§ 3.7 p.m.
The Minister of State, Home Office (Earl Ferrers)
My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Earl Ferrers.)
On Question, Motion agreed to.
§ Lord Nathan moved Amendment No. 66:
After Clause 29, insert the following new clause:
("Review of life sentences by Tribunal
§ .—(1) The Secretary of State shall refer the case of every life prisoner to the Tribunal for review not later than two years before the expiry of the penal term applicable to his case.
§ (2) The Tribunal may direct—
- (a) the release on licence of a life prisoner convicted of murder;
- (b) the release of a life prisoner convicted of an offence other than murder—
- (i) on licence; or
- (ii) unconditionally.
§ (3) In determining whether to direct release the Tribunal shall have regard to the risk of the life prisoner's committing further serious offences and the need to protect the public against that risk.
§ (4) The Secretary of State may revoke the licence of any life prisoner whose release on licence has been directed by the Tribunal and recall him to prison if it appears to the Secretary of State that it is expedient in the public interest to do so and shall in that event refer the case of the prisoner so recalled to the Tribunal for further consideration so soon as practicable.
§ (5) A life prisoner whose case is referred to the Tribunal under this section shall have the right—
- (a) to make representations to the Tribunal either orally or in writing;
- (b) to be legally represented before the Tribunal: and
- (c) to call witnesses on his behalf
§ Provided that the Tribunal may direct that there shall be no disclosure of any material which the Tribunal considers that it would not be in the public interest to disclose.
§ (6) If the Tribunal determines not to direct the release of a life prisoner (whether convicted of murder or of some lesser offence) the Secretary of State shall refer his case to the Tribunal for further consideration within 112 such period (not being longer than three years from the date of the previous determination) as the Tribunal may direct.
§ (7) Where the Tribunal directs the release of a life prisoner other than one convicted of murder it may also direct the length of time for which the licence is to remain in force.
§ (8) If the Tribunal gives no direction as to the length of a licence under subsection (7) above, it shall review the licence—
- (a) within three years from the date of the Tribunal's decision to release the offender on licence; and
- (b) before the expiry of any subsequent period of three years
§ (9) It shall be the duty of the Secretary of State to give effect to any directions given by the Tribunal in regard to a life prisoner whose case is referred to it under this section.
§ (10) In this section "penal term" means the sentence of imprisonment which the court is required by section (Court's duty on passing sentence of life imprisonment) to state in open court as being the sentence it would have passed if it had not passed a sentence of imprisonment for life and it had not taken into account the risk of serious harm to the public if the offender were to be released after a determined number of years' imprisonment.
§ (11) In this Part "life prisoner" means a person serving a sentence of imprisonment for life."). On Question, amendment agreed to.
§ [Amendment No. 67 not moved.]
§ Clause 30 [The Parole Board]:
§ The Earl of Longford moved Amendment No. 67C:
Page 21, line 20, after ("decision") insert ("or the person to whom the case relates wishes an interview,").
The noble Earl said: My Lords, I hope that the Government will consider very carefully whether they will accept this moderate amendment. If I were left to myself—but in this world, as in this House, we are not very often left to ourselves to do exactly what we want —I should have moved a much stronger amendment. I should have had in mind the conclusion 68 of the Report of the Review Committee on the Parole System in England and Wales which states:
The majority of the Committee believe that the Board should review cases on paper and take a decision which would then be communicated to the inmate".
§ The majority—and I agree with the minority—of the Carlisle Committee see the paper review in terms of an initial sift. That would give the rest the opportunity of a hearing in which their cases would be resolved one way or another. Therefore, the minority of the Carlisle Committee favoured a proper hearing of the case of an applicant for parole. I am not moving that amendment in the way I should like because I do not imagine that the Government would accept it. We have been taught by the late Lord Butler that politics is the art of the possible.
I now move on to something which is fairly moderate and which everyone, including the Government—if they are in a reasonable state of mind—should accept. Clause 30 of the Bill states:
If in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and shall consider the report of the interview made by that member".
§ That will arise in some cases and so far as it goes is beneficent. However, my amendment would carry that idea further by providing that the person to whom the case relates—the applicant—should be able to obtain an interview. It would not therefore be dependent on the wishes of the board. Any applicant who asked for an interview could obtain one. That is the gist of the first two amendments.
By this time I am sure that most noble Lords are familiar with what was recommended by the Carlisle Committee and with what the Government are proposing. However, these matters have not been discussed thoroughly in this House. The report of the Carlisle Committee was one of high quality. The committee's conclusions did not on the whole find favour with me although they found favour with the Government. The committee sought to cut down from 24,000 to 4,000 the number of cases of people applying for parole. That would make the whole system look very different. It also recommended the abolition of the local review committees. That was a disastrous recommendation but one which seems likely to take effect. As Mihailovic said:
I have been swept away by the gale of the world".
It seems likely that on this matter I shall be swept away. I shall try to make the best I can of the situation when the local review committees are abolished.
§ At the present time if one applies for parole—it would not so far as I can see as I look around be the lot of any Member of this House to find himself applying for parole—the only personal contact one would have with the parole system would be at a personal interview with one member of the local review committee. One would have two interviews became the governor of the prison or his deputy would be on the local review committee so that the prisoner would have one or two personal interviews. If the local review committee is swept away what is left? We are left with bureaucracy.
§ I do not see the noble Lord, Lord Windlesham, in his place. If anyone wants to have a bureaucratic system described in the most damaging terms, let him look at the speech made by the noble Lord, Lord Windlesham, yesterday in a slightly different connection. At any rate, one would have a bureaucratic decision, a decision reached purely on paper. One would not have the personal interview which at present every prisoner has. One would be denying the personal interview. That is what I am speaking for at this stage. If the Government are to abolish the local review committees —a disastrous decision but disastrous decisions are taken daily, almost hourly, in this world—for heaven's sake ensure that there is at least some possibility that the applicant for parole will be seen by someone. That would be the effect of my amendment. Under the Government's plans he might or might not be seen. I hope therefore that the Government will accept the amendment.
§ 3.15 p.m.
§ Lord Donaldson of Kingsbridge
My Lords, although I am inclined to agree with my noble friend that it would be a pity to abolish the review 114 committees, I have to point out that every prisoner has the right to speak to any member of the board of visitors on request and in fact—
§ The Earl of Longford
My Lords, perhaps I may interrupt because I believe there is a misunderstanding here. I am not talking about the board of visitors. I am talking about the Parole Board.
§ Lord Richard
My Lords, my noble friend requests that we should approach these amendments in a reasonable state of mind. I always approach the amendments of my noble friend in a reasonable state of mind. In doing so, I commend them to the consideration of the Government.
There are two points here, each of which has substance and force behind it. The policy of not giving reasons for refusing parole undoubtedly adds to a sense of grievance on being turned down. I do not think anyone can legitimately disagree with that. To deny parole to a prisoner who has been waiting anxiously for months for a decision and then for the prisoner to be given no formal explanation as to why he has been turned down is likely to induce cynicism and bitterness about the whole procedure. It is bound—is it not?—to give rise to the suspicion in the prisoner's own mind that the decision in his case has been arrived at arbitrarily if formal reasons are not given. If they are not given, prisoners will tend to invent their own reasons. The consequences of such speculation may be much more damaging than the truth itself. Moreover, without being given reasons for their failure, it is difficult for prisoners to work constructively for their release. I support that part of my noble friend's amendment.
The second part of it has equal force. It is thoroughly desirable that prisoners should have the opportunity of a personal interview with a Parole Board member. Not infrequently a prisoner may decline to make written representations on the ground that he feels that he lacks the confidence and skill to put his case properly in writing. He would prefer to make an oral case. While some written representations from prisoners may be articulate, a much larger number are written by prisoners who are unclear as to what matters they should touch upon, and who therefore fail to do themselves justice. The system of personal interviews where the prisoner who so desires it could be accorded one would surely be a much more satisfactory way of enabling prisoners to make representations as well as according more closely with the requirements of natural justice. I hope that the House will approach these amendments in as reasonable a frame of mind as I and my noble friend have done.
§ Lord Campbell of Alloway
My Lords, my noble friend Lord Windlesham is not in his place. With regard to Amendment No. 67A, the evidence we received was quite convincing and was reflected in a unanimous part of the report that the reasons should be given if there is no recommendation for early release. It became manifestly apparent to us that this 115 was one of the causes of serious unrest in Her Majesty's prisons. It was a cause of substantial disquiet and grievance. Curiously enough, the Woolf Report found exactly the same. I have spoken to this matter before in the House. I hope that the Government will keep an open mind on Amendment No. 67A as it might be helpful for the good order of prison life.
My Lords, the noble Earl, Lord Longford, said that these were thoroughly moderate amendments. His noble friend Lord Richard recommended them for the consideration of the Government. We are in a very affable mood, and the noble Lord's suggestion that the Government should consider them has been taken very seriously. We have considered them. We are dealing with three amendments, Amendments Nos. 67C, 67B and 67A. The noble Earl's first two amendments—Amendments Nos. 67C and 67B—seek to guarantee to all inmates the right to have an interview with a member of the Parole Board before a final decision about early release on licence is taken. We accept that it is important for an inmate to have an interview with someone involved in the decision-making process. We intend, by virtue of Clause 30(5), to issue rules which would ensure that all inmates receive such an interview.
The advantage of this approach is that it allows for flexibility and changes to the system in the light of experience. If we were to put the right to an interview in legislation we would undermine this flexibility and it could be seen as the first step towards introducing a formal hearings system for determinate sentence inmates. That is the system which the Government have rejected following the recommendation of the committee chaired by my noble friend Lord Carlisle of Bucklow. It also begs the question of how the interview would be conducted. For example, should the inmate's friend or lawyer be allowed to attend? What other procedural rules would need to be followed? The interview should be an administrative arrangement designed to assist the board and not a legal right from which other rights could be inferred.
The noble Earl's third amendment, Amendment No. 67A, relates to inmates who have had their applications for release on licence turned down. At present inmates are not told the reasons for their parole decisions and have no right to be told. The secrecy of the present system has been widely criticised and the Government have accepted the need to move to a more open system. However, while there is a strong argument to be made for giving reasons to the inmate concerned, this amendment would place such information in the public domain and presumably it could be reported in the press. I do not believe that this would be a welcome step. An inmate's parole decision should remain confidential to those involved, including possibly the victim and his or her family; it should not be a matter of general knowledge.
I can tell the noble Earl—I am not sure whether this will satisfy him but it will please him—that the Government hope to introduce through administrative means the giving of reasons for all parole 116 decisions, positive as well as negative. While an inmate will naturally wish to know why an application for parole has been turned down, it could also be beneficial both to the inmate and to the supervising officer if the Parole Board explains its reasons for recommending release on licence, particularly if licence conditions are added.
In the light of those undertakings to introduce through administrative means the holding of interviews for all inmates applying for release on licence and to give reasons to the inmates for all Parole Board decisions, I hope that the noble Earl will consider that that is the best course of action rather than to put the requirements into statute as his amendments seek to do.
§ The Earl of Longford
My Lords, I am grateful to the noble Earl, who has obviously thought carefully about these matters. I am not so quick on the uptake as to be quite sure of exactly what his assurances amount to. I shall withdraw the amendments on this occasion, but if the assurances are not as encouraging as I think they are, I shall return to the issues at a later stage. I hope that it will not be necessary to do so. For the moment, I feel inclined to thank the noble Earl for his helpfulness. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 67B and 67A not moved.]
§ Lord Nathan moved Amendment No. 68:
§ Before Schedule 4, insert the following new schedule:
§ Life Sentences Review Tribunal
§ 1. The Tribunal shall consist of—
- (a) a judge of the High Court, who shall be the chairman;
- (b) a registered medical practitioner who is a psychiatrist;
- (c) a chief probation officer.
§ 2. The chairman shall be appointed by the Lord Chancellor and the other members by the Secretary of State.
§ 3. A person appointed to be the chairman or other member of the Tribunal shall hold and vacate office under the terms of the instrument by which he is appointed, but may at any time resign his office, and a person who ceases to hold office as a member of the Tribunal shall be eligible for reappointment.
4. In Part II of Schedule 1 to the House of Commons Disqualification Act 1975 (Bodies of which all members are disqualified) there shall be inserted at the appropriate place the following entry:
The Life Sentences Review Tribunal constituted under section (Life Sentence Review Tribunal) of the Criminal Justice Act 1991.
§ 5. There shall be paid to the members of the Tribunal other than the chairman such remuneration and allowances as the Secretary of State may with the consent of the Treasury determine.
§ 6. The expenses of the Tribunal under paragraph 5 above and any other expenses incurred by the Tribunal in the discharge of its functions shall be defrayed by the Secretary of State.
§ 7. The Tribunal shall as soon as practicable after the end of each year make to the Secretary of State a report on the performance of its functions during that year; and the Secretary of State shall lay a copy of the report before Parliament.117
§ 8.—(1) the Lord Chancellor may make rules with respect to the Procedure to be followed by the Tribunal in cases referred to it under section (Review of life sentences by Tribunal).
§ (2) Rules under this paragraph may in particular make provision—
- (a) for making available to the person whose case is under consideration by the Tribunal copies of any documents relevant to this case and a copy of any relevant oral information supplied to the Tribunal except where it considers that it would not be in the public interest to disclose such documents or information;
- (b) for requiring the Tribunal to furnish reasons for any decision given by it in such circumstances as may be prescribed;
- (c) for enabling any matters preliminary or incidental to a review to be dealt with by any member of the Tribunal designated by the chairman.
§ (3) The power to make rules under this paragraph shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
§ On Question, amendment agreed to.
§ [Amendments Nos. 69 and 70 not moved.]
§ Clause 32 [Power to release long-term and life prisoners]:
§ Lord Nathan moved Amendment No. 71:
§ Page 22, line 30, leave out subsections (2) to (4).
§ On Question, amendment agreed to.
§ Clause 34 [Duration and conditions of licences]:
§ Earl Ferrers moved Amendment No. 71A:
Page 23, line 4, after ("36(1)") insert ("or (2)").
§ The noble Earl said: My Lords, in moving this amendment I should like to speak also to Amendment No. 72A. These are both drafting amendments designed to correct two cross-references. I beg to move.
§ On Question, amendment agreed to.
§ Lord Nathan moved Amendment No. 72:
Page 23, line 11, after ("life prisoner") insert ("who has been convicted of murder").
§ On Question, amendment agreed to.
§ Earl Ferrers moved Amendment No. 72A:
Page 23, line 12, after ("36(1)") insert ("or (2)").
§ On Question, amendment agreed to.
§ Clause 36 [Recall of long-term and life prisoners while oil licence]:
§ Lord Nathan moved Amendment No. 73:
Page 24, line 2, leave out ("or life").
§ On Question, amendment agreed to.
§ Clause 38 [Remand time to count towards time served]:
§ Earl Ferrers moved Amendment No. 73A:
Page 25, line 13, leave out ("period during which he was in custody'') and insert ("relevant period within the meaning of that section").
§ The noble Earl said: My Lords, this is a drafting amendment. I beg to move.
§ On Question, amendment agreed to.
§ Earl Ferrers moved Amendment No. 73B:
After Clause 43, insert the following new clause:
Persons extradited to the United Kingdom
- (a) he was tried for the offence in respect of which his sentence was imposed—
- (i) after having been extradited to the United Kingdom; and
- (ii) without having first been restored or had an opportunity of leaving the United Kingdom; and
- (b) he was for any period kept in custody while awaiting his extradition to the United Kingdom as mentioned in paragraph (a) above.
§ (2) If, in the case of an extradited prisoner, the court by which he was sentenced so ordered, section 67 of the 1967 Act (computation of sentences of imprisonment) shall have effect in relation to him as if a period specified in the order were a relevant period for the purposes of that section.
§ (3) The period that may be so specified is such period as in the opinion of the court is just in all the circumstances and does not exceed the period of custody mentioned in subsection (1)(b) above.
(4) In this section—
extradited to the United Kingdom" means returned to the United Kingdom—
- (i) in pursuance of extradition arrangements;
- (ii) under any law of a designated Commonwealth country corresponding to the Extradition Act 1989;
- (iii) under that Act as extended to a colony or under any corresponding law of a colony; or
- (iv) in pursuance of a warrant of arrest endorsed in the Republic of Ireland under the law of that country corresponding to the Backing of Warrants (Republic of Ireland) Act 1965;
extradition arrangements" has the meaning given by section 3 of the Extradition Act 1989;
designated Commonwealth country" has the meaning given by section 5(1) of that Act.").
§ The noble Earl said: My Lords, this amendment addresses the vexed issue of prisoners who have spent time in custody abroad awaiting extradition to this country. It seeks to respond to the concern expressed by a number of your Lordships in Committee when we debated a new clause tabled by my noble friend Lord Thomas of Gwydir. We were persuaded by my noble friend that the operation of Section 67 of the Criminal Justice Act 1967 results in anomalies which could and should be lessened. Section 67 provides for the length of a prison sentence imposed by a court to be reduced administratively by any time spent on remand in custody awaiting trial. Thus, an offender sentenced to four years in prison who had spent one year on remand in custody would be treated by the prison authorities as if he had already served one year of his sentence. But Section 67 does not cover time spent in foreign custody awaiting extradition for trial in this country. If in the example I gave in Committee the offender had spent one year in a French gaol awaiting extradition, the only course open to the court would be to reduce his sentence from four to three years. Therefore, two people sentenced for the same offence would receive quite different sentences and would be entitled to be released at quite different times. That seems to be anomalous. It also blurs the sharpness of the principle that the sentence should reflect the offence itself.
§ The proposed new clause would give a court the discretion in sentencing an extradited prisoner to order that all or some of the time spent in foreign custody should count as the "relevant period" under Section 67 of the 1967 Act. The prison authorities would then calculate the length of imprisonment, 119 taking into account the period ordered by the court. Such offenders would receive the appropriate sentence for the offence. They would effectively be treated in the same way as those who spent time on remand in custody in this country.
§ The proposed new clause goes wider than the amendment tabled by my noble friend in Committee. It applies to all extradited prisoners. It includes those extradited from Commonwealth counties or from the Republic of Ireland under the backing of warrants procedure. It would also benefit those who had been in custody intermittently as well as continuously, whatever the type of custody. The court would be able to exercise its discretion in deciding what proportion of the period spent in foreign custody it would be just to regard as the "relevant period" in all the circumstances. If it is thought that the offender had fled the country to escape justice and had deliberately spun out the extradition proceedings, the court could decide to take no account of the period of foreign custody, or it could decide that six months in a French gaol should be treated as six months on remand over here. The offender would be able to appeal against an order made by a court. The new clause does not need to specify this because the Criminal Appeal Act 1968 already provides for appeal in this sort of case.
§ I realise that this new clause does not give my noble friend all that he wants. For example, it does not provide for the automatic deduction of the entire period spent in foreign custody. But, as I have explained, we think that we cannot do without the exercise of a certain amount of discretion here. Nor would the new clause help if the offender did not himself raise the issue of time spent in foreign custody until after sentence had been passed. He would, as now, have to rely on the use of the royal prerogative of mercy. We accept that that is not ideal but we hope that the situation will not arise often. The defendant's counsel could ensure that the matter was aired in court at the appropriate time.
§ Despite that, I hope that my noble friend and other noble Lords will accept that we have gone a good way towards meeting the anxieties that they expressed in Committee. I beg to move.
§ 3.30 p.m.
§ Lord Mottistone
My Lords, my noble friend Lord Thomas of Gwydir has to be in Committee on a Private Bill and asked me to speak on his behalf, and to say how grateful he is to our noble friend the Minister for tabling the amendment. He was aware that it did not go as far as he wished, but it goes very much further than the existing position.
§ Lord Renton
My Lords, I too support the amendment, but I should be grateful if my noble friend the Minister would explain the meaning and the effect of the words in subsection (1) (a) (ii) "having first been restored". My imagination does not run to understanding the significance of those words. It may be that the draftsman intended to say "without having 120 first been restored to". It would follow, therefore, to the United Kingdom. Perhaps my noble friend would be so good as to explain the matter.
§ Lord Harris of Greenwich
My Lords, it is right that someone on this side of the House should say how glad we are that the Minister has responded to the concerns expressed in the amendment moved in Committee by the noble Lord, Lord Thomas of Gwydir. The Minister has responded to pressure from all sides of the House and we are grateful to him.
§ Lord Richard
My Lords, I join in the welcome given to the clause, and congratulate the Government on having accepted the proposal. I hope that the outburst of compromise that is coming from the Government Benches today augurs well for the rest of the Bill.
My Lords, I am grateful to your Lordships for agreeing to the amendment. My noble friend said that his imagination did not run towards providing an explanation of the part of the clause that he mentioned. I find it difficult to understand how my imagination should run even faster. As I understand it, the clause does not apply where the offender has been returned to the country which extradited him. That is what "restores" means in extradition law. I am sure that that explanation will satisfy my noble friend. He may wish to consider it in greater detail. It is extradition law which causes such phraseology to be used.
§ Lord Renton
My Lords, before my noble friend sits down, I am grateful to him, but I still think that the draftsman should reconsider that phrase.
On Question, amendment agreed to.
§ Clause 48 [Notices of transfer in certain cases involving children]:
§ Lord Mottistone moved Amendment No. 74:
Page 30, line 23, at end insert:
("(8) In section 32(1) (b) of the 1988 Act after the words "leave of the court" there shall be inserted the following paragraph
(c) All reasonable steps, as set out in the rules of court, shall be taken to ensure that the court's decision to grant or refuse such leave be made, and conveyed to the child witness, as soon as is practicable after the child's witness' first statement to the police concerning the alleged offence."").
§ The noble Lord said: My Lords, the amendment is designed to ensure that child witnesses will be informed as far in advance of the trial as possible of the outcome of an application to give evidence by live television link. Clause 48 extends the provisions of the Criminal Justice Act 1988. That allowed child witnesses to give evidence during a trial by means of a video link. In cases of alleged sexual offences the clause would allow witnesses up to the age of 17 to give evidence in that way.
§ Under current legislation the CPS must seek the leave of the trial judge for evidence to be given by means of a television link. The amendment seeks to ensure that in all cases involving child witnesses leave is sought and the judge's decision made and conveyed to the child as soon as is practicable after the child has made an initial statement to the police.121
§ At present there is great variation in the length of time that child witnesses may have to wait before they are told how they will be expected to give evidence. Many children are distressed at the prospect of having to give evidence in the presence of the defendant. Uncertainty about such a significant matter can only add to the already considerable stress and trauma experienced by many children who are waiting to give evidence at criminal trials involving allegations of violent and sexual offences. Uncertainty as to how evidence is to be given may cause some children such distress that they become incapable of giving evidence at all or may deter their parents from allowing them to do so. That may lead to the collapse of cases and serves neither the interests of the child nor justice.
§ In most cases of the kind dealt with by the clause applications to allow child witnesses to give evidence by live television link are granted, but sometimes at a very late stage in the proceedings. Provisions aimed at ensuring that that decision is made as early as possible would serve not just to alleviate the distress of child witnesses and reduce the number of cases which collapse unnecessarily, they would help also to lower the temperature of all concerned and introduce greater clarity at an early stage of the proceedings. It is in the interests of the defence as well as the child witness to know as soon as possible how the child will be giving evidence. This small amendment merely seeks to achieve that aim. I hope my noble friend the Minister will be able to accept the amendment in principle if not as it is worded. I beg to move.
§ Baroness Faithfull
My Lords, I support the amendment. Those of us who have had to take children to court know that the first thing they ask is what will happen and what will they have to do. It is important to tell them at an early stage what is going to halt pen arid how it will happen.
My Lords, the use of live television links by child witnesses was introduced by Section 32 of the Criminal Justice Act 1988. That was a radical change to court procedure and my noble and learned friend the Lord Chancellor is implementing Section 32(1) (b) in a rolling programme which will, by the end of this financial year, cover 37 court centres with more to come, according to need. He has been keen to monitor the effects of the change, as has the Home Office. We are looking at a number of aspects of the new procedures, including of course the position of the child witness. It is that latter aspect about which my noble friend Lord Mottistone is concerned. Interim research reports show the provisions to have worked well on the whole, though not without some teething problems. It would have been surprising, perhaps, if it had been plain sailing from the first.
I understand and fully sympathise with the amendment and with the feelings of my noble friends Lord Mottistone and Lady Faithfull. My noble friend is keen to spare child witnesses as much anxiety as possible by removing the uncertainty about how they will be expected to give their evidence. Under the present Crown Court rules, the vast majority of applications are decided on paper and a response 122 given promptly to the applicant. My noble friend says that there have been delays. That may be so since this is a novel procedure.
The Government have commissioned independent research into the first year of operation of the live links scheme specifically to cure such hiccups. We shall be examining the research conclusions thoroughly and we shall not exclude from that review the issue of when and how the various parties are notified. We shall make any necessary changes to the rules of court to ensure that the provisions work in the best interest of the child witness and of justice. I hope that my noble friend will be satisfied with that explanation.
§ Lord Mottistone
My Lords, do I understand from my noble friend that the substance of what I was saying will be included in the rules of court when the necessary inquiries are completed?
My Lords, with the leave of the House, we shall have to see what the report says before we decide how to adjust the rules.
§ Lord Richard
My Lords, before the Minister sits down, perhaps I may take the point a little further. Will he take on board the necessity of informing the witnesses and in particular the child's mother of the court's decision regarding the link. As he will be aware, the only obligation at the moment is to inform the prosecution and the defence. It does not necessarily follow that that information will reach the witnesses and the child's parents at the earliest possible moment. If that point can be dealt with by the rules of court it would go some way towards meeting the thrust of the amendment.
My Lords, I do not wish to abuse the procedures of your Lordships' House by rising yet again, but with the leave of the House, I shall take that point into consideration. I shall get in touch with the noble Lord when I have done so.
§ Lord Mottistone
My Lords, in view of the undertakings that I have been given, for which I am grateful, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Schedule 5 [Notices of Transfer: Procedure in lieu of Committal]:
§ Earl Ferrers moved Amendment No. 75:
Page 83, line 4, at end insert:
("(4A) No leave or order under sub-paragraph (4) above shall be given or made in relation to oral evidence from a child (within the meaning of section 48 of this Act) who is alleged—
- (a) to be a person against whom an offence to which the notice of transfer relates was committed; or
- (b) to have witnessed the commission of such an offence.").
§ The noble Earl said: My Lords, I beg to move Amendment No. 75 and speak to Amendment No. 76. As they stand, the arrangements in lieu of committal provided in Schedule 5 to the Bill mean that a judge could agree to make a child witness give oral evidence during the pre-trial procedure if satisfied that it would be in the interests of justice so to do. In Committee, I agreed with my noble friend Lord Mottistone, who made the point that the possibility of such an order, 123 rare though it may be in practice, is not in the spirit of the Bill. Nor is it in the spirit of the committal proceedings which the procedure in the Bill replaces.
§ From the outset, the Government's intention has been to spare the child the stress of court appearances and confrontation with the accused. The first amendment removes a potential anomaly in Schedule 5 by precluding the making of such an order in respect of a child witness. The second amendment covers a drafting point.
§ I am grateful to my noble friend Lord Mottistone for focusing the Government's attention on the Schedule 5 procedures. I hope that he and your Lordships will find the amendments helpful. I commend the amendment to your Lordships.
§ Lord Mottistone
My Lords, I thank my noble friend very much for what he has done to encompass what I proposed in Committee. The amendment is entirely satisfactory.
On Question, amendment agreed to.
§ Earl Ferrers moved Amendment No. 76:
Page 85, line 9, leave out from ("alleged") to end of line 10 and insert:
("(a) to be a person against whom an offence to which the notice of transfer relates was committed; or
(b) to have witnessed the commission of such an offence.").
§ On Question, amendment agreed to.
§ Earl Ferrers moved Amendment No. 77:
§ Page 85, line 31, leave out from ("proceedings)") to end of line 36 and insert ("in paragraph (b), after the word "cases)" there shall be inserted the words "or section 48 of the Criminal Justice Act 1991 (transfer of certain cases involving children)"").
§ The noble Earl said: My Lords, this is a minor drafting amendment which does not alter the effect of the provision. I beg to move.
§ On Question, amendment agreed to.
§ 3.45 p.m.
§ Clause 49 [Video recordings of testimony from child witnesses]:
§ Lord Mottistone moved manuscript Amendment No. 78B:
Page 30, line 43, at end insert:
("( ) In any proceedings under subsection (1)
§ (a) the court may grant leave for a child witness to be examined and cross-examined at a pre-trial hearing in informal surroundings at which only—
- (i) the judge;
- (ii) counsel for the parties; and
- (iii) an appropriate adult to accompany the child as set out in rules of court,
§ (b) at any pre-trial hearing the defendant shall be permitted to see and hear the proceedings and to communicate with his legal advisors by such means as shall be laid down by Rules of Court;
§ (c) the pre-trial hearing of the evidence of a child witness shall be video-recorded and the video-recording shall, with the leave of the court, be tendered in evidence before the jury.").
§ The noble Lord said: My Lords, I call your Lordships' attention to the fact that we made a change late last night which sadly has not been reflected in the newly published Marshalled List.124
Amendment No. 78A says:
In any proceedings under subsection (1) where otherwise evidence from a child witness would not be available to the court".
Noble Lords should ignore,
where otherwise evidence from a child witness would not be available to the court".
What is left is the substance of Amendment No. 78B which I tabled last night as a manuscript amendment and which, through an error, was not included on the Marshalled List. The amendment therefore reads:
In any proceedings under subsection (1)—
(a) the court may grant leave",
and so on. In substance, the amendment is what we debated at great length in Committee. We took care to listen to what was said by my noble friend and others during the debate. We also took note of discussions that took place in a committee room under the chairmanship of my noble and learned friend the Lord Chancellor on Monday of last week. We have come as close as we can to trying to satisfy the difficulties that several people saw in this procedure. I shall be as brief as I can, but it would be wrong not to run over the ground as to why we need such an amendment and believe it to be so important.
§ The effect of the amendment would be to introduce pre-trial hearings where the child's examination and cross-examination could take place. The amendment is firmly based on the recommendations of the Home Office advisory group on video evidence which is otherwise known as the Pigot Committee. Mr. Justice Pigot was its chairman. The report was widely acclaimed by a range of interests from children's organisations to the Family Law Committee of the Law Society and influential sections of the Bar.
§ The provision could be used by both defence and prosecution when the court granted leave. The Pigot Report made the introduction of pre-trial hearings a central recommendation, first, because children are frequently traumatised by courtroom appearances and are unable to give coherent or accurate evidence. I emphasise "accurate". Secondly, many cases of possibly guilty men collapse because the jury cannot hear the evidence. Thirdly, the time delay between an original complaint and the case coming to court may be many months. This means that children's recall and perception of events may be blurred, thus undermining their credibility as witnesses. I suggest that it may undermine not only their credibility as witnesses but also their value to the justice of the case before the court. Fourthly, children may be in a position where there is strong legal advice that they do not receive therapy or counselling as this might "contaminate" their evidence.
§ It is in the interests neither of the child nor of justice to allow the situation to continue; the essence of the criminal justice system must be to ensure that justice is done. At the moment, the child witness does not enjoy the right to a fair hearing. These amendments would ensure that both prosecution and defence would enjoy that right.
§ Noble Lords must forgive me. I am speaking not only to Amendment No. 78B but also to Amendments 125 Nos. 79A and 80A which are consequential and part of my argument. I forgot to mention them in explaining the complications of Amendment No. 78B.
§ The Bill introduces some welcome reforms, particularly in respect of the possibility of bypassing committal proceedings and the admissibility of a video recording of the child's original complaint. However, the Bill does not adequately reflect the recommendations of the Pigot Report; first, because of the environment in which the child gives evidence and is cross-examined; secondly, because of the potential for delay in the child giving evidence, even with the new provision for bypass of committal proceedings; and thirdly, because of preparing the child to give evidence.
§ We seek to bring about an arrangement which would embody the spirit of the Pigot Committee's recommendations while taking into account the practical difficulties which may arise if the possibility of cross-examining child witnesses at trial were removed altogether. It allows for the hearing of evidence-in-chief and cross-examination at a pre-trial hearing.
§ The amendment would allow both defence and prosecution to apply for a pre-trial hearing where a child witness would be intimidated by the law in the way uncovered by the Pigot Report, to which I referred. It tries to put into effect what the noble Lord, Lord Richard, picked out when we debated the subject earlier and which I later called the "Richard solution" to enable the child to make a complaint which would be video-recorded. Then, at a convenient time to be agreed upon by all the parties concerned, and certainly at a time when the defence was prepared for a thorough cross-examination, a pre-trial hearing could be held. At the pre-trial hearing, which would also be video-recorded and shown to the jury at the trial, the child would again give evidence and be cross-examined.
§ Counsel for both parties would be present, with the defendant being able to see, hear and communicate with counsel by such means as are laid down in the rules of court. That is taken care of in subsection (b) of the amendment. However, the defendant would be in another room and the communication would be by electronic means. The child would thus be giving evidence in a less formal and intimidating environment. That would help him or her to give a coherent account. The time between the original complaint and cross-examination would be shorter, thus reducing the distortion of memory caused by delay. In most cases the child can be assured that making a complaint will not result in having to appear in court. That is a vital reassurance for a child witness who might otherwise feel unable to proceed.
§ The child can begin therapy at a much earlier stage, as in some cases the child's role in the proceedings will be over much more quickly. At the same time the amendment makes provision for cross-examination at trial in those cases where information comes to light after tie pre-trial hearing. That is taken care of by one of the supplementary amendments. The amendment 126 also caters for those cases where the court deems it necessary to allow further cross-examination of the child during the trial.
§ At present the recall of child witnesses after cross-examination has taken place seems to be quite rare. Provision allowing cross-examination to take place at an out-of-court hearing need not increase the number of such recalls provided they are allowed by the judge only when necessary, for example to examine new evidence which could have a significant effect on the outcome of a case.
§ The amendment would provide a framework within which judges would be enabled to exercise appropriate vigilance in ensuring that child witnesses are not recalled unnecessarily. Within this framework many children could be spared the ordeal of giving evidence during the trial, while the degree of flexibility necessary to provide a practical means of ensuring a fair hearing in all cases would be retained.
I wish to quote from a letter that I wrote to my noble friend the Minister asking him to give thought to accepting this amendment or something very like it. It states:
May I emphasise to you that, in our proposed sub-paragraph (a), we say, 'the court may grant leave'. This makes it wholly optional for a judge to use the proposed new procedures".
§ No judge will follow that course, particularly in these early days, unless he or she is fully satisfied that the case justifies it—the procedure will be suitable for some cases but not for others depending on the nature of the trial—and that the implementation of the procedure is practicable and the arrangements for a full trial will take significantly longer to implement.
§ I understand that it is considered that this pre-trial procedure will not save much time on a full trial. If that is the case and the judge who is to take the case believes that it is true, he is unlikely to invoke this possibility. I stress that it is only a possibility. However, I am informed by all kinds of sources that a full trial takes a great deal longer than this pre-trial, with its limited numbers of people. That is an important point which your Lordships must seriously consider.
§ The provision will in suitable cases enable judges to learn how the Pigot proposals can best be put into effect. If my amendments are not included in the Bill, there will be no opportunity for this to he done and there will thus be a delay of several years before we can work towards achieving greater justice from children's evidence. I believe that the Government could accept this amendment in its reconstructed form. I beg to move.
§ Lord Ackner
My Lords, the short issue which noble Lords are concerned to decide is whether a child's evidence-in-chief, cross-examination and re-examination should be capable of being heard pre-trial. When the matter was last debated before your Lordships I was impressed—no doubt we all were—by the speech of the noble Earl, Lord Russell. He said this was a difficult problem and one of the reasons was that a clash exists between two cultures—those concerned with child welfare, who have an immense amount of knowledge and experience behind 127 them, and those concerned with the administration of justice. On considering the matter, I doubted whether such a clash existed. I therefore took the following steps to ascertain whether it did.
I first consulted the report of the Pigot Committee. I remind your Lordships that that report has been described by many in the most eulogistic terms. The noble Earl, Lord Ferrers, has described it as being most persuasive. The committee included among its members Miss Anne Rafferty, who represented, so to speak, the position of the Bar. She is a Queen's Counsel and a Recorder and has the distinction of being the only member of the Bar who is a member of the new Royal Commission on Criminal Justice. Paragraph 2.31 of the report stated:We envisage that the video-recorded interview, or as much of it as is to be admitted, will be shown to the child at the preliminary hearing and that he or she will be asked to confirm the account which it gives and to expand upon any aspects which the prosecution wishes to explore. After this cross-examination will take place. Where no video recording is put in evidence we assume that the evidence-in-chief and cross-examination will take place in the usual sequence".I stress the following statements:In some cases new issues or evidence may later arise during the course of the subsequent public trial which make it necessary to recall the child. We recommend that this should be carried out under the same conditions as the first examination".None of the members of that committee expressed anxiety as to the problems that might occur if further material should arise which justified further cross-examination. That would be examined at the trial in just the same way as in a situation where counsel for the prosecution or the defence asks leave to recall a witness for further cross-examination because something new has arisen.
I observed that the Council of Her Majesty's Circuit Judges, who try the bulk of these offences, had put in a memorandum to the Pigot Committee. I obtained a copy and checked that this paragraph—the report was dealt with paragraph by paragraph—was specifically approved. I discovered that it was. To make sure that I was up to date I telephoned His Honour Judge Myerson, QC, who is the chairman of the relevant committee responsible for the report of the circuit judges. On inquiring whether he had read the debate which took place in this Chamber last month, he informed me that he had read the relevant copy of Hansard. I asked him whether his views or those of the judges were in any way changed. He said that that was not the case and on 16th May he wrote a letter confirming that. So there is no clash so far.
The next thing I observed on examining the report was that the Criminal Bar Association, which represents the criminal Bar practitioners—which is a very important organisation in the Bar—had given evidence. Suddenly an unworthy thought occurred to me. It seemed just possible that the noble Lord, Lord Hutchinson, who spoke so strongly against any cross-examination out of court, may just have happened to be out of date. He was called to the Bar over 50 years ago.
I thought that the best way of ascertaining whether my unworthy suspicions were justified was to get in touch with the Chairman of the Criminal Bar 128 Association to discover what the situation was. He spoke to me on the phone and subsequently wrote to me. This is what he said:You have asked me to set out briefly the approach of the Criminal Bar Association to the report of the Committee chaired by Judge Pigot Q.C.The Membership of the Committee included Anne Rafferty Q.C., the secretary of the Criminal Bar Association. Whilst she was in no sense a nominee of the Criminal Bar Association, we had the opportunity of consulting with her during the committee's deliberations.The Criminal Bar Association welcomed the report. The incidence of child witnesses giving evidence in the Crown Court has increased markedly in the past five years. This unfortunate but necessary development requires a more flexible approach to the procedures under which evidence is given. Any such approach must preserve the fundamental principles: (i) that the tribunal of fact, the jury, should be able to assess the demeanour with which and the manner in which the witness has given evidence and (ii) that the defence should have proper opportunities to cross-examine material witnesses.It is for these reasons that we shared the dissenting view expressed by Miss Rafferty that evidence should not be prepared by social workers in the form of pre-recorded video taped interviews. We do not oppose the taking of evidence by a judge at a pre trial hearing in the presence of both prosecution and defence-counsel at which the defence has the opportunity to cross-examine. We add that we regarded as an essential safeguard that such proceedings should be recorded on video tape so that the jury may assess the reliability of the witness.Such an exercise involves little expenditure on technology, little intrusion into the court process and can be conducted without intimidating the witness".That up-to-date view on how the Bar views the situation is to be contrasted with the dogmatic statement made by the noble Lord, Lord Hutchinson, whom I am very sorry not to see here today, when he said during the debate (at col. 40 of Hansard for 22/4/91):It is wholly unrealistic to think that justice can be done by any representative of an accused person to cross-examine a child witness weeks or months before the trial takes place".I fear that misunderstanding of practicability was inevitably shared by the noble Earl, Lord Ferrers, because he said when dealing with the matter in his reply:The danger is that we shall end up with more recalls and therefore more rather than less stress for the child.Perhaps I could say a little in regard to my noble friend's point on recalls. The Government's view is that the pre-trial cross-examination makes the child witness more vulnerable to recalls, adjournments and further delays".—[Official Report, 22/4/91; col. 52.]That was almost a mirror image of what the Minister, Mr. Patten, said in another place during Committee. I merely quote this very small portion of his remarks:Out-of-court cross-examination would expose the child to recall for further out-of-court hearings after the beginning of the trial, partly as a result of the informality of the proceedings. The defence would be looking for something new and, however guilty the defence lawyers may believe their client is, it is their job to try to defend him. To be frank, they would seek as many ways as possible of muddling and confusing the trial. One method would be to recall the child for cross-examination again and again, whenever there was some allegedly fresh matter of consideration".—[Official Report, Commons, Standing Committee A, 22/1/91; col. 413.]Unless the source was the noble Lord, Lord Hutchinson, I am at a loss to know the origin of that illusion—the desire not only for repeated cross-examination of the child before trial but the willingness of any judge to permit it. It was not 129 contemplated by Judge Pigot. It was not contemplated by Miss Rafferty on that committee. It was not contemplated by the Criminal Bar Association. There is not the slightest necessity for it to happen. If, after a pre-trial cross-examination, counsel finds that there is new material, the procedure will be that he will make an application to the judge shortly before the trial asking for liberty to cross-examine the child at the trial. The judge—and in this amendment we have clothed him with complete discretion, which he will doubtless exercise in the interests of justice —will either allow or disallow that one further cross-examination at the trial.
What is proposed by the Government is a recipe for disaster. The child's evidence-in-chief is to be carefully recorded. Some months later, when the trial takes place, the child is to be cross-examined. Any adult who has given a statement to a solicitor and is not allowed to refresh his or her memory and is cross-examined eight months later on that statement stands a high probability of becoming confused and unable to do justice to him or herself. How much more so the child?
If justice is to be done, we must follow the clear, concluded view of the committee, of the judiciary in so far as I quoted the circuit judges, and of the profession itself. If we are to reject that, the timorous souls in this context will not be the judges—who are blamed for so much--nor the Bar for being out-of-date, but will be the civil servants—non-practising lawyers in the Home Office and the politicians. In my respectful submission, that would be a disaster and wholly unjustified.
§ Lord Campbell of Alloway
My Lords, there are two approaches to the question of a pre-trial hearing. The noble arid learned Lord, Lord Ackner, has argued in favour of the amendment. No one could have argued the case better. However, that in no way detracts from the forceful argument on the other side, which is that the attitude of the Government on this matter is right and that the Government's proposals are far from being a recipe for disaster—rather a curious phrase. If the amendment were carried, that would be near to a recipe for disaster, as I hope to show.
Your Lordships will be sad that we shall not have the traditional display of magnificent fireworks between the noble Lord, Lord Hutchinson, and the noble and learned Lord, Lord Ackner, because unfortunately the noble Lord, Lord Hutchinson is unable to attend. My contribution, with which the noble Lord is in broad agreement, will inevitably be something of a disappointing damp squib.
But with regard to the reasoning in opposition, let us deal with the question of "wholly optional". "Wholly optional", say those who support the amendment, "but only if the case justifies it". But on what principles is that innovation to be exercised? How are the judges to exercise it? There is no guidance whatever given and in the realm of criminal law precision is of crucial consequence if justice is to be done.
Then it is said, "Well, there will be a substantial saving of time. There will be expedition of the hearing". At one time I thought that that might be so; 130 but, having attended the conference chaired by my noble and learned friend the Lord Chancellor, I am pretty well convinced that for various reasons that is not so. I shall deal with those reasons a little later. Then it is said that the Government—I refer to my noble friend Lord Ferrers—say, "Well, on the question of misunderstanding and of impracticability, and so forth, there is no misunderstanding whatever". One can say those things, but they do not advance the argument.
The opposition to the amendment as I see it—and it is perhaps very much a personal point of view because there are two sides to the argument; I concede that before we start —relates, first, to the need to ensure a fair trial; and, secondly, to the inhibitions that a pre-trial hearing as proposed might place upon the conduct of the defence. Let us look at Amendment No. 80A. Let us look at the inhibitions that that would impose on an advocate conducting the defence. Have we reached a stage in this type of case when an accused or an advocate is bound to disclose his defence, other than an alibi defence, in advance of the trial so that it can—
§ 4.15 p.m.
§ Lord Campbell of Alloway
My Lords, the noble and learned Lord says from a sedentary position, "Why not?" If he would just restrain himself for one moment, I was about to explain.
The reason why not in these types of cases is that, if you have a trump card defence—say, that the wife's lover or the wife coached the child to say that her husband interfered with the child—and you have some strong evidence to suggest that that could well be so, will you as an advocate disclose that at a pre-trial hearing, in the absence of a jury, so as to enable the wife and her lover to recoach the child and to tamper with his or her evidence or to give him or her a chance to trim the evidence? No self-respecting advocate worthy of his salt would ever do that.
Where shall we get to? An advocate will not do that, and I certainly would not do it, but the statute seems to suggest that I shall be ordered by the judge to do that. If I do not do it, I cannot do it later. So then where shall I be? I shall not be told how to conduct a case. I shall go to the Court of Appeal and try to get something out of it.
Talking about practicality and about "Why not?", let us get down to the nitty-gritty of the business of conducting the defence in a criminal trial. The conduct of the defence is most seriously inhibited by this amendment and in particular by Amendment No. 80A. It is quite contrary to all our concepts that you disclose your defence before you conduct your case before the jury, or that you are obliged to give evidence before or after arraignment. The amendment turns the whole system topsy-turvy and on its head. It is an innovation which, if you want to use extravagant language as the noble and learned Lord, Lord Ackner, did, is a recipe for disaster.
131 That is the beginning of the other side of the argument, but it does not just end there. There is the need to avoid muddle and confusion on the part of the jury. That is a serious consideration in these cases—I am not given to talking about cases in which I have been involved; I think that that is very boring—but there have been cases within my knowledge in which there have been three or four child complainants and four or five defendants who are supposed to have molested them. Each of the defendants is represented by a separate counsel. Let us just imagine what will happen.
First of all, counsel for the Crown gets up and says, "Mr. X represents defendant A, Mr. Y represents defendant B and Mr. Z represents defendant C. Now, complainants 1, 2 and 3 have their evidence on videotape. Those interviews on videotape were made very soon after the complaint was made. Now, I'm going to show you the evidence on videotape". So he shows the evidence on videotape and then says, "Now, members of the jury, the next stage was the pre-trial review. Mr. X asked no questions and reserved his cross-examination, as he was entitled to do. Mr. Y asked questions only on cross-examination of complainants I and 3, and Mr. Z only of complainant 2. Now, members of the jury, you are not obliged to make notes, but, if you wish to make notes, you may do so. There is nothing to stop you. Have you paper and pencils?" The practical muddle of conducting a defence in such a situation is almost equal to that of appearing for the Crown. It is not a viable proposition.
Apart from all that, what happens to the overall presumption of innocence—that the accused always stands there in the dock innocent until he is found guilty—if, by some statutory device or some judicial discretion, his counsel can be forced to put his case in advance before he is ever heard before the jury?
I have spoken enough. There is much more that I could say but I hope that I have at least said enough to show that there is another side to the argument. The Government's attitude is wholly worthy of support and this amendment should be rejected.
§ Lord Richard
My Lords, I listened with great interest to the noble Lord, Lord Campbell of Alloway, and perhaps at the outset I may tell the noble and learned Lord, Lord Ackner, that on this occasion at any rate my concurrence will be unqualified. The noble Lord, Lord Campbell of Alloway, spoke about the practicalities of conducting a trial in this kind of case. While the legal talent in your Lordships' House is extremely high and noble Lords are very well qualified, I suspect that not many Members have had to cross-examine a child in the immediate past. The noble Lord, Lord Campbell of Alloway, and one or two other noble Lords have probably done so; I have done so. I must tell the noble Lord, Lord Campbell, that if I had to conduct a defence under the procedures contained in the amendment, I should find it infinitely easier than trying to conduct a defence under the scheme proposed by the Government in Clause 49 of the Bill.
I suspect that we may have skated over the 132 Government's proposals in concentrating inevitably on what the amendment says. The Government's proposals are:In any such proceedings a video recording of an interview which—(a) is conducted between an adult and a child …may, with the leave of the court, be given in evidence in so far as it is not excluded by the court under subsection (3)".In subsection (3), the exclusion provisions are:if it appears that the child witness will not be available for cross-examination; … if any rules of court requiring disclosure of the circumstances in which the recording was made have not been complied with; … the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording ought not to be admitted".Let us assume that the prosecution gets over those hurdles. If the original interview between the child and the police officer made at the time of the complaint has been video recorded, that will become the evidence-in-chief at the trial.
The cross-examination may take place a year hence. It seems to me that in those circumstances we are in a position in which any allegation, whether admissible or not under the rules of evidence, would prima facie at any rate be admissible as the evidence-in-chief, and the cross-examination could not by definition take place until the trial took place, which might be nine months or so later. One of the cardinal principles which I understood was agreed by most Members to have been considered in Committee was that the examination and cross-examination should be contemporaneous so far as possible. It seemed to me that the proposal which emerged in Committee was breathtakingly simple; namely, that the video recording referred to in Clause 49 should be available and should be shown to the defence. Then, as the rules of evidence now stand, if the defence wished to put it in at the trial as a previous inconsistent statement, it would be available to be put in. The next stage would be that at some convenient moment when the defence and the prosecution are ready the child should give its evidence again. That would be videoed, and cross-examination in most cases would then immediately take place.
I speak as a practitioner, as is the noble Lord, Lord Campbell, on the other side. I do not see how one will be unduly prejudiced by such a procedure. In most cases the kind of difficulties referred to by the noble Lord, Lord Campbell—having a trump card up one's sleeve that one plays—do not exist. In most cases of this sort one is challenging the child's evidence in terms of whether the identification is correct and whether the child's recollection is correct. They are all issues which could and in my submission ought to be examined outside the confines of the court.
My other point is that if the noble Lord, Lord Campbell, accepts the procedures set out in Clause 49, the child will have to give evidence in court in front of the jury in a normal way. The whole object of the Pigot Committee proposals, as I understand them, is to prevent a child from being exposed to precisely those difficulties. If the child appears at trial for cross-examination, the child will be called and will give evidence. It seems to me that a large number of the evils to which the Pigot Committee pointed will not have been overcome.
§ Lord Campbell of Alloway
My Lords, perhaps the noble Lord will give way. There would be many pleas of guilty on the basis of the video evidence of the interview. Under the situation as proposed by the Government, this would be conducive to pleas of guilty.
§ Lord Richard
My Lords, it might be, but not if one had a trump card up one's sleeve and wished to play it at the last possible moment in court; certainly not —of course not. It seems to me—I say this not in a pejorative or aggressive sense at all—that the proposals which the noble Lord, Lord Campbell, makes. in reality only justify a guilty defendant who has a trump card up his sleeve that he wishes to play at the very last moment. I do not suggest that that is the motive behind what the noble Lord says—of course not—but I suggest to him that it is only in those circumstances in which the cautions that he has expressed will come to be important.
Perhaps I may make two other points. The argument about unfairness to the defence is that it is only a trial when the case for both sides has been put and that the defence will need to know what questions it wants to ask the child. That may be the case in some circumstances—for example, as the noble Lord, Lord Campbell of Alloway, said, when several children may have made accusations against more than one person. However, in many cases it will be obvious from the outset what questions the defence will need to put to the child. For example, in cases of abduction or sexual assault of a child by a stranger, the suspect's defence will usually be based on mistaken identity and/or an alibi. The only questions which can usefully be put to the child will concern identification of the defendant. The defence does not need to wait for the trial in order to decide upon that line of questioning.
As I understand it, under our amendment there would be no question of a judge using his discretion to allow it pre-trial hearing if there were an obvious need for the defence to wait. If there were, I should be very surprised indeed to hear any judge say that the procedure in the amendment should be adopted as to something like the procedure contained in Clause 49. I do not see how in the interests of justice the amendments do not meet with the approval of the House. Neither do I see how a defendant is unduly prejudiced by the procedures which are set out in the amendment. I am bound to say that removing the possibility given by the amendment of excluding small children from ever having to go into court to face the ordeal of giving evidence in the witness box in front of a jury is something which appeals to me very strongly. I urge the House to support the amendment.
§ Baroness Faithfull
My Lords, I rise to support this amendment which has been tabled by my noble friend Lord Mottistone, who is a member of the Council of the NSPCC, the noble and learned Lord, Lord Ackner, the noble Lord, Lord Richard, and myself. I speak from a different point of view. I do not speak from a legal standpoint but from the point of view of a social worker who has worked with both children and families and has had to take children to court in these circumstances. I could perhaps be accused of 134 taking the child's viewpoint. However, I also consider the viewpoint of the alleged abuser, particularly if he is the father. One does not want to break up a family and one wants to see justice for the alleged abuser if he has not committed the offence.
I hope your Lordships will forgive me if I cover some of the ground that has already been covered because I do so from a different point of view. Perhaps I may briefly go over the implementation of the amendment again. The initial statement of an abused child would be made to an experienced police officer and one other, in surroundings conducive to putting the child at ease. A video would be taken of the statement. That video would be submitted to the judge, the solicitor acting for the defence and through him to the counsel for the defence and the prosecuting counsel. It would be seen by the jury as the child's evidence-in-chief. At the discretion of the judge the cross-examination of the child could take place as soon as practicable and possible in a place which was not threatening to the child. At that stage there would be present the judge, counsel for the defence, counsel for the prosecution, the child, and an appropriate adult with the child.
The alleged abuser would see the proceedings through a one-way glass and would hear proceedings by means of an auditory receiver. By that means he could communicate with counsel for the defence. Those matters would be dealt with by rules of court.
We have paid tribute to Judge Pigot and his colleagues. As the noble and learned Lord, Lord Ackner, said, one is a barrister and another a detective chief inspector. Why did they make those recommendations? First, it was to spare the child the ordeal of appearing in open court and being cross-examined in front of the alleged abuser. I have taken a child to court; I have shown the child the day before the trial where the judge will sit, where the jury will sit, and what the child will have to do. The child has been quite self-possessed. However, at the trial the child has refused to speak. In those instances the case has been dismissed. In one case, when we came out of court the father asked me, "Am I guilty or not guilty?" I said, "The case has been discharged". He said, "My name has not been cleared". If a man is innocent it is most unfair to him if the child refuses to give evidence. Even if the child gives evidence, he often falters in front of the father, if the father is the alleged abuser.
Secondly, a child tells the truth and is astonishingly accurate at or near the time of the initial interview. However, memory of events becomes distorted with time. If time passes the child, who does not mean to lie, becomes confused. My department has dealt with many cases which did not come before a court for six or 12 months. I understand from a colleague that one case came before the court 17 months later.
Thirdly, it is essential for a child to be in surroundings which are not threatening and where the child is at ease.
The Minister may say that a child should be cross-examined in a court building in the presence of the jury but by television link from a separate room so that the jury can see the interview. The argument 135 against that is that to assemble the jury inevitably takes time. Sometimes cases are heard six months or up to 17 months later.
I state this with the utmost diffidence. Even were so important a person as the noble and learned Lord the Lord Chancellor to give instructions or guidance to courts to bring such cases forward, it would place the listing officers in difficulty. First, a case of fraud or defamation of character may take one week, two days, a month or two months. The listing officers cannot control the amount of time that a case will take. They cannot say that a case will come on quickly. They are placed in great difficulty if cases of child abuse are brought forward in preference to other cases.
A further point relates to influencing a child between the initial statement and cross-examination. That point has already been made. A child who has suffered grievously needs help, physical treatment and a healing and therapy process. Those of us who have dealt with children in these circumstances have experienced children asking, "Miss, can I talk to you?" One does not say that one cannot do so, but one is diffident about discussing the case with the child in case one is accused of interfering with evidence and the course of justice.
Having appointed such a notable body as the Pigot Committee, why should the Home Office turn down its recommendations? Is there a legal point that none of us have understood? Strange and unhappy circumstances demand unusual methods. Traditional means of cross-examination must surely be amended to meet those circumstances. I support the amendment.
§ Lord Harris of Greenwich
My Lords, first I express the regrets of my noble friend Lord Hutchinson of Lullington who is unable to be present today. I share the disappointment of the noble Lord, Lord Campbell of Alloway, that we were not able to witness the customary debate between my noble friend and the noble and learned Lord, Lord Ackner.
I am not a lawyer. I have never cross-examined anyone in a court. However, I have two areas of possible expertise: first, as a former chairman of a parole board which reviewed cases of sexual abuse of children; and, secondly, as someone who has had a long connection with the police service. The noble and learned Lord, Lord Ackner, has had the opportunity to discuss the matter with members of the Criminal Bar Association. I have had the opportunity of talking to a number of police officers with substantial experience of dealing with such cases.
Perhaps I may say by way of introduction that there is widespread public concern about such cases. That is common ground between us. The noble Lord, Lord Mottistone, said at the beginning of the debate that there is a sense of outrage when someone who is believed by many to be guilty walks free because there has been a collapse of the prosecution case. I understand that view completely. However, the Bill contains very substantial changes in the law of evidence in such cases. Let us take the most obvious example, touched upon by the noble Lord, Lord Campbell of Alloway. There is an abandonment of 136 committal proceedings. That issue was identified as a matter of serious concern to some noble Lords who participated in the debate on the War Crimes Bill. It undoubtedly weakens the position of the defence. After all, if it were not a matter of concern, we could abandon committal proceedings in all other types of cases. We do so in this situation because of the recommendations of the Pigot Committee.
The Government having appointed a committee, the noble Baroness, Lady Faithfull, was disappointed that they had not accepted the view of the committee on this matter. I believe that the Government have accepted the overwhelming majority of proposals from the committee. However, they do not accept this measure.
The noble and learned Lord, Lord Ackner, spoiled the end of a very powerful speech—I am trying to think of moderate words to use—by going well over the top in referring to those "timorous souls" in the Civil Service, who are apparently the guilty men and women so far as the resistance to this proposal is concerned. I was a Home Office Minister for five years, and the idea that one is surrounded by timorous souls constantly advising one not to follow a clearly desirable course of action is a wild exaggeration, if the noble and learned Lord will permit me to say so.
I come back to the point introduced by the noble Lord, Lord Campbell of Alloway—a matter raised by my noble friend Lord Hutchinson of Lullington on the last occasion that we debated this question. It is the defence that, "It is not my client who has committed this offence; it is another man, the wife's lover or some other man". The position is that if the amendment were to be carried that defence would have to be exposed at the pre-trial hearing with the child witness; the matter would have to be put to the child witness by counsel for the defence. That is unacceptable. In a case of that sort the defence should not be required to expose its defence months before the trial takes place. That is neither fair nor in the interests of justice.
We should also bear in mind that there has been a series of recent cases which have added to public disquiet. There was the case investigated by Lord Justice Butler-Sloss at Cleveland, and the cases at Rochdale and in the Orkneys. There is cause for disquiet because it is too easy in such cases to blame social workers for errors of judgment, which no doubt took place. The fact is that a lot of the action which took place in all those cases was as a result of statements made by child witnesses, followed up rigorously and ruthlessly by all concerned for the most natural reasons.
Therefore, when we are discussing cases of this sort—where we have seen, in civil proceedings, very unhappy events occurring, with children being taken away from their homes in the early hours of the morning, and weeks or months later the whole case collapsing in ignominy—it is certainly necessary to be cautious. I am warmly in favour of the Pigot Committee recommendations, although they undoubtedly weaken the position of the representatives of the defence.
On a number of occasions in recent months we have seen unhappy examples of miscarriages of justice 137 which have taken place in this country. My fear is that, if an amendment of this sort were to be carried, there would be a real risk of serious miscarriages of justice. Let us consider what the consequences of that would be. First, in many cases of this sort the man concerned, if convicted, would be sentenced to a very long period of imprisonment, rightly so if guilty, but, if he is innocent, we have a situation where not only will he receive a very long sentence of imprisonment—in some cases of life imprisonment—but he will also be subject to the appalling consequences of being a sex offender on Rule 43 in one of our prisons.
I am sure that the House as a whole would want, as I do, a balanced approach to the issue, certainly accepting many of the recommendations of Pigot, certainly taking the view that the process which will follow—namely, the weakening to some degree of the position of defence advocates, has to be accepted, but not in Fact going to such lengths that it will gravely damage the interests of the defence in cases of this sort.
§ 4.45 p.m.
§ Lady Kinloss
My Lords, I support the amendment from a different point of view—that is, where it will make available evidence from a child witness which might not otherwise be available to the court. I am referring to children who are disabled in some way. For example, autistic children find it difficult to communicate with strangers but they might be able to give evidence in informal circumstances in which they were less intimidated. The noble Baroness, Lady Faithfull, mentioned that a defendant had complained that his name had not been cleared. Surely, under those circumstances this provision would be fairer to both the child and the defendant.
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, your Lordships have had a full debate on these amendments which follow the debate in Committee. I consider that the Pigot Committee did an extremely good job, and I thoroughly commend it. I am grateful to Judge Pigot for leading the committee, although sadly he is now unfit to continue as a judge. I believe that he considered these matters extremely carefully.
Highly important developments have taken place in relation to those matters. First, my noble friend Lady Faithfull pointed out that children sometimes give an account of matters and when they come to the formal court hearing they do not say what they said previously. Pigot recommended, and the Bill incorporates, that a statement given by a child at the early stage should be recorded by video and be available as the child's evidence-in-chief. That is an extremely important development and one with which I think we all agree. But it is not without difficulties. I have information about current cases being tried by High Court judges. I am told that in many cases there is not one such interview but several. On the first interview the child is often not prepared to say anything much at all; on the second interview the child may say that something happened and blame it on "X"; the next time the child may say that something 138 happened and blame it on "Y". The noble Baroness shakes her head. I am not sure whether she is contradicting my information or simply reflecting sadness that that should happen, but I can assure her that it has happened in cases that have been brought to my knowledge. The technique of interviewing such children is developing, and no doubt will have to develop much further. We have taken the step of making video evidence of that kind available and competent evidence which can be the whole or part of the evidence-in-chief of the child according to the circumstances. The question is whether something more should be done.
The second point I should like to mention is that under the proposals embodied in the 1988 Act—my noble friend Lady Faithfull played a considerable part in putting them in the Bill that subsequently became the 1988 Act, and others here participated too—there will be video links by means of which the child will be able, in appropriate cases and under the control of the court, to give evidence from another room and to be cross-examined in such a way that the jury can appreciate what is going on without the child having to come into the formal court hearing at all. Important developments are taking place. It is a recent innovation, which needs to develop.
We must be extremely careful in this area that we progress gradually. The process of obtaining a fair trial for an accused person is extremely important. It has developed over a long time and no doubt should develop further in the light of the experience to which reference has been made.
As I understand it, the amendment does not embody the Pigot proposal that a child would not need to attend court at all and that if further cross-examination was required, it should be done in a further interview or pre-trial situation. The amendment of my noble friend Lord Mottistone does not have that characteristic, but perhaps that is not the most important point.
My noble friend indicated that if the amendment is passed, it will be possible to give an assurance to a child at an early stage that the child will not be required to give evidence in court. That is not correct. The amendment gives a discretion to the court. That discretion will be exercised only when the matter comes before the Crown Court. On the basis of the amendment, it will not be possible to tell in advance whether or not such a procedure will be available.
Therefore, it is unwise to believe that the suggested procedure has all the benefits which are claimed for it; it does not. I believe that the amendment makes clear that the pre-trial could take place only at the stage when the prosecution and defence are ready for trial because it is assumed that the defence will be able to put forward cross-examination. I believe that the best way forward is by trying a case of this kind as soon as it is ready for trial. The matter should be finished. It should not be carried out a step at a time—a pre-trial hearing, further delay and the possibility that the child may be asked to return a second time, this time in the more formal atmosphere of a court. I should say in 139 passing that there is scope for informality even in a court room as court hearings are developing. That is possible.
Surely, it is important to get the case on for trial as soon as it is ready. We have sought to provide for that in Schedule 5(7). My noble friend Lady Faithfull said that even if such an important person as the Lord Chancellor tells the listing officers what to do, they will have problems. While perhaps not accepting the first part of that, I accept that listing officers will have problems. But they will have problems under the system proposed by the amendment. There must be a judge available. If that judge is trying a long fraud case, he will not be available to carry out this procedure. A judge and counsel must be present and the procedure must be listed as court procedure. Time must be found for it although there may be more flexibility about time and so on.
I believe that your Lordships should aim for a system under which cases such as these are brought to trial as soon as possible and as soon as they are ready. Quite contrary to the intention expressed by my noble friend when moving the amendment, to give such a discretion may give rise to the opposite result in practice.
I do not wish to go into further detail about the Pigot proposal and the various reactions to it. However, I emphasise that the amendment does not enable anyone to give an assurance to a child witness that if he or she makes an allegation of any kind, it will not necessarily be tested in a court. There can be no categorical assurance, even if this amendment is accepted.
The real problem of the amendment is recognised when one looks at Amendment No. 80A dealing with cross-examination. That amendment states:Further cross-examination of the child witness shall take place only with the leave of the trial judge".It will not be possible to determine that until the matter goes before a trial judge at the conclusion of the pre-trial hearing.
As I said earlier, one problem developing in the practice of the law in this area is that often more than one interview is recorded on video. The child is then apt to be cross-examined with reference to an earlier video. Your Lordships can imagine the complexity of trying to cross-examine a child on video by reference to an earlier video and keeping a distinction between what is on the former and latter video, the two videos being before the court. I can see great difficulties there.
I suggest—and I suggest it in the same spirit as that in which the amendments were moved—that we wish to develop this area of the law so that we make sure, on the one hand, that children are inconvenienced and exposed to as little difficulty as possible while at the same time ensuring a fair trial for those who face the very serious allegations which are often based on such witness statements.
We have gone a good distance and I suggest to your Lordships that it is not right to put this amendment into the Bill. We should allow the changes which we are making to take effect. We shall then see whether they produce a really effective system for these trials to 140 be conducted properly, quickly and at the right time. Notwithstanding the statutory provisions, if delays are still endemic in the system, then it may be right to consider this major innovation.
In the light of those considerations, I hope that my noble friend will not press his amendment. There is no question of the administration of justice on the one hand and the social worker on the other. We are all activated by a desire to protect child witnesses from unnecessary harm while at the same time wishing to secure a proper and fair trial for those who may be accused.
§ Lord Ackner
My Lords, before my noble and learned friend sits down, the resistance by the Government in another place and in our previous debate on this matter was based essentially upon the proposition that there would be recall after recall for cross-examination after the pre-trial cross-examination. Does my noble and learned friend accept that that is not envisaged and that there is no need for it? One further cross-examination at the trial, if permitted, is all that is required.
Secondly, does my noble and learned friend accept that under this proposal, if there is a possibility of a speedy trial, then, as the judge has a discretion to accept or reject an application for pre-trial review, he will be in the happy position of being able to say, "There will be no pre-trial cross-examination because I can arrange for a speedy trial the day after tomorrow."
§ The Lord Chancellor
My Lords, in regard to the first question, I am anxious to point out that this amendment, taken with Amendment No. 80A, contemplates the possibility of a further cross-examination after the cross-examination which has taken place at the pre-trial hearing. I would not think it likely that there could be any further cross-examinations. I base that comment on my own understanding of the situation rather than on any other help that I might have been afforded.
In regard to the second question—speaking with the leave of the House because this is Report stage—it is extremely important that every possible pressure should be brought to bear to complete the whole case. If one has the option of having part of the case on a pre-trial, particularly an option on the prosecution to apply, one places at risk what should be a fundamental philosophy. It is a better philosophy than one which breaks the trial up with the possibility—admitted by my noble and learned friend in the form of his first question—of a second cross-examination which might be at a considerable distance in time to the first.
Perhaps I should add—it has just occurred to me—that the Pigot proposals envisage that the cross-examination on the video record of the earlier interview will take place a good while after the original statement on video; it will happen at the time the case is ready for trial.
To accept an amendment giving this kind of discretion at this stage would be inimical to the main thrust of aiming for a full trial as soon as possible after 141 both sides are prepared for it. Until that stage is reached, one cannot have an effective pre-trial hearing, as I believe must be admitted.
§ Lord Mottistone
My Lords, I thank noble Lords who have taken part in the debate, including those who have not entirely agreed with the proposal in my amendment. It is not for me to take a lot of time over this matter. The noble Lord, Lord Richard, dealt satisfactorily with the points raised by my noble friend Lord Campbell of Alloway. He showed that those objections were probably not well-founded in practice.
The noble and learned Lord, Lord Ackner, was able to put a great deal of weight behind his argument in the way of the people that he had consulted from the Bar, the Bench and elsewhere. With the greatest possible respect to my noble and learned friend the Lord Chancellor, I am not sure that he gave us evidence of quite that tone.
My noble and learned friend said that the trouble with the amendment is that it does not implement the Pigot proposals. In certain respects it does not. We have sought to accommodate the people who object to it. In the unlikely event that at the main hearing a child witness needs to be called due to the emergence of new evidence, then admittedly there is a risk that the child must attend the court. But the basic principle of the pre-trial hearing is what Pigot recommended. Therefore that is not a strong argument.
The advice that I received—I am not a legal man—is that, although my noble and learned friend wants earlier hearings for everything, not just for these cases, it is not possible to achieve that either now or in the immediate future. A preliminary hearing of this kind will have a place in the system. But it is not the only answer.
As the noble and learned Lord, Lord Ackner, said in his questions to my noble and learned friend the Lord Chancellor, upon applications being made, if it appears to the judge that he will be able to have a full hearing quickly, he will not invoke the provisions of the amendment. But it gives an option and does not do any harm. I am sure that noble Lords with more experience than I (and perhaps more experience than some noble Lords who spoke) of how videos may be used, will see that there is great scope for improving on the techniques. The pre-hearing provision would be useful especially as its use is entirely at the discretion of the court.
I feel very strongly that I should seek the opinion of the House on the matter.
§ 5.5 p.m.
§ On Question, Whether the said amendment (No.78B) shall be agreed to?
§ Their Lordships divided: Contents, 93; Not-Contents, 103.143
|Division No. 1|
|Ackner, L.||Aylestone, L.|
|Acton, L.||Blackstone, B.|
|Aldington, L.||Brigstocke, B.|
|Alport, L.||Broadbridge, L.|
|Ardwick, L.||Brooks of Tremorfa, L.|
|Attlee, E.||Carmichael of Kelvingrove, L.|
|Auckland, L.||Carter, L.|
|Cledwyn of Penrhos, L.||Molloy, L.|
|Clinton-Davis, L.||Morris of Castle Morris, L.|
|Cocks of Hartcliffe, L.||Mottistone, L. [Teller.]|
|Cork and Orrery, E.||Mulley, L.|
|Craigavon, V.||Murray of Epping Forest, L.|
|Dacre of Glanton, L.||Nathan, L.|
|Darcy (de Knayth), B.||Nicol, B.|
|David, B.||Orr-Ewing, L.|
|Dean of Beswick, L.||Palmer, L.|
|Donaldson of Kingsbridge, L.||Park of Monmouth, B.|
|Dormand of Easington, L.||Parry, L.|
|Ellenborough, L.||Phillips, B.|
|Elliot of Harwood, B.||Prys-Davies, L.|
|Faithfull, B.||Rea, L.|
|Gallacher, L.||Richard, L.|
|Glenamara, L.||Richardson, L.|
|Graham of Edmonton, L. [Teller.]||Roskill|
|Sefton of Garston, L.|
|Gridley, L.||Serota, B.|
|Hayter, L.||Shackleton, L.|
|Henderson of Brompton, L.||Shannon, E.|
|Hirshfield, L.||Shaughnessy, L.|
|Hollis of Heigham, B.||Stedman, B.|
|Howie of Troon, L.||Stoddart of Swindon, L.|
|Hughes, L.||Strabolgi, L.|
|Hylton, L.||Strange, B.|
|Hylton-Foster, B.||Taylor of Gryfe, L.|
|Jacques, L.||Tenby, V.|
|Jay, L.||Terrington, L.|
|Jenkins of Putney, L.||Thurlow, L.|
|Kennet, L.||Underhill, L.|
|Kinloss, Ly.||Vaux of Harrowden, L.|
|Lauderdale, E.||Wallace of Coslany, L.|
|Llewelyn-Davies of Hastoe, B.||Walston, L.|
|Lockwood, B.||Wharton, B.|
|Longford, E.||White, B.|
|Manchester, Bp.||Wilberforce, L.|
|Mar, C.||Williams of Elvel, L.|
|Mason of Barnsley, L.||Wilson of Langside, L.|
|Mishcon, L.||Winterbottom, L.|
|Abinger, L.||Hailsham of Saint Marylebone, L.|
|Allen of Abbeydale, L.||Halsbury, E.|
|Allerton, L.||Hampton, L.|
|Ampthill, L.||Harris of Greenwich, L.|
|Arran, E.||Henley, L.|
|Ashbourne, L.||Hives, L.|
|Astor, V.||Hood, V.|
|Belhaven and Stenton, L.||Hooper, B.|
|Bessborough, E.||Howe, E.|
|Blake, L.||Jenkin of Roding, L.|
|Blatch, B.||Johnston of Rockport, L.|
|Blyth, L.||Joseph, L.|
|Boardman, L.||Killearn, L.|
|Boyd-Carpenter, L.||Kimball, L.|
|Brabazon of Tara, L.||Knollys, V.|
|Braye, B.||Liverpool, E.|
|Brougham and Vaux, L.||Lloyd of Hampstead, L.|
|Caithness, E.||Long, V.|
|Caldecote, V.||Lucas of Chilworth, L.|
|Campbell of Alloway, L.||Lyell, L.|
|Carnock, L.||McColl of Dulwich, L.|
|Cavendish of Furness, L. [Teller.]||Mackay of Clashfern, L.|
|Mackie of Benshie, L.|
|Cockfield, L.||Malmesbury, E.|
|Colville of Culross, V.||Mancroft, L.|
|Constantine of Stanmore, L.||Manton, L.|
|Crathorne, L.||Margadale, L.|
|Cullen of Ashbourne, L.||Mayhew, L.|
|Davidson, V. [Teller.]||Merrivale, L.|
|Donegall, M.||Mersey, V.|
|Erne, E.||Middleton, L.|
|Ezra, L.||Monk Bretton, L.|
|Ferrers, E.||Montgomery of Alamein, V.|
|Fraser of Kilmorack, L.||Mountevans, L.|
|Gainford, L.||Munster, E.|
|Gladwyn, L.||Murton of Lindisfarne, L.|
|Grey, E.||Nelson, E.|
|Nelson of Stafford, L.||Stodart of Leaston, L.|
|Newall, L.||Strathcona and Mount Royal, L.|
|Pender, L.||Strathmore and Kinghorne, E.|
|Rankeillour, L.||Suffield, L.|
|Reay, L.||Swansea, L.|
|Renton, L.||Thomas of Gwydir, L.|
|Robson of Kiddington, B.||Tonypandy, V.|
|Rochdale, V.||Tordoff, L.|
|Rodney, L.||Trefgarne, L.|
|Romney, E.||Trumpington, B.|
|Roxburghe, D.||Waddington, L.|
|Seear, B.||Wade of Chorlton, L.|
|Shrewsbury, E.||Wigoder, L.|
|Skelmersdale, L.||Winchilsea and Nottingham, E.|
§ Resolved in negative, and amendment disagreed to accordingly.
§ [Amendments Nos. 79A and 80A not moved.]
§ 5.13 p.m.
§ Lord Mottistone moved Amendment No. 81:
After Clause 49, insert the following new clause:
("Consultation with child witnesses over manner of giving evidence
§ . In deciding whether to ask the leave of the court for a child witness to be examined or cross-examined at a pre-trial hearing, or to give evidence during the trial by means of a television link, the Crown shall ascertain, and take into account, the wishes and feelings of the child.").
The noble Lord said: My Lords, this amendment takes into account the sympathetic comments made by my noble friend the Minister in Committee when discussing Amendment No. 78. The Report of the Advisory Committee on Video Evidence, which is the Pigot Report, said that children,
ought never to be required to appear in public as witnesses in the Crown Court".
§ However, it recommended that the prosecution should always take into account the child's own wishes when deciding whether to apply for a child to give evidence at a pre-trial hearing of the kind proposed by the advisory group.
§ The amendment seeks to enact that recommendation and to introduce into criminal proceedings the principle already introduced into civil proceedings by the Children Act 1989 which requires that the wishes and feelings of children be ascertained and taken into account in all civil proceedings. The amendment does not mean that the child would determine the manner in which his or her evidence should be given but that will be discussed with children in a manner appropriate to their age and understanding.
§ The main purpose of the amendment is to give older children the opportunity to express a view as to the way in which their evidence would be given and to allow those who are considered able to cope with an appearance in open court the opportunity to do so. The Bill extends special provision for child witnesses to young people up to the age of 17 years in trials for alleged sexual offences. Some young people at the upper limit of that age may wish to give evidence in the same way as adults. They may be happy to do so. Others of the same age find such a prospect extremely intimidating.
§ The new clause introduces a degree of flexibility which would allow for a wide variation in the circumstances among young people of that age group. 144 I hope that my noble friend, building on his encouragement at Committee stage, can accept the amendment. I beg to move.
§ Baroness David
My Lords, I support the amendment very strongly. Throughout the time we were discussing what became the Children Act we tried to have the wishes and feelings of children taken into account. We were often successful. I hope that this amendment, with those factors in view, will be supported by the Minister.
§ Baroness Faithfull
My Lords, I support the amendment. Children vary; they are absolutely different, child from child. Some children want to give evidence because they feel so badly. They are able to give evidence. But there are some children who choose not to give evidence and who would not do so if they came to court. Therefore, one has to ascertain from the child whether he or she could, would, or wishes to give evidence. If the child wishes to do so in open court, then that decision should be accepted.
My Lords, it must be good practice, when deciding how a child witness should give evidence, to take account of the wishes of the child. There is no disagreement whatever about that. The question posed by the amendment is whether we need to make express provision on the face of the statute for such consultation. The final decision on how a child's evidence is to be given rests quite properly with the judge. The judge alone can balance the interests of the parties and of justice in all the circumstances of the case and the individual courtroom.
In so far as live television links are concerned, the likelihood is that most child witnesses will wish to use this facility rather than appear in open court. Our experience with live links to date is that almost all applications (about 97 per cent.) have been granted. I understand too that the wishes of the child witnesses and their parents are taken into account as a matter of course by the Crown Prosecution Service which is responsible for the overwhelming majority of such applications.
The question arises whether this amendment would do any harm. As your Lordships know, live television links have been in operation in our courts for less than three years. The Home Office and Lord Chancellor's Department are evaluating that experience and what lessons are to be learnt. The researchers whom we commissioned to do the work are due to produce a final report shortly and it may well be that consultation with the child witness will be among the issues where we shall need to consider action. If so, there are a number of ways in which we can bring about improvement and in a more comprehensive fashion. Chief among these are amendments to the rules of court covering applications for such facilities which we shall need to amend in any case to reflect the changes made by the Bill. I would not rule out bringing the matter to the attention of the Lord Chief Justice so that he might consider the scope for a practice direction should that seem likely to be the most profitable way forward.
145 I hope that in the light of what I have said my noble friend will realise that there is little between us. It is a question of which way round the matter is put. It would be better to leave it to the processes which I have suggested rather than to put the measure into the Bill.
§ Lord Mottistone
My Lords, I am most grateful to my noble friend. One always feels that one has something firm if it is in the Bill. However, in this case at least there is another way, which I fully accept. In the event that it proves to be necessary to have something in the basic instructions for courts along the lines of my amendment, that will probably be done. That is a satisfactory situation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Lord Mottistone moved Amendment No. 82:
§ After Clause 49, insert the following new clause:
§ ("Evidence of absent children
§ . The: Children and Young Persons Act 1933 shall be amended as follows—
- (a) by the insertion in section 42(1) of the words "or record on videotape" after the words "may take in writing"; and
- (b) in section 43 by leaving out the words "purports to be signed by the justice" and inserting the words "purports to be witnessed by the justice".").
§ The noble Lord said: My Lords, Sections 42 and 43 of the Children and Young Persons Act 1933, which I am seeking to amend, allow a written account of a child's evidence to be admissible in court. The aim of my new clause is to extend these sections to include video evidence.
§ The main point to make is that it is anachronistic in the modern technical world that the law should continue to be drafted in terms which require a court to accept as evidence the written transcript of an interview while not permitting it to see and hear a video recording of it. A written deposition is a potentially less accurate and informative account of an examination than is a video tape, or even an audio tape. Not only does the tape preserve the exact words used in the questions as well as the answers, either or both of which might be garbled in a written deposition, but it also gives us the tones of voice used and—I hate to use the phrase, but it is the modern one—the body language.
§ As the law stands it permits the prosecution to put in a written transcript of an interview while not permitting a video tape of it. In other words, it allows the prosecution to use inferior evidence of an interview of which superior evidence would in some cases available. Both the prosecution and defence stand:o suffer injustice if this anomaly is not corrected. I beg to move.
My Lords, as my noble friend has explained, the new clause would allow for the making of a video recorded interview in the circumstances which are envisaged by Sections 42 and 43 of the 1933 Act. It is important to be clear about what that would actually mean. Sections 42 and 43 are a method of getting emergency so-called sick bed evidence by children tested at the bedside and admitted then into court. Therefore, the amendment countenances 146 surrounding the sick child at the bedside not only with a magistrate, lawyers and clerks, but also with the whole paraphernalia of video recording equipment. That is often forgotten when allowing for a bedside cross-examination by the defence. I am bound to say that one shudders at the prospect. We question whether it would be practical or whether it should be encouraged. There is understandable concern about the position of the video-recorded child interview when the child is unavailable for cross-examination as is required by the Bill. I understand that concern. However, my answer would be that video evidence may already be admissible under the provisions contained in Section 23 of the Criminal Justice Act 1988. That Act is necessarily strict, given that cross-examination is not required. The new proposals in the Bill provide a much easier alternative if the child can be available for the trial.
There is a further important consideration. Those who use the 1933 Act option would not have available the benefit of the code of practice, the rules of the court and other arrangements which we believe—and I venture to say that many of your Lordships will believe—need to be available in order to support the proper preparation and use of video recordings.
The existing provisions of the 1933 Act are hardly ever used. Indeed, we can find no record of a single case of them being used. However, it may be that they should be kept in force to cater for the wholly exceptional case. But to widen the scope of the provisions to include video recordings could not be justified. Whatever the merits of the provisions in the 1933 Act, I believe that the Pigot clauses will be much more successful in protecting child abuse witnesses and that our clauses will allow for the proper safeguards. I hope that my noble friend will see the force of those arguments.
§ Lord Mottistone
My Lords, that was rather a disappointing reply. With the greatest possible respect to my noble friend I am not sure that he fully appreciates just exactly what would be involved. I take much of his technical argument. By "technical" I mean the legal arguments and the fact that obviously in 1933 people had not even heard of video recording, or anything like it. However, when my noble friend referred to the paraphernalia of video recordings that sounded all sorts of warning bells to me. My son-in-law has a small camera the size of a large pistol with which he is able to take a complete picture of what is going on. It is tiny compared with the cameras that are looking at us from the corners of the Chamber. The video camera records sound as well. These days "paraphernalia" for video recording is not the word. If that is what is disturbing my noble friend then it should not be taken as being a serious objection to what I am proposing.
It is probably not worth pressing this point now because it is not that important. However, I think that the underlying thought is that we need to move into the modern world and use video cameras for appropriate recordings. That would be very much more useful than just having written recordings, or even just having audio recordings. We have cameras in this Chamber. Luckily we do not behave very badly. 147 If we did it might be very useful to be recorded on video as well as sound. If I were inadvertently to hit my noble friend Lady Faithfull on the head one would not know I had done so, unless she screamed. Even then, nobody would know what had happened, but the video camera would show it. Therefore, we need to move into the modern world. Perhaps this is not the time to do it. Perhaps the Government have gone as far as they dare in adopting modern technology. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Earl Ferrers moved Amendment No. 82A:
Page 32, line 45, at end insert:
("(2A) After subsection (3) of that section there shall be inserted the following subsections—
(3A) Where, in the case of any proceedings before a youth court—
- (a) leave is given by virtue of subsection (1) (b) above for evidence to be given through a television link; and
- (b) suitable facilities for receiving such evidence are not available at any petty-sessional court-house in which the court can (apart from this subsection) lawfully sit,
§ (3B) A place appointed under subsection (3) above may be outside the petty sessions area for which it is appointed; but it shall be deemed to be in that area for the purpose of the jurisdiction of the justices acting for that area." ").
§ The noble Earl said: My Lords, this amendment overcomes a potential difficulty in the operation in youth courts of the provisions to enable evidence to be given by means of live video-link. Youth courts do not at present have such equipment, but we do not wish them to be prevented from taking evidence by this means if suitable alternative facilities are available for their use. This amendment simply enables youth courts, where leave has been given for evidence to be heard by live video-link, to sit in any place where suitable facilities are available.
§ Given that youth courts deal with very few cases of sex and violence, we do not envisage that each and every youth court should have its own video-link facilities just in case they should ever be needed. It seems far more sensible to encourage a flexible approach to sharing available facilities, and this amendment would enable courts to work together in order to make best use of available facilities. I beg to move.
§ On Question, amendment agreed to.
§ 5.30 p.m.
§ Baroness Faithfull moved Amendment No. 83:
After Clause 50, insert the following new clause:
("Power of youth courts to investigate young persons'
§ (2) In section 9, there shall be inserted the following subsections—
§ "(3) Where it appears to the court, mentioned in subsection I, that the young person in respect of whom 148 the proceedings are brought is a child in need within the meaning of section 19 of the Children Act 1989, it may direct the authority aforesaid to investigate the young person's circumstances.
§ (4) Where a direction is given under the preceding subsection, the authority concerned shall, when undertaking the investigation, consider whether they should—
- (a) Provide services or assistance for the young person or his family under Part III of the Children Act 1989;
- (b) make an application in respect of the young person under section 31 of the Children Act 1989; or
- (c) take any other action with respect to the young person and shall inform the court of their conclusions.").
§ The noble Baroness said: My Lords, as is well known to the House, juveniles are now to be dealt with in two ways. Civil cases will appear before committees set up in the magistrates' courts to deal with civil matters such as adoption, care proceedings, guardianship and so on. There is now to be second court to deal with children who have committed offences. The term "youth court" is not totally accurate. I do not quite know what is meant by "youth court". I usually think of a youth as someone who is in adolescence, but this provision will apply to all children over the age of 10 and up to the age of 17 who have committed offences.
§ One should never excuse the fact that children and young persons have committed an offence. If they have committed an offence, it is an offence. The children must know and recognise that. However, many children who commit offences have home backgrounds and home circumstances which are such that they have been predisposed to committing offences. Some children come from homes where both mother and father are working and are out all day. They are out when the children come home in the evening. The children go into the streets, meet up with a gang and commit offences. I could state many other such circumstances.
§ Under the Children and Young Persons Act and under the Children Act, every child who appeared before the court having committed an offence was the subject of a social surroundings report. It was submitted to the court before the court made a judgment as to what should happen to that child; whether he should be removed from home or whether a care order should be made. What happened after the case had been proved depended very much on the social surroundings report. The report was made either by the probation service or by social workers. We are worried that there will now be two committees in the magistrates' court and that the magistrates serving on the criminal committee will tend to make an order for the child to be removed from home when the best thing for the child might be for him to stay at home and attend intermediate treatment centres or attendance centres. The Royal Philanthropic Society runs a service to help parents who have children who have committed offences. In Northamptonshire the liaison committees try to help parents and children rather than remove the children from home.
§ The amendment seeks to ensure that the committees dealing with children and young persons 149 who have committed offences are able to make an order which suits the circumstances of a child, and particularly the parents of the child. Many of us are worried in case a number of young people are given custodial sentences when other sentences would be much better. The whole tenor of the Bill is to keep people out of custody. That applies especially to children and young persons. Without a home surroundings report and a knowledge of the background of the child, the committees dealing with children and young persons who have committed offences may well make a custodial order. I beg to move.
§ Lord Morris of Castle Morris
My Lords, it is always a singular pleasure to support the noble Baroness, Lady Faithfull. I assure her that, unlike her noble friend, I have no intention or desire to bang her on the head at any time or for anything. Her contributions to our debates are always characterised by good common sense and sensitivity.
In joining the noble Baroness in speaking to Amendment No. 83, I also make some remarks on Amendment No. 84. Surely these amendments do no more than take into account the fact that every offence has a context. In considering Amendment No. 84, it needs no behavioural psychologist with a team of research scientists in rubber gloves to convince your Lordships that all behaviour is due to some extent to the circumstances in which the person was living and that these circumstances should be taken into account in the -most appropriate way.
Many of us are worried about the complete separation of the courts dealing with crime from those responsible for welfare matters regarding children. The Children Act 1989 created the family proceedings court to deal with all civil matters regarding children and left juvenile offending in the juvenile courts, which will be renamed youth courts by this Bill. It has been said by those on whose advice I have relied that the result could be described as one court for the deprived and another court for the depraved. Research by criminologists reveals that the families of child delinquents are usually beset by a wide range of social problems. The proposed arrangement of courts carries the risk that some children who offend and who have definite and noticeable welfare needs will be processed through the criminal justice system which will go far to confirming their identity as little criminals and will overlook the welfare dispositions which could more effectively divert them from a life of crime. That risk is increased, as the noble Baroness, Lady Faithful!, said, by including the welfare-minded magistrates in the family proceedings courts so that the youth courts are likely to be more punitive.
These amendments suggest mechanisms to reduce the risk of young offenders being processed through the criminal justice system while their welfare needs are overlooked. I suggest that the only imprecise word in either of the two amendments is the word "significant" in the phrase "to any significant extent" in Amendment No. 84. It is carefully imprecise—deliberately imprecise—in the hope that it may stimulate both the concern and the generosity of the courts. The courts are well able to understand and 150 interpret what is meant by the words "to any significant extent". I am sure that they would. I support both amendments.
My Lords, in Committee my noble friend moved amendments similar to these. I said then, and I say again now, that I have a great deal of sympathy for the objective which underlies them the need to safeguard the welfare of children who are involved in criminal proceedings. However, I am bound to tell my noble friend—I hope that this will not be an undue disappointment to her—that I cannot advise the House to accept either of them.
In Committee I set out fairly fully the reasons why the Government do not think it desirable to proceed as my noble friend would wish. I do not wish to weary the House by repeating those reasons again at great length. In brief summary, we think that the amendments are unnecessary. The criminal justice process already provides adequate safeguards for the welfare of young people who are involved in it at its various stages. Young people involved in criminal proceedings are the focus of the attention of many statutory bodies which are charged with the duty of having regard to the welfare of young people. Section 44 of the Children and Young Persons Act 1933 puts that specific duty on the courts. The police, the crown prosecution service and, crucially, local authorities, all of whom are likely to be involved at some stage in the proceedings, all have responsibility for protecting the interests of the young people.
The amendments would empower the courts to ask local authorities to carry out investigations into the young people's background and circumstances. The courts already have the power they need. Under Section 9 of the Children and Young Persons Act 1969, which Amendment No. 83 would amend, local authorities can already be required to carry out investigations relating to the home surroundings, school record, health and character of the young people. They can be obliged to provide the court with the information. If, in the course of these investigations, the local authority finds that there are grounds for taking action under the Children Act 1989, there is nothing to stop it doing so. I am bound to tell the House that I cannot see that the amendments would add any significant benefit to what can already be done.
My noble friend said in Committee—and she has repeated it today—that one of the objectives of the amendments was to help keep young people out of custody. She believes that giving courts information about the young persons' home circumstances would help. I must tell my noble friend that I believe she is right. But it does not require the mechanism in the amendments to achieve that aim. Courts can already call for reports on the young people's home surroundings. Under the Bill it will remain a duty on courts to call for a pre-sentence report before imposing a custodial sentence on young offenders in most cases.
My noble friend will recall that, as a result of the amendments agreed last Tuesday, pre-sentence reports will have to be obtained not only in all summary and either way cases, but also in all 151 indictable-only cases, unless the judge decides that it is not necessary in a particular case. In practice, I am sure that it will be most unusual for a young offender, even in an indictable-only case, to be sentenced without a pre-sentence report. The use of custodial sentences for young people under 17 has declined by 75 per cent. during the 1980s. Clause 1 of the Bill will further strengthen the safeguards against the inappropriate us of custodial sentences.
I can assure my noble friend that the Government are at one with her in wishing to keep as many young people as possible out of custody. We share her objective, but we do not think the amendments are necessary in order to achieve it.
§ Baroness Faithfull
My Lords, I thank my noble friend the Minister for that reply. However, perhaps I may just point out that although he says that it is possible for the magistrates to undertake this task at present, we are setting up a procedure which is different from that which was used in the past. We would have been most grateful to Her Majesty's Government if they had at least agreed to put this in guidance for magistrates. Of course, I accept that it might be difficult to put it on the face of the Bill.
I do not wish to reduce personal things to a financial level. However, the Association of Metropolitan Authorities and the Association of County Councils support the amendment. They are fearful that children will be given care orders which will of course place a heavy burden on local authorities. From a welfare point of view, that is a minor consideration; but it is a consideration which should be taken into account.
As my noble friend the Minister said, the number of children in custodial care has diminished by 75 per cent. during the past few years. That has been due to intermediate treatment and to the fact that the background history of the young people concerned is submitted to the courts. I shall not press the amendment to a Division. However, I hope that my noble friend will be able to see his way clear to putting these proposals into guidance for magistrates. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 84 not moved.]
§ Clause 51 [Attendance at court of parent or guardian]:
§ Baroness Faithfull moved Amendment No. 84A:
Page 34, line 12, at end insert:
("(3) For the purpose of facilitating the attendance at court of parents and guardians, the youth court in each area shall hold at least one sitting fortnightly outside the times at which the court normally sits."").
§ The noble Baroness said: My Lords, this matter was discussed in Committee. Great emphasis is laid on the family and on the responsibility of parents. If we are underlining the responsibility of parents and of the family, surely it should be made possible for the parents to attend court when their children are due to appear. I know of many cases where children have appeared before a court on their own without their 152 parents; or, alternatively, they appear before a court with only the mother being present. Indeed, it is very rare in juvenile courts for both parents to attend.
§ With the present state of unemployment, many men cannot afford to be away from work. However, the situation is becoming even more serious because many women have taken up employment and they, too, cannot afford to be away from work and risk losing their jobs. For those two reasons, I believe that it would be most acceptable for the court to meet perhaps once a month or once a fortnight on a Friday evening or on a Saturday morning. I have been in touch with the Magistrates' Association and the Justices' Clerks' Society. They are in agreement with the proposal.
§ The system has been used in Scotland. I do not suggest that one should say to a parent, "If you can't come, we will fix a date". That is not my suggestion; my suggestion is that there should be an automatic session of the magistrates on a given day which is known to everyone. That would ensure that if parents cannot attend during the week either for work or other purposes they can do so at the alternative time. For example, there are single parents who have to stay at home with the children and who cannot attend court. Therefore, if it is known that there is an evening or a Saturday morning court, I believe that many more parents could and would attend. Further, the court would be in the position to ask them to do so. I beg to move.
§ 5.45 p.m.
§ Lord Harris of Greenwich
My Lords, I agree very much with the remarks made by the noble Baroness, Lady Faithfull. It is especially appropriate to discuss this matter at present when we all recognise that the level of unemployment is rising substantially and that problems could undoubtedly arise if parents are required to attend court at a time which is, in terms of their employment, wholly inappropriate. I share the views expressed by the noble Baroness.
When we last discussed the matter, I believe that the noble Earl said—although I have not checked the Official Report —that the situation in Scotland was different because the law in Scotland is different. However, in my view that does not deal with the issue. If this can be done in Scotland, I cannot see what conceivable argument there can be against doing the same in England, notwithstanding any difference in legislation.
I very much hope, in the light of what has been said on both this and the previous occasion, that the noble Earl will agree to change his position on the matter and give an indication that he will accept the amendment.
§ Baroness David
My Lords, I support the amendment. It seems to me entirely sensible. However, there is one additional point which I do not believe has yet been made. If there is an evening or a Saturday morning court, it is much more likely that both parents will be able to attend. That is an important consideration. When I have been sitting in court there has very often only been one parent 153 present—nearly always the mother. In my view it is much more satisfactory for both parents to be present. That would be made much more possible if the court was held in the evening.
It is significant that both the Magistrates' Association and the Justices' Clerks' Society consider the proposal sensible and are willing to co-operate. Indeed, many magistrates may find it more convenient to sit in the evenings than in the daytime, as they often have to take time off work in order to attend court.
When the matter was discussed in Committee, I believe that the noble Earl said that he would consider, without any commitment, whether a circular to the courts night encourage them to arrange some sittings outside working hours. I do not know whether he has had any further thoughts on the matter. If he has not, perhaps he will be good enough to accept the amendment, which is in the interests of the courts, the children and the parents.
§ Lord Morris of Castle Morris
My Lords, there is a famous Welsh phrase chwarae teg which, being translated, means "fair play". It is a rich, resonant phrase in constant use by my countrymen. It has a deep emotional undertow and the general sense is that justice should be done to all parties. In the cases we are considering with the amendment all parties must include all parents. Surely natural justice and shrewd planning of a court's work dictate that we should support the amendment if we can. These days in a two-parent family both parents probably work. One or both may be doing shift work which may make it difficult for them to turn up at what we would regard as an orthodox time.
In a one-parent family 100 per cent. of the parents will probably work. They have to. That makes it difficult for them to present themselves at an appropriate time. Let us consider also the possibility of a father who is a commercial representative who may be hundreds of miles away from his child's residence for days at a time. To lose work is a most powerful disincentive to proceed, and people will not turn up at court. Surely all concerned in cases such as those we are discussing are entitled to attend in equal circumstances and without the peril of loss of earnings.
§ Lord Boyd-Carpenter
My Lords, it is right that youth courts should meet frequently, as has been said, on Friday evening or Saturday morning for the obvious reason that that would make it much easier for parents to attend. The only question I have—I hope that my noble friend the Minister will deal with it—is whether it is necessary to effect that change by legislation. If he and the Government are prepared to undertake to give instructions, through the usual channels, for the courts to meet, not necessarily at particular intervals but frequently, at the time suggested, it is perhaps arguable that one is overloading the statute book by legislating-in the proposal. I hope that he will be able in one way or another i AD indicate that something of this sort can be done. It is not necessary to emphasise that the good such courts can do will be enhanced enormously if the 154 parents are always to attend and therefore future cases possibly avoided. I hope that my noble friend will be able to give us some encouragement.
My Lords, I have a great deal of sympathy with the aims of the amendment. It is trying to get both parents to court, to help those in work and single parent families. In so far as the amendment seeks to be fair to such people and accommodate them, I have a great deal of sympathy with it.
The frequency with which a youth court will sit in any given area will depend upon the volume of work it has to do and that will vary considerably from area to area. In an ideal world it might be possible to accommodate everyone's needs, but in reality it is not possible to arrange court sittings to everyone's convenience no matter how often they sit. The frequency and time of youth court sittings must be left to local discretion, to those who know the need and can take into account local circumstances. My noble friend Lord Boyd-Carpenter asked whether it was necessary to have an amendment such as this.
§ Lord Boyd-Carpenter
My Lords, perhaps my noble friend will allow me. I asked him whether it was necessary to put the proposal into the Bill. I hope that he will deal with that point.
My Lords, I had repeated my noble friend's question and was just about to answer it when he rose to his feet. He asked whether it was necessary to put an amendment such as this into the Bill. I do not believe that it is. Your Lordships will, I hope, agree that to impose a rigid and arbitrary timetable of the kind the amendment proposes would interfere with the ability of local management to manage the resources at their disposal to the best effect. The extra sittings, which might or might not be needed, could involve substantial additional expenditure and hence loss of efficiency at the very time when the thrust of our initiatives in the courts, through measures such as the flexible listing of cases and the elimination of unnecessary adjournments, is aimed at improved efficiency and the reduction of the time it takes to process cases.
I was asked whether it was possible to issue guidance. There are difficulties in issuing guidance on what is listing practice. Listing is a judicial function. In the light of what my noble friend Lord Boyd-Carpenter and the noble Baroness, Lady David, said, I shall look at this matter again to see whether it is possible, but my advice is that listing is a judicial function. I shall look at the point further to see whether there is any way in which we can help to meet it.
§ Baroness David
My Lords, before the Minister sits down, he spoke as if there would have to be a sitting on an evening or on a Saturday morning. If there is no work for the courts, they are cancelled. That happens all the time. Magistrates are told that they are not wanted. They are usually given plenty of notice of that. Just because we say that this procedure is desirable, that does not mean that it will have to happen every week and that people would he dragged out for no purpose.
§ Baroness Faithfull
My Lords, I found my noble friend's answer odd. As the noble Baroness, Lady David, said, if there is no case the court will not meet. That is what happens now. I do not see why it is not possible to give magistrates the option of meeting as the case demands, bearing in mind that we wish to put on to both parents the responsibility for attending court and to encourage both parents to take an interest in their children. The Magistrates' Courts Association and the Justices' Clerks' Society have agreed to the proposal. If it is not possible to put it on the face of the Bill surely a directive could be sent to the magistrates telling them that they could sit at such times if the situation demands. Magistrates are responsible people. The members of the Justices' Clerks' Society are responsible people. It should be possible to implement the proposal. I am not going to divide the House. I hope that my noble friend the Minister will take this matter into account.
My Lords, with the leave of the House, my noble friend said that if there is no work the court will not be called. Let us suppose that there is one case; presumably the court would have to be called. Secondly, the amendment places an obligation on the court because it uses the word "shall". If my noble friend reads her amendment again she will see that it places an obligation on the courts. They "shall" meet every fortnight.
§ Baroness Faithfull
My Lords, at present the law is that the courts shall meet, but if there is no case they do not meet.
§ Lord Harris of Greenwich
My Lords, perhaps I may ask the noble Baroness a question. In view of the implied invitation from the Minister to look at the language of the amendment, does she agree that we might consider putting down the amendment on Third Reading with the word "may" substituted for "shall"?
§ Baroness Faithfull
My Lords, I thank the noble Lord, Lord Harris, for that suggestion. I was certainly not going to divide the House but perhaps we can put the proposal down with the alteration of that one word at the next stage.
§ Lord Mishcon
My Lords, before the noble Baroness sits down, in considering the wise words of the noble Lord, Lord Harris, will she avoid using the word "may" in any amendment? Obviously any court may sit whenever it wishes. If it takes into account the desirability of sitting in order to meet the points made by the noble Baroness, that may be a good amendment.
§ Baroness Faithfull
My Lords, with the wise words of the two noble Lords, I withdraw the amendment, with a view to bringing it back at the next stage of the Bill.
Amendment, by leave, withdrawn.
§ 6 p.m.
§ Clause 52 [Responsibility of parent or guardian for financial penalties]:
§ Baroness David moved Amendment No. 85:
§ Page 34, line 20, leave out subsection (2).156
§ The noble Baroness said: My Lords, in speaking to Amendment No. 85 I wish also to speak to Amendment No. 86. The two amendments are identical to ones that I put down at Committee stage. The local authority associations are still concerned about the drafting of Clause 52, and I agree with them. The proposal to regard a local authority in the same way as a parent or guardian for the purpose of the imposition of fines is considered contrary to any principle. We believe that the provision should be opposed.
Since the amendment was considered in Committee, the Association of County Councils has received a letter from the Department of Health, Community Services Division, but has received no communication from the Home Office, although the Department of Health indicates that the Home Office is the lead department on the issue. The Department of Health states:
Should this provision remain in the Bill as it stands, local authorities will no doubt wish to have regard to the provisions of Sections 55(1) and (1A) of the Children and Young Persons Act 1933 which, in sub-paragraph (ii) in each case, requires the Court to have regard to whether it would be unreasonable to make an order for payment having regard to the circumstances of the case".
§ We believe that that is an inadequate answer to the concerns which have been expressed. It makes it necessary for the local authority in each case to seek to justify the withholding of an order which would otherwise be made and requires the circumstances of each case to be argued and debated. Furthermore, this provision does nothing to answer the criticisms about the principle of the matter. Indeed, one might almost envisage cases in which the local authority, when considering what action to take in relation to a child, might be tempted to have as much regard to the attitude which a court might ultimately take as to the interests of the child. It might think it better to lock a child up in secure accommodation where it can do no harm, rather than risk argument in court about action a child may have taken in less constrained circumstances.
At the Committee stage, on behalf of the Government the noble Earl said:
The purpose of Section 2 of Clause 48 is to bring local authorities within the scope of Section 55 of the Children and Young Persons Act involving the parental payment of children's fines … If the important function of exercising parental responsibility falls to a local authority rather than to the parent or guardian, then the local authority should be liable to pay a fine under Clause 48".
The noble Earl went on to say:
Removing subsections (2) and (4)"—
which is what my amendments would do—
would have a number of unwelcome effects. It would dilute the meaning of parental responsibility which the local authority had assumed for the juvenile".—[Official Report, 22/4/91; cols. 104–105.]
§ We are quite unable to agree with that suggestion. If anything, the subsections would distort the meaning of parental responsibility which the local authority had assumed, rather than dilute it. In short, these proposals, applied to a local authority, carry the concept of parental responsibility beyond its logical boundaries.
§ The new provision is unacceptable. It goes against the whole philosophy behind the Children Act 1989. A 157 local authority will only consider receiving into its care a child or young person who represents the most challenging of cases and in any event will only resort to care once all other available options have been tried and failed. So by their very nature, the young people in question will have a number of problems of which offending will be only one. The prospect of many of these children and young people ceasing to offend as soon as they enter the care of the local authority is very remote. Fining the social services authority in such circumstances is inappropriate and positively harmful when considering a programme of care and rehabilitation. It is not a sensible way to use public money
§ As the noble Baroness, Lady Faithfull, said at Committee stage, children come into the care of the local authorities either because the parent asked the authorities to take them in because they cannot manage them or the children are committed to care by the courts. They are in a very different position from natural parents.
§ The assumption of parental responsibility by the social services authority is a statutory requirement which is undertaken on behalf of the community in the interests of a particular child. That responsibility should not be at risk of distortion by the additional imposition of ideas about the financial responsibility of parents for a child which may be appropriate where a natural or adoptive parent is concerned but are illogical where statutory responsibilities are concerned. I do not altogether agree that it is always right for them to be the financial responsibility of natural parents.
§ At Committee stage the noble Earl was not sympathetic to the amendment and did not seem fully to understand the position of the social services in relation to the children in their care. I hope that he has had time to consider this in the meantime and that I shall receive a more sympathetic response than I did in Commit tee. I beg to move.
§ Baroness Faithfull
My Lords, I support the noble Baroness, Lady David. Perhaps I may give a practical example which I mentioned at the last stage, but I should like to add to it. A small boy aged 12 was committed to my care. The next day he burned down one of the new schools in Oxford. If the local authority is to be responsible for that, and it is to be rate-capped, it would be completely impossible for it to meet the expense.
§ Further, and more important, if a very disturbed child is committed to one's care by the court, or if it is in voluntary care at the request of a parent, one cannot expect to be able to control or teach that child within 24 hours. Therefore, quite apart from anything else, if the amendment is not accepted, it will be quite impracticable and impossible to implement the legislation.
§ Lord Richard
My Lords, I apologise to my noble friend Lady David for not being in the Chamber when she moved the amendment. We on these Benches support it, basically because there is, in our view, an illogicality in treating local authorities as though they were either natural or adoptive parents. The 158 distinctions are perfectly obvious. It seems to me that making local authorities regard the phrase, "in loco parentis" with enormous biological fervour is illogical. It makes no sense. I support the amendment.
My Lords, I am grateful to the noble Baroness for having quoted so much of my speech at Committee stage. I thought it was a jolly good one and I am glad that she felt it was a good idea to rehearse it again this evening. She said that I was not very sympathetic at Committee stage. The awful thing is that I cannot be terribly sympathetic to her this time; though naturally I should wish to be so. The reason is that there is a clear difference between the Government and the noble Baroness. We continue to believe that where a local authority has assumed parental responsibility it should be liable to pay the fines which may be imposed on juveniles in just the same way as are parents. Clause 52 will apply to local authorities only in very restricted circumstances. Not only must the local authority have a general duty in relation to the juvenile by receiving him or her into care or by providing accommodation, but it must also assume a parental responsibility by virtue of a care order or an emergency protection order. It thereby acquires all the rights, duties, powers, responsibilities and the authority which a parent has by law in relation to a child. The idea of parental responsibility entails having an active interest in what a child or young person is doing. It is not, as the noble Lord, Lord Richard, said, biological fervour that makes us suggest this. As I have said, it is a fact of life that parental responsibility entails taking an active interest in what the child or young person is doing.
We take the view that those who have taken on parental responsibility must expect to face the consequences of their children's misbehaviour. That is the inevitable philosophy behind the meaning of parental responsibility. If the important function of exercising parental responsibility falls to a local authority rather than to a parent or a guardian, we believe that the local authority should be liable to pay a fine under the terms of Clause 52 if the child misbehaves.
My noble friend Lady Faithfull mentioned the case of a 12 year-old who burnt down a school. The maximum fine that could be imposed by a youth court on a local authority in the example that my noble friend gave is £250. I doubt whether rate capping would be involved in such a case.
On the previous occasion that we discussed this matter, I said that the removal of subsections (2) and (4) would ensure that victims are effectively deprived of compensation. Juvenile offenders in care will probably not have the means to pay realistic amounts of compensation. Under the Bill the youth court will be able to make a compensation order of up to £5,000 against a juvenile offender for personal injury or for loss or damage resulting from the offence.
If the juvenile lives at home and his parent has responsibility for him, the parent may be asked to pay. However, the court would have to take into account the parent's means. If the juvenile was in care, no one could be asked to pay. The victim could be properly compensated in the first case but not in the second. 159 That situation is unfair. The noble Baroness, Lady David, did not address that point in her speech. For those reasons I cannot advise your Lordships to accept the amendments.
§ Baroness Faithfull
My Lords, before my noble friend sits down, I must point out that he mentioned children being accepted into care. Under the Children Act it is possible for parents to apply for their child to be taken into care. In such cases a local authority knows what it is accepting. However, most children are committed to local authorities by the courts. Local authorities do not have the option to refuse to accept the child. It is grossly unfair on local authorities that they should be responsible for the misdemeanours of a child in their care unless that child has been in their care for some considerable time.
§ Baroness David
My Lords, I am extremely disappointed with the answer I was given. Again, I do not believe that the noble Earl has understood the position of local authorities when they have difficult children in their care. Many local authorities are also strapped for money. It is unfair that they should face the responsibility we have been discussing. It is often unfair that some parents should have to bear the responsibility of paying fines; it is even more unfair for a local authority to have to do so. However, it is too late for me to take any action at this point. I feel strongly about the issue although my powers of persuasion seem small. However, I am not inclined to let the matter go. I shall take further advice and probably return to this matter on Third Reading. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 86 not moved.]
§ 6.15 p.m.
§ Clause 53 [Binding over of parent or guardian]:
§ Earl Ferrers moved Amendment No. 86A:
Page 35, line 16, leave out from ("years") to end of line 18 and insert:
("(a) to exercise those powers if it is satisfied, having regard to the circumstances of the case, that their exercise would be desirable in the interests of preventing the commission by him of further offences; and
(b) where it does not exercise them, to state in open court that it is not satisfied as mentioned in paragraph (a) above and why it is not so satisfied.").
§ The noble Earl said: My Lords, the Government believe that the binding over of the parents of juvenile offenders can play an important role in helping to prevent further offending by these young people. We wish to see the courts make much more and better use of this power.
§ It has never been and is not our intention, however, that the courts should be placed in a position in which they must bind over the parents of a young person irrespective of the circumstances of the case. A number of your Lordships, however, expressed concern in Committee that, as drafted, Clause 53 might have this unintended effect. The provisions in Clause 53 were felt not to allow the courts sufficient flexibility to take proper account of the circumstances of the family in relation to the binding over of parents 160 of young people under the age of 16. In the light of these concerns, we have looked again at the drafting of Clause 53. I hope your Lordships will agree that the amendment I have proposed is helpful.
§ Where the offender is 16, we think the courts should have the power to bind over the parents and the full discretion to use this power as and when they think it appropriate to do so. Clause 53 already achieves this. However, where the young person is under the age of 16, we think the courts should be under a duty to consider the question of binding over the parents of a juvenile offender in every case. We also think that it is right that such powers should be used wherever the court considers that this would be helpful in preventing re-offending by the younger person. That is what the proposed amendment achieves.
§ Where the juvenile is under the age of 16 the court will be required to consider exercising the bind over powers in every case. It will be required to exercise the powers if satisfied, having regard to the circumstances of the case, that their exercise would be desirable in the interests of preventing the commission of further offences by the young person. Where the court does not exercise the powers, it will be required to state in open court why it has chosen not to do so. This formulation is clear. The specific reference to the use of the power to bind over parents to help prevent re-offending by the young person is valuable. It directs the court's attention clearly to the positive purpose and benefits of binding over. It also makes it clear that there is no compulsion to bind over a parent in circumstances where it is clear that the parent is simply not in a position to exercise the sort of control which would prevent further offending. I hope your Lordships will agree that the proposed amendment is sensible and helpful and goes a long way to meeting the anxieties expressed in Committee. I beg to move.
§ Baroness Faithfull moved, as an amendment to Amendment No. 86A, Amendment No. 86B:
Line 5, leave out from ("offences") to end of the amendment.
§ The noble Baroness said: My Lords, this amendment would remove from the Government's amendment the requirement for courts to give reasons if they do not bind over the parents of juvenile offenders. The clause in its original form provided that when a juvenile was convicted of an offence the court must bind over the parents to take proper care of the juvenile and exercise proper control over him unless the court considered that that would be unreasonable. The Government's amendment removes the statutory presumption in favour of binding over parents. That is a most welcome modification of a measure which was likely to increase rather than reduce juvenile crime by placing an additional burden on many families who are already under severe pressure.
§ However, the government amendment would require the courts to give reasons if they do not bind over parents. Although an improvement on the original version, the clause will still place an inappropriate degree of pressure on the courts to use a measure which in the vast majority of cases would do 161 more harm than good. It is misguided to place pressure on the courts to use this power in cases where they do not currently regard it as sensible to do so.
§ It is absurd that the courts should be required to give reasons to justify their non-use of a measure which would be a recipe for disaster for many families. Either the requirement will pressure the courts into using the power in cases where they do not currently regard it as appropriate or the courts will have to give reason; for non use of the power in virtually every case. That procedure runs the risk of discrediting the process of giving reasons for decisions which is so important in many other areas covered by the Bill. I beg to move.
§ Lord Mottistone
My Lords, I am most grateful to my noble friend for going some way towards meeting Amendment No. 93 which I moved in Committee, on which 1 was advised by the Magistrates' Association. The association welcomes Amendment No. 86A as an improvement on the present situation. However, although the Magistrates' Association did not ask me to make a great fuss about the matter, it indicated that it could be very difficult—as my noble friend Lady Faithfull said—for magistrates to have to state in open calm on every occasion why they have not exercised their powers.
The amendment of my noble friend the Minister would be greatly improved if it did not include paragraph (b). Therefore I very much support the amendment of my noble friend Lady Faithfull, which would leave only paragraph (a), with which I have no quarrel and which is certainly an improvement on the present situation.
§ Lord Richard
My Lords, perhaps I too may thank the Government for going a considerable way towards the position which we advocated when the matter was debated in Committee. We thought that it was quite wrong that the presumption should be in favour of making an order binding over parents rather than the other way round. The Minister has met us on that.
I hope that the Government will not think us ungracious if we accept what they have offered us and then ask for more. However, the euphony and symmetry of the Government's position is somewhat marred by the inclusion of paragraph (b). Either paragraph (b) means something or it does not. If it means something, then it is a source of additional pressure on magistrates to make binding-over orders in circumstances in which they would otherwise not choose to do so. Alternatively, if it does not mean anything then magistrates will merely develop a catch-all formula and say, "We think that it is inappropriate in this case". In that event, it will become meaningless. Therefore it is a great pity that paragraph (b) has been included. Otherwise, the Government deserve our thanks for having moved the amendment.
§ Lord Windlesham
My Lords, I also spoke in Committee on these clauses of the Bill. I remain uneasy about the Government's policy of trying to 162 employ the criminal law to make parents and local authorities responsible for the misdeeds of their children. I think that it is a misconceived notion.
Although the amendment which my noble friend Lord Ferrers has brought forward at Report stage represents an improvement, it is marred by the requirement in paragraph (b) to give reasons when the power to bind over is not used. It is highly unusual to place a statutory requirement upon a court to say why it has decided not to use a power. Normally the requirement is to give reasons why a particular power is used. Perhaps the noble Earl will be able to tell us whether or not there are precedents.
For the reasons given by the noble Baroness, Lady Faithfull, and others who have spoken in this short debate, I hope that the noble Earl will be prepared to look at this again and consider whether the intention of the Government—which, as I have said, is open to some criticism anyway—would not be better fulfilled by the omission of paragraph (b).
§ Lord Harris of Greenwich
My Lords, the noble Lord, Lord Windlesham, is quite right. This was a wholly undesirable concept, and it still is. Nevertheless, I take the view of the noble Lord, Lord Richard, that the Government's difficulty in relation to paragraph (b) is that on the first occasion on which they have to do this magistrates will agree a pro forma response which will then be applied in every single case. I wonder whether that helps the Government, assuming that they are still determined to pursue the idea, as I imagine they are.
Nevertheless, it would be ungracious not to say that the noble Earl's amendment improves the situation significantly, because it does. However, it would undoubtedly be far better without paragraph (b), and the Bill would be even better without the whole idea.
My Lords, perhaps I may reply to my noble friend's amendment. I am deeply appreciative of the gratitude which your Lordships have expressed from all quarters of the House, even if it has been rather like squeezing drops out of a sponge.
My noble friend Lord Windlesham said that he thought that it was doubtful whether it was right to employ the criminal law to make parents responsible for the misdeeds of their children. I accept that there is a certain amount of doubt about that on the part of some noble Lords, but it is part of the philosophy behind the Bill. In far too many cases children misbehave and the parents take no responsibility. They take the view that they cannot look after little Johnny, and if that is what he is going to do that is just too bad. There is an argument for saying that parents ought to have some share in the responsibility for what their children do.
My noble friend Lord Windlesham said that it must be very unusual for courts to have to give reasons for not using a power to bind over. The reason for putting it in the Bill is precisely because courts do not use the bind-over power. They have it at the moment and they have not used it. We seek to suggest to the courts that they address their minds as to whether they ought to use the bind-over power. If having addressed their minds to it they consider that in a particular case they 163 should not do so, they should say so in court. In so doing they will have addressed their minds as to whether the bind-over provisions should be used.
The amendment which my noble friend has put forward, which the noble Lord, Lord Harris, and others think is a good amendment, cuts out a great slice of my amendment. It would leave the situation virtually as it is at the moment, which permits the courts to consider using the bind-over provisions. We think that the second part of the amendment is necessary in order to make sure that the courts do consider the matter. If they take all the considerations into account and decide not to use the power, all they have to say is that is the conclusion they have reached.
The noble Lord, Lord Harris, said that the courts will come up with a pro forma device which they will shoot out at the end of every case. That does less than justice to the majesty of the courts in considering the problems that come before them.
If your Lordships wish to show how grateful you are for the amendment which the Government have put down, that gratitude should be extended a little further and you should not accept my noble friend's amendment.
§ Baroness Faithfull
My Lords, I am astonished. The noble Earl seems to insinuate that magistrates have not been doing their job properly and therefore we must now accept this amendment to make them give a reason for not doing it. Magistrates are mostly intelligent people. I have always found them to be people of good sense. If they have not bound over or fined when they have the power to do so, will requiring them to give reasons for not using binding-over orders make them more likely to use those powers? That is very odd reasoning. It casts aspersions on the Magistrates' Association.
At this stage of the evening, and as I should like to consider the matter further, I shall withdraw the amendment. I hope that the Magistrates' Association will realise that its members' intelligence is not being questioned. I beg leave to withdraw the amendment with a view to bringing the matter forward again at the next stage.
Amendment 86B to Amendment 86A, by leave, withdrawn.
On Question, Amendment No. 86A agreed to.
§ 6.30 p.m.
§ Earl Ferrers moved Amendment No. 86C:
§ After Clause 53, insert the following new clause:
§ ("Detention etc. pending trial
§ Detention at a police station
. In section 38 of the Police and Criminal Evidence Act 1984 (duties of custody officer after charge), for subsections (6) and (6A) there shall be substituted the following subsections—
(6) Where a custody officer authorises an arrested juvenile to be kept in police detention under subsection (1) above, the custody officer shall, unless he certifies—
- (a) that, by reason of such circumstances as are specified in the certificate, it is impracticable for him to do so; or
- (b) in the case of an arrested juvenile who has attained the age of 15 years, that no secure accommodation is available and that keeping him in other local authority accommodation would not be adequate to protect the public from serious harm from him,
(6A) In this section—
'local authority accommodation' means accommodation provided by or on behalf of a local authority (within the meaning of the Children Act 1989);
'secure accommodation' means accommodation provided for the purpose of restricting liberty;
'sexual offence' and 'violent offence' have the same meanings as in Part I of the Criminal Justice Act 1991;
and any reference, in relation to an arrested juvenile charged with a violent or sexual offence, to protecting the public from serious harm from him shall be construed as a reference to protecting members of the public from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him." ").
§ The noble Earl said: My Lords, in moving Amendment No. 86C, I should like to speak also to Amendment No. 86E. My noble friend Lord Elton drew my attention during the Committee stage to difficulties which had arisen in the operation of Section 38 of the Police and Criminal Evidence Act. This deals with police detention of arrested juveniles. I undertook in that debate to consider the points that my noble friend Lord Elton and others had raised. Amendment No. 86C will, I hope, meet those anxieties.
§ Section 38(6) of the Police and Criminal Evidence Act provides that, where a police custody officer authorises an arrested juvenile to be kept in police detention overnight, the officer must make arrangements for the young person to be taken into local authority care unless it is impracticable to do so. There has been some confusion about what impracticable means and there are some differences in practice by the police.
§ My noble friend Lord Elton argued most persuasively that the juvenile should always be placed in local authority care unless there is some overriding practical reason to prevent that; for example, if there is simply no local authority accommodation available, or particularly bad weather prevents the transfer of the young persons. That principle was reflected in the amendment moved by him in Committee.
§ I have a good deal of sympathy with that view. The welfare of young people who have been arrested is clearly of vital importance. At the same time, however, we must also give the fullest consideration to the need to protect the public. We need to achieve an approach which strikes the right balance between protecting the interests of the young person and protecting the public from further serious offending. I hope that that is what Amendment No. 86C achieves.
§ The amendment proposes a general rule in new subsection 6(a) which applies to all arrested juveniles. The young person must be transferred to local authority accommodation unless there are practical circumstances, such as a strike by the local authority 165 or severe weather conditions, which prevent that, or where 1 he lateness of the hour makes it impracticable to contact the local authority.
§ However, an exception to that general rule is allowed, in new subsection 6(b), for 15 and 16 year-olds, but only where the police custody officer is satisfied that there is a serious risk of harm to the public from the young person. In such circumstances, the police would be allowed the discretion to keep the young person in police detention overnight if they considered that the local authority accommodation which was available would not be adequate to protect the public.
§ Amendment No. 86C means that, for children under 15, the police would be able to hold the young person in police detention only in the kind of practical circumstances which I have described and which prevent transfer to the local authority. Where the young person is 15 or 16, the presumption would still be that such young people should be moved to local authority accommodation if at all possible. However, where there is a risk of serious harm to the public, the police rather than the local authority will have the responsibility for judging whether the accommodation is secure enough. Such a judgment is not easy. It affects not only the young person but, potentially, the public as well. As such, where there is a risk of serious harm, it must be right for the police and not the local authority to take that final decision on our behalf.
Lord Mishcon moved, as an amendment to Amendment No. 86C, Amendment No. 86CA:
After Clause 53, line 12, leave out paragraph (b) and insert ("(b) in the case of an arrested juvenile who has attained the age of 15 years and is charged with a violent or sexual offence, that keeping him in such accommodation with such supervision as the local authority proposes to make available would not be adequate to protect the public from serious harm from him,").
§ The noble Lord said: My Lords, it may be for the convenience of the House and of the Minister if I make it clear that our discussion covers Amendments Nos. 86C', 86CA, 86CB, 86E and 88. I believe that a couple of those amendments were not mentioned when the Minister opened his remarks.
§ I hope that the noble Earl will not think us ungracious when we discuss his amendment. Concern was expressed in all parts of the House in previous debates on the Bill that juveniles who were accused of offences should, so far as possible, be kept out of police custody. That sentiment found sympathy with the noble Earl. We all appreciate the fact that we are considering the amendment that he has just moved.
§ While moving the amendment, the noble Earl correctly implied that wording was important. He drew attention to the various decisions that have been made with regard to the word "impracticable". It is only in connection with the wording and in order to make abundantly clear what we mean that my noble friend Lord Richard tabled Amendments Nos. 86CA and 86CB, which I hope will commend themselves to the Government and to Members of the House.166
Perhaps I may first refer to the use of the word "impracticable". Your Lordships will find it in subsection (6) (a) of Amendment No. 86C, which makes an exception when:
by reason of such circumstances as are specified in the certificate, it is impracticable for him to do so".
§ That refers to the custody officer finding that there are circumstances in which it is impracticable. The question of police detention then arises.
§ As I understand it, the Government say that the provision means what the noble Earl said it meant; namely, that weather conditions—for example, a snowstorm—made such action impracticable, or the arrest took place at three o'clock in the morning, or some other such reason. However, some of us were a little shattered by a decision that was taken only last year in the Divisional Court. That was the case of Regina v. the Chief Constable of Cambridgeshire, exparte Michel. The court upheld a police custody officer's refusal to release a juvenile into the care of the local authority on the ground that he considered that the available local authority accommodation, being insecure, was not a practicable means of housing the juvenile as it would not prevent him from causing further damage to property.
§ That means that the courts have defined "practicable" and "impracticable" in a very wide way. I do not think that that is either the Government's intention or the intention of Members of the House, wherever they may be sitting. They want the narrow sense of the definition to be kept; namely, as in the instances that I gave, it is at an impossible hour of the morning or because of impossible weather conditions or, as I believe the noble Earl mentioned, because of a strike. The amendment of my noble friend Lord Richard appears to overcome that difficulty.
§ There is also a problem about subsection (6) (b)—the second criterion—because the use of the term "secure accommodation" might suggest to police custody officers that, where no secure accommodation is available, police custody must automatically obtain and they need not therefore consider any other available local authority accommodation if they believe that it is not secure. Local authorities possess alternative accommodation which may fall short of secure accommodation but would allow the necessary surveillance required in certain cases.
§ The concern that I have just mentioned is in my view covered by my noble friend's amendment but I am also concerned that the wording of paragraph (b) does not clearly state that it is meant to be restricted to juveniles charged with violent or sexual offences. Again I believe that that is what many Members of your Lordships' House had in mind. At the end of the paragraph there is a reference to "serious harm". I imagine that use of those words is intended to imply that the matters to be covered are only those that I mentioned in my noble friend's amendment.
§ I hope that these words are improvements and clarify the situation. I trust that the noble Lord has had time to consider them. However it may very well be that the Government have not had time to consider the arguments that I have ventured to put before the House today. Should the noble Earl accept my noble 167 friend's amendment, I should be very glad. However, if he feels that consideration of what has been said in furtherance of the amendments would lead him to have some useful thoughts about them which could be communicated to those who are interested between now and Third Reading, I certainly would not wish to divide the House. I repeat the gratitude that I first expressed. I beg to move.
§ Lord Mottistone
My Lords, my noble friend Lord Elton, whose amendment, Amendment No. 88, is also under discussion, has asked me to speak for him and to say, as other noble Lords have said, that he is most grateful to the Government for having moved so far as they have done with Amendment No. 86A. I had not intended to say very much. However, in view of what the noble Lord, Lord Mishcon, has just said, I feel that I must relay to your Lordships what my noble friend would have said had he been here. I believe that it is relevant to what has just been said.
My noble friend the Minister sent my noble friend Lord Elton a letter to put his mind at rest. However, I am not sure that it would do so. Therefore I put to my noble friend the Minister the two questions which my noble friend Lord Elton would like to ask. First, can the Minister assure us that the effect of subsection (6) (a) and (b)—as they are at the moment and not amended by what noble Lords have just heard—will be to ensure that in no circumstances will the custody officer be able to certify lack of what, in his judgment, is suitable accommodation as a reason for detaining juveniles under the age of 15 instead of passing them to the local authority?
If my noble friend the Minister cannot give that assurance, it seems to my noble friend Lord Elton that the decision remains with the custody officer and matters are exactly where they stood before the Bill was drafted. In that case my noble friend Lord Elton may wish to return to the issue at Third Reading. It must surely be for the local authority and not for the police to make that judgment affecting children of 13 and 14. Many of the cases quoted by my noble friend were of 13 and 14 year-old children. In all of them the local authority wanted to take in the children but the police refused to let them go because, in their opinion, the local authority's accommodation, not being secure, was not satisfactory. On the next day it was the local authority's view and not that of the custody officer that was upheld by the courts. If the government amendment does not change that situation, it does not do what my noble friend Lord Elton understands that the Government want it to do and it may be that my noble friend the Minister will not want to let the matter rest any more than my noble friend Lord Elton would wish it.
The second question follows from the first. If it does fall, as it should, to the local authority to decide if the accommodation that it has available is unsuitable for a juvenile below 15 years of age, will my noble friend the Minister again consider making it the duty of the local authority, not the police, to provide the certificate? Can he in any case tell us what, under the government proposals, will happen to the certificate? Presumably it goes to court with the 168 juvenile. Does the Bill provide for that? If not, will my noble friend the Minister please amend it so that it does?
Having said all that, my noble friend Lord Elton repeats his delight that the Government have recognised that matters could not be left as they were after the Cambridge judgment and that they agree that arrested children of 14 or under ought to be held by local authorities and not in police cells overnight. I hope that my noble friend the Minister will be able publicly to find answers to the points put to him by my noble friend Lord Elton. I think that he tried to answer them in his letter but he did not give the answer for which I was looking.
§ 6.45 p.m.
My Lords, I am grateful to noble Lords for trying to clarify these points. I recognise that they are important. The change was necessary because of the recent Michel case to which the noble Lord, Lord Mishcon, referred. The amendment that the Government have produced goes all the way to meet the concerns which my noble friend Lord Mottistone expressed on behalf of my noble friend Lord Elton with regard to the custody officer. My noble friend Lord Mottistone said that the effect of subsection (6) (a) and (b) will be to ensure that no custody officer could use the state of the local authority's accommodation as a reason for hanging on to 13 or 14 year-olds in prison.
I can give my noble friend the assurance that that is precisely what the clause does. Under the new amendment the police cannot use the state of the local authority accommodation as a condition for keeping 13 or 14 year-olds in custody.
The noble Lord, Lord Mishcon, referred to various considerations in regard to Amendment No. 86CB. The general rule that is proposed is that no juvenile should be held in a police cell unless there is a practical reason which prevents transfer of the young person to local authority accommodation. That is set out in new subsection (6) (a) of my amendment. The kind of practical problems which might arise are, as I suggested, extremely bad weather, such as snow drifts, or a strike by local authority staff. They are not listed in the provisions simply because it is clearly difficult to envisage all the possible exceptional circumstances which might arise. But the question of the kind of local authority accommodation which is available is not one of the matters that can be considered in the context of the general rule stated in subsection (6) (a). I hope that that will give comfort to my noble friend Lord Mottistone as well as to the noble Lord, Lord Mishcon.
Consideration of the kind of local authority accommodation available is made an exception to this general rule by virtue of the new subsection (6) (b). That subsection provides that, if the young person is aged 15 or 16 and there is a risk of serious harm to the public, then the police may keep the young person in police detention if no secure accommodation is available and the accommodation that is available would not be adequate to protect the public.
169 I draw the attention of the noble Lord, Lord Mishcon, to this point. He asked me a specific question. By making the local authority accommodation that is available an exception in that way, the provisions make quite clear that this is not a matter for the police where the young person is under 15 or indeed where the young person is 15 or 16 but there is no risk, of serious harm from him or her. I hope that that explanation is helpful.
The noble Lord, Lord Mishcon, also referred to Amendment No. 86CA. Clearly the most serious harm that is likely to be done is the commission of further violent or sexual offences. I have no doubt that the police will take particular care in those cases. However, harm can also be caused by the commission of other kinds of offence. Where there is no local authority secure accommodation available, I believe that the public have a right to expect some consideration to be given to whether the accommodation available is secure enough to protect them from such harm. Such a judgment is not easy. I believe that the police rather than the local authority are the right people to make such decisions for a short period before the young person—I speak now of 15 or 16 year-olds—can be brought before the court. The police have the experience. They are the people to whom we look to protect us from crime.
Were the amendment of the noble Lord, Lord Mishcon, to be accepted, domestic burglary would be excluded. There are occasions when 15 or 16 year-olds who carry out domestic burglary on a frequent basis may need to be held in secure custody. That is one of the reasons why we believe that his amendment would not be desirable.
We cannot ignore the need to protect the public. It is right to look afresh at the best way of achieving a balance between the needs of the young person and the needs of the public in the light of the recent Michel case. I believe that my amendment achieves that.
My noble friend Lord Mottistone asked whether the local authority should be the people to certify. It must be for the police rather than the local authority to certify that it is impracticable to make the transfer. In many cases the local authority will have no way of knowing whether or not it is impracticable. That is the reason why the responsibility would have to fall to the police.
I hope that I have been able to allay the worries expressed by your Lordships. These are matters of quite intricate detail. I hope that we have covered them in the amendments that I have put forward today.
§ Lord Mishcon
My Lords, I am sure that we are all grateful to the noble Earl for being courteous enough to deal with the amendments. The noble Lord, Lord Mottistone, will speak for himself, but I am sure that he will be equally grateful. They are matters of importance. I am not clear whether the noble Earl has necessarily followed all the arguments that have been advanced. If he finds that there is an omission in his remarks because the criticisms of this clause—they are purely verbal—have not been clearly understood, I hope that he will take the opportunity between now 170 and Third Reading to communicate with those of us who have raised these issues, so that we know our position at Third Reading.
My Lords, I have not wished to transgress the rules of the House. That is why I nodded assent to the noble Lord, Lord Mishcon. With the permission of your Lordships, I shall just say yes.
§ Lord Mishcon
My Lords, I am most grateful. It is so hard for Hansard to report a nod. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 86CB not moved.]
§ On Question, Amendment No. 86C agreed to.
§ Clause 54 [Remands and committals to local authority accommodation]:
§ Lord Mishcon moved Amendment No. 86D:
§ Page 37, line 39, at end insert:
§ ("(9A) The court may not impose requirements under subsections (4) or (9) above or require a person to comply with conditions under subsection (7) above unless it has first consulted the designated authority as to—
- (i) the circumstances of the person; and
- (ii) the feasibility of securing compliance with the requirements or conditions
§ The noble Lord said: My Lords, I shall take this matter very briefly. In the amendment there is a requirement for the courts to consult local authorities about the feasibility of requirements before imposing them on juveniles who are remanded to local authority accommodation. Perhaps one may take it for granted that there is little point in requiring young people to abide by conditions which are not regarded as feasible by those who know because they have the job of supervising and enforcing the conditions.
As presently drafted, subsections (4), (7) and (9) require the court to consult with the local authority before imposing requirements on a juvenile. However, if one considers subsection (13) (b), that is somewhat qualified by defining consultation as,
such consultation (if any) as is reasonably practicable in all the circumstances of the case".
§ It is felt that there should be a clear, unambiguous duty to consult about feasibility of requirements. In the hope that the argument commends itself to the Minister, the wording of the amendment is identical to that which governs the imposition of requirements on juveniles as part of a supervision order. I am told that that works well in practice.
§ I do not pretend that it is a great amendment. I believe that it is an important one. It constitutes an improvement. I beg to move.
§ Lord Harris of Greenwich
My .Lords, I agree with the noble Lord, Lord Mishcon. If it works with regard to supervision orders, it is extremely difficult to understand why the amendment would be unacceptable to the Government. I hope that the noble Earl will tell us that they are prepared to accept it.
My Lords, the noble Lord, Lord Mishcon, is characteristically modest when he says that it is not a great amendment. He has made a 171 persuasive case. However, there are two reasons why I cannot follow the noble Lord down the path of this amendment.
The first is that, in relation to the duty to consult, the amendment is unnecessary. Clause 54 already puts the courts under a duty to consult the designated authority before imposing any requirements or conditions when remanding a juvenile to local authority accommodation. That duty to consult is not limited to the purposes mentioned in the noble Lord's amendment; but it does not rule out consultation about the matters that the amendment mentions. The Government's original proposal, set out in the consultation paper on juvenile remands, was to confine consultation to certain specific matters. But, following the responses to the consultation paper, we decided that a broader duty to consult was preferable. The advantages in having a general duty are clear. A general duty allows courts to consult about any matters which they consider relevant. For example, subsection (4) requires courts to consult the designated local authority before imposing a requirement that the remanded juvenile should be held in secure accommodation. It is desirable for secure accommodation to be used only where there is no alternative.
One of the principal purposes of consultation would be to see whether secure accommodation was really necessary or whether some other method of dealing with the juvenile, short of using secure accommodation, was more suitable. It is true that the amendment would not expressly confine consultation to the matters it mentions, but I am advised that it could cast doubt on the breadth of the general duty, or at least cause courts to concentrate mainly on those matters.
The second reason for not being able to accept the amendment goes to what I suspect is its main purpose. The amendment would prevent the courts from imposing requirements or conditions unless they were satisfied that it was feasible to comply with them. Again, I think that, in relation to conditions under subsection (7) and requirements under subsection (9), it is unnecessary to make this provision. I believe that as a matter of good practice and common sense courts will only wish to impose requirements and conditions where they are satisfied that they can be complied with. Otherwise there is not much point in making the conditions.
I have somewhat greater difficulty with requirements under subsection (4), which is the security requirement. This provision will be brought into force only when prison custodial remands are abolished under Clause 56. That step will only be taken, and quite rightly, when the Government are satisfied that adequate secure accommodation is available to cope with the increased demand. By definition, therefore, it must be feasible to comply with a security requirement under subsection (4); so again the amendment is unnecessary.
172 I hope that I have been able to satisfy the noble Lord, Lord Mishcon, about those matters. We do not think that the amendment is necessary for the reasons I have given.
§ 7 p.m.
§ Lord Mishcon
My Lords, it is a little difficult, when one tries to put reasons before the Government and the House as a whole for an amendment, to have as the main answer that it is common sense that would be applied by the court and therefore the substance of the amendment would be carried through; that it is usual procedure and therefore it would be carried through; and that, in the last case the noble Earl mentioned, of course it must be feasible as otherwise no such order would be made.
If matters are implicit, is it not sensible for the legislature to make them explicit? That was the reason for the amendment. On the last occasion the noble Earl did not have the benefit, when thinking of the reply that he was going to give, of hearing the words of unwisdom that I uttered. The words may have been unhappy but the cause is a very right one. I hope that in the circumstances, however badly I may have worded my speech in favour of the amendment, the noble Earl will consider that the Bill would be the better for explaining explicitly what he admits is implicit.
My Lords, the noble Lord, Lord Mishcon, said that I did not have the benefit of hearing his argument. To listen to the noble Lord, Lord Mishcon, is always a benefit. He is right that I had not heard his words, even though I fancy I was apprised of the argument. I should be less than courteous if I did not take account of what the noble Lord has said. I would only say one thing to him. He said that because I said that it was common sense that such-and-such should happen, it therefore should be put in the Bill. I was castigated earlier today for suggesting that my amendment impugned the courts' integrity. I rather fancy that the noble Lord, Lord Mishcon, may be impugning the common sense of the court if he says that one must only put into a Bill that which is common sense. But of course I shall take into account what the noble Lord said.
§ Lord Mishcon
My Lords, if at any time the noble Earl rises at Report stage for a second series of remarks and asks for the leave of the House, if he speaks in the same gracious way as he has just done he will always have the leave of the House so far as these Benches are concerned.
I am grateful to him. In those circumstances and on that basis, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Earl Ferrers moved Amendment No. 86E:
§ The noble Earl said: This amendment went with Amendment No. 86C. I beg to move.
§ On Question, amendment agreed to.173
§ Clause 56 [Transitory provision pending provision of secure accommodation]:
§ Baroness Faithfull moved Amendment No. 86F:
§ Page 39, line 44, after ("appoint,") insert ("which day shall be no laser than the end of the period of four years beginning with the day this Act is passed").
§ The noble Baroness said: My Lords, this amendment is grouped with Amendment No. 86H, and with the permission of your Lordships' House I shall speak to both amendments together.
§ The amendments are concerned with the ending of juvenile remands in custody and aim to ensure that there is adequate alternative provision. Amendment No. 86F stipulates that the remanding of juveniles in custody should be ended within four years. That is a long-term policy; it is essential that we set a target. If we do not, we shall go on as before.
§ The Bill as it stands sets out new and stricter criteria for the remanding of juveniles in custody in the short term and provides for the ending of such remands in the long term. The most important short-term change is that remands will be restricted to cases where they are needed to protect the public from serious harm from the defendant. This is a welcome and substantial step in the right direction. However, the real need is to end completely the remanding of juveniles to adult prisons and remand centres. Where it is necessary to remand a juvenile to secure conditions, this should be to a secure place in a community home staffed by those specialising in work with children, not to a prison department or prison establishment.
§ While the Government have committed themselves to ending juvenile remands in custody, they have not committed themselves to any timetable. They have said that they will end such remands when sufficient local authority accommodation is available, but they have not announced a specific timetable for bringing this about. In February the Home Office issued a consultation paper entitled The Remand of Alleged Juvenile Offenders, which proposed to restrict custodial remand in the short term on the lines of the Bill's provisions and to establish between 30 and 35 secure places—beds not establishments—for juveniles in local authority homes over the next four years.
§ There has been mounting concern about the remand of juveniles to prisons. There was the disgraceful and sad case of Philip Knight committing suicide in Swansea prison in July 1990. I have to say that all thy: juveniles with whom I have dealt who have been remanded to prison have really been remanded to a university of crime; they have learned much more in prison than they ever knew before. That is certainly saying something.
§ The chief inspector spoke in his annual report of the quite disgraceful conditions under which juveniles were remanded in prison. I have to say that such juveniles are deeply disturbed and unhappy. The older boys resent having them there; the men very often get hold of them, and I have to say that the children, if they are found riot guilty, have learned much more than they ever knew before.174
§ What is the size of the problem? In the 12 months to June 1990, 1,300 boys aged 15 to 16 were remanded to penal establishments at any one time. That cannot go on. We cannot believe that that is right.
§ Having said that we agree that a time limit of four years should be set, nevertheless, we cannot afford for the next four years for those juveniles to be remanded in prison. Therefore, the recommendation is that local authorities should supply secure accommodation within the social services departments. We then run into trouble because the Home Office, as I understand it, has said that it will make a contribution towards setting up secure units but has not made an agreement that it will pay for the running costs. That puts the Association of Directors of Social Services in an extremely difficult position. On the one hand, its members do not want those juveniles to go to prison; on the other hand, unless they are helped financially they will not be able to set up and run the necessary secure accommodation.
§ Furthermore, many remand cases need not be remanded into custody. If alternative accommodation is to be supplied in the community, that also requires money. Therefore, the directors of social services do not wish to turn down the recommendations. At the same time they wish to make it clear that it will not be possible within present budgets to carry them out.
§ My last point is financial—that is, by not helping to keep juveniles out of prison, we are cutting off our noses to spite our faces. Later they become much more serious criminals than they were before they went into prison. I hope that the Minister will accept these amendments.
§ Lord Richard
My Lords, as I understand the scope of the problem, it is true, as the noble Baroness said, that in the 12 months to the end of June 1990, 1,300 boys were remanded to prisons and remand centres. I understand it to be the position also that the number of juveniles on remand at any one time is very much smaller. On 30th April 1990, which is the date I have been given, 65 untried and 19 convicted unsentenced boys under the age of 17 were imprisoned in remand centres in England and Wales. That is the scope of the problem at any one time. It is not necessary to provide 1,300 places, but if one takes the date that I have given, it is necessary to provide only 84 places.
One knows that the automatic reaction of any government department which is faced with the demand that something should be done by a specified time is to throw up its hands in horror and to say that it cannot possibly commit itself to doing that. I hope that the Minister will not take that view this evening. I am sure that he has been advised to do so; and if he has not, then I withdraw all my strictures upon all the anonymous people watching us this evening.
However, if he has been advised to do that, I leave two thoughts with him. His right honourable friend the Home Secretary did not find it difficult to accept a deadline of 1994 for the elimination of slopping out at a time when it seemed politically convenient to do so. This is just as important, is infinitely less expensive and is much more within the Government's capacity. We are saying that the Government should have a timescale of four years.
175 I accept that the Government have good intentions in this respect. They say that they will do their best and will try to achieve what we ask. However, in those circumstances, when they are being given such a long time in which to achieve this and when the amount which they will have to do is small, I do not believe that the Government will rock if, just for once, they accept the imposition of a time limit on a measure which they believe to be desirable. I support the amendment.
§ 7.15 p.m.
§ Lord Harris of Greenwich
My Lords, I assume that the reason for the Government's caution in this matter—which I believe to be mistaken—is because this issue involves two government departments rather than one. I suspect that is at the heart of the matter.
According to the Government, we are talking about the provision of some 30 to 35 secure places to deal with this problem. Is it inconceivable to ask the Government to provide 30 to 35 places in a period of four years? Public anxiety was expressed at the time of the suicide of Philip Knight in Swansea Prison in July of last year. The Government then indicated that they took the matter seriously, and eventually we were told that they would support a proposition of this kind.
As I pointed out on the last occasion, I am far from satisfied as regards what will happen should local authorities, like our friends in the London Borough of Wandsworth, decide to shut down secure places. That borough is constantly praised by Ministers; but unhappily it closed down 25 secure places in Wandsworth, which is nearly the total number which the Government say is required to deal with this problem over a period of four years. Quite apart from the terms of the amendment, how will the Government persuade local authorities which are under immense financial pressure, as many of them are—and some are also poll tax capped—to provide that additional accommodation? I am sure we shall be very grateful if the noble Earl can give some guidance on that.
It is unacceptable that our children should continue to be placed in the squalor of our local prisons. As the noble Baroness, Lady Faithfull, said, the experience turns some of the children into sophisticated criminals. Before that experience, they must endure other difficulties.
Perhaps I may turn to the matter which the noble Baroness, Lady Faithfull, mentioned; namely, the annual report of 1989 by Her Majesty's Chief Inspector of Prisons. He said:Probably the most disturbing aspect to emerge from our inspections was the number of juveniles who continue to be held in penal establishments … In many ways these youngsters have less in common with young men in their late teens than is generally realised. They are often despised by the older group, resented for their childishness and become victims of intimidation".Are we going to allow that situation to be perpetuated? In any event, even in the terms of this amendment, it could be perpetuated for a period of four years. If this amendment is not carried, we have only the Government's well-meaning intentions. I do 176 not believe that that is acceptable. This amendment is very important. I hope that the noble Earl will be able to give a satisfactory answer to some of the questions put to him, and that he will be able to accept the broad thrust of the amendment.
§ Lord Renton
My Lords, the case which has been made out for making sure that we have the appropriate local authority accommodation within a reasonable time is very strong. Before I go further, I hope that noble Lords who have spoken will acknowledge that the Government have gone into great detail in deciding that such accommodation—both transitive provisions and permanently—should be made available. However, I believe that we are being very soft with the Government when it is said that the transitive provisions must be completed within four years. I should have thought that a much shorter period of perhaps two years would have been suitable.
§ Lord Henderson of Brompton
My Lords, perhaps I may offer a few brief comments in support of the amendment. Like the noble Lord, Lord Renton, I feel that four years is over generous but is more likely to be accepted than two years. I am a realist in these matters.
I do not want to go over the points so ably expounded by my predecessors in the debate. I want to concentrate on the limb which matters; that is, securing sufficient alternative accommodation to be in place by the end of four years, or preferably two years.
First, we heard that some local authorities are in the process of shutting down some secure accommodation establishments. That is the kind of accommodation we need in increasing numbers of cases and something should therefore be done in that regard. Does the noble Earl have any power to stop the shutting down of secure accommodation when everybody agrees that it is necessary to increase it? It is a scandal and it would be encouraging to know that central government have the power to stop it.
Secondly, I should like to suggest a perhaps cheaper way of supplying accommodation, sometimes secure and sometimes not secure, via the voluntary sector. It is a point which the noble Lord, Lord Elton, would certainly have made had he been present; he is chairman of the Intermediate Treatment Fund. It has provided seed-corn funding for such projects. If we provide voluntarily-run local authority accommodation places for young people, funded partly by the local authority and partly by central government, we shall perhaps secure some technical independence from the local authorities. They would then not be able to shut down that secure accommodation, as they seem able to do when secure places are entirely under their control.
The ITF promoted, with the consent and willing support of the Department of Health, two schemes which I should like to draw to your Lordships' attention. The first is the Surrey Bail Support Project which is a joint initiative of the Royal Philanthropic Society and the Surrey Social Services based in Woking. The county has a large number of remands of young people into care, custody and secure 177 accommodation. The project aims to reduce those numbers by providing not only support, but also supervision in the community for young people on remand who, because of the nature of their offending, face removal from home. The project is supported by a Juvenile Justice Advisory Committee which includes magistrates, police, justices' clerks and the Crown Prosecution Service. Perhaps the noble Earl would consider central funding for such a scheme where there is a shortage of places in local authorities for receiving children who otherwise would have to go into police custody, which is something everybody wants to avoid.
In another scheme in Droitwich the IT Fund made a contribution towards the salary of the project co-ordinator. The scheme has been so successful that it has been extended to the whole of Hereford and Worcestershire. The management of the scheme, although under the auspices of the local authority, remains in the voluntary sector. Those two schemes could well be followed in other parts of the country to the benefit of young people and to the end of securing sufficient places in local authority control so that the remand of young people into custody could be brought to an end perhaps within two years but certainly within four years.
My Lords, there has been an effusion of persuasive oratory this evening. It is a curious sensation to find oneself in a cul-de-sac with the advancing hordes in the shape of my noble friends Lady Faithfull and Lord Renton and the noble Lords, Lord Richard, Lord Mishcon and Lord Harris, bearing down upon one. It is a very disagreeable experience.
The noble Lord, Lord Richard, made my speech for me in as short a time as I intend to take, by saying that whenever the Government are asked to agree to a deadline they throw up their hands in horror and say, "We can lot possibly consider that". In essence that is one of my problems. I want to make it perfectly clear that the Government are committed to ending prison remands for juvenile boys. But having regard to the need to protect the public, as the Government must, it is not possible to end prison remands overnight. That cannot be done.
My Lords, it is very nearly dinner time and one must not be too impatient. I use a fairly general expression. We must move towards a position in which sufficient non-prison secure accommodation is available. Under the Bill that would be local authority secure accommodation.
There are a number of ways in which that can be done. The first is to reduce the demand for secure places of any description. The Bill does that by setting out very clearly the circumstances in which secure remands can be used. Such remands can only be used when there is a need to protect the public from serious harm from the juvenile. This test will apply to the continued use of prison remands as well as to the 178 eventual use of local authority secure accommodation. So we should see a reduced need to hold remanded juveniles in prison.
The Government are also anxious to encourage the speedier completion of juvenile court cases, thereby reducing the length of time for which juveniles need to be remanded. To that end, the Bill puts it beyond doubt that custody time limits made under the Prosecution of Offences Act 1985 apply in all cases where juveniles are refused bail. A further way of reducing reliance on secure remands is the development of alternative ways of dealing with remanded juveniles short of removing them from home. Examples are bail support schemes which give support and supervision to remanded juveniles in the community. The Government have commended the development of such schemes.
All those steps will help to reduce the need to use secure places. But it is likely that some new local authority secure accommodation will be needed. Given the difficulty in predicting the effect of the steps I have already mentioned, it is not possible to be absolutely certain about the numbers. The noble Lord, Lord Harris of Greenwich, referred to 30 to 35 secure places for juveniles on remand over the next four years. The Government agree with that figure.
Secure accommodation is a specialist and sophisticated resource. It takes a considerable time several years—to plan and build a new secure unit. Given the long lead time and the uncertainties of prediction it is not possible to be dogmatic about the date by which it will be possible to end prison juvenile remands. It is the nature of the unforeseen that it is not possible to predict it. We all recognise the need to protect the public. The Government's ability to meet that need could be put in jeopardy by setting a firm and unsuitable date for ending prison juvenile remands. To do so would be unwise. But the Government are no less anxious than anyone else to end prison remands as soon as it is reasonably practicable to do so. Measures are in hand to achieve a position where it is possible to do that sooner rather than later. However, we should be misguided to set a deadline of the kind proposed in the amendment.
Clearly there will be extra costs. There will be the cost of providing the additional secure accommodation which is needed; there will be the additional cost of the day-to-day running of the new units and that of looking after other juveniles who do not need secure accommodation but who have to be kept in local authority accommodation. The Government have encouraged the development of bail support schemes for remanded juveniles. There are also costs involved in running those schemes.
Many of the responses to the consultation paper on juvenile remands which led to the provision in the Bill stress the importance of the resource implications of the proposals. We recognise that there are resource implications. The point was made at a meeting which officials of the Department of Health and the Home Office had with the representatives of local authority associations and the Association of Directors of Social 179 Services to discuss the proposals. I accept the importance of resources. That issue is important for local authorities as it is for the Government.
The question of resources will be fully explored. The House will understand that I cannot go into detail about their provision at this stage. We are in discussion with the local authority representatives about their future spending plans. It would be wrong of me to pre-empt the outcome of those discussions. I assure your Lordships that the normal arrangements under which the Government provide 100 per cent. grants for building new secure accommodation will apply to any new places which are needed under the Bill.
The noble Lord, Lord Henderson, asked whether the Government had no power to stop secure accommodation being closed. The provision of secure accommodation is a matter for the local authority. It is for the authority to decide whether or not to keep secure units open. The Government have no power to prevent closure. That is why Clause 55, which puts a duty on local authorities to provide secure accommodation for remanded juveniles, is necessary. I go along with your Lordships as regards the sentiment which lies behind the amendment, but not as regards its practicality.
§ 7.30 p.m.
§ Baroness Faithfull
My Lords, I thank my noble friend the Minister for saying how committed the Home Office is to preventing children on remand going to prison. But his speech reveals a situation which is something like the progress of a tortoise. I have never heard of anything so slow and difficult. Where there is a will there is a way. I speak with great feeling about this matter. I have been a director of social services and I have had to get a scheme going not within four years, nor yet one year, but within six months. I should have thought that it was possible to do something. By suggesting four years one was being abominably liberal. I would have liked a period of two years or even shorter than that. I agree with the noble Lord, Lord Henderson. I can tell my noble friend the Minister of one place which is empty at the moment. If the Home Office was really keen it could make inquiries about that place, which could be used as a secure unit.
In the past local authorities ran remand homes, accommodation and staff to cater for young people in order to prevent them going to prison. It is very regrettable that the situation has grown up as it has and that it has been necessary to send children to prison. The whole House has indicated how serious is the problem, which should not continue. I have no intention of dividing the House at this stage of the night. As my noble friend the Minister has given an assurance that the Home Office will move, even at a slow rate, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.