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Hazel Blears: I beg to move, That the clause be read a Second time.
The Chairman: With this it will be convenient to discuss Government amendment No. 160.
Hazel Blears: Currently, magistrates can sentence offenders to short custodial sentences of up to three months’ imprisonment for failing to attend court or a
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police station when bailed to do so under the Bail Act 1976. An offender serves half the sentence of imprisonment before being released unconditionally. The new clause is designed to maintain that position once the new sentence of custody plus is commenced. When it is commenced, it will be the only custodial sentence of less than 12 months available to the courts, other than in a very limited number of cases such as contempt of court. It was intended that Bail Act offences should be within the limited exception to custody plus and that courts should still be able to impose short custodial sentences for those offences.
The offence of failing to surrender under section 6 of the Bail Act can be compared to contempt of court in that the purpose of the sentence is punishment, the sentence for the substantive offence being the correct place to address any rehabilitative needs of the offender. However, the Criminal Justice Act 2003 does not expressly exclude Bail Act offences from the custody plus regime. Without the amendment, when custody plus is brought in, the sentencing powers of magistrates courts in relation to Bail Act offences will be unclear. One interpretation is that they could lose their powers to give a custodial sentence for the offence.
In principle, without the amendment, Bail Act offences will be subject to the custody plus regime, but in practice the magistrates courts will not be able to impose a sentence of custody plus. That is because, as it was not the policy intention that custody plus should apply to Bail Act offences, the Criminal Justice Act 2003 does not increase magistrates’ maximum sentencing powers from the existing position of three months for those offences, as it does for other summary offences. As the minimum custody plus sentence is 28 weeks, the magistrates court will not have the power to pass even the minimum custody plus sentence for Bail Act offences. The amendment is, therefore, needed to make it clear that the custody plus regime does not apply to Bail Act offences and that courts will be able to impose short custodial offences for them.
The measure is small but important. If magistrates were unable to impose short sentences for breach of bail, bail would fall into disrepute. That is why the measures should be available to the courts. The most recent figures show that more than 32,000 sentences were passed for failure to attend as the principal offence, and that 4,000 of the offenders were sentenced to immediate custody. The average custodial sentence was some 27 days, while 86 per cent. of those sentenced to custody received a sentence of one month or less. It is a short sentence, but it is a punishment, and it means that bail is taken seriously. One of the most effective things that we can do in our criminal justice system is to ensure that somebody who is bailed but does not turn up or cannot be bothered gets a custodial sentence. It is a useful new clause and I commend it to the Committee.
Question put and agreed to.
Clause read a Second time, and added to the Bill.
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New Clause 2
PENAL CUSTODY FOR CHILDREN
‘(1) No child shall be detained in a young offender institution or a secure training centre.
(2) “child” means a person under the age of eighteen.’.—[Lynne Featherstone.]
Brought up, and read the First time.
Lynne Featherstone: I beg to move, That the clause be read a Second time.
This is a probing new clause. It is about trying to end penal custody for children, following the publication of the Carlile inquiry report. We believe that the Bill offers the perfect opportunity to improve the situation. Figures from the Children’s Rights Alliance for England show that about 83 per cent. of children who are locked up are held in state-run prisons, 9 per cent. are held in private prisons or secure training centres and the rest are in local authority secure children’s homes.
Children should only ever be detained in local authority secure children’s homes, where child care standards are upheld and social care professionals can intervene positively in the lives of children and their families. Secure children’s homes provide young people with support tailored to their individual needs. Currently, they are generally used to accommodate young offenders aged 12 to 14, girls up to the age of 16 and 15 to 16-year-old boys assessed as vulnerable.
In order to give children a chance of having a future and improving their lives, instead of learning new ways of being a criminal from more experienced criminals in the state prison system, we ought to stop sending them to places that do not address their needs and help them out of the criminal system. Children in penal custody are known to be among the most disadvantaged in our society. More than a quarter have the literacy and numeracy ability of an average seven-year-old, 85 per cent. show signs of a personality disorder, over half have been in care or involved with social services and most have been excluded from school.
Mark Pritchard: Will the Minister give way?
Lynne Featherstone: Promoted so soon!
Mark Pritchard: I am grateful to the shadow Minister for giving way. I have a point about children in care, which is a slight deviation, but hopefully a helpful one.
Does the hon. Lady agree that, although these measures are dealing with the end problem, it would be better to deal with children in care by ensuring that social services monitor their education, so that they do not leave school without qualifications and become encouraged, through their circumstances, to enter into a life of crime? We should be helping such children while they are in care, many of whom have good intellects and skills; in fact, they all have skills—just different ones. We should be addressing the front end, not just the outputs.
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Lynne Featherstone: I could not agree more with the hon. Gentleman. Clearly, we should be thinking about what can be done in advance, because prevention is preferable to cure. However, the cure would be blighted were the children to be put in prisons where it is likely that they would not get the help that they needed.
Penal custody does not address the problems of severely disadvantaged children, but local authority secure children’s homes do. Some 82 per cent. of children who leave young offender institutions reoffend after incarceration. The Minister and I have previously discussed our keenness to change behaviour and to give people pathways out of criminality. I hope that she will answer positively, albeit this is a probing new clause.
5.30 pm
The Parliamentary Under-Secretary of State for the Home Department (Fiona Mactaggart): I thank the hon. Lady for raising this important issue, which has been extensively discussed in Parliament. It is right that we take great care in those rare circumstances—unfortunately, not rare enough—where children end up in the custody of the state following offending.
The first responsibility, as the hon. Member for The Wrekin (Mark Pritchard) said, is for the state to intervene in a preventive way, to reduce the factors associated with offending by young people. Education is a factor, and others relate to family offending patterns, lack of parental support and so on. Indeed, much of the work done by my right hon. Friend the Minister of State on the respect agenda and support for parenting has played an important part in reducing offending among children.
Mark Pritchard: While the Government have for many months—indeed, for many years—lectured parents throughout the land on how to be a good parent, the fact remains that the worst parent in the land is the state itself.
Fiona Mactaggart: What the hon. Gentleman means is that the outcomes for children in the care of the state are often the worst outcomes. I am afraid that his remark did not deal with causation, because such poor outcomes are among the factors that make it likely that a child will come into the care of the state. Those children are often themselves victims of horrendous crimes. They have often had several very damaging experiences before coming into the care of the state. The hon. Gentleman is right to be passionate about the need to improve their care. I assure him that much has been done to that end by the Government. However, he is not right to assume that the nature of state care is the only cause of the problems of those young people. Indeed, their problems are, as I have said, among the reasons for bringing them into care.
The secure estate for children and young people, to which the new clause relates, is diverse, with different types of establishment adapted to the needs of the different age groups, and the varying degrees of vulnerability of the children who are detained. Young offender institutions provide for the upper part of the
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age range—15 to 17-year-olds, apart from the most vulnerable of those. It is reassuring that we have now gone past the stage during which rare cases occurred of 17-year-olds—mostly young women—in the mainstream prison estate. That group is now separated from the adult offending population.
Secure training centres are predominantly for those younger than the 15 to 17-year-old group—the younger trainees. The centres are particularly focused on education. They can accommodate some offenders whom local authority children’s homes find too difficult to manage. An issue arises of the difficulties of managing some of those young people. The effect of the new clause would be to limit custodial provision for all under-18s to secure children’s homes. Those are valuable institutions and they form an important part of the secure estate. They are used primarily for younger offenders. Precisely for that reason, however, they would not be able to cope with a large influx of 16 and 17-year-olds. Introducing large numbers of people of that age group into secure children’s homes, even if it were practical, would put younger children at risk. I understand why the hon. Lady has tabled the new clause, but our approach of segmenting age groups seems to me wiser than the one that the new clause would require us to take.
The Government have always made it clear that custody can only be a last resort for offenders who are children. That is the point on which we can agree. We believe that there is scope for reducing the number of under-18s in custody. The Youth Justice Board has a specific target of reducing the under-18 custodial population by 10 per cent. In many ways that would, I believe, be the first place to start in reducing the detention of children, wherever that might be. However, we are firmly persuaded that in the case of serious or dangerous offenders—even though they might be young—custody should be available to protect the public. We would be failing in our duty if we did not take the necessary steps to achieve that.
I recognise the excellent intentions underlying the new clause, but removing under-18 places in young offenders institutions and secure training centres would do nothing to reduce crime, and would not help the troubled young people that the proposal is intended to serve. By putting older young people and young people of a younger age in the same institution, it could endanger many of them.
Lynne Featherstone: I thank the Minister for her cogent and intelligent response. I do not think that either of us has cracked the problem completely, because I accept that there is an obvious danger in putting someone who has behaved dangerously together with younger children. The 10 per cent. target for reducing the number of under-18s who are given custodial sentences is a good start. Nevertheless, I feel that something is still missing for 15 to 17-year-olds, in terms of giving them what they need to get back on a path into society with the skills that they need. However, on the basis that neither of us has reached a
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totally satisfactory solution, and that we are all seeking to move in the same direction, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Schedule 2
‘SCHEDULE TO BE INSERTED INTO THE PROTECTION OF CHILDREN (NORTHERN IRELAND) ORDER 1978
“SCHEDULE
FORFEITURE OF INDECENT PHOTOGRAPHS OF CHILDREN
1 (1) This Schedule applies where—
(a) property which has been lawfully seized in Northern Ireland is in the custody of a constable,
(b) ignoring this Schedule, there is no legitimate reason for the constable to retain custody of the property,
(c) the constable is satisfied that there are reasonable grounds for believing that the property is or is likely to be forfeitable property, and
(d) ignoring this Schedule, the constable is not aware of any person who has a legitimate reason for possessing the property or any readily separable part of it.
(2) The following property is “forfeitable property”—
(a) any indecent photograph or pseudo-photograph of a child;
(b) any property which it is not reasonably practicable to separate from any property within paragraph (a).
(3) For the purposes of this paragraph—
(a) a part of any property is a “readily separable part” of the property if, in all the circumstances, it is reasonably practicable for it to be separated from the remainder of that property, and
(b) it is reasonably practicable for a part of any property to be separated from the remainder if it is reasonably practicable to separate it without prejudicing the remainder of the property or another part of it.
(4) The circumstances mentioned in sub-paragraph (3)(a) include the time and costs involved in separating the property.
Possession pending forfeiture
2 (1) The property must be retained in the custody of a constable until it is returned or otherwise disposed of in accordance with this Schedule.
(2) Nothing in section 31 of the Police (Northern Ireland) Act 1998 (property coming into the possession of the police) applies to property held under this Schedule.
3 “The relevant officer”, in relation to any property, is the constable who for the time being has custody of the property.
Notice of intended forfeiture
4 (1) The relevant officer must give notice of the intended forfeiture of the property (“notice of intended forfeiture”) to—
(a) every person whom he believes to have been the owner of the property, or one of its owners, at the time of the seizure of the property,
(b) where the property was seized from premises, every person whom the relevant officer believes to have been an occupier of the premises at that time, and
(c) where the property was seized as a result of a search of any person, that person.
(2) The notice of intended forfeiture must set out—
(a) a description of the property, and
(b) how a person may give a notice of claim under this Schedule and the period within which such a notice must be given.
(3) The notice of intended forfeiture may be given to a person only by—
(a) delivering it to him personally,
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(b) addressing it to him and leaving it for him at the appropriate address, or
(c) addressing it to him and sending it to him at that address by post.
(4) But a notice given in accordance with sub-paragraph (1)(b) may, where it is not practicable to give the notice in accordance with sub-paragraph (3), be given by—
(a) addressing it to “the occupier” of those premises, without naming him, and
(b) leaving it for him at those premises or sending it to him at those premises by post.
(5) Property may be treated or condemned as forfeited under this Schedule only if—
(a) the requirements of this paragraph have been complied with in the case of the property, or
(b) it was not reasonably practicable for them to be complied with.
(6) In this paragraph “the appropriate address”, in relation to a person, means—
(a) in the case of a body corporate, its registered or principal office in the United Kingdom;
(b) in the case of a firm, the principal office of the partnership;
(c) in the case of an unincorporated body or association, the principal office of the body or association;
(d) in any other case, his usual or last known place of residence in the United Kingdom or his last known place of business in the United Kingdom.
(a) a company registered outside the United Kingdom,
(b) a firm carrying on business outside the United Kingdom, or
(c) an unincorporated body or association with offices outside the United Kingdom,
the references in this paragraph to its principal office include references to its principal office within the United Kingdom (if any).
5 (1) A person claiming that he has a legitimate reason for possessing the property or a part of it may give notice of his claim to a constable at any police station in Northern Ireland.
(2) Oral notice is not sufficient for these purposes.
6 (1) A notice of claim may not be given more than one month after—
(a) the date of the giving of the notice of intended forfeiture, or
(b) if no such notice has been given, the date on which the property began to be retained under this Schedule (see paragraph 2).
(2) A notice of claim must specify—
(a) the name and address of the claimant;
(b) a description of the property, or part of it, in respect of which the claim is made;
(c) in the case of a claimant who is outside the United Kingdom, the name and address of a solicitor in the United Kingdom who is authorised to accept service, and to act, on behalf of the claimant.
(3) Service upon a solicitor so specified is to be taken to be service on the claimant for the purposes of any proceedings by virtue of this Schedule.
(4) In a case in which notice of intended forfeiture was given to different persons on different days, the reference in this paragraph to the day on which that notice was given is a reference—
(a) in relation to a person to whom notice of intended forfeiture was given, to the day on which that notice was given to that person, and
(b) in relation to any other person, to the day on which notice of intended forfeiture was given to the last person to be given such a notice.Automatic forfeiture in a case where no claim is made
7 (1) If the property is unclaimed it is treated as forfeited.
(2) The property is “unclaimed” if, by the end of the period for the giving of a notice of claim—
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(a) no such notice has been given in relation to it or any part of it, or
(b) the requirements of paragraphs 5 and 6 have not been complied with in relation to the only notice or notices of claim that have been given.
(3) Sub-paragraph (1) applies in relation to a readily separable part of the property as it applies in relation to the property, and for this purpose sub-paragraph (2) applies as if references to the property were to the part.
(4) In this paragraph “readily separable part” has the meaning given by paragraph 1.
Decision whether to take court proceedings to condemn property as forfeited
8 (1) Where a notice of claim in respect of the property, or a part of it, is duly given in accordance with paragraphs 5 and 6, the relevant officer must decide whether to take proceedings to ask the court to condemn the property or a part of it as forfeited.
(2) The decision whether to take such proceedings must be made as soon as reasonably practicable after the giving of the notice of claim.
Return of property if no forfeiture proceedings
9 (1) This paragraph applies if, in a case in which a notice of claim has been given, the relevant officer decides—
(a) not to take proceedings for condemnation of the property, or
(b) not to take proceedings for condemnation of a part of the property.
(2) The relevant officer must return the property or part to the person who appears to him to have a legitimate reason for possessing the property or, if there is more than one such person, to one of those persons.
(3) Any property required to be returned in accordance with sub-paragraph (2) must be returned as soon as reasonably practicable after the decision not to take proceedings for condemnation.
10 (1) This paragraph applies if, in a case in which a notice of claim has been given, the relevant officer decides to take proceedings for condemnation of the property or a part of it (“the relevant property”).
(2) The court must condemn the relevant property if it is satisfied— (a) that the relevant property is forfeitable property, and (b) that no-one who has given a notice of claim has a legitimate reason for possessing the relevant property. This is subject to sub-paragraphs (5) and (7).
(3) If the court is not satisfied that the relevant property is forfeitable property, the court must order its return to the person who appears to the court to have a legitimate reason for possessing it or, if there is more than one such person, to one of those persons.
(4) If the court is satisfied—
(a) that the relevant property is forfeitable property, and
(b) that a person who has given a notice of claim has a legitimate reason for possessing the relevant property, or that more than one such person has such a reason,
the court must order the return of the relevant property to that person or, as the case may be, to one of those persons.
(5) Where the court is satisfied that any part of the relevant property is a separable part, sub-paragraphs (2) to (4) apply separately in relation to each separable part of the relevant property as if references to the relevant property were references to the separable part.
(6) For this purpose a part of any property is a “separable part” of the property if—
(a) it can be separated from the remainder of that property, and
(b) where a person has a legitimate reason for possessing the remainder of that property or any part of it, the separation will not prejudice the remainder or part.
(7) Where the court is satisfied—
(a) that a person who has given a notice of claim has a legitimate reason for possessing part of the relevant property, and
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(b) that, although the part is not a separable part within the meaning given by sub-paragraph (6), it can be separated from the remainder of the relevant property,
the court may order the return of that part to that person.
(8) Sub-paragraph (7) does not apply to any property required to be returned to a person under sub-paragraph (4).
11 (1) Where the court condemns property under paragraph 10(2)—
(a) it may order the relevant officer to take such steps in relation to the property or any part of it as it thinks appropriate, and
(b) where it orders a step to be taken, it may make that order conditional on specified costs relating to the taking of that step being paid by a specified person within a specified period.
(2) A court order under paragraph 10(3), (4), (5) or (7) requiring the return of a part of the relevant property to a person may be made conditional on specified costs relating to the separation of the part from the remainder of the relevant property being paid by that person within a specified period.
(3) Where the court makes an order under paragraph 10(7) for the return of a part of the relevant property—
(a) it may order the relevant officer to take such steps as it thinks appropriate in relation to any property which will be prejudiced by the separation of that part, and
(b) where it orders a step to be taken, it may make that order conditional on specified costs relating to the taking of that step being paid by a specified person within a specified period.
(4) For the purposes of this paragraph “specified” means specified in, or determined in accordance with, the court order.
Supplementary provision about forfeiture proceedings
12 Proceedings by virtue of this Schedule are civil proceedings and may be instituted in a court of summary jurisdiction for the petty sessions district in which the property to which the proceedings relate was seized.
13 (1) Either party may appeal against the decision of that court to a county court.
(2) This paragraph does not affect any right to require the statement of a case for the opinion of the Court of Appeal.
14 Where an appeal has been made (whether by case stated or otherwise) against the decision of the court of summary jurisdiction in proceedings by virtue of this Schedule in relation to property, the property is to be left in the custody of a constable pending the final determination of the matter.
15 Where property is treated or condemned as forfeited under this Schedule the forfeiture is to be treated as having taken effect as from the time of the seizure.
Disposal of property which is not returned
16 (1) This paragraph applies where any property is required to be returned to a person under this Schedule.
(a) the property is (without having been returned) still in the custody of the relevant officer after the end of the period of 12 months beginning with the day on which the requirement to return it arose, and
(b) it is not practicable to dispose of it by returning it immediately to the person to whom it is required to be returned,
the relevant officer may dispose of it in any manner he thinks fit.
17 (1) This paragraph applies where any property would be required to be returned to a person under this Schedule but for a failure to satisfy a condition imposed by virtue of paragraph 11(2) (return of property conditional on payment of costs within specified period).
(2) The relevant officer may dispose of the property in any manner he thinks fit.
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18 In proceedings under this Schedule, the fact, form and manner of the seizure are to be taken, without further evidence and unless the contrary is shown, to have been as set forth in the process.
19 In proceedings, the condemnation by a court of property as forfeited under this Schedule may be proved by the production of either—
(a) the order of condemnation, or
(b) a certified copy of the order purporting to be signed by an officer of the court by which the order was made or granted.
Saving for owner’s rights
20 Neither the imposition of a requirement by virtue of this Schedule to return property to a person nor the return of it to a person in accordance with such a requirement affects—
(a) the rights in relation to that property, or any part of it, of any other person, or
(b) the right of any other person to enforce his rights against the person to whom it is returned.
“the court” is to be construed in accordance with paragraph 12;
“forfeitable property” is to be construed in accordance with paragraph 1(2);
“premises” has the same meaning as in the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I.1989/1341 (N.I.12)) (see Article 25 of that Order); and
“the relevant officer” is to be construed in accordance with paragraph 3.’.—[Hazel Blears.]
Brought up, read the First and Second time, and added to the Bill.
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