide real relief for the hard-pressed police and prison services. But we fully accept that such relief must not be gained at the expense of the rights of accused persons; and there are important safeguards in the provision— which does not, incidentally, apply to young offenders. Thus a hearing in the defendant's absence will be possible only if he gives his consent and if he is legally represented.

There is one other provision in Part V of the Bill to which I should like to draw particular attention. The focus of the Bill is, inevitably, on the sentencing of offenders. There is, however, a group of people whose interests are only too often forgotten when the criminal justice system is under discussion. I refer to the victims of crime. This Government attach the greatest importance to ensuring that their needs are not overlooked and, indeed, that they are given special attention. In Clause 50 we have taken the opportunity to extend and clarify the existing law, so that a court will now be required to give precedence to the interests of victims in a case where an offender cannot afford to pay both the appropriate fine and appropriate compensation to a victim. The clause also removes certain other restrictions on the powers of the courts to make compensation orders——

The Earl of Longford

My Lords——

Lord Elton

My Lords, if the noble Earl will bear with me— I believe that he is speaking later and I am moving into my peroration—I shall answer him when I reply to the debate. This is an important and a substantial Bill. It reflects the contemporary view of sentencing policy that has been evolved by the judiciary and endorsed by Her Majesty's Government. It will provide the means by which the courts will be able to award a much wider range of sentences, to have more frequent and more precise recourse to non-custodial disposals and hence to place, perhaps, somewhat reduced demands upon the resources of the prison service. It is a fitting answer to some of the points raised in our two earlier debates and for this reason, as well as for the merits of its other lesser, but still important, provisions, I commend it to your Lordships. My Lords, I beg to move.

Moved, That the Bill be now read a second time.—(Lord Elton.)

3.12 p.m.

Lord Elwyn-Jones

My Lords, I should like on behalf of the House to congratulate the noble Lord, Lord Elton, on introducing his first major Bill as Home Office spokesman in this House. We had grown accustomed to a different voice laying down the law on Home Office matters. But the speed with which the noble Lord, Lord Elton, has plunged into crime is equalled only by the rapidity with which his predecessor descended upon the Falkland Islands to the enlightenment, I am sure, of the House— both departments of policy, both very grave and very significant for our community in their own way and in their consequences.

The last time I spoke in Parliament on a major criminal justice Bill was an occasion which the noble and learned Lord on the Woolsack may remember. It was in 1967, when my speech finished at midnight in another place. I promise to do better this time. In that debate, the noble and learned Lord the Lord Chancellor made a notable contribution, in which he characteristically posed the question: Have we ever asked whether prison is a deterrent? I regret to say that I cannot recollect the answer then given, and it may well be that, through the mouths of others, we shall have some enlightenment in the course of this debate.

In that debate, which was 15 years ago, when the Home Secretary was Mr. Roy Jenkins, it was pointed out that the number of prisoners in all prison establishments had risen from 11,000 in 1938, to 29,000 in 1964 and to 35,000 in 1967. We have just been told that the figure today is about 44,000. On that earlier occasion, Mr. Roy Jenkins said: Such numbers make it extremely difficult for the essential custodial and rehabilitation tasks for men serving sentences of more than a few months to be performed ". Then, in regard to present conditions, the present Home Secretary said in September of last year that the level of 44,000 is one which the prison system cannot sustain. He added: It would be hypocrisy to maintain that constructive standards of custodial treatment can be maintained under pressures of such numbers or even maintain human decency ". It is not surprising that, in these circumstances, the Prison and Borstal Governors' Association and the new Chief Inspector of Prisons want to get the prison population down to 30,000 in number. That figure of 30,000 is thought to be one which would make it possible for prisons to maintain human decency and for some rehabilitation to be possible. The latter is practically a mockery in present-day conditions in prisons. An acid test by which we shall be examining the provisions of this Bill is whether the words of the Home Secretary will be matched by effective measures to reduce the prison population, if not to that ambitiously low figure of 30,000, at least to a more tolerable figure.

It is a task to the consideration of which the All-Party Penal Affairs Group, with Members of both Houses and of all parties, have made notable contributions. Several of those were accepted by the Government in the progress of this Bill through another place. Some, unhappily— and some important ones— were rejected, and I have little doubt that we shall return to them during the progress of the Bill through this House. But 1 should like to pay tribute to the work of the group and of its members, and I venture to think that the noble Lord opposite would be willing to agree with that expression of gratitude, even though his Government were not able to go the whole way. I am happy to see that some of the distinguished members of the committee have their names on the list of speakers today.

One explanation of the increase in the numbers of prisoners is, of course, the very big increase in crime and the numbers of those convicted. If the police detection rate had kept up with the pace of the increase in crime, prisons could not have begun to cope with the consequences. This is something which we must bear in mind for the future, because, let us face it, the detection rate is rather low at this time, expecially in the London area. Therefore, in the hope that there will be an increase in the detection rate, we must bear in mind that there will follow an even larger proportion of accused persons coming before the criminal courts.

In our debate today we are, of course, concerned with penal policy, but I think it is worth remembering that the courts and the prisons come into the picture only when the crime has already been committed. I sometimes think that the public expects too much from the penal process, when responsibility for dealing with crime extends across the whole community from family to school, to conditions at work, and to the various organisations which can play their part in this field. Crime prevention and the probability of detection of the criminal are, perhaps, even more important as safeguards against crime than penal policy and the way to deal with the criminal when he has been convicted.

Some of the increase in crime which we are facing is a serious problem in our community, although I hasten to say that it is less than that in almost every other Western European country. I am sure that the noble and learned Lord will have had the experience, as I have, of attending conferences where our record, serious and grave as it is, is shown to be nothing like so bad as elsewhere.

A serious feature of the increase in crime is the increase in violent crime. Against violent criminals society must be protected by putting them in custody for as long as the crime, and the offender, deserves and, of course, in conditions providing at least some prospect of rehabilitation as well as of the penalty having a deterrent effect— which, alas! is not the case with the workings of penal policy, by and large, today. In terms of numbers, about one-third of those who are now in prison are inside for non-violent offences. The burglar is an especially serious class of offender, but, in terms of numbers, the all-party penal group which considered the matter is of the opinion that thousands of prisoners could be released without any danger as a consequence to the public or to public order.

In his helpful speech, the noble Lord referred to a number of welcome individual provisions. Nevertheless, we believe that the Bill is seriously at fault in two respects. First, it is unlikely to reverse the trend of the last decade towards a greater use of custody for young offenders. Indeed, we fear that, as it stands, it may well result in an increase in the number of young offenders entering both penal establishments and residential care. Secondly, it is devoid of radically needed measures to tackle the crisis of overcrowding in the adult prison system and to improve the appalling conditions in so many of our local remand prisons.

Turning to young offenders, with whom Part I of the Bill deals, there is, as the noble Lord indicated, much to be commended. The merging of the borstal training sentence with imprisonment for those under 21 into a new determinate youth custody sentence is of benefit. The present distinction between penal establishments for young people is far too rigid, and as a result overcrowding in one part of the custodial system cannot be relieved by using vacancies in another part. We commend also the fact that under the terms of the Bill, time spent on remand in custody will count towards all custodial sentences for young people. At the present time that applies only in relation to prison sentences, so this was a just equalisation of the system. An offer of legal representation is to be mandatory before a custodial sentence can be imposed on a young offender. That, too, we think is of value.

But, in spite of these and other benefits, the Bill has been widely and rightly criticised for two major drawbacks. First, the new residential care order will, it is believed, result in several hundred additional young people each year being sent to residential establishments away from their own homes—to establishments like community homes, which have reconviction rates of about 70 per cent., a very similar figure to that for juveniles leaving borstal and detention centres. Informed professional opinion has increasingly moved away from residential care towards community-based methods of dealing with young offenders, but the Government now propose to spend an extra £6 million on residential care. We think that that money could be better used for developing intermediate treatment facilities. Clearly this is a part of the Bill which is highly controversial.

A second drawback, as many of us believe, arises from a provision which, on the face of it, is sensible enough— namely, to reduce the minimum detention centre sentence from three months to three weeks. The danger is that the emphasis which has rightly been put on the fact that the deterrent effect of prison is most powerful in the first few weeks of imprisonment may well tempt the courts into imposing short detention centre sentences. As a result, many young offenders who would now receive non-custodial sentences might find themselves in detention in detention centres. These, alas!have not been effective either in deterring or in reforming detainees. I was interested to receive a letter from the Association of Directors of Social Services, who expressed their concern about this proposal and who affirmed their view that experience shows that non-custodial options for juvenile offenders are more effective than custodial sentences.

On adult offenders, the Bill again includes a number of useful, if minor, reforms. First, it removes the penalty of imprisonment from a number of minor offences— for instance, soliciting, sleeping rough, begging— proposals which are welcomed by all parties. I wonder whether the range of those minor penalties could be extended. For instance, female soliciting is made non-imprisonable but not male soliciting. And could not drunks who are fine defaulters be excluded from the category and dealt with in another way? Another useful measure is to empower the courts to release people recommended for deportation on conditions similar to bail conditions. That has been urged for some time upon Governments. Thirdly, the reduction of the periods for which Crown Courts can imprison people for line default is another measure which has been welcomed.

But serious grounds of criticism also apply to the provisions in the Bill relating to adult offenders. The main fear is that they will not produce any substantial decrease in the prison population. A number of proposals emanating from the All-Party Penal Affairs Group were, unhappily, turned down— for instance, the proposed automatic supervised release on parole after the expiry of one-third of the sentence. This, it is thought, would not produce practical difficulties in administration but would reduce the number of prisoners by about 7,000. Another proposal which would make a direct impact would be that which is operating in Northern Ireland— a conditional release scheme which, it is thought, would reduce the numbers by 4,000. These are practical steps where the benefit in terms of reduction of the prison population will he clear and measurable.

The Government's main hopes in this part of the problem are based on the new power to suspend part of a prison sentence. The good intention of this provision is to enable courts to reduce the length of time which some offenders spend in custody. But, unhappily, there are grounds for fearing— and the noble Lord, Lord Elton, has been frank about this— that the courts may well be disposed to impose some partly-suspended sentences in order to give offenders "a taste of prison"— which is the fashionable phrase— in cases where they would now get a wholly suspended sentence or a non-custodial one. If that is an accurate forecast of what is to happen, the net result may be to increase the prison population and not to reduce it. It is at best a shot in the dark, and it has been opposed by a formidable array of experience and expertise: the Parole Board, NACRO, the Justices' Clerks Society, the Probation Officers' Asssociation and the Advisory Council on the Penal System. None of them has a good word for it.

So perhaps, as the approach to the processes of criminal law and penal justice is certainly not a dogmatic one, we may hope for open-mindedness from the Minister and, indeed, from the Government, in regard to this Bill. There is no doubt that our people are deeply worried about the problem of crime, but it is essential that in tackling it we shall not only make the worse better but shall not fail to introduce measures which will remedy the position without producing any consequential harm in the process.

3.32 p.m.

Lord Wigoder

My Lords, had this Bill included all the amendments which were proposed in another place and repeated, it would undoubtly have merited the description which the noble Lord the Minister gave to it, of being an important and substantial Bill. It would, after all, have included clauses to restore capital punishment, to restore corporal punishment, to abolish detention centres altogether, to impose maxima in sentences of youth custody, to provide for automatic parole after one-third of a sentence had been served, and to provide for a rule under which, if a prisoner had been kept in custody for 110 days after committal, he would automatically be released and set free and his trial not begun. Many other proposals of that sort were discussed and rejected.

What we are left with, I venture to say, is not a Bill that can be reasonably described as important and substantial. It is a Bill that is interesting and perhaps makes a small contribution— but no more— to the problems of law and order and the treatment of juvenile offenders. The principal part of this Bill, Part 1, which deals with the treatment of young offenders, is of course a subject of considerable consequence and it is quite right that when the House comes to Committee on these clauses we should examine them in some detail. I believe that we should do so against a background of a realisation that we— and the community— are concerned primarily with the prevention of crime and with the prevention of reconviction of young people who have offended, while, unhappily, all experience shows that whatever measures we take with young offenders, and however we deal with them, the reconviction rate varies remarkably little.

While taking into account the fact that some young offenders are predisposed to commit crime and have long criminal records, others may be coming before the courts for the first time. The most depressing feature of all the statistics which are produced is that the reconviction rates are so similar, whether these young people are fined, given a conditional discharge, sent to a community home, sent to an attendance centre, or sent to borstal. I believe the first lesson we ought to learn from those figures is simply this: that, as between a long custodial sentence and a short custodial sentence, there is in the ordinary way nothing to be gained by a long custodial sentence. The second lesson to be drawn is that, as between a short custodial sentence and a non-custodial sentence, there is likely to be very little difference in effect and therefore, quite obviously, we should favour the non-custodial sentence as against the custodial one.

I would not like to suggest that because of the statistics it therefore follows that, in every case that comes before the court where a young person is being dealt with, a penalty is irrelevant and of no consequence. It is certainly relevant to a small proportion of the juveniles who come before the courts, because there is undoubtedly a small proportion who will be materially affected by the opportunities for training or rehabilitation which they are given. It is therefore for a small proportion— perhaps one in 10, at a guess—of the young offenders who come before the courts that the selection of the appropriate treatment is absolutely vital. For that reason, I welcome the increase in the range of such treatment which is being made available under this Bill.

It is also right to say that, although the course which is taken may be absolutely vital for only one in 10 of the youngsters who appear before the court, at the time when the court is taking that view, no one knows whether the offender is that one in 10 or one of the other nine. For that reason also, it is obviously essential that the courts should apply their knowledge with the greatest of care to this problem, despite the overall feeling that it may well be that, in a large number of cases, whatever course is taken will, unhappily, make very little material difference as to whether that particular offender commits a further offence or not.

It is right that the courts should make the effort to get the sentence right— as they always do— because it is necessary that the community should feel that the sentence which is being passed is the appropriate one for that particular offender, having regard to the offence which he has committed. It is right, too, that the offenders themselves should feel that some justice is being done, that their offences are being properly weighed up by the court, and are being balanced one against the other. I believe those are the principal considerations which ought to affect a court when it is deciding how to deal with a young person. But I do not believe that the considerations which apply with juvenile offenders must apply with adult offenders. Certainly I have always believed the principal reason for passing a custodial sentence on an adult to be that at least during the period when an adult is serving his prison sentence he is not able to plague the com- munity by repeating his offence. That may well be relevant when one is passing sentence of five, 10, or 15 years' imprisonment, but I do not believe that it is relevant in the case of a juvenile offender, where the range is obviously so very much smaller.

The other argument which is sometimes put forward — whether it has any relevance to adults I do not know — and which the noble and learned Lord, Lord Elwyn-Jones, touched on a moment ago, is whether imposing custodial sentences on juvenile offenders has any deterrent effect on other potential juvenile offenders. I am bound to say that I know of no evidence to that effect at all. I see no diminution in football hooliganism because occasionally hooligans are caught and dealt with with severity by the courts. I doubt very much whether there is anything to show that treating juvenile offenders with particular severity for a particular type of offence is going to affect other potential juvenile offenders who may be tempted to commit that particular sort of offence.

I should not want it to be thought from what I am saying that all one can do, therefore, is shrug one's shoulders and say, "In that case, nothing can be done about juvenile offenders ". I believe that more often than not— much more often than not— it is the passage of time that solves the problem. It is when the juvenile offender becomes a little mature, marries, has a house and— with luck— a job, and settles down with a family, that he grows out of this tendency to commit criminal offences. It is against that background that I would suggest to your Lordships that in Committee we approach Part I of this Bill, with care, of course, but do not approach it in the belief that in some way we shall be able to blaze the trail which will significantly reduce the amount of juvenile crime.

I come to Part II of the Bill and to two of the clauses which I think are of importance. One is Clause 27, which extends the partly suspended sentence provisions that were introduced by Section 47 of the Criminal Law Act 1977. I entirely agree with what the noble and learned Lord, Lord Elwyn-Jones, has said, that it will lead to more people being sentenced and not less. I can only speak for myself, but had this been in force in the days when I sat regularly as a Recorder in the Crown court it would undoubtedly have resulted in my sending more people to prison than I in fact did. It may be that I am an exception in these matters; I do not know.

The other problem is a problem that arises out of the whole introduction of suspended sentences. All too often it leads to people serving far longer sentences than if the suspended sentences were not in existence at all. The reason for that is this. Although it has been laid down repeatedly by the Court of Appeal that in passing a sentence of imprisonment the court should first decide what is the appropriate sentence and then decide whether to suspend it or not, in practice, however often one may be exhorted by the Lord Chief Justice, it does not work that way. In practice, a very large number of courts take the view— and it is a commonsense view— that a three months' sentence of imprisonment to be served at once is a far more severe sentence than a two-year sentence which is suspended. There is a very great temptation on courts, when they think that a short prison sentence might he one way of dealing with the matter, to suspend it on the basis that the suspended term would be very much longer than the immediate term would have been. That may appear to be a matter of commonsense, but the result is that if the defendant then commits a further offence during the period when the sentence is suspended he finds himself serving the two years for the comparatively unimportant offence rather than the three months that he would have served if he had been sent to prison straight away. That is a tendency, and a tendency which I believe will be strengthened if we proceed along the lines of Clause 27.

The other clause in Part II that I want to mention because I do think it is of interest is Clause 28, which gives the executive power of early release. I do not want to go into the details of that, because I would hope very much that it is a power that will never be used. But it does lead me to take up what the noble Lord the Minister said about the very great pressure of overcrowding in our prisons at the moment. It does lead me, for a reason that will become clear in a moment, to revert to the proposal that I have made on many occasions in your Lordships' House, that the real way to get a substantial number of people out of prison quickly and restore the situation is to extend the rate of remission period from the present one-third to one-half, as indeed is the situation in Northern Ireland. This would obviously have a substantial effect. On such occasions as I have ventured to mention it there have been two objections. First, it is sometimes said— it was said in the other place in the Standing Committee— that it would be quite monstrous that people should be sentenced to a particular term of imprisonment and allowed out halfway through. That overlooks the fact that at the moment they are allowed out two-thirds of the way through, and the extension is, therefore, one of 17 per cent. and not 50 per cent.

The other objection that is frequently made is that it would be quite unacceptable to the judiciary and to public opinion if violent criminals were allowed out halfway through their sentences. I see the force of this. I have, when speaking on this point, added the words that of course some way would have to be found of excluding people convicted of violent offences. The last time I mentioned the subject, on a slightly different issue, I did not, for reasons of time, pursue the matter about violent criminals. The noble and learned Lord, Lord Lane, the Lord Chief Justice, very properly took me up, rather indicating that although 50 per cent. remission might be acceptable to the judiciary it certainly would not be acceptable if it were to cover offences of violence.

I had always felt that there was little to be gained by pursuing this because I would be met with the argument, "You cannot define an offence of violence for the purposes of this argument". What is so fascinating about Clause 28 of the Bill is that it has done so because the Government have at last succeeded in setting out in Schedule I what is meant by offences of violence. They have done it in a slightly different context, in saying that there cannot be early release by executive action in cases of violence. But it does, I think, open the way for the first time for serious consideration at Committee stage in your Lordships' House as to whether it might be possible to extend remission from one-third to one-half in the case of those convicted of offences other than those set out in Schedule I to this Bill. I do hope that the noble Lord the Minister might find it possible by Committee stage to be able to give an approximate estimate of how many non-violent prisoners could thus be let out of prison forthwith. I suspect that the numbers would be sufficient drastically to remove the gross overcrowding which mars our prison service at the moment.

I have no comments to make at this stage, other than Committee points which I would not seek to raise, about Parts III or IV. Nor indeed about Part V (Miscellaneous clauses) as it stands. I think the most fascinating part of this Bill may perhaps be reached when we come to the other part of Part V, the miscellaneous clauses which are not in the Bill at the moment but will be proposed by various Members of your Lordships' House. It is, I hope, appropriate that I should give notice that there is one new clause about which I shall in due course seek to persuade your Lordships of its desirability. It is a matter which I have already mentioned both to the Home Office and to the Lord Chancellor's Department, and it may be perhaps that there will not be over-vigorous opposition from them. It would be a clause which would abolish the right of the defendant in a criminal case to make an unsworn statement from the dock in the course of his trial. It would leave him, of course, with his right to give evidence on oath; it would leave him, of course, with his right to remain silent if he chose to do so without any inference of guilt being drawn from the fact that he had taken that course. This is a matter which has been strongly recommended, both by the Eleventh Report of the Criminal Law Revision Committee— Lord Edmund-Davies presided over that some years ago— and also by the Royal Commission on Criminal Procedure in more recent times. It would, I believe, remove a factor in our criminal procedure which is very much distorting criminal trials at this stage and I believe that its abolition would now be right. I understand that the noble Baroness, Lady Trumpington, is about to make some further comments on this particular matter at a later stage in the course of our debate. It may be perhaps that she and I might have the pleasure of together tabling such an amendment in due course.

When we come to Committee stage we shall want, obviously, to consider the detail of this Bill with very great care. I hope we can consider it in the same constructive way as they did in another place. It is not always that I praise the observations of the Member of another place who was chairman of the All-Party Penal Affairs Group, but I am bound to say that in terms of what he said in Standing Committee his contributions were helpful and constructive, and I do hope very much that we shall be able to rival them in your Lordships' House and deal quietly with this matter to see if we can in a modest way improve this modest Bill.

3.49 p.m.

Lord Donaldson of Kingsbridge

My Lords, we pray for forgiveness on Sundays in the Prayer Book's most impressive terms for having done those things which we ought not to have done and for leaving undone those things which we ought to have done. In this Bill the Government have not done much that they ought not to have done, and they are to be congratulated on defeating the amendment about corporal and capital punishment, and particularly for Clauses 28, 50, 53 and 54. But they have left undone the most important things which they ought to have done, and it is about these that I wish to speak in this debate.

Few people would dispute that the whole process of dealing with crime is on the verge of breakdown. The detection rate is low, as the noble Lord who opened the debate said. There is a bottom to the iceberg of unsolved and unreported crime which makes the published statistics almost irrelevant. And in the cases which are brought to court the delays are absolutely unreasonable and a travesty of justice. For example, 15 per cent. or so of the 42,000 people in prison, according to the figures given to us in 1981, are shown as awaiting trial or sentence—nearly 7,000.

The average waiting time in 1980 for accused committed to a Crown Court was a little under three months, rising to four and a half months in London. According to a parliamentary Answer last November, there were exactly 10 prisoners who had been awaiting trial for over two years, 100 for over one year, 300 for over six months and 900 for over three months. I know very well that the Lord Chancellor's Department is making valiant efforts to improve things, but the position is really quite unacceptable and needs a new and drastic solution of the kind which we shall put forward in Committee.

When finally a man who has committed a crime comes to trial and is sentenced to imprisonment, he usually finds himself in a local prison so overcrowded as to be almost unworkable by harassed governors and frustrated staff. The Home Office no longer has proper control of prisons. The staff, resenting the conditions under which they are expected to work, have the bit between their teeth— and one can hardly blame them; and from time to time they make arbitrary decisions not always consistent with natural justice and humane treatment. When the convicted man is eventually released the probation service is too thin on the ground and the facilities in the community too meanly provided to give him the kind of support that he needs; so that 70 per cent. of discharged male prisoners under the age of 21, as the noble and learned Lord, Lord Wigoder, pointed out, and 50 per cent. of those over 21, are back inside again, or at least reconvicted, within two years.

The only aspect of the whole criminal cycle— detection, arrest, trial, sentence, prison, release—which is not under constant and justified criticism is respect for the integrity of the courts, from highest to lowest, which stands today as high as it has ever done. I mention this to convince the Lord Chief Justice that we who have for so long been critical of the penal system as a whole are not, with perhaps some exceptions, critical of the impartiality with which justice is administered.

I do not believe that we can control crime by Acts of Parliament, and I do not blame this Government more than previous ones for where we find ourselves; but only this Government can act today. It is generally agreed that the only real deterrent is the likelihood of getting caught and that the degree of severity of punishment has little additional deterrent effect. To increase the likelihood of getting caught is a matter for the police and the public, whose confidence in and support for them is the chief weapon of the police. I believe the Government need no urging in this direction though we, who criticise penal methods, need to be very careful before we criticise the police who are fighting a real war on our behalf against very nasty, ruthless and dangerous professional criminals, and who have to use informers and other unattractive methods to effect our protection.

There are, however, two aspects of the crime cycle which can be effected and improved by Acts of Parliament. One is the wholly unacceptable delay on remand. The other is the equally unacceptable overcrowding in the prisons. It will be said at once that it is not the purpose of this Bill to deal with overcrowding, but this Bill before us gives us an opportunity which it would really be ridiculous to miss. Its long title includes the words: to amend the law of England and Wales relating to the remand in custody of accused persons; and for connected purposes ". It surely cannot be held that the conditions under which remanded and sentenced persons are kept is not a connected purpose; so, while supporting many things in the Bill, we shall try very hard— and when I say "we" I mean, I think, all the Opposition Parties and the Cross-Benchers— to get accepted some amendments which will have some effect upon these two fundamental difficulties, the length of time on remand and the overcrowding in the prisons.

As to the former, my noble friend Lord Hutchinson will speak today and move amendments in Committee, and as for the second, my noble friend Lord Hunt will do the same. These amendments will be supported by all the members of the Inter-Parliamentary Penal Affairs Group, which has been referred to several times this afternoon in, I am glad to say, an approving tone, by Peers and Baronesses of all parties and the Cross-Benchers. When a situation becomes intolerable it is up to the Government to see that it has no longer to be borne. Both these situations are intolerable today and neither is being noticeably improved by this Bill.

As my noble friend Lord Hunt cannot be present today, I will say a word or two about his approach to the problem of overcrowding. First, I will say what has been said often before, that the worst feature of the prison population is not the fact that there is overcrowding but that the prisons are overcrowded largely with petty criminals who need not be there at all and for whom prison can do nothing but harm. The best way to end overcrowding is to send fewer people to prison. That is difficult to deal with by Acts of Parliament. In our last debate I put forward a scheme for automatically regulating the population which I am certain could work and about which I had, until about 20 minutes ago, failed to elicit any comments from the Government; but I have now received a long letter which I look forward to reading after this debate, if there is any time left in the day.

The next best way is to send people to prison for shorter periods. The scheme of the noble Lord, Lord Hunt, is in this category and its significant feature is that it has very nearly received the blessing of the Lord Chief Justice, as the noble Lord, Lord Wigoder, hinted. Let me remind noble Lords of the sequence of events. In the debate here on law and order, on 24th March, the Lord Chief Justice defended the judges against the accusation that they thwarted Home Office liberal proposals by threatening to increase sentences in retaliation. He exposed what he called the hopeless dilemma with which the proposals would have presented them and made it clear that it was proper for them to express their disquiet; but he made one very helpful remark. In referring to automatic reduction of sentences he said: It is necessary if you are going to do that, simply to relieve the prisons, to give to judges some opportunity of non-applying it in cases where somebody has got to be kept out of circulation in order to protect householders and ordinary citizens from meeting the fate which earlier victims met ". In our next debate on prison conditions on 28th April, initiated, I believe, by the noble Earl, Lord Longford, Lord Hunt outlined his proposals which were, very shortly, to make all sentences under three years determinant in two equal parts, the first half in prison and the second half on licence under supervision, but, The courts would be empowered to make exceptions to that normal process in cases where, in their view, public safety might be seriously at risk ".—[Official Report, 28/4/82; col. 878.] Speaking immediately after my noble friend, the Lord Chief Justice said: What is not mentioned is something which the noble Lord, Lord Hunt, emphasised, and for which I respectfully applaud him; namely, that the judges suggested there should be power to non-apply that rule "— he was speaking here of the Home Office scheme— in specific cases, particularly where the public required protection. That suggestion was turned down flat. But if that suggestion were adopted, I would respectfully agree with the noble Lord, Lord Hunt, that there is no possible objection to the scheme ".—[Col. 880.] This is very important. My noble friend's proposals, which he will put forward in Committee, will be a little different now and will embody, in fact, the exact proposals which the Home Secretary discussed with the judges and which the noble and learned Lord, Lord Elwyn-Jones, referred to in his speech and which the Lord Chief Justice also had discussed. But we will have the rider added which the Lord Chief Justice asked for and tells us in his own words, "was turned down flat". The rider gives the judge discretion, in the Lord Chief Justice's expression, "to non-apply" the clause to certain prisoners whom he may consider to be a special danger to the public. These will serve their sentence in the normal way, and will get early release only if it is granted by the Parole Board's usual procedure. The scheme, subject to this judicial discretion, will give automatic supervised release to all prisoners sentenced to under three years, who will serve the first third of their sentence in prison, the second on licence under supervision, and the third will be remitted subject to the normal scheme of one-third remission applying to all prisoners with good conduct.

This scheme, without the new judicial discretion, was expected to reduce the prison population by some 7,000. We do not know how widely judges will use this discretion, hut, even if they exert it over one in four cases, which seems very high, the reduction would be more than 5,000. The Government will not be able to reject this scheme on the grounds that the judges object to it, because they do not.

This scheme, or the scheme put forward in some detail by the noble Lord, Lord Wigoder, which would be equally good and which we had in Northern Ireland, or something of that kind has simply got to be done. I make no apology for discussing these matters at length in a Second Reading debate. The two proposals which I have put in, with certain other constructive proposals which other people have put in, are much more important than anything else in the Bill and if accepted will transform it from the usual useful tinkering into a real attempt to deal with a situation which has gone on for years and is no credit to our administration of justice.

4.3 p.m.

Baroness Macleod of Borve

My Lords, I should very much like to thank my noble friend Lord Elton for introducing what I think everyone will realise is a very complicated Bill. He did it so succinctly and I now know much more than I did at the weekend, with a wet towel round my head trying to understand it. To me this is an important Bill. I do not pour on it the cold water that some other noble Lords have done. That may be because it was, I think, 25 years ago that I was appointed a magistrate, and I have served in juvenile courts, adult courts, and I have sat with a judge in the Crown Court and also on the Parole Board. Therefore, perhaps, I have a little caring knowledge of the problems with which we are faced today.

Everyone will realise that this Bill has been put before the other House and now comes before this House in the light of the increase in juvenile crime and, as other noble Lords have said, the overcrowding in our prisons. I do not want to take too much notice of the overcrowding in our prisons because, as has been mentioned, that is not really part of the Bill with which we are dealing today. However, I should like to say how very much I personally welcome this Bill, as I think will my colleagues who have what I regard as the most difficult task in the whole judicial system of this country; that is, in trying to decide what to do with young offenders in the juvenile courts.

Now that, after the passage of this Bill, we shall have a much wider range of disposals for young offenders, I am certain that in the end we shall win through, although, as other noble Lords have said, it will take time, certainly in view of the present climate of our society. Therefore, I shall deal first with Part I of the Bill, which is entirely to do with juvenile offenders. I am pleased to know that no court will send to prison a juvenile under the age of 21 except, of course, in exceptional circumstances. I would presume that those exceptional circumstances would be to send the juvenile to a Crown Court where a learned judge would have the "say" about how the juvenile should be disposed of.

I have never liked the borstal system and I am glad that, certainly on paper, it is to be done away with. However, I shall deal first with the custodial sentences as they are envisaged in the Bill: "custodial"— and this I think is the most important part— meaning the withdrawing of liberty, the withdrawing of one's liberty to go with one's mates, to go and play when one wants to go on the streets or in the country. In future there will be many more varied lengths of disposal for young offenders.

As regards the detention centres, the minimum sentence is 21 days and the maximum four months. I had the very interesting and, I may say, pleasurable experience four weeks ago of visiting the Send Detention Centre in Surrey. I was taken round by the warden because, as most of your Lordships will know, it is one of the detention centres earmarked by the Secretary of State as a short, sharp sentence institution, I assure your Lordships that it is humane and that it teaches discipline and tidiness. The beds were all made with the shoes placed at the bottom of the beds. I can envisage the homes that perhaps some of the young offenders might have come from, where everything would have been thrown all over the place and into the corners for mother to pick up. There was quite certain control and discipline, but it was not harsh. The boys looked well. I do not say that they all looked happy, but they were certainly well fed. They were kept on the go from quite early in the morning until quite late in the evening. However I was most impressed that the possibility of deterring a young person from committing an offence which might return him to Send or to any other comparable establishment, might well be feasible.

When I say that the sentence can be a minimum of 21 days or a maximum of four months, it must be remembered that half of that sentence can be remitted. Some people do not realise that as regards all the sentences that are passed in our courts today there is power to remit. However, at the dentention centre at Send, the govenor decides. My knowledge of the warden there gives me complete confidence in him. He decided, according to the progress and according to the behaviour of the young person in his care, how long that young person should serve.

The youth custody sentence is for boys who have been described as young thugs and it is one of up to 18 months. I welcome this. I do not quite know what the Government have in mind as regards the actual way in which the boys are to be contained and treated, but I expect that we shall hear during the course of this debate. I certainly welcome the sweeping away from sentencing of the barrier of six months or less, or three years or more. I think that this innovation will help the judges in the courts to be fairer than has been possible for very many years.

I turn to the non-custodial sentences, which I think make one of the most important parts of the Bill. I should like to quote from columns 295 and 296 what my noble friend the Home Secretary said in another place on 20th January, during the Second Reading debate of the Bill. He said: We believe that supervision can be an appropriate way of dealing with juveniles, even when they have committed quite serious offences. But the courts need to play a bigger part in the decision if they are to have confidence that a difficult youngster can be placed under supervision. Clause 19, therefore, gives the courts new powers under which they will be able, in consultation with the supervisor, to specify in the order itself what requirements the juvenile will be asked to comply with. There will, therefore, be discussion before the order is made between the bench and the supervisor about what is most appropriate for the offender, and the order itself will specify the activities in which the offender will participate ". This is the nub of many of the problems that we have had for very many years, and I think that this is a very big step forward for the juvenile benches.

I turn to community homes. Community homes are fairly new and, unfortunately, I have heard that they are used by the social services not only for young offenders, but also for young people who perhaps have problems at home and have not necessarily come up against the law. It seems to me that it is quite wrong to mix the two together because, as we all know, one learns from another. So I think that there must be separate community homes for these two different types of young people.

Although I think that one noble Lord was rather hesitant about this, I should like to recommend what I see as a great bonus in the residential care orders. I gather that £6 million is to be put aside for this. I should like to see more of the outward-bound school type of residential home. 1 should like to see something like Colonel Blashford Snell has in Yorkshire, where he is training well over 300 boys. In my petty sessional division I had to deal with young offenders who were brought up in back-to-back houses, who never really saw green fields, the Yorkshire moors or whatever, and who were not really allowed a great deal of liberty. Therefore, I should like some of the residential care homes to be of this order so that young people are able to be taken completely out of their environment. This particular care order is to run for six months, and even with remission 1 think that the youngsters will learn quite a lot.

Many years ago I did not know what to do with a persistent offender; nothing seemed to make him stop committing crimes. In fact, he committed crimes because he wanted to return to a detention centre because he liked being with other boys. With the help of a very good probation officer, I got him into an outward-bound school. That boy was there for quite some time—I think two months— and he came back absolutely changed. I very much doubt whether he ever offended again, though I cannot guarantee that.

Still dealing with residential homes, I should like to hope that the Government will extend even more the principle of fostering children— even for a short time—to someone else's home, away from their own homes where obviously the parents have been unable to stop them from committing crimes. Such a foster home should be suitable and be recommended by the local authority.

I come to community service orders. I am delighted that here the Government have reduced the age to 16, because I think that those young people who have committed offences and who have left school could well benefit from community service orders, which must be appropriately and, of course, very carefully ordered by the local authorities and the social services.

I turn to attendance centres. I have a feeling that under this Bill more use will be made of attendance centres. In the past I do not think that I could have recommended them at all. They seemed to me to be, and indeed were in our courts, used as places for football hooligans to go to on every alternate Saturday afternoon, and we took very great care to specify that they had to attend these centres when their club was playing at home. But it is not for that reason that at this moment I cannot wholeheartedly recommend them. It is because, so far as I can make out, the youngsters seemed to have very little to do. I have seen them smoking in corners and there seemed to be no way for them to fill their time. The police officers who were in charge seemed unable to deal with the numbers that, perhaps erroneously, were sent into their charge. So I want these centres to be stricter in their activities.

I turn to a rather contentious part of the Bill, that dealing with fines, and the fact that parents should be made to pay fines. I have always thought that this should be done if appropriate. In the area with which I was concerned many children in the care of local authorities got into a great deal of trouble. They went out at night and burgled homes. They caused a great deal of damage, but in no way were we able to fine the local authority which was looking after the children. I do not know what my noble friend will say about this but, in all parity, if the children are in the care of a local authority, I think that it should be possible for the local authority to be fined if the children get into trouble, as is the case with those who are in the charge of their parents.

Then we come to the problems of charity homes, from where, I am sorry to say, sometimes boys escape and create trouble in the neighbourhood. What I am trying to say is that if the parents of children who live at home have to pay fines, then the other categories should do too; but of course it will be left to each individual juvenile bench to ascertain what is right.

In Clause 24 the recognisance has been increased from £200 to £500. I have always felt it was a good way to bring parents up short, to say, "Will you enter into recognisance?" in a certain amount. The maximum at that time was £200, but of course it never was as much as that. If the maximum is now to be £500, that is to be welcomed. 1 welcome Part I of the Bill. Having dealt with young people— perhaps I am a little out of fashion now—I believe that they will accept control and firmness. They will relish ressponsibility; they will welcome a challenge; and they will respond to leadership.

I must be brief because there are many other speakers, but this is an important Bill. I also welcome the implementation under Part II of partially suspended sentences. As noble Lords will know, magistrates' courts are not affected because this starts at six months, and magistrates cannot commit anybody to prison for more than six months. Although I agree that it is possible that some courts might take advantage of it, I think in the fullness of time it will have a deterrent effect. I was sorry to hear the noble and learned Lord, Lord Elwyn-Jones, disagree because he does not seem, from what he said, to trust the judiciary whose task it will be to implement this scheme.

Lord Elwyn-Jones

My Lords, would the noble Baroness allow me? I share the same difficulty as the noble Lord, Lord Wigoder. I am afraid that I would he inclined to submit to the temptation of saying, "Well, it is pretty good, you know. A fortnight or so in prison, a taste of prison, is a very good thing". It is a weakness on the part of the judiciary, not wrong-headedness.

Baroness Macleod of Borve

My Lords, what am I to say to two such noble and learned Lords? I was delighted to hear that the Secretary of State has said that 150 more probation officers will be appointed. I foresee also that there will be much more paper work in the prisons for prison staff, and therefore I am sure their numbers will have to be increased.

I have only one more point to make under Schedule 5. This is also important. Failure to comply with a community service order will mean a fine of £200. Failure to comply also with a suspended sentence supervision order will be a fine of £200. I should like the bench, whichever order it is, to warn the prisoner that that will be a fact if he goes against the orders. Times now are difficult. Money is short, and unfortunately leadership and discipline are often nonexistent in our society. The public must be protected, and so I welcome this Bill as a step forward, and wish it well.

4.24 p.m.

Baroness Bacon

My Lords, it was in 1959, which does not appear to me to be 23 years ago, but it is, when I was asked to help to shadow Home Office affairs on the Front Bench in another place. The metamorphosis from shadow to substance occurred in 1964, when for three years I was Minister of State at the Home Office. This was a time when the children's department was at the Home Office and not in the Department of Health and Social Security, as it is today.

During the period from 1959 to 1964 I had a lot to learn because it was a sphere in which hitherto I had not taken a great deal of interest. I was helped by the fact that on our side of another place a committee was set up under the chairmanship of my noble friend Lord Longford, with such members as my noble and learned friends Lord Elwyn-Jones and Lord Gardiner and others, and which produced a document Crime, a Challenge to Us All. I learnt a lot from them and from the production of this pamphlet. I need hardly say that although it was a party committee not everybody was of the same opinion, as my noble and learned friend Lord Elwyn-Jones will know.

In 1959 when I was asked to do this I thought would start by visiting prisons, children's homes, borstals, and so on. What did I find? What were the problems in prisons 23 years ago? The problems were overcrowding in prisons, with three in a cell. But I want to emphasise here that the aspect of overcrowding which is most serious is not three in a cell but that any prison is built with only so much work space. If a prison is overcrowded, it means that prisoners must be idle for a large part of the day and shut up in their cells just because there is no room for them to work.

There were too many on remand in prison. The sanitation was atrocious. There were too many people in prison who ought to have been treated outside. There was a rising crime rate among youth. What are the problems today? They are exactly the same, but much worse and much more serious. Therefore, today in some ways we are in a much worse state than we were 23 years ago.

I hope that noble Lords will not think that nothing has been done over those years. Successive Home Secretaries have attempted to do, and have done, a great deal. Some new prisons have been built. Some are much better. Some worthwhile experiments have been made. But we never seem to catch up because the problems far exceed anything that we can do. The obstacles are many. First, there is money. When money is being allocated by Governments, Home Office affairs, prisons, detention centres, borstals and all the treatments that you could give come right at the back of the queue.

Not only that, but when it is decided to build any new institution we have objections from people who live nearby. I remember well the months that went by while we tried to build a prison in the stockbroker belt of Cheshire. Believe me, that was difficult, and there was some formidable opposition. When I was in the Department of Education and Science as a Minister I spent a lot of my time receiving deputations from parents and members of local education authorities who wanted more schools built, and built close to them. At the Home Office I spent a great deal of my time dealing with people who might have wanted prisons and other institutions built, "But please, not next door to us", and a great deal of time was spent on this.

Sometimes new ventures do not turn out as expected. When I arrived at the Home Office the Risley remand centre was ready to be opened, and I was asked to perform the opening ceremony. This I did with great pride. However, when we hear of what has happened to Risley today, something somewhere has gone wrong. I arrived at this beautiful new palace of a building thinking how wonderful it was. When I walked into the first cell the first thing I saw was a bucket for slopping out. I thought what an opportunity had been lost in a great new building that we should still have the same old sanitation as in the older buildings.

My noble and learned friend Lord Elwyn-Jones recalled that when he last spoke on a major criminal justice measure, in 1967, he stayed up till 1 o'clock in the morning to make a speech. He was lucky; I recall being up all night in Standing Committee, till about 9 o'clock in the morning. However, the measure about which my noble and learned friend was speaking was a great new Bill and in its wide-ranging aspects it produced two new concepts, suspended sentences and parole.

The Bill before the House today has an accent on youth, and it is about that in particular I wish to speak. Not only is crime among the young increasing, but so is the seriousness and brutality of some of those crimes. It is a difficult problem to which we have not found an answer, and I am rather pessimistic about it all. It is clear from the figures that putting young offenders together in custody does not reform them. The latest figures show 76 per cent of those sent to detention centres and 83 per cent of those who had been through borstal were convicted again within two years. We tried approved schools, which are now community homes, and I am sorry that the noble Baroness, Lady Macleod, thought it wrong to put non-offenders in community homes. It was done after I left the Home Office, but I thought the whole idea of community homes was that some of those who had previously been in approved schools should be dealt with along with children who were probably at risk but who had not committed offences. I may be wrong, but I thought that was the whole conception of community homes.

Baroness Macleod of Borve

My Lords, I meant to say, and feel very strongly, that offending children should not be in the same homes with those whose parents have just gone away or something of that sort.

Baroness Bacon

1 understood what the noble Baroness said, my Lords, and, while I may be wrong, my impression was that that was the whole reason for setting up community homes. Be that as it may, we have tried approved schools, detention centres, borstals and young persons' prisons. Now borstals are to be abolished and we shall be setting up some new youth custodial centres. The Bill tells us who will be sent to them and for what period, but I am more interested in what will happen inside those centres, the kind of institutions they will be and the regime inside them. I have visited many borstals, detention centres and prisons. I was never very happy about borstals. Each was trying to do a job of work, but I was never certain that the governor ever knew quite what that job was. I remember visiting one which was being run on the lines of the rather third-rate public school, and it did not seem to fit in with the environment from which the boys had come.

Detention centres are to be retained. I was surprised when, about two years ago, Mr. Whitelaw said he intended to choose certain of the centres to provide a short, sharp shock. That phrase was used at the very beginning, when detention centres were first set up; they were to provide a short, sharp shock. It so happens that the detention centre chosen for the pilot scheme was, and still is, situated in West Yorkshire, not far from my home. I visited it when I was a Minister and, within limits, they were doing a good job in that the boys were getting some training, physical exercise and so on. As it is so near my home, I know that my local newspaper, the Wakefield Gazette, which I take each week, sent a reporter last year to see what was happening in that detention centre, and especially what was to be the difference under Mr Whitelaw's short, sharp shock. The newspaper carried a long article and I will not weary your Lordships by quoting from it at length. It seemed that the warden did not quite know what he was going to do to make the shock sharper and shorter. The reporter was taken to see the boys doing physical exercises, woodwork and training generally and he saw them doing some gardening. The reporter could not see what was going to happen, and he wrote: Yet more parades must mean fewer potatoes and more marching fewer marrows, since the boys are producing their own produce in the detention centre garden ". We keep trying things and giving them new names, but we do not seem to get anywhere. Are we trying to give the boys punishment or treatment or both? I think that any custodial system—or non-custodial treatment, for that matter—designed as a treatment or method of reform must relate in some way to the environment in which the young person will live on leaving the establishment or on completing his treatment. I thought attendance centres were worthwhile, but we should have expanded them more. Community service is well worthwhile, but if we are to have the various forms of community service, attendance centres and everything that happens outside custodial treatment, the Government must face up to the fact that much more money must be spent on staff to supervise them, with many more probation officers.

There must be prisons for dangerous criminals and those whose crimes are so revolting that public opinion would countenance nothing else. However, what always worried me when I was at the Home Office was what I called the system. In that context I disagreed with the noble Lord, Lord Wigoder, when he said that young people grew out of being criminals and were probably all right when they grew up. I wish that were so. As one who spent three years going through many thousands of prisoners' files, I assure the House that they all tell the same story—supervision, approved school, detention centre, borstal and prison. The young get into the system at an early age and it is difficult to get out of it. It is a kind of graduation for them, and it is that which we must examine closely.

I recall going to a junior approved school, when there were such institutions, and the one I visited was for very young boys. As I went round, a little boy looked up at me from the book in which he was writing. I looked into the cherub-like face which was smiling and asked, "What are you doing here? "and he replied pat and proudly," Breaking and entering ". He had entered the system, and I should not be surprised if today he is doing his third or fourth term in prison. Now that is where we must start, right at the very beginning. We have tried to do that, and I believe that very often an appearance at a juvenile court is not something that the youngster thinks he must live down, but rather something that he thinks he must live up to. He has entered the system, and there he is.

I could go into very many instances of youngsters whom I have known who have gone right through the system. Many of them, once they are in it, stay in it for life, and what we must try to do is concentrate on keeping them out of the system in the first place. I tried to do that by producing in 1965 a White Paper, The Child, the Family, and the Young Offender. It was based very much on the Kilbrandon Report, which formed the basis for the system in Scotland. Later there was from the Home Office another White Paper, which formed the basis for the Children and Young Persons Act in, I think, 1969.

However, I do not feel that we have quite got it right yet. Children live in compartments; we all know that. They live at home, and there parents see one side of them. They live in school, too, and the teachers see another side of them. In school a child is probably quite different from what he is at home. Then there is the child who, when with his playmates, is probably quite a daredevil, and a different person altogether. I feel that we must get all these various elements together We must have something a little more formal than a case conference of social workers, but less formal than a juvenile court.

Today we hear a great deal about the community. We must look at the child in his community and, at the first signs of any criminality, bring together parents, teachers, social workers, community police, and so on, and try to deal with the problem first of all in the locality. That should be done not after a serious crime has been committed, but rather when it looks as though the child is at risk. It is better to deal with the child in his own community. I shall not pretend that this idea could be included in an amendment at the Committee stage of the Bill, but I hope it is something that the Government have not lost sight of.

I want to mention only two more things before I sit down, and I shall mention them quickly. I have always been worried about the disturbed juvenile delinquent, the one whom the Health Department would never take and the Home Office could not deal with; and I wonder what the present position is. I remember in particular two cases on which I spent weeks. I could not get the Health Department to take the juveniles because they were definitely disturbed. One had tried to commit murder, and had then attempted suicide. One was in a dreadful state, in an approved school, and the court placed him in borstal because he was a danger in the approved school. I could not do anything—or rather I managed to do something for one of them, but the other case ended in tragedy. I wonder where we are today with such cases; are they still matters for the Health Department alone?

The other point that I want very quickly to mention concerns sentencing for crimes. I have a feeling that in the past—I think that it is now becoming a little better—the severity of the sentence depended on the amount of money that had been stolen. I am very pleased to see that today some courts are regarding as most serious crimes committed against elderly people in their own homes, even if only £1 has been stolen: I hope that that will continue to be so.

Capital punishment has recently been discussed in another place. I hope that we are not to have a similar debate here, since a conclusion was reached in another place. However, if we do have such a debate, we must bear in mind that there are all the usual arguments for and against, but in my mind one name stands out—that of Timothy Evans. My noble friend Lord Molloy, who is not present at the moment, had the dreadful task, and I, too, had the dreadful task at the Home Office, of arranging that the remains of Timothy Evans should be handed over to his family for a decent burial. The family were constituents of my noble friend. That one name alone is enough for me; I would never dream of voting for, or having anything to do with, capital punishment.

In conclusion, I must say that I am a little pessimistic about youth, but we must remember that youth is a mirror of life in the world. Those adults who are not criminals are not setting a very good example. Sometimes it is all blamed on television. Some of the programmes on television contain a great deal of brutality and violence; that is so. But most brutality and violence on television is in the news programmes, in the events that are actually taking place in the world today. That is the kind of world we are living in, and, quite honestly, I cannot see our young people becoming very much better behaved until we have a better world and until adults show a better example.

4.46 p.m.

Lord Gardiner

My Lords, I do not think that anyone who has considered the history of the Bill would disagree with me when I say that it is a very much better Bill than the Bill that was first introduced. If that is so, credit is I think due in two quarters: first to the All-Party Parliamentary Penal Affairs Group for all the work that it did, and, secondly, to the Government for the flexibility that they have shown. If I may respectfully say so, the present Goverment are not always notorious for their flexibility in relation to their own Bills, but they adopted a very reasonable attitude, and I cannot help feeling that if in this House we get the same support and the same attitude, we should be able to make the Bill still better.

The only subject on which I want to say anything is the last object of the Bill, which is, to amend the law of England and Wales relating to the remand in custody of accused persons ". Your Lordships will remember that it was the May Committee which said that, after the detention sentence group, the biggest increase of any group in prison was in the remand group, which had grown and grown. As the noble Lord, Lord Donaldson of Kingsbridge, has said, this applies mostly in local prisons; in London mainly in Brixton, I suppose, which seems to be almost full of remand prisoners. The certified daily accommodation at Brixton is 696, the average daily population is 1,100, with 400 of them each having to share a cell with another prisoner, and another 300 each having to share a cell with two other prisoners. They have no work. Owing to staff difficulties there is no evening association. The prisoners have nothing to do for 23 hours a day, or more. I say "or more" because quite recently the Home Office disclosed that there are 14 prisons in which these prisoners do not get even the hour's exercise to which they are entitled under the prison rules. It is nobody's fault; it is not the prison governor's fault; there is a shortage of resources. Many of the prisoners get only three-quarters of an hour's exercise, still more get only half an hour; and this situation might go on for a very long time. According to an Answer given by the Home Office on 27th May, there are now on remand 117 prisoners who have been remanded in prison for more than a year, 20 who have been there for more than 18 months, and two who have been there for two years.

I should now like to turn to a question on which I am asking for information, and I have given notice of it to the noble Lord, Lord Elton. Let me take a hypothetical case—that of John Smith, who has never committed a criminal offence in his life, but who has been wrongly charged. It is one of these cases of mistaken identity. They still occur, and in my opinion they will go on occurring as long as the Home Office successfully refuses to agree (as it has done in the past) to accept the unanimous recommendation of the Devlin Committee on identification—that the precautions which the committee advocated should be made statutory. But there the man is; it might be six months before he comes before a court, and he is then told that the police now have a confession from another man that it was he, not Smith, who committed the crime. The police say in relation to Smith, "We offer no evidence, and he can be discharged ". The judge or the chairman of the justices says to him, "Mr. Smith, you are discharged; you leave this court without a stain on your character". Mr. Smith, if he is an ordinary working man, has of course long since lost his job—and we know what that means. Because he has lost his job he has lost his income, and because he has lost his income he has unfortunately been unable to pay the rent and, therefore, may have lost his home as well. This man has no legal right to any compensation of any kind at all.

I well remember that, when I mentioned this about a year ago, my noble friend Lord Shinwell said that I must have got this wrong because this could not possibly be the law. I can assure him that I have not got it wrong; this is the law. There is some man in the Home Office who may give an ex gratia payment, to which you have no right at all; or he may refuse it. We do not know quite why he sometimes does one thing and sometimes does the other, because it is all done in secret; but there is no legal right of any kind at all.

There are countries which, over many years, have got together to try to improve human rights in various fields by international agreement. One such agreement is the United Nations Covenant for Political and Social Rights, Article 14 of which provides that in some cases at least there must he a legal right to compensation. The first question I should like to ask the noble Lord is: does the noble Lord agree that we are in breach of that covenant? Of course, we all know that there are countries which always sign these things with no intention of carrying them out, but, as we know, we do not do that. We rarely sign and we never ratify a covenant unless we intend to carry it out; and, on 27th May 1976, which is now six years ago, we ratified this covenant.

My Lords, Justice, another all-party body of lawyers, has (I hope I can say) for the last 25 years done a good deal to improve the administration of justice in England. For a year now Justice has had sitting a Committee on Compensation for Wrongful Imprisonment. Their report is due from the printers any day, and the Home Office has for some little time had a copy of it. The second matter on which I should like information, therefore, is whether the Justice committee was right in saying that we are the only member country of the Council of Europe whose citizens have no legal right at all in any of these cases. The third question I should like to ask is: what is the Government's attitude to this report?

I should make it plain that I am asking for information only because I do not propose to put down an amendment to the Bill covering this point, because I am satisfied that it is not a matter which can conceivably be dealt with by a private Member. It is a little complex when you get down to it, as other countries have found. I have seen the many different kinds of provision made by all the members of the European Council. You have first of all to have a court or tribunal to whom you go to fix the compensation, and probably a clearly defined set of cases in which you have a legal right to compensation and another group in which you have a right to go to the tribunal or court but in which they retain the discretion. At the moment, we have nothing at all.

These are all facts that we should bear in mind when we come to deal with the amendments which are going to come before us. I hope very much that, if we do so, we, too, shall be able to make improvements to the Bill similar to those which were made in the other place.

4.54 p.m.

Baroness Trumpington

My Lords, I should like to thank my noble friend the Minister for his wonderfully clear exposé of the contents of this Bill. He certainly added greatly to my understanding of certain aspects of some of the clauses. My Lords, I shall be brief. As a member of the All-Party Penal Reform Committee, I wish to associate myself with many of the remarks made by fellow members with regard to that part of this Bill concerned with the treatment of young offenders. I know we shall all be listening with the greatest interest to the words of my noble friend the Minister at the end of this debate, because what he says will have much influence with regard to possible amendments we may have in mind when this Bill reaches the Committee stage.

But it is not about young offenders that I wish to speak today. I am certainly no lawyer, and I had prepared my words with some trepidation. It was therefore not only a pleasure but a relief to me to hear the noble Lord, Lord Wigoder, touch on the very matter that I wish to bring to your Lordships' attention. It is my hope—and obviously the noble Lord, Lord Wigoder, agrees—that the Government will find it possible to include a clause which says that no person accused of crime shall be allowed to make an unsworn statement from the dock, either in a magistrates' court or during his trial in the presence of the jury. I am sure that my drafting is far from parliamentary language, but my meaning must be clear.

The time-honoured phrase of clerks to magistrates' courts to the effect that the bench will take more account of a statement delivered under oath from the box, when the accused can be cross-examined, tells its own story. In other words, it is my belief that magistrates are not impressed by statements from the dock. So I ask: what purpose do such statements serve? However, it is a different story when the accused makes a statement from the dock in the presence of a jury. I have been reliably informed that case after case is won by astute lawyers fighting cases on behalf of more than one villain. They put the onus on to the most prepossessing member of the gang, who, with hair tidy and nice clean shirt, stands in the dock making an unchallenged statement which, time and time again, influences the entirely honest but totally inexperienced jury. The result?—the acquittal of guilty persons.

I have not had the opportunity to discuss this matter with any of your Lordships, many of whom are better qualified than I am to bring this proposal to the notice of my noble friend the Minister. But, my Lords, I think that there is indeed a case for the introduction of a clause whereby, in the future, an accused person shall have a clear choice either to make a sworn statement, upon which he will be cross-examined, or, if it be his wish, to remain silent. I sincerely hope that my noble friend the Minister will pre-empt the delightful prospect of a future twinning between the noble Lord, Lord Wigoder, and myself by inserting the clause we both desire before the Committee stage of this Bill.

4.58 p.m.

Baroness Masham of Ilton

My Lords, for about 20 years I have served on the board of visitors of a borstal, and have also from time to time taken dis cussion groups in a prison for young prisoners. Most of the governors, assistant governors, officers and instructors have been very concerned for the young people under their supervision. Over the years there have been a few difficult patches, and I would stress the importance of well-motivated and fair governors who can give a lead to inmates and staff. There is no doubt in my mind that, from the inception of borstal training, some good has been achieved, even though the noble Baronesses, Lady Macleod and Lady Bacon, may not agree with me. One of the best borstals I have seen is the one built by the boys themselves at Lowdham Grange in Nottinghamshire. There is plenty of space and excellent working facilities.

My Lords, there are some queries which I hope the Government will be able to answer about this Criminal Justice Bill which is before us; otherwise, it will mean putting down many amendments. The useful things which I have found at borstals are the educational classes; the courses, such as painting and decorating, catering, gardening and so on; sport, and community service. The camping and outward-bound pursuits, where they have excellent relationships with staff, are, I think, some of the best. But there is the other side, and that is the problem that borstals can also be academies of crime.

In all institutions, holidays and weekends often drag because there is not enough to do, especially when there is a shortage of staff. Many inmates have told me that they become far more accomplished criminals during their term of internment—and this is my greatest worry about the new youth custody institutions. The borstal boys are to be merged with the young prisoners. Some of them may not be very different, but those sent to prison are generally more mature with worse records. Many of the boys I have been dealing with at borstal are 15-year-old boys. They are still children. May I ask the Minister if it is the Government's intention to have junior and senior youth custody centres such as there are at the detention centres? If not, I can see many more young, immature boys learning to be attracted to the professional criminal life. It is well known from public schools' experience that many younger boys are attracted by, and hero-worship, the top end of the school. I can see this happening easily in the youth custody institutions if there is no segregation of the ages.

Over the years I have been very disappointed with the Home Office because it has missed so many opportunities of teaching thousands of at-risk young people commonsense health education. I have been appalled by the almost encouragement to smoke which has been given in the prison service to many inmates. In every prison and youth institution there should be a campaign against smoking. Young boys of 15 and 16 have told me of their fathers who have died from lung cancer and chronic bronchitis. I have been never seen warning posters against smoking on any walls of borstal institutions or prisons. I am told that, in junior detention centres, boys are not allowed to smoke. So it ought to be in all institutions with young offenders. Perhaps the Government will look into this now while they are reorganising the system.

The problem of young offenders is a very serious one. There are at the moment something like 44,200 young offenders. 1 think I am right in saying that we have by far the biggest number of young people in custody than any other European country. Is this perhaps because we are one of the few European countries which does not have national service? When one reads in the press of what happened to a 15-yearold boy sent to a council-run assessment centre which allowed him to become a punk, is it surprising that the courts may prefer to send such boys to borstal or, in this Bill, youth custody centres? There is a worry that youth custody centres will become like prisons. Are governor grades and officers going to wear uniforms? I have heard this rumoured. It would be a very serious matter if many thousands of young people who have much goodness in them become hardened by a prison regime. If uniform had to be worn by some assistant governors I think they might leave the service. People need to make good relationships and I have seen many reckless, irresponsible young people become amazingly reliable and caring. One young man on my list saved a woman who was drowning in her bath when he heard her as he passed the door. He was working on day release at a Cheshire home. Many borstal inmates give vital help to many homes for disabled people. I hope that this excellent work will continue under the new regime of this Bill which is before us now.

May I ask the Minister whether he thinks the number in custody will be reduced or increased. With short sentences of three weeks for DC, may not this be an encouragement to the courts to send more people inside? I think this has already been mentioned by several noble Lords. May I ask the Minister to clarify how allocation is to be undertaken and where it is to be done? Will young offenders come straight from local prisons or will they go to youth allocation centres instead of going to a local prison? I should like to ask the Minister about the new residential care order. Does this mean that more young people will go into community homes? I think 1 am right in saying that these homes have reconviction rates of around 70 per cent. My experience being with borstals, may I ask the Minister what safeguards these community homes have? Do they have boards of visitors or governors? I have read some terrible things which have gone on in such homes with homosexual acts on boys. One hears very little about what goes on, unlike the old approved schools which used to have governors going in and keeping a watchful eye.

It might be right to keep as many young people in the community as possible. More advice and help ought to be available to parents. The peer influence is so strong among children and young people and the dangers of glue sniffing and alcohol so real that an advice service for parents which advertised itself in public places would be most valuable. This fashion of glue sniffing seems to be growing at an alarming rate. May I ask the Minister what research is being done and what advice is being given to parents, doctors, teachers and social workers? I know that staff working in the borstal system would welcome advice, so I assume that, if something is not being organised, it ought to be. I think the noble Lord, Lord Elton, would be an excellent person to co-ordinate this and I look forward to hearing what he says about this worrying situation.

It does seem necessary that courts should obtain a medical report before passing a dentention centre sentence. I suggest that the Government look into the problem of young people with mental and physical conditions who are sent to borstal. At Wetherby Borstal at the moment there is a boy with one leg. His artificial leg has been broken three times since he has been there. This means that he has to keep returning to hospital to get it mended. There is another boy who is blind in one eye and 80 per cent. blind in the other. We have had spastic boys, boys with asthmatic problems, a totally deaf boy and many others. One boy with asthma died, which was a most unfortunate happening. If these handicapped young people are going to continue to come to youth custody centres it must be realised that there has to he more staff supervision. It may be through their frustrations that they have turned to crime to fulfil a longing to achieve at something.

There is a borstal called Feltham which specialises in mental disorders. Perhaps a more outward-bound sort of establishment might prove more successful for the physically-disabled offenders where there are staff who understand their disabilities. I hope that the Minister will be able to say if the Home Office have ever researched this problem and if any conclusions have resulted. t should like to ask the Minister what are to be the rules of youth custody and when the rules are going to be presented to Parliament and introduced.

Members of boards of visitors have to adjudicate when this is necessary in borstals, prisons and other places. It is important to have clear rules to follow, as it is for members of staff. One of the punishments in prison is cellular confinement for not longer than three days given by a governor or acting governor. A board of visitors can give up to, but no longer than, 15 days. In borstal, removal from house—RFH—is indeterminate. Cellular confinement and removal from house seem to mean the same thing but the rules are different, and nobody seems to know why. It seems very likely that we will be bringing forward an amendment at Committee stage asking for statutory minimum standards for young offender establishments. It has been a great worry for many people for a long time now that some young people have been shut up sometimes for 23 hours a day in squalid and cramped conditions.

A few months ago 1 asked a Starred Question in your Lordships' House about fires in prisons. Since then, at least two men have died and many have been injured. Last week seven prison officers from Wakefield prison were detained in Pinderfield's Hospital suffering from the effects of smoke and fumes. I am sure that the Minister will be getting a report. When the mattresses burn they give off toxic fumes. Clause 37 of this Bill is related to the burning of straw and stubble. Instead of burning the straw and disfiguring the countryside, and causing danger to drivers with smoke drifting across the roads, why not use the straw for mattresses? Prisoners could make their own mattresses, thus saving the Government money and giving them something to do. Is it surprising that so many prisoners are getting depressed and setting fire to their cells if they are locked up for hours at a time in a soul-destroying atmosphere?

Perhaps some of your Lordships watched a BBC2 television programme last night called "The Last Chance Wagon Train". This was about young, difficult offenders, who have to travel on a six months' wagon train as a sentence. It showed how they made relationships with animals and staff and had to look at themselves in depth. The programme claimed that this system has an 80 per cent. success rate. I hope that we will continue to try to find alternatives to custodial treatment—not only are they less expensive, but the success rate seems to be more effective.

5.13 p.m.

Lord Mottistone

My Lords, I am advised in addressing your Lordships by a retired warden of a custodial establishment for delinquent girls. I shall be talking on a fairly narrow front but I think an important one on which I hope my noble friend the Minister can reassure me. In passing, much of what my adviser has to tell me endorses what my noble friend Lady Macleod had to say.

I understand that few would argue with the theory encompassed in the Children and Young Persons Act 1969; but few also would argue with the thought that the practice has fallen far short of requirements. I understand that there is a school of thought which blames the shortage of resources for this, and in that respect it was encouraging to hear from my noble friend the Minister that the Government were planning to grant additional resources but—and here is where my advice takes issue with the point—they say that too much must not be made of this because there are more fundamental problems. It is that to which I hope to turn our attention.

These are the extremely abusive and violent adolescents of both sexes down to 14 years old with problems of drug usage and glue sniffing, to which the noble Baroness Lady Masham referred, and who tend to be outside the field of expertise of the local authority officials who prefer to deal with the less extreme cases.

In these circumstances, the local authority will find that these persons are rejected from the homes or establishments and they then put them back into the community, as I understand it, accommodated in a small hotel or in bed and breakfast accommodation. This effectively puts them back in the range of the group with which they offended in the first place. Experience, however, shows that these kinds of people can only be given the opportunity to break with the past by separation from their peer group for a reasonable length of time, which in many cases might be as much as six months or so. I repeat that this applies to both sexes: young teenage girls can be just as much of a problem as young teenage boys, and a decreasing number of establishments are willing to take these girls.

The Bill does not seem to me to be dealing with the younger girls down to 14 years old, and I would be most grateful if my noble friend the Minister could make a comment on that, and reassure me on it. As I understand it, the gap really comes because of the lack of training, dedication and general wish to help the people on the part of the local authority officials and local authority homes. In the past there were voluntary homes—and there are still some—often set up by religious orders, where they had that extra bit of dedication, that extra feeling of not bothering about how long they worked, without the 40-hour week mentality which has rather crept in over the years, particularly with local authority employees. I am not casting any blame. It has caused a gap which has to be filled. Not having those types of dedicated people, or not having a system which encourages the development of those people, in order to deal with these extreme cases that the ordinary run of the mill of local authority officials cannot handle, is a great loss. What is happening is that the young people concerned are out on the streets again and they get worse.

It really is a fundamental problem for the Government, for this Bill and for your Lordships' House to see how we can make sure that these prople who are the toughest of the lot, and may be, I repeat, as young as 14—girls just as much as boys—should be dealt with. I hope that I may have exaggerated the situation in the eyes of my noble friend and that he can reassure me that these problems are fully appreciated and that thought has been given to how to create the type of establishments which can be named by the types of people who can be encouraged to look after these extreme cases. I hope that my noble friend may make some comment on that.

5.20 p.m.

The Earl of Longford

My Lords, we have listened to a number of notable speeches including the last, and I realise that the noble Lord speaks with rather special experience. The most significant speech of all came from my noble friend Lady Bacon. Although she mentioned that her experience was yesterday's rather than today's, it was obviously relevant. She was kind enough to recall the committee which was set up by Mr. Harold Wilson when he was Leader of the Opposition, of which I had the honour to be chairman and of which my noble friend was a prominent member, with the noble and learned Lords, Lord Elwyn-Jones and Lord Gardiner, and others. There is no doubt that that committee, unlike most of the other committees I have served on—and I hope it will not be true of the one I am now working on with the noble Lord, Lord Redcliffe-Maude—had really effective results. Things happened, and that was to a great extent due to the noble Baroness, Lady Bacon, who was Minister of State in the Home Office just afterwards, as she told us.

I must be brief, like other speakers—some of them have been briefer than others, but everything is relative —and I realise that when we reach the Committee stage we shall be involved in all sorts of detailed discussions based on a great deal of first-hand knowledge. We shall speculate, with increasing dogmatism perhaps, about the possible effects of this or that measure in an area where in fact all dogmatism is liable to come unstuck. The Home Secretary deserves credit for introducing a Bill with far-reaching possibilities, but I cannot pretend—and here I follow my noble and learned friend Lord Elwyn-Jones and others —that he has grasped the full extent of his opportunities. Some people will say that these proposals will reduce substantially the number of young people who are sent into custody, while others will say exactly the opposite. The same thing will be said about the adults.

However, I should like to say just one or two words about prisons, for a reason which will be obvious. I would like to stress that prisons, in nine cases out of 10—whether or not they are overcrowded and obviously it is all the worse if they are, and if people go to prison for a long time—are likely to do more harm than good. That is a general proposition. It is a painful fact and it is only loosely connected with overcrowding. In a sense—I hope I shall not be misunderstood in saying this—overcrowding has served a useful purpose because it has at least drawn attention to the squalid position of the prison world today. However, I have never disputed—I have said this many times—the need for punishment of those who commit serious crimes and I have never shirked the idea that prison, in our most imperfect society, may be the least of the evil options available.

I remember a famous prison governor beginning a talk in this way many years ago: Yes, I am a prison governor. You may not think much of my vocation "— (cries of "hear, hear")— and you may detest the whole idea of prison. You may prefer other methods of dealing with criminals. You might mutilate them; you might flog them or humiliate them in the stocks; you might transport them or, if you wanted to simplify things, hang them. But if none of those methods happens to appeal to you, and they have all been tried, you may wish to fall back on prisons ". That is really about the only argument for prisons. It is the least possible evil; but you must always try to find something better in general, and in the individual case. I am one of those who, I suppose, would prefer to reduce the number of prisoners enormously, not in the minimal or marginal way which is suggested in the present Bill. Many people think the present Bill will increase rather than decrease the numbers of people in prison or in custody. Whether that is the effect or not, the overall effect will not be very noticeable.

I would rather think of the approach to imprisonment applied twice in this century by two Home Secretaries, both of them, by a curious chance, Tories —at least one of them was a Tory already and one became a Tory later. The first was Sir Winston Churchill before the first war and the second was Lord Butler. Sir Winston was not left at the Home Office for very long and Lord Butler became otherwise absorbed. But they had the sense—not usually found in Home Secretaries, although it is found in certain Ministers of State such as my noble friend Lady Bacon in the Home Office—to recognise the dehumanising effect of imprisonment. Each made a start in the right direction. It was perhaps too much to expect that Mr. Whitelaw would equal them in that, though in terms of humanity I would certainly not regard him as their inferior.

I was deeply cheered, as I am sure many of us must have been who are interested in penal matters, that the Pope found it possible to insert something in his speech at Manchester about prisoners. He sent a welcome to prisoners and it was deeply significant that he applied it to prisoners whether they were innocent or guilty. Christians are rather apt to shirk this particular topic; they refer to prisoners of con- science or maybe as innocent prisoners and so on. But the truth is that Christ just said: I was in prison and you came to me ". He did not say: I was in prison for a minor offence, probably wrongly convicted ". So I think that the Pope, if I may put it without impertinence, certainly had the right idea. He brought more consolation to prisoners than I am afraid our esteemed Home Secretary has found it possible to do.

In the last half-century the whole scene has been dominated by the appalling and remorseless increase of crime. Although there have been improvements—some of which have been brought about by the noble Baroness, Lady Bacon, and the Labour Government, and others which have been brought about by Tory Governments—the enormous increase in prison population, owing to the expansion of crime, has more than cancelled out the reforms. It is striking that in Britain, I submit—and I think elsewhere, though I am more familar with Britain—there is a growing gulf between what might be called "enlightened" and "mass" opinion. Judges—I hesitate here because I must not appear to have an idee fixe about judges—seem reluctant to pass sentences which are out of line with what they imagine to be public feeling. In the last 20 years, and certainly since we started these debates in this House, there has been a great expansion in criminological studies in Britain, which previously hardly existed in this country. Under the influence of those studies and of psychiatry, there seems to be much more understanding of the mind of the individual criminal. Though there were certain limits in all that work, due to the secular approach, it has fitted in well in its practical conclusions with the Christian tradition of forgiveness. It might be thought that lighter sentences would have resulted: not at all. On the contrary, the ever-greater hostility induced among the general public by the great increase in crime—hostility which is exploited by the cruder newspapers—has led to more severe rather than to less severe treatment.

It is in this atmosphere that the present Home Secretary has been asked by penal reformers and prompted, I am sure, by his sensitive conscience to see what he can accomplish in a humane direction. He has expert opinion on one side and on the other side what is called the "gut" reaction. It has seemed to many of us that he has failed to produce anything notable, but all is not yet lost because there are still opportunities in the discussion of this Bill.

I must add a few words before I close about young offenders, if only out of loyalty to the youth centre called New Horizon which I helped to start some 12 years ago and where we see about 3,000 young people in a year. I can reassure the last noble Lord that we see some who have been convicted of fairly dreadful crimes. I am afraid they do awful things while they are still our members. So by no reckoning can we be said to be shutting our eyes to the worst offences. It is not by any means true that all the people who come to our centre have been in trouble with the law; but that applies to a high proportion and it is open to everyone. We get many people in serious trouble.

The young people who run our centre, and who face delinquency day by day, at the sharp end—and, once or twice, it really has been the sharp end—are not innocent enough to take crime lightly, but they have their own way of looking at young delinquents, which is not precisely that of the courts. They find the delinquents with whom they are concerned have a poorly defined self-image—I am now quoting the words which the young people have asked me to use—they lack motivation and they are uncertain about their identity. Those who are trying to help them will never agree that they are looking at intrinsic badness, and, certainly, I am one of those who will never agree that the human race can be divided into the "goodies" —which, of course include all Members of the House of Lords— and the "baddies", who are the delinquents whom we discuss in debates such as this.

The people who are trying to help them consider that they have personalities which have failed to develop because of various kinds of negative experience. In New Horizon, where, as I said, we see about 3,000 people a year, we have found that in a great many cases it is possible to overcome this mental, moral or psychological attitude. Everyone who works among such people is agreed that behaviour is not predetermined so that it cannot be altered. I just preside over New Horizon and I do not claim to do any actual good, but our aim is to build up self-confidence and self-awareness, so that a relationship of friendship and trust is established which may make the whole difference to the lives of these people.

Your Lordships may feel that I have painted a rather ideal picture. That could be said. But I have been chairman of New Horizon for over 12 years, which is long enough to be aware that successes are plentiful, and long enough also to be aware that, in the short-term future, there have been plenty of failures; though I am never going to agree that you can measure failure by whether or not a person is reconvicted. I cannot deny that, even among the young, institutional treatment cannot be altogether avoided. But I regard it as a cruel indictment of our present arrangements that institutional treatment has been increased, rather than diminished in recent years. I hope and pray that, even at this late hour, the present Bill will be amended to provide much more scope for alternative treatment for young offenders.

5.33 p.m.

Lord Hutchinson of Lullington

My Lords, this is a Bill, like so many Criminal Justice Bills in the past, which contains many good provisions set out in something of a rag-bag, set out at inordinate length in some cases, and often with a lack of clarity. It will be a bit of a nightmare for lawyers, let alone the ordinary lay magistrate. But, basically, it fails to get to the root of the real malaise in the criminal process. My feeling about this debate is that it is taking place in a somewhat sombre atmosphere: first, because of the great complexity of the Bill and, secondly, because, as I said, we all feel that it does not take the opportunity to get to the root of the malaise in this criminal process of ours.

At this stage, I feel bound to concentrate on what is not in the Bill rather than on what is, because most of one's reactions to the various clauses are better taken at the Committee stage. The Long Title makes it clear that the Bill deals with two aspects of the criminal process: first, the sentencing powers of the courts and the treatment of offenders, and, secondly, the amendment of the present law relating to remands in custody. Therefore, on the face of it, the Bill directly bears on the most serious and pressing social problem of the day, which is the continuing and ever-increasing crisis in the prisons. That has already been referred to by a number of speakers and, in particular, by my noble friend Lord Donaldson. But a study of the Bill's contents and an appreciation of the speech of the noble Lord the Minister disclose that nothing in the Bill goes to the root of the current menacing situation in the prisons.

Some of its provisions make a small and limited contribution to a reduction in the total prison population—and, of course, those are to be welcomed—such as making soliciting by women not imprisonable. In parenthesis, one may ask: why not for men as well? Your Lordships may well think that an amendment to remove this sex discrimination would clearly be appropriate. Equally, there is the removal of imprisonment for offences under the Vagrancy Act.

The clauses that seek to ameliorate the crisis situation have already been referred to. Clause 27, actuating the partially suspended sentence, is, as the noble and learned Lord, Lord Elwyn-Jones, said, a shot in the dark. It is by no means certain that it will have any effect at all and, indeed, it may only exacerbate the situation in the prisons. The Director-General of the prisons describes as a measure of last resort the power of the Secretary of State, in an emergency, to release prisoners up to six months early in their sentence, and, in his opening observations, the Minister spoke of the Government using their powers only if they were driven to do so in extremis. The power is for use when the crisis actually bursts upon us and it makes no constructive contribution to the overcrowding problem as it is. It is somewhat symptomatic that provision is made for a power which will be used only if the Government are driven to it, when what one surely wants is not a measure of last resort, but a first priority before that stage is ever reached.

I used the phrase "a menacing situation" and may I justify those words, quite simply, by quoting some of the words used by Her Majesty's Chief Inspector of Prisons in his recently published report on the state of the prisons in 1981. He describes the conditions in which inmates—that is, the prisoners and the staff—are required to live in local prisons as "unacceptable and appalling". Later he describes them as "degrading and brutalizing ". He doubts whether there is a single local prison in England or Wales which satisfies the minimum standards laid down by Rule 5(3) of the European Minimum Rules. He says that these conditions "afford a continuing threat to law and order", and he expresses the view that the case is now overwhelming for eliminating overcrowding by removing, somehow, 7,000 prisoners— not 5,000 as the noble Lord the Minister said in his opening observations—from the prisons, which, in the opinion of the Chief Inspector of Prisons, would be the minimum to achieve the numbers which he suggests are acceptable in the present situation in prisons. Then, ironically, as we can now see, he ends up by saying that he welcomes the prospect of legislative measures to reduce the prison population.

This situation lies at the very basis of the treatment of offenders and the sentencing powers of the courts, which is what this Criminal Justice Bill is all about. Does it not behove us to see that the Chief Inspector and the prison officers, let alone the prisoners, get some legislative measures which specifically attack this appalling social problem and remove, in some way, this threat to law and order? "Society", says the Chief Inspector, "surely owes its employees better than this ".

My noble friend Lord Donaldson of Kingsbridge has referred to the All-Party Penal Affairs Group and our proposal for a modified scheme of supervised release for the short-term prisoner which is aimed directly at reducing the prison population. A further amendment which we intend to put down is directed at the second class of prisoner referred to in the Bill: the remand prisoners held in custody in local prisons awaiting trial, the class of prisoner about whom the noble and learned Lord, Lord Gardiner, made such pertinent observations earlier in the debate. Clause 47, and Schedule 9, provide power to the courts to remand such persons in their absence after eight days, so long as certain strict safeguards are observed, particularly legal representation. Personally, I welcome this clause as one which may make a real contribution to reducing the unnecessary and time-consuming task of escort duties—driving persons up and down the country to different courts purely for the purpose of a formal remand—thus freeing prison officers to get down to what they are trained to do: to get back into their prisons and enable these prisoners on remand, who are locked up for 23 hours out of 24, to come out of their cells and have their activities supervised by the prison officers.

But once again this provision does nothing to attack the major scandal of the plight of these unconvicted men and women. As the Minister said, the clause is put in only as a matter of efficiency. With the greatest of respect, it is not a matter of efficiency upon which we should now be concentrating regarding this crisis in the prisons. As we all know now, because it has been established in this House and elsewhere, these people are locked up in cells for, as I have already said, 23 hours out of 24 without, as the noble and learned Lord, Lord Gardiner, has described, anything to do, and only half of them will receive a custodial sentence when eventually their trial takes place.

Let me add a few more facts to those which have already been mentioned. At this time there are 7,000 persons on remand living in these conditions—18 per cent. of the total prison population and 20 per cent. more than in 1980, and accounting for nearly 40 per cent. of the total increase in the prison population since then. Fifty per cent. of the men and 30 per cent. only of the women in the end receive custodial sentences. Although Clause 1(1) of the Bill abolishes imprisonment for young offenders under 21—and how wholly admirable that clause is —Clause 1(2) permits boys of 15 and 16 to be held on remand in those very prisons which I have just described. The All-Party Penal Affairs Group takes the view, which surely must commend itself to your Lordships, that something must be done to get some of these people out of these prisons more quickly than is happening at present, and to stop totally children of 15 and 16 from being put into what the distinguished governor of Wormwood Scrubs describes as "overcrowded cattle pens", and which another governor has described as "penal dustbins".

We shall therefore put down an amendment which introduces into our criminal process an appropriate version of what is known in Scotland as the 110-day rule. Quite simply, this rule is that if after committal for trial an accused person held in custody has not had his trial begun within 110 days, then that person in Scotland is liberated and cannot be confronted again with that particular charge. Our system is in many ways different from the Scottish system and the burden on the courts here is greater than it is in Scotland. The sanction of total acquittal is too draconian to be acceptable here in the present circumstances. However, what we shall propose for the consideration of the House is that if after 110 days the trial has not begun, the accused person shall automatically be released on bail. He or she will of course still have to be tried, but at least this would mean that persons do not languish, as has already been described, in these appalling conditions in local prisons.

In our opinion, this provision would be a start towards relieving these circumstances of crisis, and it would have a crucial impact on shortening the period of detention of individuals before trial. I understand that at the moment about 1,000 persons are being held in custody in these circumstances. The measure would not therefore have a profound impact on the numbers at present or in the future kept in prison but, as I say, it would be a start. It would have a very healthy effect on prosecutors throughout the country to ensure that these cases are brought on for trial within a measurable time and to ensure that the individual is not kept languishing in these conditions for periods, as we have heard, of sometimes one or even two years. We shall also suggest that the Crown Court judges should have the power to grant bail pending appeal, a power which magistrates already have, that the presumption of bail should apply as it does before trial and, above all, as I have already indicated, that juveniles should not in any case be sent to adult prisons.

I hope your Lordships will in due course feel that this Bill, which has some very good things in it, would be immeasurably improved by the kind of amendments I have ventured to mention, which will be put forward on behalf of the All-Party Penal Affairs Group and on a totally non-party basis. I hope that the House will feel that these kind of amendments will make a real contribution to this, as I submit, most pressing problem which affects at this time the criminal process in England and Wales.

5.48 p.m.

Baroness Faithfull

My Lords, I shall confine my few remarks to the question of children and young persons. This is, I suggest, not a great Bill. I agree with the noble Lord, Lord Wigoder, who called it a modest Bill. It is a Bill which deals in certain areas with the mechanism of the administration of juvenile court law to meet the misgivings of some who consider that the Children and Young Persons Act 1969 does not deal realistically with juvenile delinquents. In fact, the Children and Young Persons Act 1969 is a good Act but, sadly, it has not been adequately implemented. It is I think a disgrace both to local authorities and to Government departments that, during all the years when we could have been implementing the Act, we have not done so.

Far be it from me to liken two great Government departments, the Home Office and the Department of Health and Social Security, to Tweedledum and Tweedledee, but on juvenile delinquency they seem not to agree. The contents of the Bill show evidence of two divergent points of view. On the one hand, there is the view of the Department of Health and Social Security, which lays emphasis on the principle of non-custodial care, supervision and care of the young delinquents in their own homes, in foster homes and in residential homes in the areas where they live. Also, there is the encouragement of parental responsibility. On the other hand, the Home Office lays emphasis on penal custodial care, the introduction of short detention centre orders, residential care orders, and youth custody orders.

Here, may I say to the noble Baroness, Lady Bacon, that after the short, sharp shock was set up many years ago, it developed into a long shock instead of a short, sharp shock because the staff could not tolerate it They could not tolerate the energy required to get up and be on the go until they went to bed. Worse that that, they could not tolerate not giving the children what the children so badly needed—two things: (a) education and (b) feeling. I went to one detention centre where a warder was looking very tired. I said to him, "You really do look tired". He said, "I have been up all night ". I asked him why, and he replied, "A poor boy cut his wrists and I felt so sorry for him that I sat up with him all night ". So, over the years, detention centres have developed much more into training centres and centres where care and attention is given. Now we go back to the short, sharp shock and I wonder, can this be right? Is the noble Lord the Minister able to assure the House that the short custodial policy which is to be adopted in this Act is a successful method, and what evidence does he have that it is going to be a successful method? It is a costly policy and should be proven to be an effective method before implementation.

I am bound to ask the Minister why is it—and perhaps the noble Lord, Lord Melchett, will be able to say —that in Northern Ireland, where the Black Report is being implemented, emphasis is laid on non-custodial care? Also, the noble Lord, Lord Wigoder, said that the figures for juvenile delinquency had fluctuated only a little over the years and that we did not yet know—I think he said this—whether whatever treatment had been given made much material difference. I do agree with the noble Lord, Lord Wigoder, but I would say that the 1969 Act giving training, counselling, care and control in the community has never been (a) properly tried and (b) assessed. Indeed, it has not been possible to assess the Act.

I would say—and I do so with very deep feeling— that it is possible to help at any rate what one might call the "soft end" of delinquents, and I would suggest that that accounts for something like 80 per cent. of the children. I hardly dare to say this, but I was a children's officer and a director of social services for 18 years, and in that 18 years we allowed only six children to go to approved schools. The others were all cared for within the circumference of the City of Oxford either in small children's homes, in foster homes, or under supervision orders in their own homes.

To the noble Lord, Lord Mottistone, I would say that I was quite shocked at his description of difficult girls being put into, I think he said, hotels or boarding houses. This is not bad law—it is bad practice. To the noble Lord, I would say that those of us who have been able to obtain money through housing trusts to set up small hostels—and I underline "small" —in the neighbourhoods where the children live have been able to help even the most difficult of adolescent girls, although it does entail devoted staff.

I should like to make one further point on the question of non-custodial care. Many voluntary organisations and many social services departments are trying out very new schemes which have the potential to be sucessful and, which involve setting up hostels in the areas where the children live, so that the children can visit their own homes but are under the control of hostel life. I hope that we are going to emphasise non-custodial treatment, which has not really been tried.

One of the things that I wish to say to the noble Lord the Minister is that I was slightly taken aback at the enormous amount of money that is going to be put into penal custodial care for delinquents—a very large amount compared with that being put into non-custodial care. How does this come about, particularly as much research has been done at Lancaster University, at Dartington Research Unit, and at the National Children's Bureau, that non-custodial care is effective in 80 per cent. of cases? How is it that we are putting our money into the ineffective way of dealing with delinquents instead of putting it into the effective way of dealing with them?

Many of us in the All-Party Penal Affairs Group are very proud of the chairman that we have, and the committee on new approaches to juvenile crime will be putting forward many amendments. One concerns strengthening non-custodial care, and another, mentioned by other noble Lords, is to prevent young people from being placed in prison. We hope to put in a new clause enabling care orders in criminal proceedings to be reviewed annually by a juvenile court. We hope that we may put in an amendment that the position of the young person on a care order will be reviewed annually. This is very important, because I regret to have to say that many children are left in custodial care without a plan being made for them or their cases being reviewed.

I must just mention the residential care order. I do not quite understand the mechanism of this. When the Children and Young Persons Act 1969 wass passed, I gave instructions to all my staff that, if a care order was made on a child that child must be removed from home; and if the social worker thought that the child should stay at home, then a supervision order should be made. If one makes a care order and sends the child home, then the parents may legitimately ask of one, "Who is responsible for the child coming home at night —you or me?" And they do. Therefore, one has divided responsibility. I am sorry that because of this bad practice, we are putting in—although I quite understand why the magistrates asked for it to be done —the residential care order.

I suggest that there are two very serious aspects concerning the residential care order. One is that the magistrates may place a child in a home that is not particularly suitable for that child and where that child will not fit in with other people. Secondly, there will be a sense of injustice because a child may be put into a home for a short time having committed some offence and there will be other children in that home who have not committed an offence but who are the subject of a "fit person" order. Those children will be there for much longer and will have a sense of grievance.

We will, 1 hope, be putting in a clause that there shall be three-monthly review committees to look at the detention of young people in secure accommodation. I think that we need to view very carefully those children who are in secure accommodation. There was published in 1981 an interesting book, Childhood, Welfare and Justice. The editor wrote of the failure of our society to create social conditions in which all children from whatever social background could expect both justice and welfare. I hope that it may be possible also to move amendments that children who are going to be subject to care orders may have legal help from either a child's legal centre or from a solicitor or a member of the Bar.

This is not a great Bill, but perhaps we should be thankful for it. I hope, however, that it will be the forerunner of something much better for juveniles. I would suggest two things. One is that I think we ought to work far harder to keep children out of the penal system and in the education system. This cannot he done unless there is a structure of understanding and good practice as between education departments and the social services, as between the Department of Education and the Home Office and the Department of Health and Social Security. That does not exist, and I would suggest to my noble friend the Minister making a very strong plea to the two Secretaries of State that new procedures should be worked out for the sake of our children, keeping them in the education system instead of the penal system.

My last point concerns the courts. Our juvenile courts and our magistrates have done a splendid job of work, but I would suggest that the present system has outlived its use and that the time has come for us to reconsider, not necessarily the system in Scotland, because the legal background, with the procurator fiscal, is different. But, until we have a better system of juvenile court law, we shall not involve the parents or indeed the children; and, until it is possible for the parents, for the children and for those seeking to give a service, equally to sit round a table and discuss what is best for that child we shall never really in this day and age have our system right. So, my Lords, there is much that is good in this Bill and there is much yet to be altered, but I hope it will be a forerunner of something better to come.

6.3 p.m.

Lord Melchett

My Lords, it is clear from almost everyone who has spoken in this debate that one of your Lordships' major concerns, if not the major concern, is the unacceptably high number of people in prison. Rather as my noble and learned friend Lord Elwyn-Jones did, I would like to go back to the stage before that. He said that the police and the courts intervened when it was already rather too late, and that he thought that the public had rather too high expectations of the penal system. I would certainly agree with that. My noble friend also remarked on the extent to which the number of crimes has increased. I suppose it reflects the general disillusionment with discussions on the causes of crime that we have had very little discussion during the debate about why the number of crimes has increased. I would like to turn to that very briefly. The Government were, in part at least, elected on a platform of law and order, as being the party particularly well-equipped to deal with these problems, and I would suggest to your Lordships that they have shown themselves particularly inept in dealing with these problems.

In particular, I would suggest that the Government's policies themselves are responsible for a major part of any increase in crime in the period in which they have been in office, and that it has been an inescapable consequence of certain Government policies. The Government's economic policy, which is the one I am thinking of, has as one of its consequences—which was admitted by the Government fairly frequently after the election, although it is admitted rather less frequently now—a rise in unemployment. The Government said that this would be a modest rise, a temporary rise, but they never attempted to disguise the fact that a consequence of their economic policy would be an increase in unemployment. Indeed, I think it is fair to say that this is one promise which the Government made during and after the election which they have been spectacularly successful in keeping.

A result of this rise in unemployment, and there is now a large, and I would suggest irrefutable, body of research to support this, has been an increase in crime. There is no doubt that economic conditions in general and unemployment in particular are important factors affecting the level and nature of crime, particularly among young people. There are, of course, problems of research in this area. There are problems in measuring both criminal behaviour and activity, and the statistics are notorious for the endless problems there are in interpreting them. And there are major problems in measuring levels of unemployment. Nevertheless, this relationship is by no means a new one.

There is research evidence going back to 1922 which suggests this relationship, and there is a great deal of international authority behind it. A United Nations study group reported in 1976 provides international evidence of the extent to which economic recession is accompanied by an increase in certain forms of criminal activity, especially economic offences such as theft and so on. Indeed, the United Nations report also remarked on the greatly increased likelihood of looting and widespread street crime, and I do not think any of us need to be reminded of the extent to which we in this country have suffered from those things. A British study in 1965 said that it has reasonably well established that crime against property, and possibly total crime as well, is positively correlated with unemployment rates over time. Indeed, these correlations are now sufficiently well established to enable estimates to be made of the likely numerical relationship, and it has been estimated that a 100 per cent. increase in unemployment over a given period can be expected to result in a 10 to 25 per cent. increase in the delinquency rate.

More recently—this really is the thrust of my argument, because I appreciate that the studies I have quoted have been open to certain objections, although I think the weight of evidence is quite overwhelming—some research has been done which I think makes the case quite irrefutable, and particularly a study done in Northern Ireland. The noble Baroness mentioned the Black Report, and I would like to come to that in a moment. Northern Ireland has done some interesting work in this field in general. A study there on young offenders, following their careers, has shown that they are far more likely to offend in periods in which they are unemployed than they are in periods when they work. This study really gives the answer to the one criticism of earlier studies, which suggested that it was necessary to look at the same individuals in periods when they were in work and when they were unemployed before the case could be made cast iron, which I suggest it now is.

There are two related issues in this field which I would like to mention, first, the question of race, and the question of the extent of use of imprisonment and the link between that and levels of unemployment. Taking race first, in particular I want to refer to what I consider the absolutely scandalous decision of the Metropolitan Police to publish statistics on the number of people in certain ethnic groups and the level of criminal activity, without at the same time publishing statistics on the relationship between unemployment and people whom they have arrested in their area. A recent Home Office study of crime rates and arrest rates found that the proportion of ethnic minorities in an area did not substantially affect the crime rate, whereas, and I quote: A study of arrest and unemployment rates in London police divisions found very strong correlations ". I hope the Government, having had time since these figures were published, to think about this subject more seriously than their initial reactions seemed to suggest they had, will now tell the Metropolitan Police not to publish quite misleading statistics of the kind that they did, and encourage them to publish statistics which would demonstrate whether there is a link between unemployment and crime by telling us how many of those arrested and convicted of crimes in their area are currently unemployed.

The second particular thing I want to mention—and this is particularly relevant to remarks a number of noble Lords have quite rightly made about the appallingly high level of people in our prisons—is the astonishing fact that, quite independently of the crime rate, whether the crime rate is going up, and at what rate, the number of people sent to prison rises as unemployment rises.

A number of reasons are postulated for this, in particular that courts are swayed by the fact that a person has a job and are dissuaded from sending him to prison; but there is now quite overwhelming evidence that the number of people sent to prison rises as unemployment rises, independently of changes in the crime rate. That is one factor, I suggest, which has led to the greatly increased prison population which all noble Lords have deplored. Given the evidence for these relationships between unemployment, crime and increased imprisonment being so clear, I would suggest that it is quite extraordinary that in another place the Prime Minister denied any knowledge of the correlation. I hope that since that time her attention has been drawn to an article in the Home Office research bulletin which said: The North American conclusions may be relevant to the contemporary British experience as well: for example, the number of youths aged 17–20 admitted to prison and borstal in recent years seems to reflect the unemployment figures for late adolescence ". I accept that in this Bill, which has been described as a modest one—and I personally would go a great deal further than that in being dismissive of the effects that the Bill is likely to have on the major problems we have talked about in this debate—and however immodest we manage to make the Bill before it leaves your Lordships' House, it is clearly not going to be a vehicle in which we can deal with the problems of unemployment. I would like, therefore, to turn to five areas where I believe action is needed. Some of these have already been mentioned and therefore I do not intend to spell them out.

One which has not, where I believe the Black Report had a significant contribution to make, is the need to keep people out of the criminal justice system altogether; and I would not simply limit this, as the Black Report did, because of its terms of reference, to juveniles but to a large number of first offenders who are charged with petty offences. It seems to me that the system of police warnings could be considerably extended to keep people out of the court system altogether for first offences, and that it could be extended by making it compulsory for a number of minor offences.

Secondly, I entirely agree with the remarks of a number of noble Lords about the need to reduce both the number of people in custody awaiting trial and the length of time that they spend there. A number of specific proposals have been made on that which I strongly support, and I hope that the amendments which are to be put down at the Committee stage will be carried by your Lordships. Thirdly, I would join with my noble and learned Lord Elwyn-Jones in suggesting that there are a considerable number of offences for which imprisonment is simply not a sensible penalty at all. My noble and learned friend gave a number of examples. I would certainly add the possession of cannabis. That is something which your Lordships have discussed previously on a similar Bill, when a Division was very narrowly lost. It seems to me that apart from the examples given by my noble and learned friend there may be a number of others. Certainly possesion of cannabis is one offence where imprisonment is totally inappropriate, and there still are a large number of people being sent to prison for that offence—quite unjustifiably in my view.

Fourthly, I believe it is necessary to reduce the maximum penalties provided in a number of statutes much more drastically than has currently been envisaged by this and previous Governments. I was sorry to hear my noble friend Lord Longford being rather gentler on the judiciary than he has been in previous debates in your Lordships' House. I simply do not think it is good enough for people in Parliament to say that sentencing is a matter for the judiciary, that they are to be trusted in this and we should not interfere without their wholehearted consent. I believe the record of the judiciary, and the number of people in prison and the quite unacceptable conditions in which they are kept there, all argue for far greater interference by Parliament in the sentences that are passed by the judiciary. In my view, it would be far preferable to do this not by the various suggestions that have been made for parole or remission, but by reducing maximum sentences. If that is not acceptable, I certainly agree that the proposal for 50 per cent. remission—again something which is already in force in Northern Ireland—would be a welcome step.

Even after all these steps were taken, if they were taken, there is a fifth step which I feel Parliament should take, which is to reduce the number of custodial places available, both for adults and for young people. There is no doubt, and all experience shows this throughout the United Kingdom and elsewhere in the world, that if custodial places are available the courts will find some means of filling them and no steps to reduce the numbers of people in custody will be effective unless the number of places available is also reduced.

I entirely agree with the noble Baroness, Lady Masham, in her suggestion that statutory minimum standards should be set for juvenile places; but I would suggest that what is good enough for juveniles is good enough for adults, and statutory minimum standards should be set for all penal establishments, and those in charge of those establishments should be required by statute to refuse further admissions if they would breach those statutory minimum standards. That would require the judiciary to address their minds rather more than it seems to me they have up to now to the question of priorities, and which cases they really need to send to prison. I accept, with everybody else, that there will be some cases where prison is inevitable and some where it is not.

Finally, I would like to turn very briefly to the particular question of young people. It seems to me that in a number of remarks by various speakers, first of all the problem has been exaggerated. It is not true to say that the rates of juvenile delinquency are continuing to increase at a considerable rate. A DHSS survey recently reported that offending rates for boys have been falling since 1974 and those for girls seem to have levelled off. The same survey also showed that for juveniles, although offending rates seem to be levelling off, detention centre and borstal sentences have still been increasing both absolutely and as a proportion of court disposals. What has been happening is not that offending rates have been increasing necessarily, but rates of incarceration have continued to increase for young people.

In addition, young people are not only more likely to be sent to an institution but they are more likely to be sent earlier in their offending career, often without any chance of supervision in the community. I entirely agree with what was said by the noble Lady, Baroness Faithfull, about the need to emphasise the use of alternatives to custody. The sending of young people to institutions earlier in their criminal career is happening although the evidence, as a number of noble Lords have remarked, on the likelihood of this leading to reoffending and reconviction has become more and more overwhelming. Of the boys sent to borstal, 84 per cent., and 75 per cent. of those sent to detention centres, are reconvicted within two years of release; but a higher proportion of juvenile offenders has been sent to those institutions than was the case in the past.

That is looking at the particular treatment of young people. If we look at the performance of this country compared with other countries, we have been getting increasingly tougher on young offenders compared with most other west European countries. Sweden and Scotland in particular have adopted a judicial system which has succeeded in dealing even with the most difficult of juvenile offenders without the extensive use of custody and without, just as significantly and I would say more importantly, any increase in the crime rate. It seems to me that with this quite appalling record it is not surprising that the United Nations have singled out Great Britain as one of the leading countries in the whole world in imprisoning young people and has commented: If one country in the world is storing up trouble for itself by imprisoning large numbers (and a high proportion) of young people, it is Britain ". The noble Baroness asked me about the Black Report and why the same thing had not happened in England and Wales. I think that the answer is, first, that there was an extremely enlightened judiciary involved in the work that led to the preparation of that report—the stipendiary magistrate in the juvenile court. There was a very close liaison between officials in the Northern Ireland Office—the equivalent of the Home Office—and in the DHSS in Northern Ireland, in very sharp contrast, as has already been said in the debate, to the relationship between the Home Office and the DHSS here. There was an extremely enlightened group of civil servants in both departments who did most of the work in preparing the report, I would suggest, in sharp contrast to the attitudes of civil servants in the Home Office in this country. Significantly, and this is my third point, there is a considerable community involvement in the penal system in Northern Ireland, compared to the situation in this country. Many more people are aware of what happens in the penal institutions, and are involved in them, and a considerable lead is given to that by an enlightened, well staffed and well resourced probation service; again, I would suggest, in sharp contrast to the treatment of the probation service in this country.

The Earl of Longford

My Lords, I hesitate to interrupt the noble Lord. He may think me tiresome, but perhaps he may elucidate some aspect of the matter. Some of the leading officials who did so well in Northern Ireland seem to be now in charge of matters in the Home Office.

Lord Melchett

My Lords, when referring to civil servants in Northern Ireland, it is necessary to distinguish between local civil servants based in Belfast and those from this country who go over for a short period of office and then return, sometimes with their attitudes enlightened and sometimes, regretfully, not so enlightened. The officials to whom I am referring are Northern Ireland civil servants who have remained in Northern Ireland and who are continuing to do excellent work in implementing the Black Report under this Government—a report which was prepared under the previous Government.

Finally, there has been a determination in Northern Ireland, in contrast to most local authorities in this country, actually to provide alternatives. This comes back to the point which the noble Baroness made. It is not impossible for it to happen in this country. Essex and Norfolk, to give two examples, have been spectacularly successful in this field without any lead, I would suggest, from central Government. They have been doing it off their own bat, and doing it very well. If central Government were prepared with this Bill, once it leaves Parliament, to give the sort of lead that has been possible in Northern Ireland, we might well correct the quite appalling international position which we currently hold; but at the moment I do not think that the Bill holds out any prospect of that.

6.24 p.m.

Lord Hooson

My Lords, this is a Second Reading debate on a Bill which in its present form at least, is largely non-partisan. I am bound to say that I agree with the assessment of the Bill made by my noble friend Lord Wigoder—although we have not discussed it—that it is a very modest Bill. It is like most advances—if there have been advances in this sphere—a patch in the patchwork quilt that passes for penal policy in this country.

I am bound to say that as I have listened to the debate two questions have gone through my mind. What are we trying to achieve by means of this Bill? Why are we trying to achieve it? Clearly, what we are trying to achieve—and this is the thrust of the Bill—is to keep more prisoners out of prison and to allow a greater number of expedients, and I use the term advisedly, to be tried to try to keep young people out of custody and to try to reduce the prison population.

Stopping there for a moment, I think that the most valuable part of this Bill is Part II, which deals with suspended sentences, partial sentences and so on. It is very practical; it is what is necessary at present to reduce the pressure to which the noble Lord, Lord Hutchinson, referred and which I agree with him is absolutey acute at present. That seems to me to be the main thrust of the Bill, apart from one or two tidying up matters.

However, when I look at Part I of the Bill, I am really looking for genuine and real reform. What do I see?—cosmetic change and really nothing more. What is "youth custody" but another name for borstal, allied to prison? What else does it mean? Are they going to be the same buildings, the same staff, the same routine but a different name? That is not reform.

Why are we doing this? I think that there are two reasons why we are doing this. First, our experience in modern times reveals to us that our belief in custodial sentences has taken a very sharp knock. The efficacy of custodial sentences is not now accepted to be what it was once accepted to be. However, the second reason why we are having this Bill, is one of sheer expediency. We are in this situation because we have allowed our prison population to grow to such an extent that it is at bursting point. There has not been true penal reform in this country since the days of the Victorians. We still use their prisons. We still use the stone prisons that were built with individual cells so that people could spend their time in solitary confinement, at least at night. The prisoners also worked. Most of them were required to work and that was partially because of the Victorian belief that a man should have a direct communication with his maker in the privacy of a cell and that he should work. We tend to forget that the sanitary conditions in those cells were, in relation to the sanitary conditions from which most of those prisoners came, a great improvement in those days. Why we have continued with this bucket and slopping out in modern times—God only knows!

The truth is that since those days—and of course the Victorian impetus carried us through into Edwardian days and into our own days—we have been patching up the whole time. We have been resorting to one expedient after another. What do we do now with the great Victorian prisons?—we put three in a cell. They would be far better off in dormitories and barracks than three in a cell.

The truth is that we are carrying on in that type of way in this country without any proper investigation as regards what we are aiming for. The noble Lord, Lord Elton, in his introductory speech, which I agree was extremely clear, referred to penal strategy. I regret to say that I do not see the presence of a penal strategy. It is true that the present Lord Chief Justice Lord Lane has, certainly more than his predecessors, been suggesting to the judges an approach to penal policy that they could follow, and I must say that his own pronouncements are very much more enlightened than those of some of the judges to whom he is directing some of these remarks. Nevertheless, I take the point —and I think that there is a great deal of substance in it—that there is insufficient liaison between the judges who have to impose sentences and the Home Office which is responsible for the whole of the prison system, everything that goes on, and all manner of punishments and treatments that are available. In my view, there is insufficient liaison.

Having said that, we have reached the time in this country when we ought to have a full scale investigation of penal policy. For whom is prison essential? For whom is it of benefit? Of course, we accept that there are certain people who are guilty of various crimes of violence and who must be kept incarcerated. I take the point that the noble Earl, Lord Longford, makes. If there is no death penalty—and that may be an obscene form of punishment and I accept that it is, an obscene form of punishment—then we must have the least disreputable means, if I may put it that way, of dealing with them. Let us take an as example the professional burglar. Nothing is more distressing to the average human being than having his house broken into, his privacy invaded and theft. The public in this country would not stand for non-punishment of burglars and in fact we must face it that if that is their means of livelihood, then they have to be put away for a considerable period.

But what kind of prisons do they need? What kind of treatment do they need? Have we investigated why we departed so swiftly from the old idea of hard labour? —not that I suggest that the breaking of stones was essentially a good or a beneficial means of labour. But I think that we went too swiftly from the concept of getting prisoners to work, because nothing is worse for the spirit as well as for the body as having hours and hours of idleness in a cell—23 hours at a time. It must be totally demoralising. I should like to suggest this to the Government. Is it not time that there was a Royal Commission which embraced all these matters and investigated what kind of penal policy we need in the latter part of the 20th century?

I come to the first part of the Bill, which superficially is attractive. However, the more that I have looked at it, the more I am convinced that so much of it is entirely cosmetic. Let us take borstal training. I know that these days it has a bad reputation; it has an 84 per cent. failure rate. As a young barrister I remember going to the first borstal to be built in this country near Rochester. 1 was not given the kind of VIP treatment that you get in a judicial capacity and I was so much the better for that. But I was taken round by a housemaster who had been an RAF pilot during the war, who had been shot down and who had suffered some disfigurement. He told me that he had decided to devote his life to this work in borstal. The boys obviously thought the world of him. He was devoting himself, as many others did, to work in borstal. In those days there was a feeling that this training was essential; there was a longer period in borstal. Boys were taught trades and so on. The success story of borstal in those days was considerably better than it is now.

When I sit in a judicial capacity I know that our attitude now is that we send youngsters to borstal as a last resort and not, as in the old days, for training. Borstal is a last resort; it is the last thing that we can try before we send them to prison. It is no wonder that the success rate is now so low, because borstals do not have a chance to do what they were originally intended to do.

Mention has been made of the Feltham borstal where, of course, there is a superb psychiatric department—again, I think largely because of the dedicated individuals there. Her name escapes me, but the doctor who is in charge there has been head of the psychiatric department for years. To see her handle the borstal inmates is an eye-opener in itself. Borstal establishments have done remarkable work, but many youngsters who are sent to borstal who need psychiatric treatment rarely get it because very few of them, percentage-wise, end up at the Feltham borstal, which is particularly equipped to deal with their problems.

Let us take probation. When I was a young barrister I happened to practise for part of my time in a borough that had a first-class probation service and we used to boast of having between 80 per cent. and 90 per cent. success with those on probation. But in those days probation officers spent most of their time with the offender. Now they spend most, or a great deal, of their time writing reports. Bureaucracy has taken over in a big way. All this is affecting us. I think that the continuation by this Government and their predecessors of spending money, as it were, improving here and there—a kind of patchwork approach—is no longer apposite for our kind of society.

A few years ago I remember being greatly influenced by reading some research carried out by quite a famous researcher on juvenile delinquency in London and the tendency towards dishonesty. He investigated over 1,400 cases and all the boys investigated came from different walks of life—from the most privileged families, having attended public schools, to the worst. Every one of them had committed an act of dishonesty, even though the least important was stealing one of father's cigars. Nevertheless, every one of them had committed an act of dishonesty. What happened to those boys depended so much upon environment—the home, the school influence, and so on.

Let us face it, many of the juvenile delinquents of today are the casualities of the modern society in which we live. I regret to say that I believe that by the time a lad or a girl is 16 years old and has resorted to juvenile crime, there is little that we can do about it. They have, as it were, a chance of recovery in their twenties, when they perhaps have a steady girlfriend or boyfriend or want to get married and so on, and many of them get out of the web then. But otherwise we should be thinking of all those things in our society that create the atmosphere that drives people to juvenile delinquency.

I happen to live in a part of the world where there is very little crime indeed. I live in a society where there are still very strong social sanctions, and very strong religious sanctions, where the community is truly interested; it is a homogeneous community and one can understand that it is very much easier to maintain law and order, respect for law and the maintenance of order in a society of that kind. But by and large we do not live in that kind of society and we must acknowledge the fact that many of these sanctions have broken down. Instead of trying to do what we are trying to do in this Bill—and some of the things are essential in this Bill—we need a much more profound study of what is wrong with our penal system, and we cannot go on in this way.

6.37 p.m.

Lord Elystan-Morgan

My Lords, first, I should like to join in the congratulations that have been offered to the noble Lord, Lord Elton, upon piloting his first major Bill through Parliament as a Home Office Minister, and indeed to note the ease with which he has stepped into the distinguished shoes of his predecessor, the noble Lord, Lord Belstead. This Bill is undoubtedly one of the most important and significant pieces of criminal justice legislation to come before your Lordships' House for many decades, and I respectfully disagree with what the noble Lord, Lord Wigoder, in a most thoughtful and humane speech, said about the Bill.

In my submission, it is not just what is contained in the Bill and what is spelt out in its provisions; it is the very atmosphere that the Bill creates that I think in the longer term will be most important. Whether or not that atmosphere be the atmosphere that the Home Office wishes to create is another matter. But although the Bill has much to commend it—and, indeed, my noble and learned friend Lord Elwyn-Jones has spelt out the many laudable matters in the Bill that we on these Benches wholly support—it has nevertheless received its ample share of criticism both in this House and in another place.

Such reservations have been motivated so far as this House is concerned, I have no doubt, by constructive considerations and, by and large, it has not been dealt with in this debate on the basis of any political partisanship. I very much hope that it will be in that spirit that the House will be able to deal with the Bill in its later stages.

The drafting of the Bill has been preceded by many distinguished studies and inquiries to which reference has already been made. In those publications and, indeed, in the debate inspired by them, as well as in the speeches of noble Lords and noble Baronesses today, there emerge, in my submission three very clear and very profoundly pursued aims. First, there is the desire to make the law relating to the treatment of young offenders not only more flexible and more rational hut, above all, more effective in diverting young people from careers of crime to which they would otherwise commit their lives. Secondly, there is the determination to tackle with every energy we possess the hideous problem of prison overcrowding. Thirdly, there is the commitment to carry through a number of limited but significant reforms, to remove injustices and to improve fundamental weaknesses that now still exist in our criminal system.

If the criticism of the Bill now or during its later stages is felt to be heavy, it is on account of the acuteness of the problems concerned as well as on account of the expectations which, over the years, have been engendered in this connection. Everyone who has thought deeply about the matter knows that what has given rise to this Bill is not, unfortunately, the slow methodical evolution of progressive ideas; not a process of inevitable gradualness leading to this piece of legislation. It has rather, as the noble Lord, Lord Hooson, has already pointed out, been born in the hot breath of necessity, in a situation which the House now knows to be critical and which, within a few years, could be catastrophic. It is therefore against such a backcloth that the merits and the demerits of this Bill have to be considered.

I turn quickly now to Part I, the treatment of young offenders. Whatever be the views which divide your Lordships in this matter, I have no doubt but that there is a broad and probably unanimous acceptance that radical changes are necessary. First, in so far as the Criminal Justice Act 1961 was concerned, it imposed an intolerable straitjacket upon the courts. It was a straitjacket that was both unjustified and led to injustice. It was unjustified, to my mind, because there was never any evidence to show that the courts in the decades preceding 1961 had failed to deal properly with the borstal sentence. It was unjust because, as so often happened—as all practitioners and former practitioners in the House well know—as a result of the artificial boundaries that were laid down by that piece of legislation persons were sentenced to terms very different from those which the courts would have wished to impose upon them.

It was impossible to sentence save up to six months, and for three years or over, or, if a person had served a borstal term, for 18 months or over. A judge would very often come to the conclusion that the proper sentence in a certain case was two years' imprisonment, but, as that was not available to him because the person concerned had not been to borstal previously, although he considered borstal training to be utterly inadequate and inappropriate, bound as he was by the wording of the law and by the interpretation of the Criminal Division of the Court of Appeal in that respect, he would have to make an order for borstal training, and that young man would go to borstal for a period of some six to eight months. One could of course go through a number of other similar instances.

I turn now to the question which the House probably regards as one of the most important of all the issues raised by this Bill—that is, the question of the disposal of the cases of young offenders by way of a non-custodial order. Before doing that, 1 join with those who have said that there are many cases where a court simply has no option at all in the matter. As my noble and learned friend Lord Elwyn-Jones and my noble friend Lord Longford, and the noble Lord, Lord Hooson, have said so clearly, there are situations where the horror and the disapprobation of society can only be marked by an immediate custodial sentence. Rape clearly is one of these situations. It must be a wholly exceptional circumstance where a person should not receive an immediate custodial sentence for the horrifying offence of rape.

The same is true for robbery where actual violence has been used, save again in rather exceptional circumstances. For my own part, I would certainly agree with what many noble Lords have already said in this debate this afternoon—that the offence of burglary of a dwellinghouse is not only an offence against property, it is essentially an offence against the person. It is an offence which affects the integrity of that home for ever and ever for most people who have suffered such an experience. Indeed, unless again in such a situation there are quite outstanding reasons to the contrary, such an offence should be dealt with by way of an immediate custodial sentence.

In 1974 the Advisory Council on the Penal System, in a report on young adult offenders, pleaded for, a major switch from custody to supervision in the community ". In 1975, the Expenditure Committee of another place at paragraph 167 of their report urged that there should be a movement, away from custodial and primitive techniques, and towards intermediate schemes of supervision and a greater use of noncustodial residential care ". That view, as so many Members of the House will know, has consistently been propagated by Home Office Ministers over the last 15 years or so. But the trends are precisely the reverse, as indeed my noble friend Lord Melchett has already pointed out.

May I briefly give a few figures to the House? In 1969, the number of males between the ages of 14 and 17 who were committed either to borstal or to a detention centre was 3,046. In 1979 the figure for the same category was 7,161. In 1979 there were 5,000 fewer supervision orders than the equivalent probation order which could be made in 1969. No doubt many people will say, "Well, between those two different dates and over that decade, there was a very substantial increase in juvenile crime ". Most certainly there was, but the increase bore no relationship to the increase in those figures, and the percentages bear that out. The percentage of young males between 14 and 17 who had committed indictable offences, or offences triable either summarily or on indictment, and who were dealt with by way of a custodial sentence, was 6 per cent. in 1969. In 1979, that had risen to over 12 per cent. The Government White Paper of 1980 entitled Young Offenders at Paragraph 39 describes the increase in these terms: One of the most disturbing aspects of the statistics for offending by, and sentencing of, juveniles during the past 15 years ". In the Bill, in my submission, there is nothing that firmly, clearly, and radically changes that situation.

We welcome Clause 51, which extends the scheme of community service orders to those between 16 and 17. We welcome the fact that previous to the publication of the Bill the Home Secretary had provided funds for the appointment of 150 more probation officers. But again it seems that there has not been thought out any widening of the principle of the community service order; no detailed review of the clear success of this institution. In fact, 78 per cent. of all orders are successfully carried out, and the average cost of a community service order is £420, compared with the cost of keeping a person in prison for a year—now in excess of £7,800.

Although the changes in the Bill on the face of it appear to be substantial changes, I tend to agree with the noble Lord, Lord Hooson, that they are really more cosmetic. I am sure that the judgment of a future generation looking back on the Bill will be that, in essence, it made very little difference so far as the actual treatment of young offenders was concerned.

The Home Secretary has said that young offenders sentenced to youth custody orders of between four and 18 months will be guaranteed a training regime, but that unfortunately that guarantee cannot be extended to the others. Where will they go? Surely, they will go to the prisons. Some of them, ironically, will find themselves in prison when they would not now because of the strait-jacket provisions of the 1961 Act. That is a crushing irony, and I, like every other noble Lord, say "Hear, hear" to everything said by the noble Baroness, Lady Faithful], in her superb speech, which bears out not only what she has pleaded for over the years but what she has done in a practical way in her professional career. I am afraid that the objective judgment of history on this part of the Bill will be, very much in the words of John Milton, this is no, New Presbyter…but old Priest writ large ". Nothing essentially has changed; the old faults and fallacies are still there and we are still saddled with the failure of the borstal and detention centre system, a system which now has a reconviction rate of, as we have been reminded, in the case of detention centres, about 74 per cent. and, in the case of borstals 83 per cent.

The second matter with which I wish briefly to deal is the problem of prison overcrowding. It has no doubt been the ardent hope of the Home Office that, to say the least, nothing in the Bill should add to the problem of prison overcrowding. I do not think anybody looking responsibly and fairly at the Bill could say that with any confidence. By the very fact of activating Section 47 of the Criminal Law Act 1977, making it possible partly to suspend a sentence, I, as one who spends practically the whole of his life professionally in the criminal courts, would say that I have no doubt whatever that this is bound to increase the number of persons in prison. The temptation to give a short, sharp sentence where previously a suspended sentence would have been given will be very great, and judges are, after all, only human.

The Home Office have on many occasions miscalculated the way in which the courts would react. I well remember, when a very junior Minister in 1969, a study which was carried out into the operation of the suspended sentence during its first year under the 1967 Act. I do not have the detailed figures with me, but I ask the House to accept my rounded figures. The total number of suspended sentences in the first year was about 14,000. The number of sentences of immediate imprisonment for that year was almost exactly the same as for the preceding year, before there were any suspended sentences. But the number of sentences of fines that were imposed was about 14,000. The very last thing Parliament intended the suspended sentence to he was a soft option for a fine, but that is exactly the way, in the first year of operation at any rate, that the courts used it. I believe that again with this provision there is every danger that it will be used in that way and will swell the ranks of those in prison.

That view was tendered by the Minister of State at the Home Office in another place in December 1979: There is reason to believe that it would increase the number of prisoners detained for short periods ".—[Official Report, Commons, 13/12/79; col. 1519.] The Home Office Review for 1981, a document penned by the Home Secretary, said of Section 47: That section has not been activated because of fears that the new sentence would be used to give a taste of imprisonment in cases where at present the courts would impose a fully suspended sentence or non-custodial sentence. Inevitably, too, in a proportion of cases the suspended part of the sentence would be subsequently activated. Thus there can he no certainty that implementing section 47 would achieve any reduction in numbers in custody ". I am afraid that time, the old enemy, has forestalled me, but I wish nevertheless to deal with Clause 29, the provision which allows the Home Secretary by order to put through subsidiary legislation that would normally allow the release of a prisoner up to six months before the end of his prison term. I press the Minister to say what are the possibilities of that provision being implemented within the fairly foreseeable future and what calculations the Home Office have made of the level to which the threshold would be reduced: are they thinking in terms of six or nine months? Is it intended that the one-third rule should still prevail? What are the chances of being able to claw back, as it were, something of the order of 1,500 to 2,000 places if in fact it were brought down to six months? In its earlier contemplated provision— with the one-third suspended and one-third remission sentence—the Home Office calculated that 7,000 places would be saved. I do not think that figure was in any way accidental because, if we start off from the intolerable level of 44,000 or 45,000 the bursting point, that we have at present, 7,000 would bring it near to that figure of 37,000 which was mentioned by Her Majesty's Chief Inspector of Prisons as the tolerable level at which the prisons should operate. I appreciate that my noble and learned friend said that the ideal level should be 30,000. That is a level at which prisons could begin to be what they were called in the last century, penitentiaries, where it would be possible even to consider reforming a person apart from the consideration of keeping him out of circulation.

In the ordinary course of things, we shall probably not see a Bill of this nature before Parliament again for another 10 years. We have every reason to believe that the next decade will be characterised by some of the most dreadful challenges we have ever seen, both to our criminal system and to the very foundations of law and order. The House will wish to see that the Bill, when it leaves this place, is as adequate to meet those bruising challenges as is humanly possible.

6.58 p.m.

Lord Elton

My Lords, after the practised performances of the noble Lords who preceded me, we come to the inevitable patchwork with which one must reply to the unforeseen questions which the debate has provided. Your Lordships have asked many questions and I shall endeavour to reply to as many as I can. As this is the beginning of the passage of a Bill through the House and not just an Unstarred Question, I feel that perhaps I may be constrained to speak rather longer than I should wish—because of the number of questions asked—but inevitably some will not be replied to and I shall have to write to your Lordships on those.

I start by sharing with the noble Earl, Lord Longford, his admiration for the address, which I see he endorses, of the noble Baroness, Lady Bacon, who preceded me in a rather senior position at the Home Office. How well I sympathise with the cry from the heart when she said how much she found she had to learn. She has had the opportunity to learn it, whereas I am embarking on my tutorial experience. I address your Lordships with great humility because, as I look at the list of speekers, I find that almost all of you have better grounds for knowledge or authority than I can myself claim.

If, since I have already mentioned the noble Earl, Lord Longford, I may refer briefly to his own most interesting speech—which was scriptually based, though he declined to divide the human race to the left and the right as appropriate to sheep and goats—I would endorse what he says. It is indeed very heartening that the Pope should have addressed part of his mission to this country to the cares of prisoners. However, I think that I should remind his Lordship that there are not many people contained within our prison system who would react as Paul and Silas did to the miraculous loosing of their bonds and the collapse of the prison house in the middle of the night by remaining in their cells in order to prevent the prison officer from committing suicide.

It is the function of Government to protect society as well as to succour those who offend against it, and, if this measure concentrates upon that purpose, I think I need not apologise for it.

I was grateful to the noble and learned Lord, Lord Elwyn-Jones, for his qualified approval of the general direction in which our ship is sailing, though he had reservations about both the set of the sails and indeed, I think, the number of cabins. He raised a number of matters which were of common interest to all your Lordships. Many noble Lords have emphasised the need to bring relief to the pressure on our prison system. Indeed, some have implied that prison overcrowding is the most pressing problem that faces us at the moment. Well, it is of course a most serious problem, but it has to be seen in the context of the criminal justice system as a whole, and changes in sentencing powers must be based on their validity and not merely on their impact on prison population. As I introduced the Second Reading, I was trying to display the tension that there was between the two requirements. The Government's approach is that it is the judges and the magistrates who must make the decisions on the right sentence in each case, and the function of the legislature is to provide the right framework of powers so that the courts can make their decisions within the right parameters; it is not to over-ride the decision of the sentencers, and indeed the Bill does a great deal to increase the range of options open to the judiciary outside of custodial detention.

In the context of Lord Elystan-Morgan's eloquent winding-up for the Opposition, and the grave doubts expressed by my noble friend Lady Faithfull, echoed in a more pessimistic mien by the the noble Lord, Lord Hooson, and others, I would say, as the noble Lord on the Opposition Front Bench said, that it is the atmosphere of the Bill that is important. If we look at Part I—and I shall quote only one passage from it—we see that it lays an emphasis which, if I may say so with respect, your Lordships have mostly overlooked. Clause 1(5) states: No court shall commit a person under 21 years of age to be detained under section 8 below unless it is of the opinion that no other method of dealing with him is appropriate ". That is a continuous theme throughout the Bill— that no severe response to an offence against society is to be applied by the court unless a less severe treatment is inappropriate, and on occasions the court is in fact required to say as much and to give its reason.

A central focus of many noble Lords' concern has been on the question of partly-suspended sentences. The noble and learned Lord, Lord Elwyn-Jones, showed great concern for this, as did the noble Lord, Lord Wigoder. There were fears that the temptation offered by the partly-suspended sentence to the courts to use this form of custodial sentence when a fully-suspended sentence, or a wholly non-custodial sentence would otherwise meet the case, would increase rather than decrease the prison population. I have, with respect, to disagree with them on the basis of their fear. The noble Lord, Lord Wigoder, was particularly concerned that the whole sentence imposed might be longer than was strictly necessary simply because part of it was ordered to be suspended. I suppose that there is a danger. I must say that it could not have been better advertised than it has been this afternoon —and not only this afternoon, but in a number of earlier debates. Any new form of custodial sentence must carry with it the risk of misuse, but we do not believe that the partly-suspended sentence will generally be misused. I say that for two main reasons. First, the penological merits of the sentence, if used in the right way, have been firmly stated by the Advisory Council on the Penal System. Secondly—and of perhaps more recent significance—the noble and learned Lord the Lord Chief Justice has taken an early opportunity in the case of Regina v. Clarke to indicate to the courts the criteria that they should adopt in selecting cases for the partly-suspended sentence. I should like to paraphrase the sense of the judgment given in the Court of Appeal on 20th May. There are three basic questions to which the courts must address themselves. Is this a case where a custodial sentence is appropriate? If not, then a non-custodial sentence should be passed. If it is considered appropriate, then would there be a place for a community service order or a fully suspended sentence to meet the case? Further, if a custodial sentence is unavoidable, what is the shortest sentence that the court can properly impose?

The Lord Chief Justice went on to say that great care had to be taken to ensure that the power was not used in a way which might serve to increase the length of sentences. The judgment also echoed the observations of the advisory council, which were to the effect that the sentence was not to be seen as a means of administering a short, sharp shock—and this is exactly the temptation which, with all the appearance of unfulfilled hunger, various noble Lords have said that they would have leapt at had they had the opportunity—nor as a substitute for a wholly-suspended sentence, but as especially applicable to serious first offenders or first-time prisoners who are bound to serve their time in prison, but also may well be effectively deterred by serving only a small part of even the minimum sentence appropriate to the offence.

I believe that that is very clear and very helpful guidance from the Court of Appeal, which reinforces the principles for the use of the new sentence. We should pay more attention to that guidance than fears based on the experience of the operation of a fully-suspended sentence may occasion in us. The fully-suspended sentence has certainly had its critics, including the ACPS, but the advisory council was very much in favour of the partly-suspended sentence.

I think that I have spoken long enough on that. Your Lordships will not be convinced. If you put yourselves in the judges' seats and think that you would have fallen for this luscious temptation, I cannot dissuade your Lordships into believing that your better nature would win. All I can say is that you would meet the displeasure of the Lord Chief Justice and many others if you did not rule yourselves better.

Allied to that was a discussion of the supervised release scheme with an element of discretion to override it in certain areas. We considered whether a supervised release scheme might be acceptable if it contained such an element of discretion to rule it out in appropriate cases. That would not have been incompatible with the response that we received from the sentencers when we questioned them. The noble and learned Lord the Lord Chief Justice has himself indicated as much. However, we had here to take account of the doubts that had been expressed not least by the probation service itself—and that is an important consideration—about the value of compulsory supervision for relatively short periods, especially when applied to the kind of persistent offender who in fact features so largely in the sentence-band under question; that is to say, up to three years.

The efficacy of this element of the scheme would be brought even more strongly into doubt if the period of supervision to be served were even shorter than under the proposal—of course it would be shorter—but it became apparent to us that anyway this was to approach the problem from the wrong end. What was needed was a provision which would enable the courts to keep sentences as short as possible. They had no discretion to determine the length of custody. That followed from the overall length of sentence, and that would have remained the same with a supervised release scheme. Rather than introduce an element of judicial discretion into the question of whether or not such a scheme should apply, it seemed to us better to give the courts the discretion to fix the period of custody within the sentence length.

The noble and learned Lord, Lord Elwyn-Jones, also raised a point on the question of residential care orders. There has been a good deal of controversey over the so-called residential care order, and the disquiet has been reflected from many Benches this afternoon. Much of this controversy I think arises because there is a tendency to equate residential care with custody. These two methods of dealing with young offenders are not the same. A spell in a Prison Department establishment is not the equivalent of a period spent in a community home run either by the local authority or by a voluntary organisation. May I say to my noble friend Lord Mottistone at this juncture that the voluntary sector is playing a very healthy role and, indeed, is providing 30 houses, which amounts, I think, to almost a third of the places we are talking about.

The proposals in Clause 22 are specifically designed to provide the courts in certain circumstances with one last opportunity to avoid a custodial sentence. I said as much in my opening words. The new provision would allow the court to ensure that a young offender in the care of a local authority who re-offends is not allowed home for a period of up to six months. So this new provision does not conflict with the Government's commitment to community-based treatment for youngsters. It is an option which will help the courts to deal with offenders who have got beyond the supervision order; and it meets the commitment to ensure that custody is the last resort.

Baroness Masham of Ilton

My Lords, may I ask the Minister a question? Does that include if he absconds, if he runs away?

Lord Elton

My Lords, that is the shortest notice I have had of any of the noble Baroness's questions this evening. I shall have to consider that.

We then come to the effect of the partially-suspended sentence on the prison population. The estimate given in the review of parole, that the supervised release scheme might result in a prison population saving of up to 7,000, was on the most optimistic view. Consultations make it quite clear that it would be unrealistic to take such an optimistic view; and I might just say to the noble Lord, Lord ElystanMorgan, that, in any case, it would have been disingenuous indeed for us to pitch on a figure that suited us, but to pitch on it in terms which invited us being driven off them at the first opportunity would be absurd. It is estimated that the initial effect of the introduction of half remission would be to reduce the prison population by about 4,000; but that again assumes that sentencing practice would remain unchanged. In practice, therefore, the savings that would be achieved are uncertain.

In this context, the noble Lord, Lord Wigoder, asked about the number of non-violent prisoners. I do not exactly recall the context of that question, but I have recorded an aide-memoire to myself to tell him that the number might be—and it is a guess— 2,500 to 3,000. I must repeat that the effect of any such scheme would be counteracted by a continuing increase in the number of offenders coming before the courts, and many of your Lordships, in varying terms of apocalyptic horror (of which I think that of the noble Lord, Lord Elystan-Morgan, was the most forceful) predict that this will become a tremendous wave. I hope he is wrong. We want to keep people out of prison, but in the event it is society or the criminals who make criminality. We have to respond, in the parameters of this Bill, to what we can meet them with.

I think that I would perhaps pass very briefly over the question of reducing numbers by such small, constructive or otherwise means as the noble and learned Lord, Lord Elwyn-Jones, suggested as the abolition of imprisonment for soliciting by a male for immoral purposes. I think it is worth pointing out that since most male importuners are not acting for gain but are homosexuals seeking a partner for homosexual acts, imprisonment is an inappropriate response. That has been pointed out. There are, however, significant differences between the two offences, that of the males and that of the females, which make it more important that any decision on the availability of imprisonment for this offence should await the outcome of the review of the law on sexual offences and prostitution being undertaken by the Criminal Law Revision Committee. I hope that the noble Lord, Lord Hutchinson of Lullington, will take that as an answer to his query, also. The committee's provisional proposals in relation to this offence are to be included in the working paper on prostitution which they hope to publish within the next few months.

As to drunks, where possible drunks should clearly be diverted from the criminal justice system altogether, where they are a confounded nuisance, particularly in the prisons. The Department of Health and Social Services are monitoring the effectiveness of the two experimental detoxification centres which were set up in the 1970s with the object of seeking to treat drunken offenders, and I hope the noble Lord, Lord Melchett, will take this as some evidence of the happy co-operation which takes place between the department which I now serve and that which I have recently left. But these are expensive institutions, and the Home Office is seeking to make cheaper provision in the form of shelters to which the police can take drunks as an alternative to arrest. The first has been opened in Birmingham, and efforts are being made to open a second, either in London or elsewhere; but there must nevertheless be some action against the offence of being drunk and disorderly.

The suggestion that simple drunkenness should no longer be a criminal offence has in principle much to commend it, but most people charged with this offence are arrested for their own protection, and there will always be circumstances where the police are the only agency available to deal with those who are incapable through drink, whether they are tottering on the edge of a precipice, on the edge of an underground railway or wherever. They would be unable to take action for the protection of an incapable drunk if simple drunkenness were to be de-criminalised. Clearly, the consequences could be tragic. On the use of custody for young offenders, the noble and learned Lord, Lord Elwyn-Jones, said—and perhaps I should say to your Lordships that the noble and learned Lord's name appears at the beginning of my responses on so many occasions simply because it was the first one that I put down as the points were raised.

Lord Elwyn-Jones

My Lords, I was getting a little worried for being made personally responsible for so much that the noble Lord disagreed with.

Lord Elton

My Lords, the noble and learned Lord should feel flattered that I take so much care to persuade him that our view is right. The new powers which the Bill will give to the courts will not, I think the noble and learned Lord said, reverse the trend towards greater use of custody for young offenders. In particular, he voiced the fears which have been expressed about the three-week detention centre minimum. It is important to distinguish the absolute increase in the number of custodial sentences imposed on young offenders from an increase in the proportionate use of custodial sentences. The increase in the number of young offenders dealt with by the courts has led to an increase in the number of young offenders given custodial sentences; but for 17 to 20-year-olds—that is, for young adults—the courts have not increased the proportionate use of custody to any significant extent. In other words, the courts have not shown signs of wanting to increase custody.

But for the 14 to 16-year-olds, the juveniles, it is true that the proportionate use of custody has increased, as well as the absolute use. That reflects the lack of confidence which the courts have shown in the possibility of using care and supervision orders for juvenile offenders. The Bill seeks to put that right. Your Lordships, I think, were not ready enough to see what the Bill does to answer the difficulties which your Lordships have put before us. It is the proportionate use of custody for juveniles which has stabilised since 1978, and I have every hope that the Bill, by increasing the range of non-custodial sentences, will in fact reverse it.

I will have to discard a good deal of my notes, I think, but I should like to respond to the highly critical words of the noble Lord, Lord Donaldson, as to the position in the Prison Service at the moment. He said that the Prison Officers' Association were playing an unfortunate role in the system, and that the Home Secretary was not directing things as he might. I should remind the noble Lord and your Lordships that the Home Secretary dealt very firmly with the industrial action taken by the Association in 1980. Since then, the Prison Officers' Association has shown a very constructive attitude, and this has been reflected by a dramatic fall in the number of local disputes. This afternoon, as it happens, my right honorable friend the Home Secretary has had a very profitable meeting with the Prison Officers' Association, in which a sprit of co-operation was manifest. It cannot be said, therefore, that the prison system is in the control of the Prison Officers' Association and not the Home Office. I regret that the noble Lord thought fit to say that. As to the time spent awaiting trial, the latest figures from the Lord Chancellor's Department for awaiting trail for the Crown courts are as follows. For the quarter ending December 1981, the average waiting time for all cases in the Crown courts was just over 15 weeks. This is an improvement on the equivalent figures of just over 16 weeks for the quarter ending June 1981 and 17 weeks during 1980. These are the figures for all cases. The breakdown for waiting times in custody and on hail are as follows: in custody, something under 10 weeks in 1981 and, on bail, about 17 weeks.

My noble friend Lady Macleod asked about the Leeds decision about the authorities' liability to pay for children in their care. In the Leeds judgment, your Lordships' House in its judicial capacity took the view that Section 55 of the Children and Young Persons Act 1933 under which parents may be made responsible for fines and compensation orders against their children did not extend to local authorities in loco parentis. The Government do not intend to reverse the decision in this Bill. The reason for that is that the natural parents can be presumed to be responsible for their children if their children get into criminal activities and the presumption is that it is their fault. If it is not so, the courts do not have to make the parents pay the fine. In the case of local authorities responsible for a child in care there can be no presumption that the child's offending is the local authorities fault. It is because the child has developed difficulties which very often amount to offending that the child has been placed in care.

Baroness Macleod of Borve

My Lords, will my noble friend give way? I did not relate a case that I had although I meant to do so; but may I now relate a case that I had recently where there were six local authority children who got out in the middle of the night and who were in the care in a residential home of the local authority. Two other children who were brought up by their own parents came and knocked them up and they all went out burgling. Surely, in the case of the children who went out burgling who were in the care of the local authority, it was their fault that thay went out! It could not have been the fault of their parents, who were miles away.

Lord Elton

My Lords, I do not want to encapsulate this into a miniature debate especially with one of my noble friends behind me. I would say that where it is a parent, the fine bites on the person responsible; and where it is the local authority the fine does not bite on the person responsible. I will look carefully at what my noble friend has said; but it appears that the impact would not be what she would hope. I was worried to hear of an incidence of bare discipline in an attendance centre to which he referred. Strict discipline is something at which the police are generally pretty good. It is usually the police who run the attendance centres. There is no reason why the need to provide a constructive regime at an attendance centre should involve any slackening of discipline. It sounds as though the incident cited by my noble friend is an exceptional slip. I will follow it up if my noble friend will let me have the details later. On the question of compensation for wrongful imprisonment, I have to tell the noble and learned Lord, Lord Gardiner, that the "Justice" report is still at the printers and it is not for me to comment on it until it has been received and published. The Government are aware of Article 14.6 of the United Nations Covenant on Civil and Political Rights which this country ratified in 1976. Although the United Kingdom does not have a statutory right to compensation, I feel that we are not in breach of that provision because, as the noble and learned Lord reminded the House, as arrangements to make some such compensation do exist. My right honourable friend the Home Secretary may make an ex gratia payment from the public funds. It is his normal practice to do so when application is made to him if the person concerned has been granted a free pardon or if following the emergence of new evidence the person concerned has had his conviction quashed on appeal, out of time or after my right honourable friend has referred the case to the Court of Appeal under Section 17 of the Criminal Appeal Act 1968. Ex gratia payments may be made in other cases where default or misconduct by the police or some other agency of the criminal justice system has been instrumental in the wrongful conviction of a charge.

But we do not have detailed information about the arrangements in all the countries who are members of the Council of Europe so that I cannot answer his question of whether we are alone in this. I think that we are not alone in not having this in statutory rather than permissive form.

There are no plans to separate juveniles from older young offenders as my noble friend Lady Masham inquired. The 15-to-20-year age group are held together in borstals but any older boy whose behaviour is detrimental to other inmates can, under Clause 12, be treated as if sentenced to imprisonment and held elsewhere. I sympathise with her feelings about cigarettes but it would not be safe to follow up her ideas about straw palliasses until cigarette smoking has been entirely abolished in our prisons because the prospect of lighting fires not only accidentally but intentionally would he increased.

Baroness Masham

My Lords, may I tell the Minister that it is a man-made fibre which causes the toxic fumes which damage the lungs.

Lord Elton

My Lords, I am well aware of that. We are looking into this closely and there is at present no ready answer to the problem. Where you have people intent on setting fire to materials and themselves it is rash to have something which burns so readily as does straw when you often have to break down doors to get in and the doors are strong. We have taken steps to see that the prison staff have smoke protection hoods so that it is easier for them to get out and get prisoners out before the damage is fatal. It would be difficult otherwise.

In Clause 10, youth custody centres are described as places where young offenders may be detained, given training, instruction and work, and prepared for their release. I say this in reply to the noble Baroness, Lady Bacon. This indicates that every effort will be made to ensure that they have a full training regime such is now offered in the best of the borstal system. I am not certain that my noble friend Lady Faithfull is fair in accusing the Government of being preoccupied with custody for young offenders. The scheme which underlies Part I of the Bill is to strengthen and extend the non-custodial measures available to the courts so as to ensure, as is stated in Clause 1, that a custodial sentence is imposed only when no other method is appropriate. I hope that it will become clear to my noble friend when we consider the Bill in more detail that we have built into the Bill a number of measures to direct the courts toward that object. So far as confidence in the short, sharp shock is concerned, the Bristol regimen is being monitored and as soon as results are available which, I regret, will not be until after the end of the year, they can be assessed. The Government agree that where possible custody should be avoided but if it cannot be avoided, for example, because of the seriousness or repetitiveness of offending, it is necessary to enable the courts to make the sentences as short as possible. But it does not mean that they cannot make them longer if they want to do so.

Baroness Faithfull

My Lords, "By their fruits ye shall know them". Why I say that with such firmness is that I think it seems that why custody is underlined rather than the non-custodial treatment lies in the financial position. The figures that I think are going to be allocated for custodial care are very high. Non-custodial treatment is provided by the local authorities. Local authorities have been cut down in their expenditure and cannot develop non-custodial treatment. If non-custodial treatment is thought so highly of by the Government, it will have to be subsidised from central Government funds; and if there was not the money spent on custodial treatment, there would be the money for non-custodial treatment.

Lord Elton

My Lords, my noble friend from immediately behind me has not merely plied me with hostile criticism during her speech so I can never catch her eye to make her wilt, since I otherwise will, she has then managed to interrupt my speech sufficiently to cause me to speak for over 30 minutes, which is something for which my noble friends will not forgive me. Finally, to add insult to injury, she has stolen the quotation with which I was going to conclude my speech. It is indeed by their fruits that they shall be known.

I believe that the results of this Bill arc going to be a great deal better than noble Lords opposite—and indeed around me—give it credit for. It will increase the flexibility of sentencing; it will give greater recourse to non-custodial disposals; it will reduce to some extent the pressure on the prisons. It is not something to be ashamed of. I look forward with eager enthusiasm to the illuminating debates that we shall have upon it at the Committee stage.

On Question, Bill read a second time, and committed to a Committee of the Whole House.