§ 4.12 p.m.
§ House again in Committee.
§ [Amendment No. 2 not moved.]
Lord Elystan-Morgan moved Amendment No. 3:
Page 2, line 4, at end insert (" or make a detention centre order.").
§ The noble Lord said: I beg to move this amendment which stands in the names of myself, my noble friend Lady Birk, and the noble Lord, Lord Donaldson of Kingsbridge. The effect of this amendment, if it were to be graciously accepted by the Government and incorporated in the Bill, would be to abolish detention centres. The amendment has been moved upon the basis that to allow it would be a logical progression in the philosophy of Part I of the Bill, and also that it would be consistent with the development of progressive thought on this matter over the last decade.
As many Members of the Committee will know, as early as 1974 the Advisory Council on the Penal System recommended that the three systems of imprisonment, borstal and detention centre should be merged into one youth custody scheme. That report spelt out very succinctly its reasons. They were as follows:
The general concept of constructive training pioneered by the borstal system has indeed won such wide acceptance that it is largely applied not only in borstals but throughout the young prisoner centres and detention centres as well. The result is that the supposed distinctions, which were once real and significant, between prisons, borstals and detention centres as establishments offering alternative ways of dealing with young adult offenders in custody, have now become blurred and indeed misleading ".
That argument was accepted by the last Labour Government in their Green Paper of 1978 entitled,Youth custody and supervision—a new sentence.
§ The present Government, when they took office, very soon thereafter published their White Paper of 1980, Young Offenders. But although accepting that there was an unanswerable case for the fusion for young offenders of the system of imprisonment and borstal, they jibbed at the inclusion of detention centres.933
§ In the submission of those of us on these Benches, there are very strong and overwhelming reasons for accepting this amendment. I think that the reasons can be summarised as follows. If fusion is brought about, it will inevitably create a more flexible system than ever existed before. It will enable the problems of overcrowding to be tackled on the one hand and, on the other, the conditions of under-utilisation also to be dealt with. The effect upon the individual offender more often than not would be that that offender can be placed in an institution much nearer home than is the case at the present moment. I am sure that every Member of this Committee will agree that that is an extremely important factor. It means that the close contact which is so necessary and so desirable between the young person, his family, his friends, probation officers and social workers, which very often is now threatened by long expensive journeys, would, in the alternative, be maintained.
§ Even though efforts are now often made by probation officers to see young people before the end of their term in borstal, very often in practice this is not possible. In my submission, this factor is something that can have a very considerable influence indeed upon the situation in relation to detention centres, which reflects a failure in the context of so many young people. As the Committee is well aware, 76 per cent. of all young people who go to detention centres are reconvicted within the period of two years.
The Advisory Committee on the Penal System in its 1974 publication stressed the following:
It should be an object of policy so to reorganise the pattern of location of establishments and the allocation of young adult offenders to them that periods in custody will normally be spent in establishments situated nearer to their home areas ".
§ As, I trust, a realist, I have no doubt that the Government will set their face against this amendment and will say, indeed, that there is really no justification for it. It seems to me that the Government are committed to take that view because of the paramount significance that they attach to the maintenance of detention centres. They conceive of them as being places not only of training but basically punitive institutions where the short sharp lesson is to be learnt. May I say, with great respect to those who hold those views, that although there has been research the world over during the last 20 years into various types of youth custody and, indeed, in many countries into the phenomenon of the short, sharp sentence, there is no hard evidence from any part of the world to suggest that it is more successful than a more ameliorative system. Indeed, in 1980, when the experiments at Send and New Hall were commenced, the Government made it clear that those were only in the nature of experiments and promised that data would be published as soon as possible.
§ My calculation—and I stand to be corrected on this—is that by now a total of some 1,200 young people or so will have passed through those two institutions. By now the Government must surely have a fair idea whether those figures show a marked improvement upon the old system. If there has been a marked improvement, then no doubt it is the duty of each and every one of us to reconsider the position in the light of such data. If, on the other hand, there is no such data to support that contention, clearly, 934 in my submission, there is a duty upon the Government to reconsider their whole position in the context of detention centres. If it be the case that there is nothing to suggest that the short sharp sentence is any more successful in 1982 than it was in the 1950s and 1960s—and there are ample data to show that there was no earthly justification for it in terms of success in that period—then most certainly there should be the most radical rethinking on the part of the Government.
§ The Government have, it seems, wavered on this matter before. In 1970, when they came into office, they accepted for a short period the report of the advisory committee in 1970 on detention centres. It may have had something to do with the fact that a Minister of State at the Home Office then was Mr. Mark Carlisle, a Member of another place, who himself had been a member of that particular sub-committee. It is therefore in that light and against that background that this amendment is moved as an urgent plea for the Government to justify the experiment that has now been running since April 1980; and, if they are not able to justify that experiment, to say that they are still willing to reconsider the situation fundamentally. 1 beg to move.
§ Lord Donaldson of Kingsbridge
May I briefly support the opening speaker here. He has raised two points, one pro and one against. The pro point is the increased flexibility which the Home Office and the prison department very much require. To have one youth service covering the whole gamut of youth offending would give them a flexibility which would make it easier for them to send people to detention near home.
The second, and negative, point is that the detention centre, as opposed to borstal, is punishment without any particular effort at rehabilitation. Rehabilitation has very much gone out nowadays. We none of us think that borstal was doing much good, and there is no plea for it to be retained; but there is no doubt that the staff working in these institutions are very unhappy indeed if no room is left for rehabilitation as one of the things they can do—and the short, sharp shock more or less excludes the direct rehabilitation. There is a pious hope that there will be indirect rehabilitation, which many of us doubt. The figures do not show it, and I support the noble Lord, Lord Elystan-Morgan, in asking for some justification for not doing this. It obviously is not a matter of life and death, but a matter of organisation which would be improved by this amendment.
§ Baroness Macleod of Borve
I should like briefly to intervene. The noble Lord, Lord Elystan-Morgan, drew our attention to the possibility of a youth custody scheme. It seems to me from what he and the noble Lord, Lord Donaldson, have said, that it would be at the direction not of the courts but of the Home Office as to where any of the juveniles—that is the under-21s we are still talking about—should go. If the direction of their destination should be left in the care of what we must call civil servants instead of the magistracy, instead of the law, then I am sure that that would be wrong.
The noble Lord mentioned Send detention centre, 935 where I was a short time ago. Indeed, I was on the telephone to them this morning. I, for one, was impressed by the way young people were—and I use the word carefully—treated. They were 15s to 17s. The centre was not full. The youths were obviously not rehabilitated because, as the noble Lord, Lord Donaldson, says, there was not the time available. The sentence in the future will be, as I understand it, from 21 days to four months. But there will be remission on any sentence. Therefore, a young person could remain in a detention centre for as short a time as one week, which means that no rehabilitation is possible.
On the other hand, when I was there I was told that it is apparent that these young people are taught something. They are taught a bit of discipline. They are taught, perhaps for the first time in their lives, occasionally to do what they are told. It is an important remedial way of treating some of these offenders. I asked the warden what were the categories of offence that came to him and were there at this time. They were for burglary, several cases of TADA, several cases of GBH and robbery. I asked, "Robbery with violence on the street, being mugging?" He said, no, because they are a county and they do not take in those from London; therefore, they do not have many of those. But that if there were those cases they would surely end up there. With this package deal that we are being asked to approve in Part I of this Bill, I feel that the detention centres certainly—not the borstals—have an important part to play.
§ Lord Wigoder
I intervene to make only one observation from the standpoint of someone who believes that the short, sharp shock is probably slightly preferable, to the long, sharp shock, but otherwise has very little to support it. I dislike talking in generalised terms, and I should be grateful if the noble Lord the Minister would give us some simple figures that the Home Office must have by this time. First of all a simple question: how many young offenders underwent that treatment in the first 12 months since April 1980? The figure must be available. Secondly—and it may not be conclusive; we can argue about the significance of it—how many of those people were reconvicted in the 12 months after their release?
§ 4.27 pm..
§ Lord Elton
May I welcome the noble Lord, Lord Elystan-Morgan, on board this Bill, which I think is going to voyage for some considerable time, and compliment him on the obvious conviction and considerable eloquence with which he argued his case. May I start from the standpoint of the common man, which is the one 1 think I am best fitted to occupy. It generally is the case in human experience that the first experience of any strict or unaccustomed régime has the greatest impact. I remember with pangs of unhappiness my first day at boarding school,
I remember with almost sharper pangs being woken at three o'clock in the morning at the Castlemartin camp—into which I had the day before been conscripted to howls of derision from the rest of those conscripted because I had a mackintosh and they had not—in the grey light of dawn at the sound of the 936 furniture being broken up by my fellow conscripts to light the fire. All this was a new world and it was something which it took me time to adjust to. It was in the first weeks of that experience that I found myself most affected by this new experience. Thereafter, being a young person I adapted rather quicker, I dare say, than I would now. Therefore, I think that there is, from the commonsense point of view, a supposition that the first part of any sentence is going to have the greatest effect upon the people who experience it.
That means that the provision for the sentence needs to be different from the traditional form of sentence, because for a start there will be no time for an elaborately structured training programme; but that does not mean that there will be no progress made with the inhabitants, with the young person detained. I recently visited Haslar, which is one of the detention centres running the new régime. I was greatly impressed by the way in which the education resources there were used for diagnostic and helping activities with the young people.
I would go along with the noble Lord, Lord Wigoder, if I could not persuade your Lordships further down the road which the Government wish to travel, or nearer to the dotted white line in the middle of it, that is, that we are all agreed that the necessity of locking people up is unfortunate. Most of us are in considerable doubt as to whether there is a rehabilitative effect when we do so and the noble Lord, Lord Elystan-Morgan quoted reconviction which must prove damaging to the thesis that people should be in prison detained for longer because of its rehabilitative effect.
If detention, or custodial treatment of any kind, is not to be beneficial to the subject and is not to achieve what it sets out to achieve, then presumably the shorter the time occupied by it, and the smaller the resources devoted to it, the better. But that is an argument from weakness which I would not want to pursue very far. Under the provisions in the Bill the detention centre order will on the whole be used for those who are fit and have little or no experience of custody, and it seems right that they should be held in separate establishments, apart from those more serious offenders who have received longer sentences, and let us remember that the detention order is intended to be the first experience of that sort.
We also intend to retain the distinction between junior and senior detention centres so that juveniles are, wherever possible, held separately from older offenders. Under generic sentence, such as the noble Lord suggests, although there would be flexibility, there would not be the advantages that we expect from allowing courts to send offenders to places appropriate to their age and character. As I say, in some detention centres there will be a new régime. I can tell the noble Lord, Lord Wigoder, that altogether about 5,000 have been through the tougher régime, but I regret to tell him that we do not as yet have reconviction figures, that there is a monitoring exercise actually in progress, but that it is required for statistical reliability to run for two years and therefore, as I said on Second Reading, those figures will be available at the end of this year.
The amendmendment would, as I say, combine 937 all custodial sentences for young people in one indistinct whole and remove from courts the ability to choose the destination of the people they sentence. I would remind your Lordships that it is necessary to obtain the confidence of the courts in any system we run, and that it is an important aspect of it. The Children and Young Persons' Act 1969 contains within it provision to abolish the sentence for juveniles, and the future of the system, and more particularly the future of the people who work in the system, has therefore been in doubt for no less than a decade. It seems to me proper that that doubt should be put at an end for the sake of the people who operate the system.
The only other matter I would draw to your Lordships' attention is that this is a determinate sentence, whereas the borstal sentence is indeterminate, and here again we touch on the confidence of the courts in the system as they wish to decide what is to happen to the young people who come before them. That is our position. It does not accord with that of the noble Lord, Lord Elystan-Morgan. Indeed, his position appears to be hostile to the whole philosophy to a major part of the Bill for which the Government seek to obtain your Lordships' approval.
§ Lord Wigoder
Leaving aside the question of statistical reliability, which is a matter each of us can make up our own minds about, my Lords, may I ask the Minister if the Home Office have the simple figures (we can argue about their significance later) first, for the number of people who went through the detention centres, where there is the short, sharp shock, from April 1980 to April 1981? They must have those figures. Secondly, do they have those figures, down to April 1982, of how many of those people have been reconvicted? Let us argue about the significance later. It is idle to pretend that, because of the question of statistical reliability, the Home Office are not able to give those figures to the House and apparently will not be able to do so until consideration of the Bill is over.
§ Lord Elton
I had no intention of using an excuse to conceal from the House knowledge which the department already had. What I wished to explain was that the actual evaluation would not be sufficiently reliable as an exercise as a whole for us to put before your Lordships until it had run for two years, and it then needs to be processed. As to the figures, the only figures I can get now is the round figure of 5,000 who have been through already. I take the noble Lord's question and I see its relevance. It appears not be possible to produce them at this stage. I assure him that I shall get them as soon as may be possible and convey them to him and other of your Lordships who may be interested by the most appropriate and expeditious means, but I cannot put my finger on them at the moment.
That is not very satisfactory, but it is the best I can do. The fact remains that our general philosophy believes that the most effective part of a sentence is the beginning, that unless it is to be a very long programme of rehabilitation, tailored to the individual, the shorter it is the better, not only in terms of resources but also in terms of the individual offender, and of 938 course by reducing the length of the attendance, that means less use of resources which are scarce and better conditions for other people in the system, and that is something we want as well.
§ Lord Harris of Greenwich
the noble Lord, Lord Elton, with his customary graciousness, has indicated that the answer he has just given is not very satisfactory, and with that most of us would agree. He is arguing today that it is desirable to maintain detention centres in a separate existence, and that is an arguable proposition about which a valid argument could no doubt be made on both sides. He was then pressed by the noble Lord, Lord Wigoder, to say what had happened in relation to the short, sharp shock sentence, and he has been unable to give any clear indication about that except to say that he will correspond with Lord Wigoder and others at some later stage to tell them what the results have been of the analysis. Being well used to debates in this House, the Minister will recognise that that is not a very satisfactory position.
§ Lord Elton
What I would imagine might happen would be that we should be able to raise the issue at a later stage so that all your Lordships could partake of the knowledge. I do not wish to hold cards close to my chest. I cannot display them until I myself see what is on the face of them.
§ Lord Harris of Greenwich
I am delighted to be reassured on that and let us hope that on Report we shall be able to have that information. I would remind the Minister that no serious argument was ever made for the introduction of the sentence in the first instance; there was no serious criminolgical or social research which ever justified it. It was an ill-considered phrase in a weekend speech, and that is the basis of the short, sharp shock. I suggest that we are entitled to have an early answer as to what is the result of the research that has taken place. I hope it is being carried out by the Home Office Research Unit, which has a substantial reputation. The Minister has indicated that we shall have the information, and I hope that every effort will be made to make sure that we have it by Report, when we shall be able to return to the matter and see what the result of the study has been.
§ Lord Elton
Perhaps I might elaborate a little. I shall certainly be able to produce the reception figures to 1981. The reconviction figures are not so easy to come by, because each individual case has to be tracked down. I shall certainly see that every best effort is made. I have no wish to conceal things from your Lordships. What I cannot produce is what we have not got, but we shall do our very best to get everything that your Lordships may wish, and the proper time, I accept, to do that is at the next stage of the Bill, rather than by correspondence.
§ Baroness Macleod of Borve
Before my noble friend sits down, may I ask whether he would agree that the boy who has been in detention has to have had re-offended before we can get any figures at all?
§ Lord Elton
I am very sorry, but my attention was wandering to the previous point when my noble friend 939 asked her question with such admirable brevity that I was not able to pick it up.
§ Baroness Macleod of Borve
Is it not correct—and the detention centre short, sharp shock treatment started in April 1981—that the person who has left the detention centre has to re-offend before one can get any figures?
§ Lord Elton
Indeed, yes, that is so, and therefore, as I think the noble Lord, Lord Wigoder, would say, there would be some limitation on the use of all of this. What the noble Lord wants is some indication of where we are going, and I think that that is a perfectly acceptable desire.
§ Baroness Wootton of Abinger
Since the statistics give the reconviction figures for detention centres as a whole, it would surely not be necessary to track out every individual, but to have a breakdown according to the different types of detention centre—those which practise the short, sharp shock, and those which are less short, less sharp and less shocking.
§ Lord Elton
In fact, at the moment, the normal method is not to conduct research until two years after conviction. That is why at this stage I am being so very hesitant in making an unwise commitment to more than I can deliver. The normal screening is after two years, to see how many reconvictions there have been. Therefore, there is not a running programme out of which we can just pick the figures as the noble Baroness suggested we should. The latest figures given in prison statistics are for those released until 1977, I understand.
§ Baroness Faithfull
I wonder whether it would help my noble friend the Minister if I were to say that I understand that the short, sharp shock was based on experience at Glenochill Detention Centre in Scotland. Glenochill Detention Centre has had the short, sharp shock for some considerable time. Would it help the Committee and the Minister if the noble and learned Lord the Lord Advocate, who is present, were able to obtain the figures from Glenochill Detention Centre, on which I understand the English detention centres were based?
§ Lord Melchett
I should like to make a point to the noble Lord before he replies to that question. The two detention centres that have been referred to are not simply part of the generality of criminal statistics; they were set up as experimental programmes. If I may say so to the noble Lord, it is not good enough to come to the Chamber and say, "Well, the criminal statistics are collected two years later and I won't be able to tell you anything until then". In the normal course of events, if governments really want to know what is happening—and I suggest to the noble Lord that there must be some doubt about that—the experimental programmes are monitored as they go along. Each individual young person who has been through the short, sharp shock will be followed very carefully to see what happens to him. It ought to have been possible for the noble Lord to give us 940 some information today, and certainly to give some information before the Report stage, so that we can consider it before we debate a similar amendment at that stage.
§ Lord Elton
As I say, the experiment is designed on a statistical basis, with a two-year base. We have not reached the end of it. As to an "ill-considered phrase in a weekend speech", that really is not the basis of policy. It was, rather, a well-considered and apt phrase, describing the policy. I would point out that we are talking about only two places. We are not talking about every detention centre being full of people who are there for only a week or a fortnight. I really cannot tell the Committee more than I have told it. I am certain in my bones that, in the difficult position in which we are, this is the better way to proceed, that we ought not to continue as we now are, and that we should not leave the question mark hanging over the people at present working in the detention centres. To the best of my ability I shall put before your Lordships further information at the Report stage.
I would say that the actual number of reconvictions is not the only aspect of the experiment which is being carefully monitored, and I have every reason to believe that what we see is reassuring. But I would remind the Committee, as it has been reminded by the noble Lord, Lord Wigoder, who started this hare running, that in fact, even if it is only the same product as what we already have, it means that people will be detained for shorter periods, at less expense and less inconvenience. That, as I say, is an argument for weakness, and I hold it only in reserve.
§ Baroness Wootton of Abinger
I wonder whether it would ease the noble Lord's problem if he were to finish the quotation, which runs:A short, sharp shockOn a cheap and chippy chopperWith a cheap and chippy chopperOn a big, black block ".Then the noble Lord would not need any follow-up.
§ Lord Mishcon
There may in fact be an argument, a philosophical argument, a practical argument, a statistical argument, in regard to the short, sharp shock in the detention centre. But the one thing that, so far as I am aware, the noble Lord the Minister has not dealt with is the very real advantage that will be apparent to the whole Committee, and which was mentioned by my noble friend Lord Elystan-Morgan—that is, the greater flexibility. About one thing there is no doubt at all—that is, that overcrowding of our institutions is an absolute disgrace. That applies in respect of the youngster as much as everybody else. There is also the point that greater flexibility obviously would allow of non-overcrowding, if I may put it that way, because of the variety of institutions that are available if there is a single youth sentence.
The other point concerns the greater ability to send the youngster to somewhere which is near his home. The great advantage of a family being able to visit is one of which the Committee must be very conscious. The terrific hardship following the short, sharp shock that there might be to the family of a young man or a young girl in a detention centre is 941 somewhat relieved by the ability to visit, and is made all the worse by a complete inability to visit owing to the distance away from the family home of the detention centre in question.
§ Lord Hutchinson of Lullington
Before the Minister replies to that, I wonder whether he can also enlighten us. If the régime has the benefits that he has indicated, why are girls deprived of the privilege of undergoing the short, sharp shock as much as boys?
§ Lord Elton
I suppose the disadvantages of mixing young offenders with adult offenders which would result from the larger sentence that the noble Lord was after apply even more when one mixes male young offenders with female young offenders. As to the question of nearness to home, of course I accept that it is a good thing when a prisoner can be visited and is close to home. As a matter of policy, we always put young offenders, as others, as near to home as is possible. However, there are other considerations. It is better to have him in provision that is suitable to him a little further away, and we are dealing with short sentences, when of course visiting is of rather less importance.
§ Baroness Bacon
Does not the noble Lord recall that we did have detention centres for girls and that it was because they were so unsatisfactory that we decided to close them and not send any more girls to detention centres?
§ Lord Harris of Greenwich
May I go back to the point on which the noble Lord was so helpful a few moments ago? As I understand the assurance that he has given the Committee, it is that before the Report stage, or at the Report stage, he will bring to the House all the information that is available about the trial régime at the particular detention centres. As I understand his argument, he goes further than that. He said that it is not just a question of the statistics involved. Referring to what the noble Lord, Lord Wigoder, had said, he went on to say that it is not just a question of statistics; there are other matters of an unspecified character with which he will be able to assist your Lordships when we reach the Report stage.
I should like to ask the noble Lord two questions. First—to repeat the question which, no doubt inadvertently, he was unable to deal with earlier—is the statistical analysis being carried out? Who is carrying it out? Is it being done by the Home Office esearch Unit, or by somebody else? Secondly, in terms of the qualitative judgments which, as I understand it, he indicated are being made, who is making them? Is that being done by the Home Office Research Unit, or is it being done by somebody else?
I think these are important matters; and, as the Minister will be aware, he is in fact endeavouring to persuade the Committee that it is necessary to retain detention centres. Being a person well versed in debates in your Lordships' House, he will realise that the onus is upon him, given the character of the debate we are now having, to demonstrate that there are satisfactory answers to these questions. Speaking for myself, if he indicates that what I have said broadly speaking represents the assurances he has given the Committee, then I think a number of us will 942 be content, certainly until the Report stage, when we hope we will get a detailed statement by the noble Lord on these questions.
§ Lord Elton
If I may revert first to the question of girls, I would remind your Lordships that there was in fact, and has only ever been, just one detention centre for girls. Moor Court, in Staffordshire, was opened in 1962. It served only the northern part of the country, and had an average daily population of about 24 girls. It was closed in 1969 on the recommendation of the Advisory Council on the Penal System; and a study of girls sent there and to borstal showed that, apart from the number of previous convictions, there was little difference between the sort of girl sentenced to the detention centre and the sort of girl sentenced to borstal training.
The advisory council concluded that short-term custodial training was in principle unsuitable for girls, and that girls of the kind who were sent to the detention centre would be better dealt with non-custodially or given the longer period of treatment that borstal training provides. The advisory council considered that the needs of delinquent boys and delinquent girls were so dissimilar—and this is the point—that there was no reason why the disposals open to the courts should be the same for both sexes.
The evaluation of the short, sharp shock is being done by the Home Office statisticians and psychologists. There are also two distinguished independent academics who sit on the steering committee. The department and my colleagues get our advice from as wide an area as possible. I think that your Lordships have possibly debated this issue for a length of time which suggests that we should not go on, but, of course, that is in the hands of the Committee.
§ Lord Elystan-Morgan
The noble Lord, Lord Elton, has made the admirable point that it is the first few days, if not indeed the first few hours, of a custodial sentence that have the greatest impact upon the offender. I am sure that no one would seek to contend to the contrary; but, with great respect, it does not seem to me that that answers the argument. That of course will be the case whether you sentence a person to seven days' or to seven years' custody. It does not deal with the question of what the appropriate length of sentence should be in any particular case. In any event, in so far as the category that we are dealing with here is concerned, there is the range of from 28 days to 4 months less remission already catered for.
Of course, it may be that a tough régime can show the most beneficial results, and that is really what the argument has been about on this amendment. But, basically, there is nothing to show that the imposition of toughness on top of the deprivation of liberty has in itself anything to commend it. As I am sure the Minister will recollect, the Advisory Council on the Penal System, in its report in 1970, made this point and recommended,that the function of detention in a detention centre should he regarded as fulfilled by the deprivation of an offender's liberty ".That in no way militates against the principle of the greatest impact taking place inside the first few days. 943 That impact may be a more beneficial impact on account of deprivation of liberty than on account of anything else punitively grafted on top of that particular restriction.
The matter that worries me most in this connection is the dogmatism of the Minister. He has accused me of dogmatism, but my own attitude is that, although one has certain preconceived ideas in this matter, for my own part—and I am sure that I speak for my noble and learned friend and for my noble friends behind me in this matter—I am prepared to reconsider the situation if there be some spectacular, massive truth that stems from the data that is eventually to be published. But it does not seem to me that the Minister is willing to be regulated in the same way.
The Minister accepts that here was an experiment set up by the Home Office; here was the Home Office setting up a machinery for the collection of data; but as far as the Minister is concerned, not having been supplied with one item of that data, he is still totally certain as to the eventual result. Is the Minister prepared to tell the Committee that, although he has his own views about the matter, nevertheless, as a Minister in the Home Office, he is prepared to look at this data upon its merits when it is eventually available?
I join with those noble Lords who have asked for the maximum data to be released at a significant time in the passage of this Bill; namely, at such time as would allow your Lordships to act upon it. If it be that in practice it would not be possible even to give the reconviction figures for one year for all those who have passed through Send and through New Hall under the latest régime, surely it would be possible to take a sample of letters—say 500—and, on the basis of that sample, to make an intelligent calculation as to what, in total, the data would reveal? If the Minister is prepared to give that assurance, then most certainly I would not seek to press this amendment.
§ Lord Elton
It is difficult to be clearer in an undertaking than I hope I have already been. What I will seek to do is to obtain the largest appropriate and feasible sample. There are constraints upon recovering information about reconviction. I am not personally familiar with how long it takes to trace the subsequent career of a released detainee, but I will see the extent to which I can satisfy your Lordships with information and I will make available the whole of the information which I feel the Committee ought to have in this context.
I cannot be more specific than that because I do not know how you get the reconviction figure back. It is not a very easy process, because unless the person re-offends you do not know where he is. As my noble friend said, is that an indication that he has not been reconvicted, or is it an indication that we have not looked in the right place for him? But I shall be advised about this, and I hope to be able to assure your Lordships as to the quality as well as the quantity of the information I give, and your Lordships will be able to judge it on that.
But I would just come back to this point. We are not embarking on this in the sort of slap-happy way that the noble Lord seems to suggest. It is the result of mature reflection, not of a word cast aside in a speech. 944 Even if we were wrong in our expectations and there was no change, there would be advantages both to the inmates and to the system, and therefore I think your Lordships, casting your minds over the other points that I made earlier, would be wise to welcome the noble Lord's decision not to press this amendment.
§ Amendment, by leave, withdrawn.
§ 5 p.m.
Baroness Faithfull moved Amendment No. 4:
Page 2, line 14, at end insert (" because it appears to the court that he is unable or unwilling to respond to non-custodial penalties or because a custodial sentence is necessary for the protection of the public or because the offence was so serious that a non-custodial sentence cannot be justified ").
The noble Baroness said: In moving this amendment I should like to speak to Amendments Nos. 5 and 7 as well because the same points apply in those amendments. Having had this debate on detention centres, may I say that my central interest in this Bill is non-custodial care, and not custodial care. Clause 1 (4) of the Bill states:
Where a person under 21 years of age is convicted or found guilty of an offence, the court may not—
I am sure that my noble friend the Minister will feel or say, or feel and say, that that is adequate. My contention, with my amendment, is that it is not adequate. This is because I think we should put into the Bill the words,
because it appears to the court that he is unable or unwilling to respond to non-custodial penalties or because a custodial sentence is necessary for the protection of the public or because the offence was so serious that a non-custodial sentence cannot be justified ".
§ My noble friend may say that this could go into regulations and that it is not for the Bill, but I would point out two things. First, the Children and Young Persons Act was passed in 1969 and in that Act non-custodial treatment in the form of intermediate treatment was recommended. However, although it was in the Bill, it was not clearly spelt out, there was no formula laid down, and, as a consequence, here in 1982, the Bill having been passed in 1969, we have not got overall satisfactory intermediate treatment throughout the country. Therefore, it seems we should have a formula as to exactly what it is that the court should do before it makes a custodial order. That is the reason for moving this amendment.
§ I believe that, if this amendment were to be accepted by my noble friend the Minister, there would be a shift from custodial to non-custodial care. I would say this. Of course we all agree that there are certain of the difficult young people that we deal with who need and must have, for the protection of the public and for the protection of themselves, custodial care; but, down the years since 1969, the number of juveniles sent to borstals and detention centres rose from about 3,000 in 1970 to 7,500 in 1980 and, correspondingly, supervision orders dropped considerably from 1970. If a formula had been laid down concerning intermediate treatment and if it had been law, I maintain that we should not have lost all those years from 1969 to 1982.945
§ Surely, we want to reduce the level of custodial care. I think it has been said in many other debates that we have the highest number of children and young persons in custodial care in the EEC. I think that I have already mentioned that a German criminologist told me that the 1969 Children and Young Persons Act was a good Act badly administered. I believe it was badly administered because we have not got a proper formula. A Danish criminologist rang me recently to say that he thought it was an extraordinary thing that in this country we had so many children in custodial care. This formula which I suggest we should put forward would be a help to the magistrates, but not only to them; it would help the social workers as well. It is not always either social workers or magistrates who have embarked on so many custodial sentences: I would suggest that it is both and that both need to have the same formula.
§ Another point is that we need an overall policy in the country. The policy from bench to bench is uneven and this is shown by a piece of research that was carried out by the National Children's Bureau, which showed how different was the sentencing on the part of different courts throughout the country. I wonder whether with the shorter sentences we may find that more, not less, children get sent to custodial care. This, I think, is worrying. In the last debate, on the amendment moved by the noble Lord, Lord Elystan-Morgan, a great deal of discussion took place over monitoring and over general principles. I would suggest that, if we were to monitor what happens over non-custodial care, if cases were to come to the Court of Appeal and were to be analysed, perhaps we might then get at what should be done and what is our policy and where we are going; but I fear that, by the time that happens, we shall not have built up a policy and, although this wording may be, for an Act, somewhat heavy, nevertheless I believe it would be aguideline, a formula, for the courts, and for both the social workers and the probation officers. Also, it will be the same the country aver. I beg to move.
I am happy to rise to support the amendment moved in the name of the noble Baroness. I know that she will not mind if 1 remind her that this amendment arose from one of the recommendations in the report by the all-party penal affairs group entitled, The Young Offender: A Strategy for the Future, in which we strongly recommended that the precise circumstances for a court decision to incarcerate a young offender should be spelt out in the statute. It may be felt by some that to give three specific conditions or reasons to help the courts in interpreting the word "appropriate" is an undue interference with the discretion of the courts; but as the noble Baroness has made clear—and I should like to make this point again—that word "appropriate" is wide open to a diversity of interpretation by magistrates' courts up and down the land.
I see this amendment, as, I think, do my colleagues as one step towards reducing the lack of consistency in sentencing policy by the courts and, therefore, reducing the degree of inequity to young offenders who are sentenced by the courts. Both points seem very important indeed.
946 The noble Baroness has said that her concern—and it is the concern of all in the all-party penal affairs group—is to reduce the number of young people put away into custodial situations by the courts. The fact is that the numbers who have been put away have risen astronomically during the last decade and far outstrip the undoubtedly rapid rise in crime—and all this without a corresponding effect in deterring young people from committing offences.
On all these grounds, we feel that it is extremely important to spell this out in the statute so that the courts and, as the noble Baroness has said, the social workers can be adequately guided and not left in considerable doubt on the basis of that euphemistic word "appropriate".
§ Lord Avebury
I should like to support the noble Baroness, Lady Faithfull, and to underline one of the things that has just been said by the noble Lord, Lord Hunt, about the preparedness of the courts to incarcerate children since the passing of the Children and Young Persons Act which, as the noble Baroness told us, was thought to be going to be a means of reducing the number of children in custody when in fact the reverse has happened and there has been a very sharp increase indeed over the last 12 years.
The noble Lord, Lord Hunt, reinforced this point by saying that not only has the number of children in custody increased but the proportion of children coming before the courts and being given custodial sentences has also risen over this period. It may be of interest to say that the proportion of boys aged between 14 and 16 convicted of indictable offences who received custodial sentences rose from 6 per cent. in 1970 to 12 per cent. in 1980, while the number receiving supervision orders fell from 22 per cent. to 16 per cent. This emphasises the point which was made by both the noble Baroness, Lady Faithful, and the noble Lord, Lord Hunt—that we have not been at all successful since the Children and Young Persons Act was passed and it has not meant that we were less prepared to lock up young people than we were prior to that Act coming into force.
I should like to refer to the undertakings given by Ministers in another place that the criteria along the lines of these amendments, if not identical with them, would contain any guidance that was given by the Court of Appeal on the use of the sentencing powers in the Bill after the Bill comes into effect. Surely if that is so and if the Court of Appeal would give the sort of guidance that we have in this amendment, it would be better put into the statute itself. Why wait until after the Bill comes into effect and until the Court of Appeal has got around to doing what the Government say it is going to do anyway? Is it not really the job of Parliament to say what they think legislation means, rather than to leave it to the courts to deal with as best they can afterwards?
I must say that I agree with the noble Lord, Lord Hunt, about the word "appropriate". It is so nebulous and vague that the Court of Appeal in theory could develop guidelines along a totally different path from that which has been set down by the noble Baroness, Lady Faithfull. If this is what Parliament wants, let us put it into the Act now and let us not 947 leave the tidying up to be done by the Court of Appeal after the Bill comes into effect.
§ Baroness Birk
I should like very strongly to support this amendment from these Benches. I would entirely agree with the noble Baroness, Lady Faithfull, that most of our interest is in seeing how very much more we could do in the way of non-custodial methods of dealing with crime rather than the custodial methods. I think it is perfectly true that there is tremendous danger in what is in fact a good measure of reducing the minimum period at a detention centre from three months to three weeks. I can say without any doubt that many benches will use this as a sentence in preference to a non-custodial. They will do it from the best of motives and with the best will in the world, but it will be a custodial sentence rather than a non-custodial sentence. If the Minister feels, as he may, that this is covered quite sufficiently in the Bill—I entirely agree with the noble Lord, Lord Hunt, about the word "appropriate"—I would put it to him with great respect that this really is not so. We have seen in so many other pieces of legislation—not necessarily criminal legislation but others also—that these things have been left open and not spelt out in detail, and it has caused a great deal of confusion and difficulty.
In this case it is particularly important because, as the noble Baroness pointed out, one of the important things is that there should be uniformity. It is wrong that one should leave too much flexibility. Obviously, there must be flexibility in looking at individual cases; but not too much flexibility, not just between one bench and another but between different compositions of benches within the same court area and another, which is in fact what happens. If this is spelt out in this way it would concentrate the minds of magistrates, and I think they would be grateful for these guidelines which are in the legislation. We have seen that, although those are in the guidelines, until something was spelt out on the criteria for bail—and this is rather different; it should be in the major, primary legislation—it was extremely difficult because one got such different approaches. We found exactly the same problem when we were debating legal aid: it was difficult to find a consensus of what the criteria should be. Here is being spelt out, in what I think is a quite admirable way in order to remove doubt, what should be the criteria for giving a custodial sentence rather than a non-custodial one.
It has been pointed out that there has been an increase in juvenile crime, but that increase is not proportionate to the rise of those who are sent to penal establishments. If we wanted any further evidence of the failure of the custodial method of sentence, we have only to look at the reconviction figures of young offenders: those leaving prisons, 68 per cent.; those leaving borstal, 69 per cent. But when we come to detention centres the reconviction figures are quite horrific; 76 per cent. of those leaving detention centres and 83 per cent. of those leaving borstals are reconvicted within two years.
Finally, I think we should also be keeping our eye on the economics of the situation and the question of value for money. There can be no question that non-custodial methods need only a fraction of the resources that custodial methods need, and I hope 948 that the Minister will accept these amendments. They have the support not only of those of us on this side of the House but of other noble Lords as well.
§ Baroness Macleod of Borve
I should like very briefly to support my noble friend Lady Faithfull, for the reasons given by the noble Baroness, Lady Birk, who, as a very experienced magistrate, has put the side of the magistracy. I also agree with the reasons given by the noble Baroness, Lady Faithfull. I think that uniformity would be brought about by these words being put into the Bill and I warmly support the amendments.
§ Lord Hutchinson of Lullington
I support what the noble Baroness Lady Birk, was saying from the practical experience point of view, because I think these words:No other method of dealing with them is appropriateare imported—are they not?—from the Powers of Criminal Courts Act 1973. All experience of those words in court has been this. What happens in magistrates' courts very often is that the clerk, after the magistrate has sentenced the person to imprisonment of some kind, looks up and simply says: "No other method appropriate"? The magistrate nods and then that is entered on the record. It becomes a pure formality. Exactly the same thing has happened with not sentencing first offenders to prison. Again you have to state your reasons and once again off goes the person to prison and the clerk says: "Seriousness of offence?", and the magistrate nods, and down goes "seriousness of offence". It becomes a formality.
I am personally a little ambivalent about what my noble friend Lord Avebury was saying about putting criteria into a statute rather than leaving the matter to the Court of Appeal. I am not so sure that I entirely agree with him about that. The trouble is, can one guarantee that the Lord Chief Justice—one almost can with the present Lord Chief Justice, if I may say so—will in fact lay down the criteria? He has laid down the criteria recently in the case of Clark for partially suspended sentences. He has done the same thing in the cases of Bibi and Upton in the most admirable way.
It is much easier for courts to follow guidelines which come down from the Court of Appeal than to try to wrestle with words in a statute and try to interpret what they really mean. If there was some guarantee that the Lord Chief Justice would lay down the guidelines, if these words were not included and the amendment was not accepted, that might be a better method of proceeding. But I see difficulties in guaranteeing that situation.
§ The Earl of Onslow
I also should like to support this amendment, mainly on the grounds which the noble Baroness, Lady Birk, mentioned. It seems to me that if you have a reconviction rate of 82 or 83 per cent. in two years of people who have been sent to borstal, then borstal has been shown to be almost a total failure. Of course, I concede that there are people who must be kept inside simply for the protection of the public. But, surely, the fewer people there are in prison or in borstal, the more the care that 949 can be taken to do the essential part of borstal training, which is to train, re-educate and civilise. If the more people we can keep out, the more accurate and generous the treatment within borstals can be, it may consequently be that the reconviction rate will be reduced from 82 to 81 per cent.
§ 5.22 p.m.
§ Lord Melchett
This seems to me to be a fundamentally important amendment and it is worth just reminding your Lordships of the background against which we are discussing it. As has already been said, over the last few years, whether there has been a significant increase in juvenile offending or not, the proportion of young offenders being sent to institutions has increased substantially. The percentage of young people coming before the courts and being sent to institutions has increased, at the same time as our knowledge about the ill effects of being sent to institutions has grown, as my noble friend Lady Birk said, with the enormously high proportion that are reconvicted within two years. In effect, what a sentence to an institution of that sort means for a young person is that his chances of not being reconvicted within the next two years are almost negligible.
The Government have introduced a major Bill dealing with criminal justice against that background, and also against the background of mounting concern about the numbers of young people and adults whom this country sees fit to lock up in institutions. On any international scale, we are one of the countries that locks up more people—young people and adults—than others. There is no doubt that most of the professional organisations and experts who have looked at the Government's legislation have come to the view that it is likely to worsen the situation rather than improve it. It is likely to lead to even more young people being sent to institutions, albeit possibly for a shorter period, than the reverse. This amendment seems to me to be the one chance that Parliament has of putting that matter right. That is why I think it is so important.
If I may make just one other point in response to what the noble Lord, Lord Hutchinson, said about the possibility of the Court of Appeal using these words in a judgment, or in advice to the courts on sentencing policy, I think that that would be very much a second best. Indeed, I would go so far as to say that it would be completely unsatisfactory, in comparison with having the words in a statute, unless the Government were able to reassure me that all courts would have to give their reasons in writing, in the light of the Court of Appeal's instructions, when they sentenced a young person to an institution. As I understand it, that would not be the case unless the words were incorporated in the Bill.
My second ground for concern is that a great deal of research has been done on sentencing practice, and I do not think there is very much doubt that judgments of the Court of Appeal, significant as they may be, particularly for the higher courts, very often have some difficulty in penetrating to magistrates' courts. This is no criticism of magistrates. The Court of Appeal makes a great many very worthy judgments and it would be unrealistic to expect all lay magistrates to be familiar 950 with all of them, even those which affect sentencing policy, of which there are now a great many. I really do not think that that is any adequate substitute for incorporating these words in the Bill, and we are left, as we so often are when arguing with Governments on matters of this kind, with trying to get the Government to say, if the Court of Appeal are prepared to say this, why they cannot put the words into the statute, which is what we ought to do.
§ Lord Elton
There is a remarkable unanimity about what we wish to achieve and I subscribe to it. We want to stop people from going improperly to custodial treatment, when they can be treated in the community. We are alert to, and share, the anxiety about the rising figures for custodial treatment, particularly of young people, and I have a great deal of sympathy with what my noble friend Lady Faithfull—I almost forget what she looks like, because she will sit behind me—wishes to achieve and with the way in which she has advanced her cause. But it is not only the interests of the individual offender which demand that he should receive a custodial sentence only when no other method of dealing with him is appropriate. The appalling pressure, to which I have referred before, throughout the prison system advocates that as well. I say this to make absolutely clear both the Government's acceptance of the principle embodied in these amendments, and the spirit in which they have approached them. There is already in Clause 1 an unequivocal provision that no court shall pass a custodial sentence on a young offender unless no other method of dealing with him is appropriate, and the amendments themselves borrow words used in paragraph 3 of this Government's White Paper.
The principle, therefore, is not in dispute. What is at issue is whether these amendments would achieve the aim which we all appear to share. 1 appreciate that they differ from the amendments tabled in Committee in another place, which were discussed at great length, and which have been expanded in the light of the debate in another place to include a reference to the seriousness of the offence, as one of the matters which the court must take into account. Indeed, the amendments essentially turn on the need to protect the public and on the gravity of the offence. They leave it to the judgment of the courts to decide what type or length of sentence is demanded by the need to protect the public or by the seriousness of the offence. Therefore, the amendments would not prevent the courts from imposing custodial sentences where they thought them necessary.
One could argue on that ground that the statement of principle enbodied in these amendments cannot, therefore, be objectionable. But there is an equally important point which I ask the House to consider very carefully. It is that, for the same reasons, such a statement of principle is not likely to be effective. It directs the courts towards the principle that custodial sentences should be imposed only in respect of serious offences. Unless, however, there is any guidance as to what constitutes a serious offence, a provision on these lines is not likely to be of much help to the courts. They are left, again, with determining something which has not been quantified. The difficulty which we are up against is that legislation can seek 951 to provide only comprehensive, general principles. In matters of sentencing, there are very real limits to how far Parliament can have a practical effect on the day-to-day decisions made by the courts in an enormously wide range of individual cases.
The question, therefore, is how far can the principle, that a custodial sentence should be awarded only if unavoidable, be helpfully and effectively spelled out in legislation and how far should we look to the courts to provide the guidance? The Government have taken soundings on this, in the light of the discussion in another place. There is no disagreement about the importance of the principles underlying the amendments. They are, indeed, considerations which the courts should—and do—have in mind. But are principles at this level of generality a help to the courts? They have, after all, to cover a wide variety of specific facts and circumstances. It could be said that, at the least, statutory principles on these lines could do no harm. I would be cautious about that.
For example, there may well be circumstances where an offender has, through repeated but minor offending, shown himself "unable or unwilling" to respond to non-custodial penalties. It may nevertheless be right in particular cases to persevere with non-custodial sanctions. The courts need the flexibility to suit their response to the case before them. If it is said that the amendments would leave this open, that is surely to concede that their efficacy is doubtful.
As I say, we agree on the preferability of keeping people out of custody. The phrase must have a familiar ring to the noble Lord, Lord Melchett. Keeping people out is something in which he has a laudable interest. My noble friends and others have all spoken to this. My noble friend Lady Faithfull said that she had heard the Children and Young Persons' Act referred to as a good Act badly administered and she asked for a formula. All we are discussing is where the formula should come from. Before I address myself to that, may I say to the noble Lord, Lord Melchett, that Clause 1(7) requires magistrates' courts to give their reasons for imposing a custodial sentence. That is something to which I think he attaches importance.
§ Lord Melchett
No, that was not my point. So that I do not forget it and in order to allow the noble Lord to get more advice, what I want to know is this: if the Court of Appeal lays down guidelines, will the reasons given by the magistrates' court for imposing a custodial sentence have, in writing, to take into account those guidelines? In other words, will the reason which is given in writing have to say which of the various reasons from the Court of Appeal's guidelines they have taken into account? I understand that if we put these words into the statute, this will quite clearly be an obligation placed on the court.
§ Lord Elton
I am much obliged to the noble Lord and I take his point exactly. It is something which I shall take into consideration. The noble Lord need not think that I am trying to fob him off. I want first to establish that in my view it is from the courts—indeed, from the Court of Appeal—that this kind of guidance should come. I am grateful to the noble Lord, Lord Hutchinson of Lullington, for his inter- 952 vention. I take the point that the track record of the Court of Appeal in relation to Upton, Bibi and so on is extremely convincing. I hope your Lordships will note that, as my honourable and learned friend the Minister of State indicated on Third Reading in another place, we can be confident that the Court of Appeal will doubtless take it upon themselves to provide guidelines in exactly the way noble Lords wish. I would refer the noble Lord, Lord Avebury, and others who feel that this kind of guidance ought to be on the face of the Bill not only to the actual detectable effect of the advice given in Upton and Bibi, which appears to be already becoming apparent, but also to the fact that where the court gives this guidance it will be able to do so with the authority of its own experience of sentencing and with the advantage that it will not require, as my noble friend's amendment would require, the passing of another statute through both Houses of Parliament if experience shows that the guidelines need to be either modified or expanded.
The argument that custody fails, on the evidence of reconviction rates, does not establish that cheaper community-based treatment will succeed. The courts will not therefore necessarily accept the view that a custodial disposal is better. The guidelines in that respect are admirable, but are they effective? They leave it to the courts to decide, as they do now, whether custody is necessary because of the seriousness of the offence. It would be far better to let the Court of Appeal spell out the considerations in detail. That method gives to the courts an element of flexibility which would be denied to them by legislation, because cases will arise from time to time when the statutory principles cause difficulty on particular facts.
There can be no doubt that we are all after the same thing. I am content that guidance of the kind wanted will be provided by the Court of Appeal with greater authority and with greater flexibility than can be provided in your Lordships' House by this means. I hope my noble friend will feel able to accept this reassurance as in fact achieving what she wants with more certainty than the amendment which is now on the Marshalled List.
§ .36 p.m.
§ Lord Wigoder
I speak as one who will not forget what the noble Baroness, Lady Faithfull, looks like, even if she were sitting behind me on these Benches—as, indeed, I hope she will one day. I waited to intervene because I was not entirely sure whether the noble Lord, Lord Elton, was going to argue that this amendment is unnecessary or whether he was going to argue that it is inadequate. As I followed his argument, he is not saying that it is inadequate. He is not suggesting that there are other criteria, apart from those set out in the amendment, which the courts should consider in deciding whether to impose a custodial sentence. Therefore, the only basis for the difference of opinion that has emerged during the course of the debate is whether it is unnecessary or whether it serves a useful purpose to set out what appear to be commonly agreed criteria in the statute.
I can only say that for my part I should have thought that it would have helped not only magistrates but also recorders and judges to have the criteria set out in this simple and clear way and in a form which will make 953 them, at the end of their decision, have to say in terms on what basis they have imposed a custodial sentence. I accept that the noble Lord the Minister and the noble Lord, Lord Hutchinson of Lullington, have a point in saying that there may be a role for the Court of Appeal, but I doubt whether it is right for your Lordships to hand over the whole of the responsibility to the Court of Appeal in that way. The noble Lord, Lord Elton, says, for example, that if we include the words "the offence was so serious that a non-custodial sentence cannot be justified" they may require further clarification. I respectfully agree with him. This is surely the area where the Court of Appeal should come in and say what is meant by a somewhat general term of that nature. However, on the issue as to whether or not it is unnecessary to include a clause of this nature defining the criteria, I should have thought there was a great deal to be gained for judges of all sorts and magistrates at all levels and nothing whatever to be lost.
§ Baroness Trumpington
I should like to support what the noble Lord, Lord Wigoder, has just said. In a curious way, it is not flexibility that one wants. The fact of the matter is that there has been flexibility of different minds in different courts up to now. If we have too much flexibility, we shall be right back to the situation where those of us who have worked in different courts know full well the different decisions which different courts will come to on the same kind of case. Therefore I support what the noble Lord, Lord Wigoder, has said and agree very strongly that it is the guidelines which are necessary which should be set down, which still leaves room for the Court of Appeal to make additional moves, if they so wish.
§ Viscount Ullswater
My noble friend Lady Faithfull said at the beginning that she was speaking to the three amendments together. Clause 5 deals with imprisonment for default. It also says that no court can commit a person unless there is no other method of dealing with him which is appropriate. In default of a fine, somebody can receive a prison sentence but there is no way of providing that another form of alternative sentence is available. For instance, community service orders are not available to the originating court, because it would not be an imprisonable offence if only a fine could be imposed. I would like to clear up whether instead of being sent to prison for default of a fine, a community service order could be instituted.
§ Lord Elton
I take it that that question is addressed to the mover of the amendment. In any event, I think that we are focusing our attention on the essentials of this issue and it is simply a question of what will be more efficacious in doing what we all want. Some noble Lords say that it is best done in tablets of stone which can only be chiselled away by all the stages of another statute, and that the corners and the commas should be rounded and inserted by the Court of Appeal. I can only say that the guidance given by the Court of Appeal will be binding on the lower courts. I do not doubt that it will be extensive and specific, and not simply in the form of a check list which the lower courts can tick off, as has been suggested. The sentencing courts will have to take 954 into account the statutory requirements and the principles which the Court of Appeal lays down. The reasons for these will be recorded and will be open to appeal. I believe that that answers the point raised by the noble Lord, Lord Melchett.
I regret to be at issue with some of my noble friends as well as with noble Lords opposite. I am content to rest my case because I believe that it is the right way to proceed, and that I would be supported in this by the judiciary. I believe also that it gives an opportunity for law to evolve rather than go jerking about from one piece of legislation to another. I still hope that my noble friend Lady Faithfull will see fit not to pursue the matter further.
§ Lord Avebury
Before the noble Lord sits down, will he say if he can conceive of any circumstances in which the Court of Appeal's guidance would conflict with the words proposed by the noble Baroness, Lady Faithfull, for insertion in this Bill?
§ Lord Elton
I can well conceive a pattern of the guidance far wider than that which my noble friend proposes and some parts of which would not be in precise accord with what she says. I do not see any point in having unnecessary, overlapping grids of guidance when we have the expertise and experience of the Appeal Court of this land, which can be adjusted to meet circumstances as they change, rather than placing immutably on the statute book something smaller and bolder, and therefore rougher and readier.
§ The Earl of Onslow
If the Court of Appeal will have to lay down these guidelines at some future date, would it not be better to put them in the statute book now so that everybody knows what it says, and then we do not have to go to the Court of Appeal?
§ Lord Elwyn-Jones
I should like to follow that by suggesting that is essentially a policy matter, on which Parliament is to give guidance. It is neither fair nor appropriate that we should simply "pass the buck" on to the judiciary. This is for Parliament to legislate on. I co not believe that the judiciary would be unhappy about being given guidelines such as these. I think that we ought to go forward and support these amendments.
§ Baroness Faithfull
I feel like a desembodied voice, standing behind my noble friend. Would my noble friend Lord Elton like to look at me? To the noble Lord, Lord Wigoder, I will say that I am committed to these Benches but I thank him for inviting me to the Liberal Benches. Could I first take up the point made by the noble Lord, Lord Hutchinson. Obviously he is very well versed in these matters, but perhaps I could say, with the utmost diffidence to magistrates, that not all magistrates know what goes on in the Court of Appeal.
Secondly, social workers and probation officers are the people who make recommendations and provide social inquiry reports to the courts. The courts have the final say but I believe that two magistrates in our House would possibly concede the point that they are influenced by what is said in the probation officers' and social workers' reports. I regret to say that they 955 also do not always know what the Court of Appeal has said. It is a question of the whole climate of opinion, and I am not all sure that we can even wait for these Court of Appeal judgments to be issued and worked upon.
My noble friend the Minister talks about the formula. I believe we must concede that a formula is necessary. My noble friend agrees that the formula is necessary but what he does not agree upon is where it should come. If he agrees that a formula is necessary, then why could it not be in the Bill? I hope that I remain to my noble friend the Minister a disembodied body because I am afraid I feel that I must divide the House on this issue.
§ 5.46 p.m.
§ On question, Whether the said amendment (No. 4) shall be agreed to?
§ Their Lordships divided: Contents, 102; Not-Contents, 81.956
|DIVISION NO. 2|
|Allen of Fallowfield, L.||John-Mackie, L.|
|Ardwick, L.||Kagan, L.|
|Auckland, L.||Kilbracken, L.|
|Avebury, L.||Kilmarnock, L.|
|Aylestone, L.||Kinloss, Ly.|
|Bacon, B.||Kirkhill, L.|
|Balogh, L.||Lauderdale, E.|
|Banks, L.||Listowel, E.|
|Barrington, V.||Llewelyn Davies of Hastoe, B.|
|Belhaven and Stenton, L.|
|Beswick, L.||Longford, E.|
|Birk, B.||Lovell-Davis, L.|
|Bishopston, L.||McCarthy, L.|
|Blease, L.||Macleod of Borve, B.|
|Blyton, L.||MacLeod of Fuinary, L.|
|Boston of Faversham, L.||Mar, C.|
|Brockway, L.||Melchett, L.|
|Brooks of Tremorfa, L.||Milverton, L.|
|Byers, L.||Molloy, L.|
|Cairns, E.||Mottistone, L.|
|Chitnis, L.||Mountevans, L.|
|Cledwyn of Penrhos, L.||Northfield, L.|
|Clifford of Chudleigh, L.||Onslow,E.|
|Collison, L.||Oram, L.|
|Craigavon, V.||Peart, L.|
|Darcy (de Knayth), B.||Plant, L.|
|Davies of Leek, L.||Ponsonby of Shulbrede, L.|
|Davies of Penrhys, L.||Rochester, L.|
|Donaldson of Kingsbridge, L.||Saltoun, Ly.|
|Elwyn-Jones, L.||Shinwell, L.|
|Elystan-Morgan, L.||Simon, V.|
|Evans of Claughton, L.||Spens, L.|
|Ewart-Biggs, B.||Stedman, B.|
|Faithfull, B. [Teller.]||Stewart of Alvechurch, B.|
|Foot, L.||Stewart of Fulham, L.|
|Forester, L.||Stone, L.|
|Gardiner, L.||Strabolgi, L.|
|Gosford, E.||Taylor of Mansfield, L.|
|Greenway, L.||Tordoff, L.|
|Harris of Greenwich, L.||Trumpington, B.|
|Houghton of Sowerby, L.||Ullswater, V.|
|Howie of Troon, L.||Underhill, L.|
|Hunt, L. [Teller.]||Vaux of Harrowden, L.|
|Hutchinson of Lullington, L.||Wade, L.|
|Ilchester, E.||Wallace of Coslany, L.|
|Ingleby, V.||Walston, L.|
|Irving of Dartford, L.||Wedderburn of Charlton, L.|
|Jacques, L.||Wells-Pestell, L.|
|James of Rusholme, L.||Whaddon, L.|
|Jeger, B.||Wigoder, L.|
|Jenkins of Putney, L.||Wynne-Jones, L.|
|Airey of Abingdon, B.||Long, V.|
|Alexander of Tunis, E.||Lucas of Chilworth, L.|
|Allen of Abbeydale, L.||Lyell, L.|
|Allerton, L.||Mackay of Clashfern, L.|
|Avon, E.||Marley, L.|
|Bathurst, E.||Massereene and Ferrard, V.|
|Bellwin, L.||Merrivale, L.|
|Beloff, L.||Mersey, V.|
|Bessborough, E.||Monk Bretton, L.|
|Caithness, E.||Monson, L.|
|Campbell of Alloway, L.||Montgomery of Alamein, V.|
|Campbell of Croy, L.||Murton of Lindisfarne, L.|
|Cathcart, E.||Newall, L.|
|Cockfield, L.||Northchurch, B.|
|Cork and Orrery, E.||Nugent of Guildford, L.|
|Daventry, V.||Orkney, E.|
|Davidson, V.||Orr-Ewing, L.|
|De La Warr, E.||Plummer of St. Marylebone, L.|
|Denham, L. [Teller.]|
|Digby, L.||Radnor, E.|
|Dormer, L.||Reigate, L.|
|Drumalbyn, L.||Renton, L.|
|Eccles, V.||Renwick, L.|
|Ellenborough, L.||Rochdale, V.|
|Elton, L.||St. Davids, V.|
|Ferrers, E.||Sandys, L. [Teller.]|
|Fortescue, E.||Selkirk, E.|
|Fraser of Kilmorack, L.||Sharples, B.|
|Gainford, L.||Skelmersdale, L.|
|Glenarthur, L.||Stodart of Leaston, L.|
|Gowrie, E.||Stradbroke, E.|
|Harmar-Nicholls, L.||Swansea, L.|
|Harvington, L.||Swinfen, L.|
|Hatherton, L.||Teynham, L.|
|Henley, L.||Thomas of Swynnerton, L.|
|Home of the Hirsel, L.||Torphichen, L.|
|Hylton-Foster, B.||Trefgarne, L.|
|Inglewood, L.||Wakefield of Kendal, L.|
|Kilmany, L.||Westbury, L.|
|Kinnaird, L.||Wilberforce, L.|
|Lane-Fox, B.||Young, B.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 5.55 p.m.
Baroness Faithfull moved Amendment No. 5:
Page 2, line 17, at end insert (" because it appears to the court that he is unable or unwilling to respond to non-custodial penalties or because a custodial sentence is necessary for the protection of the public or because the offence was so serious that a non-custodial sentence cannot be justified ").
§ On Question, amendment agreed to.
§ The Deputy Chairman of Committees (The Earl of Listowel)
Before I call Amendment No. 6, I should point out to the Committee that if Amendment No. 6 is agreed to, I cannot call Amendment No. 7.
Lord Elton moved Amendment No. 6:
Page 2, line 18, leave out subsections (6) and (7).
§ The noble Lord said: Your Lordships may find it to the convenience of the Committee if, in moving Amendment No. 6, I speak also to Amendments Nos. 9, 176, and 180. I am pleased to bring forward these amendments to give effect to an undertaking which the Government gave during the passage of the Bill through another place. The Government were strongly pressed to provide that a court should always and invariably consider a social inquiry report before imposing a custodial sentence on a young offender.957
§ May I in parenthesis address myself to a question which I think is exercising the Opposition Front Bench. Perhaps the noble Lord, the Chairman of the Committee would allow me to say that Amendment No. 7 is consequential on Amendment No. 4, which has fallen, or, if you happen to look at it from the other side, stood up. Therefore, it does not relate to this debate. All I can do is to congratulate those with whom I disagree on their victory and look for their magnanimity.
§ Reverting to Amendment No. 6, I am glad to bring forward these amendments to give effect to an undertaking which the Government gave during the passage of the Bill through another place. The Government were strongly pressed to provide that a court should always and invariably consider a social inquiry report before imposing a custodial sentence on a young offender. That was difficult because there would sometimes be cases in which a rigid requirement of that kind would operate in a ridiculous way. Such a case might arise where, for example, the court after a long trial already had a great deal of information about the offender and his circumstances and the offence was so serious that a substantial custodial sentence was absolutely unavoidable. It would clearly be wrong if in such a case the court had to adjourn the case before sentence simply because its information did not happen to be in the form of a social inquiry report.
§ After long debate there was general agreement that a court should normally consider a social inquiry report before passing a custodial sentence on a young offender, but that it should be able to dispense with the requirement where, in the circumstances of the case, it thought such a report unnecessary. That is the provision which this new clause makes.
§ The Government have taken the opportunity with these amendments to offer a slight rearrangement of the opening clauses of the Bill. This new clause incorporates the provisions which now appear in subsections (6) and (7) of Clause 1. Clause 1 sets out the general principle that a court may not impose a custodial sentence on a young offender unless it is of the opinion that no other method of dealing with him is appropriate. The new clause elaborates on that provision by providing that the court should usually consider a social inquiry report, and that it must take into account any information before it which is relevant to the young offender's character and his physical and mental condition. A magistrates' court must state and record the reasons for its opinion that no other method of dealing with the offender is appropriate and, if necessary, its reason for dispensing with a social inquiry report.
§ This clause improves and strengthens the Bill. It serves to emphasise that custody should always be a last resort and that any decision to impose a custodial sentence should be arrived at only after the fullest consideration of all the circumstances of the offender as well as the offence. I urge the House to accept these amendments.
§ Lord Elwyn-Jones
The Committee will be grateful, or at least we on this side of the Committee will be grateful, to the noble Lord for having met the strongly expressed opinions in another place commending the view that before a custodial sentence is imposed on an 958 offender under 21, the court should consider a social inquiry report unless there are special reasons which make that course unnecessary. Where there are such circumstances the court should give its reasons why it considers this unnecessary. This is a helpful amendment and I think that it will greatly assist the courts in the application of these clauses.
§ Lord Wigoder
I should like to raise one matter to ensure that I have understood the position. If and when these amendments are carried, as I understand it Amendment No. 7 will not now be called. Amendment No. 7 is consequential to Amendment No. 4 which the Committee has just supported. As I understand it, the position is—and I would be grateful for the Minister's confirmation—that if these amendments are carried, Amendment No. 7 will not be able to be put, but at the Report stage Amendment No. 7 will be re-tabled to come in at the appropriate stage after the new Amendment No. 9 and subsection (4). It will, in effect, then follow on as it would have done had these new amendments not been proposed.
§ Lord Elton
I think that perhaps I was injudicious in my intervention at the beginning of my introductory speech because the noble Lord has looked at what the noble Lord Chairman said. It would seem that we are to remove a part of the Bill which is to be amended by Amendment No. 7, although it is a consequential amendment. When I was doing my preparation I had not made the assumption that the last Division would go against me and that is why I drew that conclusion. It will be for my noble friend not to move Amendment No. 7, but to do what is appropriate at the next stage of the Bill.
§ On Question, amendment agreed to.
§ The Deputy Chairman of Committees (Lord Nugent of Guildford)
I cannot call Amendment No. 7. The next amendment is Amendment No. 8.
§ [Amendment No. 7 not moved.]
Lord Hunt moved Amendment No. 8:
Page 2, line 39, at end insert—
(" (9) For the purposes of this Act the age of a juvenile or young person found guilty or pleading guilty to an offence shall be deemed to be the age of the person at the date of the commission of the offence.").
The noble Lord said: I beg to move Amendment No. 8 which stands in the name of my noble friend Lord Donaldson of Kingsbridge and myself. The purpose of this amendment is to supply what we believe to be essential information—an essential factor—in regard to the general purpose of this clause. Clause 1, as your Lordships are well aware, has to do with the general restrictions on the custody of young people. In the previous subsection—subsection (8) as it stands at the moment, which is the last subsection —there is reference to the matter of age. As your Lordships will see, it says:
For the purposes of any provision of this Act which requires the determination of the age of a person by the court or the Secretary of State his age shall be deemed to be that which it appears to the court or the Secretary of State (as the case may be) to be after considering any available evidence ".
It seems to us that there is something missing. I have never sat on a Bench myself, but it seems to me
that in determining the disposal of a young person, the age of that person at the time either of the arrest or of the sentence—or could it be, as we believe, at the time he or she committed the offence?—is totally relevant to the kind of disposal.
§ If the young person is below the age of 14 he or she cannot be committed to custody and, depending on the length of sentence which the court deems it correct to impose, the person may be sent to a detention centre or to youth custody. To some extent a relevant factor must be the age of that person. It seems to us sensible to relate the age of the juvenile to his offence or to relate the offence to the age of the juvenile at the time when he or she committed it. It is as simple as that. I hope that your Lordships will agree that there is something missing from the Bill as it stands at the moment and that the Minister will be able to see the ommission, agree it, and put it into the Bill. I beg to move.
§ Lord Renton
On the face of it this would seem to be a very helpful and sensible amendment. But I wonder whether the noble Lord, Lord Hunt, and those who may agree with him, have considered the principle that is summed up in the old Latin tag, nullum tempus occurit regi—there is no limitation in criminal cases. Indeed, somebody can be brought up before the court for an offence which he or she committed years before. Therefore, if in principle this amendment is right, an exemption would have to be added because it really would be quite absurd if, for example, a person committed an offence at the age of 16 or 17 but did not come before the courts until he was in his middle twenties. It is obvious that when he does eventually come before the courts the principles of sentencing which apply to people of the age at which they do come before the courts, should apply. Therefore, I do not see how your Lordships could accept the amendment as it stands, but perhaps my noble friend Lord Elton will be able to clarify this matter.
§ Lord Donaldson of Kingsbridge
This is a probing amendment. The point is that as it stands it seems unsatisfactory that the magistrate sitting on the Bench does not know at what period he has to take the age before he decides what to do with the offender. If that is not the case, we should be very happy to withdraw the amendment. It seems to me that there is a gap here. I do not wish to say what ought to be the case; we have put down what seemed to us to be correct. The noble Lord, Lord Renton, says that it will not "go"—all right, but something should go. It should not be up to the magistrate to say, "Well, you were 14 when this crime was committed but you were only convicted when you were 15 and, therefore, I shall treat you as 15". He ought to know which it is. It seems to me that the situation is wrong.
I should like to mention one other matter that is wrong. In the third line of the amendment, as printed on the Marshalled List, the word should be "commission" and not "committal".
§ The Earl of Onslow
I should like to ask a question as somebody who has a totally open mind. Surely this is not something very new? The problem must have arisen since the beginning of the commission of 960 crime. The noble Lord, Lord Donaldson, might have got up to some appalling high jinks when he was 15 but to prosecute him now and to send him to the detention centre at Send to have a quick, short, sharp sentence would be really carrying things to an idiotic length. However, this situation must have occurred previously, but of course not to that extreme.
The point which I want to raise is as follows. Why is the age 21 and not 18? One can vote for my right honourable friend Mrs. Thatcher at 18, but if in one's exuberance at her winning the election one commits some foul deed, one is sent to a juvenile detention centre as opposed to a male prison. I should like to ask that question.
§ Lord Elystan-Morgan
It seems to us on these Benches that, as regards the question of the age of an offender in the context of any line that is drawn at law, the choice must really lie between his age at the date of the commission of the offence or his age at the time he is dealt with by the court. No doubt there are many situations that will render either of those two dates less than appropriate. But the lesser of the two evils, in our submission, is the date at which he is dealt with by the court.
In fact, that is the situation at present in relation to a court passing a borstal sentence. It has to consider the age of the miscreant and sometimes that in itself can be a problem, but it must decide that issue of fact as best it can. It has to decide the age at the date on which it deals with the particular offence. That is the position under Section 80 of the Criminal Justice Act 1948. Therefore; of the two evils that would seem to be the lesser in this connection.
§ Lord Elton
My Lords, my work has almost been done for me. My noble friend Lord Onslow, is, of course, right that the question has arisen before. He thinks that it was resolved at the moment when crime began; that was when Eve first picked the apple, and I think that the result was almost instant eviction, which is not an order appropriate to what we are now considering. But the usual rule is, as, indeed, the noble Lord, Lord Elystan-Morgan, has said, that a court should sentence an offender according to his age at conviction and sentence. There would be very absurd results if this were not so, even if some of the results are not altogether agreeable as things are now. Indeed, this is borne out in Clause 3(1)(a) of the Bill itself, which relates to detention centres if under 21 and over 14 when convicted, and the same for youth custody in Clause 5(1)(a). So I do not think that there is an omission on the face of the Bill.
I could illustrate this further but, as I say, I think that the work has been done for me. If the noble Lord wishes me to proceed further, I could point out other difficulties that will result from what he proposes, but the fact is that to award a sentence appropriate to a 16-year-old compared to, say, a 25-year-old would be rather absurd, and I think that the court has to decide on what is appropriate for the culprit at the time of his trial rather than for the crime at the time of its commission.
§ Lord Elwyn-Jones
In regard to the biblical reference to the eviction from the Garden of Eden, it may help 961 the Committee to remember Mark Twain's famous observation that he would rather be outside the garden with Eve than inside it without her!
I do not think that your Lordships will wish me to detain the Committee very long on this amendment. As my noble friend has said, it was intended to be a probing amendment. I am still left with the impression that there is something to be said which is not said at the end of this clause with regard to this matter. I am in the weak position of not having any judicial experience myself, so I would not know whether the usual practice—which I now understand is to take the age as the age at conviction and sentence—is the normal and usual practice. If that is so, I personally am quite happy to leave it at that. But I would ask the Minister whether he would give a little further thought as to whether it would not be useful, as it is not in the Bill as it stands at the moment, to put it in at the end of this clause.
§ Lord Elton
I thought that I had made it clear that it is in the Bill, but in Clauses 3 and 5. The noble Lord, Lord Elystan-Morgan, has pointed out that the usual practice is also based on statute, so I think I can assure the noble Lord that what he seeks to do is superfluous.
§ The Earl of Onslow
Before the noble Lord withdraws it, can my noble friend give me some answer as regards the age of 21 as opposed to the age of 18? It may not be the appropriate place to ask this question, but it seems to me to be a relevant point.
§ Lord Elton
Perhaps I may reply to my noble friend afterwards, because I have not actually grasped the point, and we wish to get on with the Committee stage.
§ Lord Renton
I think I mentioned that the Committee on the age of majority some years ago decided that the criminal provisions, such as provisions relating to sentencing, the age of various criminal liabilities, and so on, should not be touched by their recommendations. I think that that must be the answer to my noble friend.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 1, as amended, shall stand part of the Bill?
§ Lord Renton
I do not wish to detain your Lordships for more than a few moments but perhaps I may draw attention to the fact that, thanks to the success of my noble friend Lady Faithfull—with whom I did not vote I must confess, but nevertheless I congratulate her—we now have two additions to Clause 1 in precisely the same terms, and neither of them very brief. I hope that if these provisions are to remain part of the law and if the Government are not to try to get them reversed somewhere, somehow, the draftsman may be invited to collate them so that we do not have repetition.
962 The other point I wish to make is as follows. This is a very important clause because it replaces Section 3 of the Criminal Justice Act 1961. Of course, there have been three Criminal Justice Acts since the war, several Criminal Procedures Acts, Magistrates Courts Act—a vast amount of legislation—in most of which some of us, in one place or another, have taken part. I have regarded all the statutes dealing with the criminal law and its application as experimental. Perhaps I may make a confession to your Lordships. I was largely responsible for the much maligned Section 3 of the Criminal Justice Act 1961. At the time it was fairly controversial and I never expected it to last 21 years. Under Governments of both complexions that is what it has done, but, speaking for myself, I shall be gald to see the back of it.
§ Lord Elton
The only point of substance which my noble friend raised was to ask us to have a look at the technicality which my noble friend has placed upon the face of the Bill, and of course we shall do so.
§ Clause 1, as amended, agreed to.
Lord Elton moved Amendment No. 9:
After Clause 1, insert the following new clause:
§ (" Social inquiry reports etc.
§ .—(1) For the purpose of determining whether there is any appropriate method of dealing with a person under 21 years of age other than a method whose use in the case of such a person is restricted by section 1(4) or (5) above the court shall obtain and consider information about the circumstances and shall take into account any information before the court which is relevant to his character and his physical and mental condition.
§ (2) Subject to subsection (3) below, the court shall in every case obtain a social inquiry report for the purpose of determining whether there is any appropriate method of dealing with a person other than a method whose use is restricted by section 1(4) above.
§ (3) Subsection (2) above does not apply if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a social inquiry report.
§ (4) Where a magistrates' court deals with a person under 21 years of age by a method whose use in the case of such a person is restricted by section 1(4) or (5) above, it shall state in open court the reason for its opinion that no other method of dealing with him is appropriate.
§ (5) Where a magistrates' court deals with a person under 21 years of age by a method whose use in the case of such a person is restricted by section 1(4) above without obtaining a social inquiry report, it shall state in open court the reason for its opinion that it was unnecessary to obtain such a report.
§ (6) A magistrates' court shall cause a reason stated under subsection (4) or (5) above to be specified in the warrant of commitment and to be entered in the register.
§ (7) No sentence or order shall be invalidated by the failure of a court to comply with subsection (2) above, but any other court on appeal from that court shall obtain a social inquiry report if none was obtained by the court below, unless it is of the opinion that in the circumstances of the case it is unnecessary to do so.
§ (8) In determining whether it should deal with the appellant by a method different from that by which the court below dealt with him the court hearing the appeal shall consider any social inquiry report obtained by it or by the court below.
§ (9) In this section "social inquiry report" means a report about a person and his circumstances made by a probation officer or by a social worker of a local authority social services department.").
§ The noble Lord said: This is consequential. I beg to move.
§ On Question, amendment agreed to.
§ Clause 2 agreed to.963
§ Clause 3 [Orders for detention of male offenders aged 14 to 20]:
Baroness Faithfull moved Amendment No. 10:
Page 3, line 44, at end insert—
§ The noble Baroness said: This is an amendment which does not ask Her Majesty's Government to do something at the moment, but which looks into the future when we may think of children of school age being dealt with in the education system instead of in the penal system. From the point of view of figures, we have noticed that it is the older children or young persons who commit the most difficult crimes with which to deal, and we feel strongly that as a future policy we should consider and work out how children of school age should be kept in the education system, and not the penal system.
I speak with great feeling here, and I hope that your Lordships will forgive me if I repeat what I have said before in your Lordships' House. During the time that I was a children's officer and director of social services only six children in those 18 years went into a penal institution. The remainder were kept in the education system or in the care system of children's homes. I think that it is this to which we should work towards, even if we cannot achieve it now. Therefore, the meaning of this amendment is to make it possible
by statutory instrument [to] substitute a higher number for the minimum number of years of age for the time being specified in paragraph (a) of subsection (1) above ".
That is really the substance of this amendment.
§ We have continually talked of the number of young children and young persons going into custodial care who really could be dealt with in the community, and I shall not continue with that. It is distressing to prison and borstal governors when they find themselves dealing with juveniles, and it is distressing to the staff of those institutions. Perhaps most significant of all is that the present Government have themselves accepted the desirability of ending prison department custody for juveniles, but they have done so in another part of the United Kingdom; namely, Northern Ireland.
§ In 1979, the Black Report on Legislation and Services for Children and Young Persons in Northern Ireland made the controversial recommendation that, except in the case of very serious offences, all existing custodial and residential sentences for juveniles should be amalgamated into a single determinant residential order. The Black Committee recommended that this order should be reserved for those who are clearly a threat to society, and proposed that those sentenced under this order should go to a mixed secure establishment with a régime which could be as helpful and supportive as possible.
§ However, the then Minister of State for Northern Ireland told the House of Commons Northern Ireland Committee on 5th November 1980 that the Government accepted these proposals. He added that new residential establishments for juvenile offenders would be run by former training school staff and not by 964 prison staff. With justifiable pride, he pointed out that following these changes Northern Ireland would be one of the first areas in Europe which would no longer accommodate children in adult penal institutions. Therefore, I move this amendment in the hope that the Minister will feel able to accept it, bearing in mind that this is what we should move towards. I beg to move.
§ 6.23 p.m.
§ Baroness Birk
I should like to support the amendment moved by the noble Baroness. It is an interesting and important amendment. It is doing something which I hope we will see done in this Bill. It is bringing something creative and looking towards the future, and following a particular philosophy which we try to embody more and more in the field, which is to move away from the custodial side into the non-custodial side when dealing with penal offences. In this part of the Bill, where we are dealing with young offenders and juveniles, it is appalling to be reminded so many times as we go into these amendments of the rise in the numbers of juveniles going into custody.
Furthermore, when we have to accept that the rise in the number of juveniles in custody has no parallel among the older age groups, even today, it makes one gasp. Apart from the awful aspect of so many youngsters in custodial care, and I will not rehearse the arguments on previous amendments where we have shown what the rate of recidivism is, what we are doing is to create future generations of prison occupants. It is becoming this vicious penal circle, and it is something that we should stop.
This amendment opens a window of fresh air to the future and is saying that the minimum age should be able to be raised. In looking into this amendment, which is supported by the all-party Penal Reform Group, I was impressed that not only the prison and borstal governors share this view, but the probation officers and social workers. When the comments came out on the parliamentary all-party Penal Affairs Group report, Young Offenders, a Strategy for the Future, the Police Federation also expressed its support for the phasing out of prison department custody for juveniles. It is interesting that one has this all round support.
It is important to show in this major Bill that we are moving towards the future and not staying put in the unfortunate rut in which we find ourselves today in this great area of dealing with juveniles and young offenders. I hope that the Minister will find it possible to accept this amendment. If there is anything in the drafting that does not please him, what we are concerned with is that the spirit and intention of it should be incorporated into the Bill.
§ Baroness Macleod of Borve
I wanted to say something and it seems to me that this is the right part of the Bill at which to do so, in view of the noble Baroness's amendment. Last weekend I was sitting next to the former Lord Mayor—deputy now—of Birmingham, who was the chairman of the committee of social services. I was fascinated by what he had to tell me in that large and difficult city. He, as chairman, had been round to all the establishments run by the social services. He had found that those establish- 965 ments were in no cases full. He had, therefore, closed some of the establishments, but he had made a specific point of taking out the social worker from each of those establishments and he had formed them into a fostering committee. He had organised them into this committee, and they had been sent into the City of Birmingham to find fostering homes for these children. It was not only for delinquent children, but others who needed to be removed from the care of their own homes. I am only telling your Lordships this because it seemed to me that this might be a way ahead for certainly some of our big cities.
§ Lord Donaldson of Kingsbridge
I would support the noble Baroness who has just spoken about fostering, which is one of the most important remedies open to us. I do not know whether it is strictly applicable to this amendment. All that I want to say about this amendment, because it has been fully discussed by the noble Baroness who moved it and my noble friend on the Front Bench, is that I want to give just an impression of total gloom. Everybody that I know who is connected with penal affairs thinks that it is a mistake, where it is avoidable, to send children—and by children, I mean youngsters up to 18, anyway—to prison.
Every magistrate you speak to says the same thing. Every judge says the same thing. Yet the increase in custodial sentences since 1965 has been five fold. That is less than a fifth of the percentage rise in crime. So it is a real increase in courts sending juveniles to prison. This may be inevitable. They may be so clearly evil that there is no other way of treating them, but I do not believe it. On the other hand, I do not think that either magistrates or judges are telling anything but the truth. I do not know what on earth is the answer, but it is a nasty situation that exactly the opposite of what we all think ought to happen is in fact happening.
During the past 20 years the proportion of convicted adults received into custody has been more than halved. During the same period, the proportion of juveniles receiving custodial sentences has more than trebled. I am not giving any answers. I am only saying that I am thoroughly worried, and the least we can do in this Committee tonight is to persuade the Government to leave it open to themselves to improve the situation by raising the age as soon as the opportunity arises.
§ Lord Hylton
It is relevant to mention in connection with the amendment the experience of the alternative probation project which has been running for five years or more at Farnham in Hampshire. It was conceived originally as a new way of doing probation, but in the process it was discovered that most of the young offenders coming into it had either missed school or failed to benefit from school. Therefore they built into the whole project an educational component. That is why I support the noble Baroness, Lady Faithfull, in all she said about keeping children in education and not doing custodial sentences of one kind and another. I hope the Government will take the matter very seriously.
§ Lord Campbell of Alloway
I have a short suggestion for my noble friend the Minister. Would he agree that the amendment imports a desirable degree of flexibility in an area where flexibility is desirable?
§ Lord Elton
Part of the answer which the noble Lord, Lord Donaldson, seeks, rests in other parts of the Bill, and I am sure my noble friend will accept that our principal intention in the Bill is to reduce both the numbers in custody and the duration of custody—to increase the confidence of the courts in non-custodial sentences—and thereby to reverse a progress which we all deplore. But 1 do not think my noble friend believes any more than I do in what I would call aspirational legislation. The fact is that even she, in her lengthy and enlightened régime at Oxford, was constrained to see six children consigned to penal institutions. There will always be cases, I regret, when younger as well as older young offenders, however few, will be of a nature when they will have to be so contained. That is the reality of the situation. I wish it were otherwise, but we have a duty to deal with things as they are and not things as we would like them to be.
The whole burden of this part of the Bill is to direct the courts very strongly away from the use of custody for young offenders, but we do not intend to deprive them of that power in the most serious cases. The amendment seeks to insert a provision which would enable the Secretary of State to present a draft order to raise the minimum age for detention centre orders. It is in one sense a statement of aspiration, as I said, for the future, but it is wrong to put on the statute book any provision which has no real prospect of being brought into use. There was a reference to the Black Report in Northern Ireland. I have to say that the recommendations of the Black Report have not been implemented. There is a great deal to be said for them, but they could not easily be applied here and my noble friend read out the passage in which an exemption was made for the very people to whom I am referring—very serious offenders: for those we have to make provision.
If the proposals were fully implemented, there would be major changes in the framework of the juvenile justice system, but it has not been possible over the last 13 years to implement in full the Children and Young Persons Act 1969. Again, this is aspirational legislation which may feel like a window open to the future, but it is one through which it is impossible to go. It has itself caused a great deal of uncertainty, not least for those who work with juvenile offenders, who simply do not know where they stand. If the amendment were accepted, the staff of junior detention centres would ask us, quite rightly, what use we intended to make of the provision, and the truthful answer would have to be, alas, that we saw no real, foreseeable prospect of being able to use it because it would close the option for that limited number of people for whom, I regret, it will always be needed.
§ Baroness Faithfull
I thank the Minister for that reply. I appreciate what a difficult amendment it is and the fact that possibly we may all have to work to prove it is necessary and to bring it in at a later stage. I was always taught to hitch your wagon to a star. I believe one can help young offenders. I do not take the gloomy view of the noble Lord, Lord Donaldson. I think we have got off the tracks but that we can get back on to them. Perhaps over the next few years we may try to get better relationships between the social services and education and we may try to help with the 967 new schemes that are being started and which are being monitored. There is a scheme, for instance, run by Barnardo's and the local authority in Pontefract, which is showing signs of improvement in an area of high delinquency, and I could give examples of many other areas. Therefore, I hope that, having brought the amendment before your Lordships, perhaps as the years go by we may completely alter the way we deal with juveniles, bearing in mind of course that there are some who, as my noble friend Lord Elton said, need a particular type of help because of their particular difficulties. I will not divide the Committee on the amendment at this stage. I will read what my noble friend said and, in the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.37 p.m.
Lord Mottistone moved Amendment No. 11:
Page 4, line 4, at end insert—
(" ( ) Where reports indicate that a specific course of treatment is necessary (whether it be medical or otherwise) provision may be made exceptionally by the Court to extend the period of 4 months in order that treatment may be completed.
( ) Where the period of custody is extended in accordance with subsection ( ) above, the case is to be reviewed at 14 day intervals.").
§ The noble Lord said: The Committee will have seen that I have several amendments down. It may be convenient if I make a short preface to them all: I do not propose to move them together, but separately as we come to them, because they all deal with different subjects. On Second Reading I said I had been advised in the matter by a recently retired warden of a custodial establishment for delinquent girls in the London area. I slightly stress the London area because the theme of my amendments, and the questions I have to ask, may distress my noble friend Lady Faithfull somewhat in view of what she said; the general theme deals with the six whom she had to send to prison—repeated in the London area, as it were—and I suspect that in the London area there are rather more people who are too difficult to deal with under other circumstances than there are in other parts of the country, where it might be possible to handle them more reasonably.
§ I am grateful to my noble friend for the kind letter he wrote in response to my remarks on Second Reading. It was surprisingly confident, I would say, in referring to the ability of local authority personnel to handle what they are asked to handle. My advice is that in many parts of the country that is not quite the case, but I will leave it at that. All my amendments are probing—I have informed my noble friend of that—and are really asking him a series of questions and, as he knows what they are, hopefully I shall get some splendid, or at any rate meaningful, answers.
§ The problem is that there are types of medical and other treatment which last for more than four months. The question, therefore, is how the detention centre is to complete a course of treatment for drugs, solvent abuse, venereal disease or something of that sort when the cure may last for more than four months. That is really the substance of the question. I beg to move.968
§ Lord Elton
I am obliged to my noble friend for narrowing the area of his concern in this amendment to the question of medical and other treatment in detention centres. The Committee will know that the intention is that the sentences shall be short, and I accept that it is possible that inmates might be partaking of courses of treatment of one kind or another which last longer than the sentences. The question that my noble friend is asking is: should we keep them inside the detention centres for longer than the sentences in order to see that the courses of treatment are completed?
I think that I can assure my noble friend that under any circumstances we should not wish to keep anybody in detention for longer than the sentence required, but equally we should not wish a person to be discharged into the community without proper medical supervision and the chance of completing a course of treatment. if the course of treatment were such that it could not be given in the detention centre, the young person would already have been transferred to the National Health Service, or to another part of the Prison Service where the treatment was available. If, on the other hand, the course of treatment could be carried out in such an establishment, then in the natural order of things, the medical officer would ensure that the detainee was put in touch with the National Health Service and that his treatment was not interrupted upon his release.
§ Lord Mottistone
Yes, I feared that my noble friend might say that, but really that is not an answer. The kind of people whom we are talking about, on being released from prison, even if they were put in touch with the local doctor, would not have the same approach as your Lordships would have to these problems. If we, at our great age, are put in touch with the doctor, we do not dare to go to see him. But if you are 14, 15, 16 or even in your early twenties, and you are told, "Gosh, you've got venereal disease, and you've got to complete the course, otherwise you are going to be a menace to society ", you do not care a fig for that, and you do not go to the doctor. It is a real problem. My adviser had this sort of problem.
Perhaps I may press my noble friend slightly. I would not necessarily expect an immediate answer, but I should like him to study the situation of people who will not comply with what one might call normal social pressures. What is to be done if the course of treatment is perhaps three-quarters complete when the sentence ends? What do we do to make sure that the treatment is completed?
§ Baroness Faithfull
I should like to support the noble Lord, Lord Mottistone. There is another aspect to this problem, and it is concerned with the question, who is to treat the people involved? My experience is that at the moment in the psychiatric service one cannot get psychiatrists or mental hospitals to accept a patient if he is not willing to go for treatment. Those of us who have dealt to a considerable extent with drug addicts know that they will not go to a clinic. If the people in question are to be handed on to the National Health Service, will the NHS in fact take them? I ask that because my experience is that it will not take them.
§ Lord Elton
I must make it quite clear that the function of the prison service is not to cure the sick. We had lengthy debates in this area when considering the Mental Health (Amendment) Bill, and it was then made quite clear the types of illnesses under which people could be detained because they suffered from them. Frankly, under those circumstances a person would not be in a detention centre, anyway. But if he were suffering from a lesser affliction, whether it be a social disease or a mental disease, we must remember that when the sentencing justice says to him, "You must take your medicine", he uses the term entirely figuratively. The young person is put inside for a purpose which relates to his misdemeanour, not to his state of health.
I consider that the prison service has a highly commendable record for close co-operation with the National Health Service in this field. What the noble Lord seeks to do is to extend periods of detention in order that courses of treatment which do not relate to the offence can be completed. I regret that that is not the function of the Bill; nor is it the function of the prison department.
Compulsory treatment outside the prison system, and indeed inside it, leads to very considerable difficulties, which we have discussed in very great length in this Chamber. My noble friend Lady Faithfull for one has taken part in such debates, and many of your Lordships whom I see sitting here are familiar with the issues. I should not think that we wanted to broach them now. The only reassurance that I can give to my noble friend is to say that this is an area which interests me, too, in particular in the mental health field, but also in the medical field. I have the matter under review. I believe that it might be possible to make things better than they now are, but they are by no means bad.
§ Lord Harris of Greenwich
If I may intervene briefly, I would say that though I accept that the noble Lord, Lord Mottistone, has raised a matter of importance, I believe that there are arguments of principle against what he is proposing. As I understand it, the court would have the opportunity to extend a period of custody to ensure that a course of treatment is completed. I speak subject to correction from the Minister, but I know of no provision in the English law which has ever given a court such a power.
I might be wholly mistaken in that view, but I should like to cite one particular example of which I have some knowledge. It relates to the problem of mental illness, touched on by the noble Baroness. I think that doctors would approach with the utmost caution the question of wanting powers of this kind to be exercised on behalf of a person who had some form of mental illness. As I understand the amendment moved by the noble Lord, Lord Mottistone, the court would have the power to review the matter at 14-day intervals. I cannot think of a worse manner in which to approach a person suffering from a difficult psychiatric problem of one kind or another. Though, of course, completely aware of the reality of the issue described by the noble Lord, Lord Mottistone. I do not believe that this is the way to deal with the problem.
§ Lord Mottistone
I hasten to dispel any opinion that I have been seeking to put through the amendment; 970 it is a probing amendment. My noble friend, as well as the noble Lord, Lord Harris of Greenwich, went off and followed the hare that I wanted to put through the amendment. I want to put to the Government the fact that there is a very real problem involving the prison service and all that goes on there, local authority care, and doctors. In a sense they are all saying. "It's your job, not mine". There is a group of people whom it is difficult to convince that they must do something for the benefit of themselves, let alone the benefit of the community, and in effect they fall between the official bodies and so are not dealt with.
As I say, this is a real problem. I received a glimmer of hope from my noble friend when he said that he is desperately interested in the matter, and I trust that that might lead to some action in some way. I reserve the right to go on being a nuisance at the Report stage in one way or another in order to try to get something more solid out of my noble friend. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.49 p.m.
Lord Mottistone moved Amendment No. 12:
Page 4, line 8, leave out subsection (4).
§ The noble Lord said: This amendment is different from the last one, though it is another probing amendment. At present there are no detention centres for girls. This point was mentioned earlier, and it was partly answered under Amendment No. 3 by my noble friend. I cannot remember to whose speech he was responding. I am not sure whether it was the noble Lord, Lord Harris of Greenwich—no, it was the noble Lord, Lord Hutchinson of Lullington.
§ My question is—and I hope that my noble friend will be allowed to listen to it—are detention centres for girls to be established? If not—and this is the key question—what provision is to be made for young female offenders? Your Lordships might recall that at Second Reading, speaking on advice that I had received, I told the House that it is the 14- to 17-year-old girls who have been involved in the biggest increase in vicious crime among any group of people in the last few years. What we are to do? So what provision is to be made for young female offenders?
§ Lord Elton
May I say first that all young offenders released otherwise than on parole will, on release, be subject to a period of supervision, and that supervision is integral. Perhaps your Lordships would bear with me for a moment. They will have to observe certain conditions, and the Government intend that these will be relatively simple and will relate mainly to keeping in touch with the supervisor. There must be sanctions if they are not observed. Clause 15 deals with the offence of breach of supervision and sets out the penalties, which are a fine of up to £200 or a custodial sentence of up to 30 days. The offence of breach of supervision is directly connected with the original custodial sentence. The courts should be able to remind the offender of the importance of supervision and of the need to comply with its conditions.
My noble friend was particularly interested in short sentences for juvenile girls. Under the provisions of the Bill the custodial sentences made available for 971 young women and girls broadly reflect the present situation. Girls aged 15 and 16 will be eligible for a youth custody sentence of over four to 12 months. Young women aged 17 and over will be eligible for youth custody sentences of 21 days or over, and custody for life. The Bill does not affect the power to order juvenile girls convicted of grave offences to be detained under Section 53 of the Children and Young Persons Act 1933. No attempt is made to introduce a detention centre order for girls or a short custodial sentence for juvenile girls.
My noble friend is not I think anxious to claim that it is unjust to discriminate on grounds of sex by providing a short custodial sentence for boys aged 14 or over but not for girls. That is generally used to support the abolition of detention centre orders for juvenile boys; but there may be some noble Lords who feel that there should be a detention centre order or some other short custodial sentence for juvenile girls. There only has ever once been one such detention centre, Moor Court, which I had occasion to refer to earlier this afternoon. That is in Staffordshire, and was opened in 1962. As I said, it served only the northern part of the country, and had an average daily population of about 24 girls. So the scope of this problem is not an enormous one. It was closed in 1969; and, as I reminded your Lordships earlier, the Advisory Council on the Penal System came to the conclusion that the needs of the boys and the girls were so dissimilar that there was nothing wrong in having separate provision.
The number of girls who offend is very much smaller than the number of boys. The offending by the boys is on a much larger scale, as well; and the courts, I think, could not manage without the custodial sentence for the boys. The type of régime operated in detention centres is suitable for boys but not for most of the adolescent girls who commit serious offences.
The question is: where should they be put? The answer is that we feel that in those circumstances there are two sets of reasons why the age groups should be allowed to mix. One of them is the simple logistical one that there are too few to have a national provision without journey times being absolutely unacceptable. The other is that the nature of the female young delinquent, young offender, is such that the older offenders seem to have a steadying effect on the slightly younger girls, and therefore it is proposed that the provision for these girls shall be the same as for the older offenders.
§ Lord Mottistone
I thank my noble friend for that answer. The only point I should like to leave with him on this matter is that, having experimented with a girls' detention centre in 1962 and closed it in 1969 because there were to few people to occupy it, I understand that, sadly, the rise in the number of teenage female offenders has been such in the years since 1969 that he might well find that it would be wise to consider re-introducing such a place. Even if it was found unnecessary in the 1960s, in the 1980s the increase in crime among teenage girls might justify it. But having said that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.972
Lord Mottistone moved Amendment No. 13:
Page 4, leave out lines 14 to 16.
The noble Lord said: In this case it says in the Bill:
Subject to subsection (6) below, a court shall not make an order under this section for the detention of an offender…if it considers that his detention in such a centre would be unsuitable because of his mental or physical condition ".
My question then is: What alternative arrangements are to be made? The present problem is that medical units for the disturbed or addicted accept individuals on a voluntary basis only. If a young person does not want to stay, or absconds, then the necessary treatment and help is not received. What is the answer to this problem that my noble friend would care to give me? I beg to move.
§ Lord Elton
If a young offender is not physically or mentally fit for the régime at a detention centre, then ideally he should not be sent there, and we shall be debating this issue, I think, at greater length after dinner. If, on the other hand, he arrives there and proves not to be fit to pursue the tougher régime, he can be moved to a less demanding one. Furthermore, if he is seen by the court not to be fit either mentally or physically for a detention centre régime, then his sentence can be made one of youth custody and he will go to the establishment appropriate to that régime. I hope that answers my noble friend's question.
§ Lord Mottistone
I thank my noble friend for that answer. It is the best one I have had so far. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.58 p.m.
Baroness Trumpington moved Amendment No. 14:
Page 4, line 24, at end insert—
(" ( ) For the purposes of determining whether the detention of an offender in a detention centre would be unsuitable because of his mental or physical condition the court shall obtain and consider a report into his mental and physical condition ").
§ The noble Baroness said: The purpose of this amendment is to require the courts to obtain a medical report before passing a detention centre sentence. I am well aware that such a practice is already widely in use, but no compulsory legislation exists and it is my contention that, in order to make sure that medical reports are always obtained, this amendment should be made to the Bill.
§ In 1972 Home Office Circular 179 drew the courts' attention to the demanding nature of the detention centre régime and pointed out that the régime is brisk and involves a vigorous and active day with comparatively little free time. That circular therefore stressed that the régime is unsuited for those with physical or mental handicaps likely to interrupt detention centre training. Despite this guidance there is much evidence to suggest that a considerable number of those entering detention centres are far from fit or stable young men either physically or mentally.
§ Since the new régimes were introduced, medical officers at the centres have made the decisions as to whether the boys received from the courts were 973 physically or mentally unfit to stand up to the rigours of the régime, and if they decided they were not then transfers to other establishments were arranged. Between 21st April 1980, when the tougher régimes were introduced at two detention centres, and the 25th January of this year, 81 trainees were transferred from New Hall and 107 from Send—around 7 per cent. of the trainees sent to those establishments. The Prison Officers' Association has expressed serious concern about the number of unfit boys being sent to these centres who then have to be tranferred elsewhere. I am sure that we would all agree with those sentiments. I find it hard to believe that anyone could argue against the fact that it would be much more sensible for information relating to the young person's mental and physical condition to be available to the courts in every case at the point of sentence. Why not? What are the difficulties? After all, no court can pass a community service order without considering a report as to the offender's suitability for community service. Far from fettering the discretion of the courts to pass the sentence most appropriate to the offence and to the offender, the availability of a medical report would help the court to pass the most appropriate sentence having regard to the state of the offender's health.
The other point is that in most cases the court already considers a medical report before passing a detention centre sentence. All this amendment would do is to extend that normal practice and make it invariable practice. There will be no delay because the courts in practice do not wait for long periods to obtain medical reports from general practitioners before passing detention centre sentences. In Home Office Circular 179, the following advice is given:
In general, police surgeons in their private capacity would be the most appropriate doctors to perform the examinations since the scheme requires the attendance at short notice of a medical practitioner to examine the defendant within the precincts of the court or at an adjacent place, for instance, a police station. After examination, the practitioner would provide the court with a certificate indicating the fitness or otherwise of the defendant for detention centre training ".
§ The circular asks clerks of courts to make local arrangements for the attendance of doctors when needed for conducting such a medical examination. If there are areas where such arrangements are inadequate, then that is a case for improving the arrangements and not for rejecting the amendment.
§ I hope the Government will accept the amendment. It must be obvious that the case for requiring a medical report for detention centres operating the tougher régime is particularly strong; but the nature of even the ordinary detention centre régime is sufficiently exacting to make the consideration of a medical report desirable in all cases and not just in the majority of cases, as at present. I beg to move.
I am happy to support the noble Baroness, my colleague on the all-party penal affairs group. She covered the points that I would have covered. There are only three points that I should like to make. The first is that this: I would see the proposal as one more move towards achieving greater consistency between the courts than is the case at present. The noble Baroness mentioned the rigours of the detention centre régime which make severe physical demands and create a strong emotional impact on those who go through the régime.
974 The other point where I believe medical advice is needed is in regard to the temperament of the boy concerned; whether he is likely to react favourably to the régime or whether it is likely to aggravate those delinquent and criminal propensities which caused him to be sent there. I would doubt whether courts of law are sufficiently qualified to reach a decision on that without taking medical advice and psychiatric opinion.
Thirdly—and it is a simple administrative point—the noble Baroness mentioned the considerable numbers of young people who arc sent to the two borstals administering the short, sharp shock—nearly 200 of them in the course of 12 months. One must think of the amount of administrative work and the cost involved, quite apart from the disturbance that this causes the young offenders themselves. On those grounds, in addition to those put to your Lordships by the noble Baroness, I hope the amendment will prove acceptable.
§ Lord Wigoder
I endorse all the sentiments expressed by the noble Baroness, Lady Trumpington, and the noble Lord, Lord Hunt. It seems to me that what it is sought to provide is something which would at once be acceptable to most noble Lords; namely, that, in view of the régime at a detention centre, nobody should he sent there unless there is a medical report which indicates that the person is suitable for that sentence. Unhappily, so far as I can see, the Bill as drafted and the amendment as drafted do not achieve that at all, because of the rather curious way in which the Bill is drafted. The Bill puts it the other way round. What the Bill says is that the court shall not make an order if it considers that the person's detention would be unsuitable because of the mental or physical condition, and the amendment provides that, if the court wishes to determine whether it is unsuitable, there must be a medical report to that effect. This seems totally different from providing what I think most of us would agree should be provided—which is to put it in a positive way so that if the court makes an order it shall not do so unless there is a medical report specifying the medical and mental condition of the person in relation to whom the order is made.
I agree entirely with the sentiments expressed by the noble Baroness and the noble Lord, but I think that the flaws in both the Bill and the amendment need to be turned round before we reach the next stage if they are to achieve what is sought.
§ Lord Elystan-Morgan
I agree with the sentiments of the noble Lord on the Liberal Benches: it would be better if it were put in that particular way so that a court would not be allowed to come to that conclusion unless it had had the benefit of a medical report. I hope very much that the Government will be able to accept this amendment, for it seems to me that the arguments in favour of it are wholly irrefutable. The situation in law at the moment falls only barely short of what the amendment seeks to achieve.
Clause 1(6) says:For the purposes of determining whether there is any appropriate method of dealing with a person under 21 years of age other than a method whose use in the case of such a person is restricted by subsection (4) or (5) above the court shall obtain and consider information about the circumstances, and shall take into 975 account any information before the court which is relevant to his character and his physical and mental condition.Furthermore, Clause 3(5) reads:Subject to subsection (6) below, a court shall not make an order under this section for the detention of an offender in a detention center—(a) if it considers that his detention in such a centre would be unsuitable because of his mental or physical condition ".The amendment advances the protection of the young person only slightly beyond that. Secondly, in so far as the situation on the ground is concerned, I am assured by those who deal with these matters day in and day out that in the overwhelming majority of cases reports are sought by most courts in any event—a point already touched upon by the noble Baroness.
Lastly, on the one hand, I do not think there is the slightest danger that the courts would be fettered at all, because this would enable a court to have greater information and to feel that it was more free in its scope to deal with the young person than if it did not have it. Nor, on the other hand, is there any real danger of delay. In the main, the reports need not be prepared by general practitioners. They can be prepared by police surgeons who are probably in a position to attend that very court to make such reports.
There is one further argument. It is that, if a report has been properly made, a court is in a position to consider the very sort of case that the noble Lord, Lord Mottistone, spoke about in his earlier amendments. If in fact a court knew that a youngster was suffering from the sort of conditions the noble Lord has described to us, then it would make a care order and that person would never end up in a detention centre at all. Therefore, if that full information is given at the right time, it is in everybody's interest.
§ The Earl of Onslow
There is one point I should like to raise in supporting my noble friend Lady Trumpington. If there were 87 people sent away from Send and a number from another place, surely this disturbs the régime in the detention centre, whose object it is, we all hope, to have a curative effect. I am sure it cannot be good for those who are undergoing a short, sharp, shock to see people coming in and going out for what they may feel are slightly unfair reasons.
The other point I should like to ask, although I do not necessarily expect an immediate answer, is this. Of those people who were sent away from Send, how many had undergone medical examinations at the point of sentence in the courts, and how many had not?—because if it is shown that none of them had been asked to undergo a physical or mental test at the time of conviction and sentence, it would seem to show that a medical test at court level would save time, trouble, money and administration. That would be very well worth while from their point of view and also, I would suggest, from our point of view and the point of view of the taxpayer.
§ Baroness Macleod of Borve
Very briefly, may I say I believe this should be absolutely mandatory. I would agree with the noble Lord who said that in the majority of courts that would obtain and they would have a medical—and especially if the magistrates concerned had been to a detention centre themselves. 976 I think this is important, and when I was at Send recently—though 1 do not want to harp on the fact that I have just been to see the institution—the warden tried to make the point to me that there were some boys who had been sent when they were not physically fit and he hoped that in future this would not happen.
§ 7.13 p.m.
§ Lord Elton
I can travel a good deal of the way down the same road as the noble Lord, Lord Elystan-Morgan, did in dealing with the amendment proposed by my noble friend. I think I am right in saying that in her intervention just now my noble friend Lady Macleod had it in mind that had the magistrates been to detention centres in an inspectorial role, rather than a custodial role, they would certainly see that a medical report was furnished.
Let us see what the law already provides in this Bill. It goes a long way. First of all, the court must be of the opinion that no other method of dealing with the offender is appropriate. In deciding that, the court, under the new clause which the Government have introduced, must consider a social inquiry report in most cases. It must also take into account any information before it which is relevant to the offender's character and his physical and mental condition. It is further prohibited by Clause 3(5), as the noble Lord, Lord Elystan-Morgan, said, from making a detention centre order if it considers that the offender's detention in such a centre would be unsuitable because of his physical or mental condition.
I think we have to trust the courts to some extent to satisfy themselves that they have the information they need to come to a proper decision, and they can obtain whatever medical, psychiatric or other reports they ask for. Even if they are placed under a statutory obligation to obtain a medical report in every case, which is what this amendment seeks to do, the ultimate judgment as to whether an offender is unsuitable for a detention centre will remain with the court.
Now let us see what would flow from a decision to amend the Bill in the way proposed by my noble friend. I think there is more than has so far been suggested. The court will have before it a young offender. It has already decided that nothing less than a custodial sentence will do. It has also decided that the sentence should be served in a detention centre. Such a centre is designed for people (and Clause 3 seeks largely to reserve it for such people) who have had no earlier significant custodial experience. The sentence can be for as little as three weeks.
What must the court now do? It will adjourn the case for a medical report and the young offender will be remanded. It has already been decided that by reason of the seriousness of his offence he should be detained in custody and, as most remands for this purpose are for three weeks, the result for the older age group will be a period of three weeks spent in a remand centre or a local prison while it is decided whether or not he is fit enough for a course of treatment designed for people who have had no experience of either.
That I think is a somewhat absurd situation; but I do take on board my noble friend's anxiety and I should like to say that the reference in Clause 3(5) to the offender's fitness is not, as she seems to think, a flimsy 977 shield for a weak offender against a savage régime. The centres themselves are not anxious to recruit weak or ailing inmates, and the truth is that it is simply not very convenient to have to deal in a detention centre with an offender who is in some respect not quite up to the régime. I will seek the breakdown of the statistics my noble friend Lord Onslow asked for, but I cannot instantly answer how many of those who were subsequently referred on were subject to a medical report.
However, allowances and concessions are made for offenders who are not up to the régime, and they will continue to be made for any who, in spite of the Bill, are found not to be fit when they are examined by medical officer on reception. The provision is aimed at those who are to receive custodial sentences anyway and is designed only to ensure that they go to the most suitable type of establishment. It is in the interests of the whole system, and not just of the offender, to get him into the right place; but I wonder if I could say something to help my noble friend. A procedure was established under the Home Office Circular 179 of 1972 for medical examinations to ascertain fitness for detention centres to be carried out at or in the vicinity of the court, usually by police surgeons. The purpose of the circular was to reduce the need for remands in custody for medical reports. It is still in force, but we do not know in what percentage of cases sentencing courts have the certificates of fitness before them when committing persons to detention centres. We think the percentage is quite small.
When the new custodial sentencing scheme set out in Clause 1 to 15 is brought into force, we shall be giving further information to the courts. I wonder whether my noble friend would be reassured if I undertook to draw this provision rather more forcefully to the attention of the courts so that we can avoid what may appear to be this embarrassingly high number of people who are wrongly allocated to more stringent régimes. I hope this will be of help.
§ Lord Donaldson of Kingsbridge
The noble Lord has made a very interesting and curious reply. He began by saying (and it was agreed by everybody) that it is very rare in cases of this kind for there not to be a medical report. He then told us it was impossible to arrange it in under three weeks; and he finally said he thought it could be arranged quite quickly. I am in a state of total confusion.
§ Lord Elton
I am so sorry to have brought the noble Lord into a state of confusion immediately before dinner. What I was saying was that, under the normal cycle, if somebody is remanded, typically he is remanded for three weeks for a medical report; and that comes from somewhere else. But there is provision, which is not at present properly used, as I understand it, for this report to be available more or less in the precincts of the court. I was saying that I thought it would be wrong to introduce into the Bill a procedure which would probably result in these remands but right if I could persuade, by administrative means, the courts to avail themselves of what is already available. It will be possible to monitor this by the number of people who are subsequently transferred. I think it will go down dramatically.
§ Lord Wigoder
Can the noble Lord say how long it would take an officer in reception to assess whether the person arriving is fit for the régime or not?
§ Lord Elton
No; I would have thought that a thorough medical examination for this purpose would not take more than hours; I do not think it would be measured in days. I could not say how many minutes there would be.
The fact is that, whatever other provision we have, I do not think those responsible for running such a centre would wish to dispense with that operation. I think that they would wish, for their own reassurance, to be certain that all was well with the people who went in with them. Otherwise, if something subsequently went wrong, there would have been negligence and they might feel themselves protected by a medical examination. So, if the noble Lord is seeking to save time in the detention centre, I have grave doubts about whether it would do that.
§ Baroness Trumpington
I should like to thank my noble friend the Minister very much indeed. His words have given me food for thought. Faced by a lot of hungry noble Lords, I feel that food for other parts is more important at the moment. I shall beg leave to withdraw my amendment, but I may raise it again at Report stage when I have discussed it with my colleagues.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 3 shall stand part of the Bill?
§ Lord Hylton
I should like to ask a very brief question —arising out of Amendment No. 11, which was moved by the noble Lord, Lord Mottistone—and I ask it in my ignorance. If it is clear to a court that offences have been committed in connection with, or closely linked to, alcohol, drug or glue abuse, is it open to that court, instead of making a detention order, to make a care order or some other kind of order, which will provide for medical treatment for such purposes as detoxification and, if possible, the prevention of future alcohol, drug or glue abuse?
§ Lord Elystan-Morgan
Is not the situation this? If it is an offence which is punishable for an adult with imprisonment, then the Crown court or the juvenile court can make a care order?
§ Clause 3 agreed to.
§ Lord Denham
I think that this is probably an appropriate moment to adjourn for dinner. We have other business during the adjournment, but it may be of interest to the Committee to know that I shall be proposing, when the other business is finished, that the House stand adjourned until ten minutes past eight. I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.