Clause
7
Youth
rehabilitation orders:
interpretation
2.45
pm
Amendment
made: No. 19, in clause 7, page 6, line 17, at end
add—
‘(4)
If a local authority has parental responsibility for an offender who is
in its care or provided with accommodation by it in the exercise of any
social services functions, any reference in this Part (except in
paragraphs 4 and 24 of Schedule 1) to the offender’s parent or
guardian is to be read as a reference to that
authority.
(5) In subsection
(4)—
“parental
responsibility” has the same meaning as it has in the Children
Act 1989 (c. 41) by virtue of section 3 of that Act,
and
“social services
functions” has the same meaning as it has in the Local Authority
Social Services Act 1970 (c. 42) by virtue of section 1A of that
Act.’.—[Mr.
Hanson.]
Clause
7, as amended, ordered to stand part of the
Bill.
Clause
8
Isles
of
Scilly
Question
proposed, That the clause stand part of the
Bill.
Mr.
Heath:
I shall be brief. Years of experience have led me
to form the view that, if I wish to disconcert Ministers in charge of
criminal justice Bills, I should ask them either about courts martial,
Northern Ireland or British overseas territories. Northern Ireland
simply will not work in this respect, because two of the Ministers know
far more about it than I do, and courts martial have been covered, but
I have never before considered the possibilities of asking about the
Isles of Scilly, which form part of the English and Welsh
jurisdiction.
I
assume that the rest of the Bill applies, unamended, to the Isles of
Scilly and that the clause refers only to part 1. However, I am keen to
ensure that the orders, which it appears now can be evaded by going to
Thurso, cannot also be evaded by going to Tresco, because that may be a
temptation to young hooligans in Penzance and Newlyn, for whom that
would not be a huge journey. Can I just be assured that the principal
objectives of the rehabilitation orders will take effect in the Isles
of Scilly and that the Minister’s intention in including a power
to exempt by order is not to remove any significant part of the orders
that we have
debated?
Mr.
Hanson:
As ever, I am grateful to the hon. Gentleman. I
hope that, as he said, I cannot be caught out by him on Northern
Ireland. Having had two years there as Minister of State, I feel as
though I can answer any questions relating to Northern Ireland. In
relation to our discussion earlier about Scotland, I have already
indicated that I will write to him to clarify that point and, although
I feel that it is covered, I will reflect on what he
said.
I
know little about the Isles of Scilly except that the former Prime
Minister, Harold Wilson, used to holiday there. [Interruption.]
And apparently he is buried there. Apart from that, I cannot string a
sentence together on
the Isles of Scilly. However, I can tell the hon. Gentleman that the
youth rehabilitation order will have effect in the Isles of Scilly,
with such exceptions and adaptations as the Secretary of State may
specify. Unlike areas of England and Wales, the Isles of Scilly are not
a county or a district council, so the Secretary of State may need to
make some adaptations by order in order to reflect the curious nature
of the jurisdiction of the Isles of Scilly. It will not alter the fact
that the youth rehabilitation order will have effect in the Isles of
Scilly and will, I hope, prevent reoffending by whatever Isles of
Scilly residents are called these
days.
Mr.
Heath:
Nor is the common council of the City of London,
and there was no problem in inserting that into clause 7’s
definition of a local authority. That is normally what is done with the
Isles of Scilly, and I wondered why we need a separate order. I need
not extend the debate further though.
Question put and agreed
to.
Clause
8
ordered to stand part of the
Bill.
Clause
9
Purposes
etc. of sentencing: offenders aged under
18
Mr.
Heath:
I beg to move amendment No. 135, in
clause 9, page 6, line 25, leave
out subsection (1) and
insert—
‘(1) After section
142 of the Criminal Justice Act 2003 (c. 44)
insert—
“142A
Purposes etc. of sentencing: offenders aged under
18
(1) This section applies
where a court is dealing with an offender aged under 18 in respect of
an offence.
(2) The court must
have regard primarily to the welfare and well-being of the offender, in
accordance with its duties under section 44 of the Children and Young
Persons Act 1933.
(3) The court
must ensure a proportionate response to offending
behaviour.
(4) The court must
also—
(a) have regard to
the purposes of sentencing mentioned in subsection (5), in so far as it
is not required to do so by subsection (2),
and
(b) in accordance with
section 37 of the Crime and Disorder Act 1998, have regard to the
principal aim of the youth justice system, namely to prevent offending
(including re-offending) by children and young
persons.
(5) The purposes of
sentencing are—
(a) the
reform and rehabilitation of
offenders,
(b) the protection
of the public, and
(c) the
making of reparation by offenders to persons affected by their
offences.
(6) This section does
not apply—
(a) to an
offence the sentence for which is fixed by
law,
(b) in relation to the
making of a hospital order (with or without a restriction order), an
interim hospital order, a hospital direction or a limitation direction
under Part 3 of the Mental Health Act
1983.
(7) In
respect of a proportionate response, as stated in subsection (3), this
shall be considered to mean a variety of dispositions, such as care,
guidance and supervision orders; counselling; probation; foster care;
education and vocational training programmes and other alternatives to
institutional care, in a manner proportionate both to their
circumstances and the
offence.’.
The
Chairman:
With this it will be convenient to discuss the
following: Amendment No. 193, in
clause 9, page 6, line 26, leave
out ‘18’ and insert
‘19’.
Amendment
No. 194, in clause 9, page 6, line 28, leave out ‘18’ and
insert
‘19’.
Amendment
No. 195, in clause 9, page 6, line 31, leave out ‘18’ and
insert
‘19’.
Amendment
No. 9, in
clause 9, page 7, line 1, after
‘of’, insert ‘financial compensation or other
appropriate’.
Amendment
No. 196, in clause 9, page 7, line 18, leave out ‘18’ and
insert
‘19’.
Amendment
No. 136, in clause 9, page 7, line 20, leave out subsections (3) and
(4).
Amendment No.
197, in clause 9, page 7, line 25, leave out ‘18’ and
insert
‘19’.
Amendment
No. 198, in clause 9, page 7, line 34, leave out ‘18’ and
insert
‘19’.
Clause
stand part.
New clause
13—Principal aim of the youth justice
system
—
‘(1)
Section 37 of the Crime and Disorder Act 1998 (c.37) (aim of the youth
justice system) is amended as
follows.
(2) In subsection (1),
after “preventing offending” insert “(including
re-offending)”.
(3) At
end insert—
“(3)
Subsection (2) above is subject to section 142A(2) of the Criminal
Justice Act 2003 (which requires a court to have a regard primarily to
the welfare and well-being of offenders aged under 18 in accordance
with its duties under section 44 of the Children and Young Persons Act
1933).”.’.
New
clause 14—Courts to have regard to the welfare and well-being
of offenders under
18
—
‘(1) Section
44 of the Children and Young Persons Act 1933 (principles to be
observed by all courts in dealing with children and young persons:
general considerations) is amended as
follows.
(2) In subsection (1)
after “shall have regard to the welfare”, insert
“and
well-being”.
(3) After
subsection (1)
insert—
“(1A) In
complying with their duties under subsection (1), courts shall have
regard in particular to the following
matters—
(a) in respect
of welfare, the matters set out in section 1(3) of the Children Act
1989; and
(b) in respect of
well-being, the matters set out in section 10(2) of the Children Act
2004.”’.
Mr.
Heath:
It is rather rare that one is
almost formally invited by the Attorney-General to table an amendment
in Committee, but in this instance we can properly say that we were.
Similar amendments with the same objective as those in this group were
proposed on 3 July in the House of Lords to clause 33 of the Bill that
became the Offender Management Act 2007 by my noble friends Lord
Wallace of Saltaire and Baroness Linklater. They were well supported,
and received support from Baroness Anelay of St. Johns, Lord
Ramsbotham, Lord Judd and Baroness Howe of Idlicote. In response, the
Attorney-General, Baroness Scotland,
said:
“The
distinction between welfare and well-being is an interesting, important
and rather subtle one. The House will have extensive opportunities to
reflect on it during consideration of Clause 9 of the Criminal Justice
and Immigration Bill, to which the noble Baroness, Lady Anelay,
referred, which was recently introduced in another place. I agree with
her that that is probably the better place for these issues to be more
fully debated.”—[Official Report, House of Lords,
3 July 2007; Vol. 693, c. 999.]
That is very much an invitation from a
Minister to table these amendments, which is something that I have not
enjoyed before. The Minister may care to have words with the
Attorney-General later.
The amendments relate to
sentencing, which is a serious purpose to which we could devote a
considerable amount of time. I do not propose to do so, because we can
simply state the objectives of this group of amendments. Essentially,
they would introduce into the principles of sentencing in the criminal
court some of the underlying principles that apply in the family court
in terms of the welfare of the child and its paramountcy.
As the Minister will know, the
Children Act 1989 requires that the principle should apply to all
children involved in family court proceedings, and that there is a
welfare checklist that the court is required to consider when taking
forward any proceedings involving a child. The proposition before us
this afternoon is that a similar welfare checklist ought to apply when
dealing with the rehabilitation orders, which have at their core the
idea that one treats the individual as a whole. The circumstances that
might promote criminality and offending behaviour in that child, and
all those influences that are pooled together by those agencies that
have dealings with the young offender and that are invited to give
their views and advice to the court, ought to be taken into account
during the sentencing procedure.
The Children Act 2004 framework
document—the five outcomes document— examines the factors
that ought to be taken into account when considering whether a relevant
authority or institution has improved a child’s well-being. Some
of those factors are entirely relevant to the actions of a court when
considering the disposals available to it in dealing with a young
offender. There are particular factors that are relevant to the points
made earlier by the hon. Members for Northampton, North and for Leyton
and Wanstead and by the hon. and learned Member for
Harborough.
What are
the provisions available, in the context of sentencing procedure, to
deal with education, for instance? Is there a special needs requirement
that is not currently being met? What are the welfare implications? Is
the child a child in need, as identified under section 17 of the
Children Act 1989? Those are material issues, as are mental health
assessment, consideration of housing and living conditions, and
consideration of physical health. All these factors, if they are taken
in the round, provide the substance that ought to underlay the
principles of sentencing.
What is being proposed is to
draw together the various strands of Government policy in this area.
The Government have been very clear in stating their intentions in
respect of how best to deal with children who suffer various
disadvantages and to ensure that they have access to the type of
support that they need. All those factors are relevant to a person who
has found themselves in trouble with the courts, where there are
underlying issues that go beyond the offending behaviour, which must
properly be brought into account when considering the measures
contained in the Bill. By extending the principles of sentencing to
encompass those factors, I believe that the courts would take an even
wider view than they currently do of their responsibilities to the
child as well as to society, in trying to protect society against the
offending behaviour, in dealing properly with the prospects of
recidivism and in ensuring that there is less prospect of
reoffending. Without
extending the debate—I think that my intentions are very clear
already, and I have no doubt that other Members will support my
views—I believe that the amendments would reconcile the
provisions of this Bill with the Children Act 2004 and other
legislation. They would reconcile the systems that are already in place
in the family court to those in the criminal court, which would produce
more integration in what we do with these young people to ensure that
they have access to the support that they
need.
Harry
Cohen:
In this cluster of amendments—Nos. 193 to
198—are amendments that I tabled, which would all do the same
thing, which is alter the age below which the youth justice system is
involved from 18 to 19. That arises very much from the evidence that we
were given in our fourth sitting by Les Lawrence of the Local
Government Association. He
said:
“My final
point—and it is a strange conundrum—is that the Children
Act 2004 created the concept of a child or young person as being from 0
to 19. In the youth justice system, the cut off is at
18.”
He goes on to say
that
“as far as the
responsibility of a local authority under the Children Act goes, that
person should be supported until the age of
19.”——[Official Report, Criminal Justice and
Immigration Public Bill Committee, 18 October 2007; c. 144,
Q290.]
3
pm
Mr.
Lawrence was referring to the gap of a year. My amendment aims to put
some coherence into the system. I would not mind if the local
authorities were to start at 18, but it is probably better that the
youth justice system includes those aged 18 and finishes at 19, so that
there is not that gap. I have tabled these probing amendments to get
the Minister’s opinion on that and to hear what he thinks about
the gap that was identified by Mr.
Lawrence.
While we are
talking about ages, I will take the opportunity to discuss a matter
that is not specifically about 18 to 19-year-olds, but still relevant.
On Second Reading, I quoted from the newsletter from the youth
offending teams’ managers at their annual general meeting. It
states:
“It is
crucial that there is a distinct and separate youth criminal justice
system, where 17-year olds are afforded the same rights as 16-year olds
on arrest and within the court system. This would mean access to an
appropriate adult at the police station as well as the remand criteria
equating to that of 16-year
olds.”
They go on to say
that the review of Police and Criminal Evidence Act 1984 and this Bill
are opportunities to forward that ambition. Clearly, there is a gap
from 16 to 17-year-olds that needs to be addressed as well. At least
the local authorities and the youth justice system recognise that the
matter in respect of 17 and 18-year-olds needs to be addressed. My
amendment aims to get some coherence into the system and address that
gap.
I will say a few words about the
amendment and the new clause tabled by the hon. Member for Somerton and
Frome. I will not make a big speech now, but in the initial stages, I
said that I felt that the welfare and development of the child have to
have a more paramount position in the criminal justice system. I hold
that as my view and that is very much what his amendments are about. I
like the look of his amendments in lots of ways and will be interested
to hear what the Minister has to say.
While I accept that there needs
to be some blurring in legislation, we also need some clarity. We
should be clear in our own mind of the three elements that we want in
the system. First, we need punishment and retribution, but the truth is
that the UN conventions on the rights of the child and others and
Government legislation do not talk about punishment and retribution.
They may be a factor in the criminal justice system, and if they are,
we need to be honest and say that they are necessary for horrendous
crimes, but we need to set out their limitations. The system should not
be solely about punishment and retribution. That is why I think that we
need some clarity, including in the legislation.
The other element is the
welfare and well-being of the child, and that is in all the documents
that we have signed up to, including the convention on the rights of
the child. The reason that we have come so far down that chart on
looking after children has a lot to do with how we treat child
offenders. We have not given that element the priority that it should
have had. We must revisit that point and be clear that whatever happens
on the other factors, the welfare and well-being of the child will
always be present in how we expect children to be dealt with. That
point is very
important.
Thirdly, my
right hon. Friend the Member for Cardiff, South and Penarth, a former
Home Office Minister, made the point on Tuesday that, since it has been
in power, Labour has seen the prevention of reoffending as a priority.
That is the other factor that is involved in this issue. Often, those
elements can work together. For instance, the welfare of the child, in
terms of education and the development of skills for when they come out
of custody, can work towards the prevention of
reoffending.
We need
to be clear in our minds about the three factors: punishment,
preventing reoffending, and welfare and well-being. We must be clear
about what priority we give them, how we spell that out in the
legislation and how we expect it to be implemented. I come back to the
point that the amendments are about the welfare and well-being of the
child. That must always be present in conjunction with the other two
factors. We must say to administrators and judges that the welfare and
well-being of the child is an important factor, which we expect them to
take account
of.
Ms
Keeble:
I am pleased to take part in this debate because
it gets to the heart of what the youth criminal justice system is all
about. Personally, I oppose the amendment, although I have enormous
sympathy will all the sentiments that gave rise to it. I agree
completely with the approach of many of the outside organisations that
have promoted this measure, but I do not agree with the amendment. I
thought that it might be helpful to set out why that is.
The state
obviously has to think about a number of issues. One is the protection
of the wider public, which is what the criminal justice system is all
about, to a great extent. There are also issues about the welfare of
the child, which is also the state’s responsibility. That is the
responsibility of different Departments under different bits of
legislation; for instance, the Department for Children, Schools and
Families is involved. The amendments confuse or give the wrong priority
to some of the roles and responsibilities. However much we do not like
what has happened to these children in their lives and however much we
might sympathise, once they are in front of the court, being sentenced,
they have stepped over the
boundary.
The job of
the courts must be to deal with the crime, as well as to deal with the
young offender. The sequencing for that in the legislation seems to be
the right way round. When the courts come to sentencing, they have to
deal with the offending behaviour, and in the process of dealing with
that, must look at the welfare of the
child.
We have
discussed the enormous sympathy with which the young people must be
treated in different instances, for example, with regard to the
religious views of the family. Those things are absolutely right.
However, once the child is in the criminal justice system, it is right
that the offending behaviour has to be the first concern. Part of this
issue is about sequencing. In other areas of our legislation, courts
and others have to sequence different roles and responsibilities of the
state in making their decisions. The hon. Member for Somerton and Frome
mentioned the family courts, but they are different. I am not involved
in the legal profession, but I understand that, in many instances, in
the family courts, the welfare of the child is protected against the
war that goes on between the parents. It is absolutely right to say
that the paramount concern in all this must be the welfare of the
child, not the right to access of either parent.
I am much more familiar with
housing legislation, where the importance is placed on the local
authority’s ability to allocate housing, rather than a
child’s need for a home. A family can be made homeless despite
the fact that people will say that the child has a right to a home and
the welfare of the child has to be considered. The issue is therefore
one of sequencing and of what comes first, whether that concerns how
the parents became homeless or the need of the child for a house. These
are difficult issues, and there are competing rights and
responsibilities. However, different priorities have to be set in
different areas, and it is right that the priorities and sequence with
which the courts should consider the different factors are set down in
the
legislation.
Underlying
a lot of this, as the hon. Member for Somerton and Frome and the hon.
and learned Member for Harborough commented, are qualms about what
actually happens to young people in the criminal justice system. I not
only share their concerns, but probably take a more oppositionist
stance than either of them, because I have profound concerns about how
some young people are treated and think that wholesale changes are
needed. Those failings are failings of administration, procedure and
systems and are not so much the result of the legislation.
For example, there were profound
failings in the work of the Home Office monitor in the case of Gareth
Myatt, the case that I am most aware of. The Home Office monitor said
that he found it very hard to challenge the decisions that were taken
by the management of the secure training centre. What is the point of
having a Home Office monitor if they cannot challenge the decisions
that are being taken? That, at least, is supposed to be one of their
functions. There are supposed to be reports on each incident of
restraint. I find it hard to believe that all those reports were
done—if they were, there might be between 3,000 and 4,000
reports every year, which I defy anyone to deal
with.
I have much more
profound concerns about the whole regime of restraint, which is
horrific and under-reported with regard to injuries. I know a young
man, a constituent, who was repeatedly subjected to the nose
distraction technique in one of the secure training centres. He only
went to hospital when he went to the next institution because of the
damage that had been done to his nose. That is an ongoing case that I
have just written to the Department about. There are major issues that
are not the result of the welfare considerations taken at sentencing,
but concern the failures of the system once the young people get into
the institutions.
The
level of scrutiny that applies to the approval of restraint regimes is
also partly our job. It is in our own gift, as a Parliament, to take
the Government to task over the statutory instruments that provide for
the current system of restraint. The Liberal Democrats, in fact, were
responsible for getting the debate in another place. The Government
could have been overturned on that, but were not. One could say that
that was partly a failure of parliamentary scrutiny. There are issues
about how all the restraint techniques were put together and approved.
The amendment tabled by the hon. Member for Somerton and Frome would
not change one whit of that.
3.15 pm
When we talk about how we will
make things better for these young people and deal with the appalling
record of recidivism, we also need to consider carefully what happens
in some of these institutions. The Government and others who support
them say in their defence that the children and young people are well
looked after and that their welfare is being protected, just as the
hon. Gentleman would want.
I have not
been to as many secure training centres or seen as many institutions as
some Opposition members of the Committee, but a young person came with
me when I went to Rainsbrook and, interestingly, her response was very
different from mine. The young people in Rainsbrook looked better than
they did outside. I met one of my constituents there and, knowing where
that young man came from, I am not surprised that he looked better
because it was probably the first time in his life that he had had
three meals a day and got to bed on time. However, what he learnt about
behaviour in an institution where restraint was used with the frequency
that it was in Rainsbrook was probably negative. He would have learnt
that ultimately the sanction is force,
which he probably knew before he went in and on which basis he would
continue to operate after he left. We need to do some profound thinking
about the regimes, but the amendment will not alter
that. To make the
provisions of the amendment a primary concern in the criminal justice
system would be to let the social welfare system off the hook
completely and the prime responsibility for the tragedy of these young
people’s lives is that intervention is much too late. It should
happen much earlier. All of us know that most of the young people who
end up in these institutions are a slow-motion disaster that we can all
see coming, as we have all tracked them through the system. For
example, a young girl at a special needs school was picked up for
shoplifting, kept in a police station overnight and progressed from one
thing to another until she ended up in Holloway. I have a sneaking
suspicion that if there had been a more substantial, thought-through,
considered intervention very much earlier, that disaster might not have
happened. There are hundreds of kids like
that.
Let us get the
child services in place to intervene early on, quite toughly if needs
be. Once children have committed crimes and go to court, it is right to
reassure wider society that the offending behaviour will be the
courts’ prime concern, but we must look after the welfare of the
child. I hope that my right hon. Friend the Minister will not now jump
up and say he will accept the wording in the amendment.
I think that the general public
understand that the lives of most of these kids are a disaster and a
tragedy and they would not want them to be treated badly. I had nothing
but supportive comments from my constituents after I dealt with the
Gareth Myatt case, as they understood that what had happened to that
young person was wrong. Equally, they would want the kind of behaviour
that leads a young person to be given an ASBO to be dealt
with.
Although I have
enormous regard for the points being made and for the organisation
behind the amendments, we need to ensure that we deal with the
offending behaviour as well as dealing with the welfare of the young
person while they are in the court system. We must try to ensure that
we break the appalling cycle of repeat offending and disadvantage,
which is what takes these children round and round the revolving doors
of the criminal justice system, until they do something really horrible
and end up with a long sentence in an adult prison. On that basis, I
oppose the
amendment.
David
Howarth:
There are two main differences
between the amendment and the clause as it stands. One is the matter
that the hon. Member for Northampton, North just referred to, which is
the primary regard of the system. The other is the purposes of
sentencing. I want to mention a couple of points on each
issue.
On
the first issue, perhaps the difference between the two versions of the
clause is not as great as the hon. Lady suggested. It is not in the
interests of a young person, in terms of their welfare and well-being,
to be an offender. The amendment would introduce broader considerations
alongside that fundamental consideration. I do not think that anybody
believes that allowing a young person to remain in a state where they
repeatedly offend can possibly be in their interests.
My second point concerns the
purpose of sentencing. The difference between the amendment and the
existing clause is that the amendment would miss out the punishment of
offenders as the first mention of the purpose of sentencing, but it
would leave in the other three purposes: the protection of the public,
the reform and rehabilitation of offenders and the making of reparation
by
offenders.
Mr.
Hanson:
This goes to the nub of the
differences between us. Does the hon. Gentleman feel that the 64 young
people who are currently in offender institutions because of the crime
of murder should not be
punished?
David
Howarth:
The question is whether there
is any point to punishment that is not protecting the public, reforming
or rehabilitating, or making reparation. In the cases referred to by
the hon. Gentleman, presumably the public are being protected. That is
presumably why the young people have been sentenced in the way that
they have. No one is arguing that the protection of the public aspect
of sentencing should be removed, and it would be wrong for the Minister
to suggest that that is part of what we are saying. The protection of
the public is in the amendment. What is not in the amendment is
punishment that does none of those other three things. What is the
point of punishment that does not protect the public, that does not
rehabilitate and that does not repair the
damage?
Mr.
Hanson:
The amendment tabled by the hon. Gentleman would
remove clause 9(4)(a). I take the view, as I think my hon. Friends
would, that whatever the circumstances regarding reoffending, the need
to protect the public and reparations required of offenders, there has
to be an element of punishment for those individuals who have committed
crimes—in some cases horrendous crimes of murder. If the hon.
Gentleman takes his case to the general public and argues that the
murderers of Jamie Bulger should not be punished as well as
rehabilitated, he will find himself on the wrong side of the argument
with the public at large.
David
Howarth:
The question is what the purpose is of
punishment. The purpose of punishment in those cases is the protection
of the public. For the Minister to suggest that Opposition Members
favour murder, which is what he seems to think, is absurd. All we are
saying is that it is for the Government to say what the point of a
punishment is, not to refer to what other people might think, but what
the Government and Labour Members themselves believe to be the purpose
of punishments that do not fulfil any of the other three
functions.
Alun
Michael (Cardiff, South and Penarth) (Lab/Co-op):
During the course of sentencing I was always
primarily focused on the three elements that the hon. Gentleman
mentioned; in other words, on having a constructive purpose to the
decision that is taken. However, if he takes the trouble to ask young
offenders, including some of the most difficult and prolific offenders
in the land, whether they think that there should be punishment when
something wrong is done, he will discover that he is in a very small
minority in suggesting that punishment should be cast to one side as
not relevant. He is making a
mistake.
David
Howarth:
I would be glad to be in a minority of young
offenders, although I am not a young offender, as I hope that the hon.
Gentleman will realise. The question is still for him to
ask— [
Interruption.
]
Alun
Michael:
No, the hon. Gentleman has missed the
point.
David
Howarth:
The hon. Gentleman should not refer to what other
people believe, but he should answer as a sentencer what the point of a
sentence would be that did not protect, repair or rehabilitate; it does
not have to be all three of those things, but at least
one.
Alun
Michael:
I was making the point that those who commit
offences understand full well that there will be, and expect there to
be, a punishment. Young offenders can be among those who are the most
critical of their friends if they commit offences. In the wider scheme
of things, to follow what the hon. Gentleman is saying, it would have
to be shown that a specific decision leads to prevention, whereas, the
general fact that there is punishment is important in creating an
environment in which it is understood that there is cause and
consequence, and that a punishment follows
offending.
David
Howarth:
The purpose, ultimately, is to protect the
public. The hon. Gentleman is reading more into the clause than is
there; it is still part of the purpose of the sentence to protect the
public in those circumstances. The fundamental point is that one of the
things that stands out about British society compared with almost all
of the rest of the world, except, perhaps, the United States, is the
profound degree of punitiveness that characterises our society, as we
have heard today. What do we make of that? What do we do about that as
policy makers?
The
irony is that one of the clearest causes of crime in a young
offender’s background is having been subject to a punitive
parenting style. The same characteristic that makes our society
punitive is the one that generates, in large measure, the crime that we
are trying to
prevent.
Ms
Keeble:
Will not the hon. Gentleman accept that he is
confusing punishment with some kind of physical chastisement or more
severe sanction? It seems perfectly logical that if society sets
boundaries beyond which people are not supposed to go, the most obvious
one being murdering people, someone who breaches those must receive a
sanction. Wider society expects that in order for it to be confident in
the criminal justice system. A young person will only learn how to
behave if they understand that if they go beyond that boundary, there
will be a sanction of some sort. We are not a particularly punitive
society. Our penalties are probably less severe than in the majority of
other
countries.
David
Howarth:
I am afraid that research is
against the hon. Lady. We do not have a clause saying that the purpose
of sentencing is sentencing. The courts impose sanctions on people; the
question is what the purpose of that activity is. Our clause meets the
requirements of putting forward purposes for sanction. It makes no
sense to say that the purpose of punishment is punishment. That is
ultimately what our amendment alters in the
Bill.
Mr.
Burrowes:
I speak to amendments Nos. 135 and 9, tabled in
my name and those of my hon. and learned Friend the Member for
Harborough and my hon. Friend the Member for
Ruislip-Northwood.
We
could debate the purpose and principles of sentencing at length. But it
is also important to look at the practical reality of the impact on the
courts. The statutory duties to prevent offending were explicit in the
Crime and Disorder Act 1998. For the first time, a duty to prevent
offending was imposed not just on the courts but on all those involved
in the criminal justice system, which included practitioners and
solicitors. It meant that those solicitors who were defending their
clients and acting in their best interests also had a primary duty to
prevent them offending. That was a good duty and it is repeated in
clause 9. The clause also repeats the purpose of sentencing, which is
aligned to those purposes relating to over-18s. That is quite proper.
The principle that justice should be the same and should be seen to be
achieved both in relation to the victim and the offender, regardless of
age, is
right.
3.30
pm
Mr.
Hanson:
May I give the hon. Gentleman the same opportunity
that I gave the hon. Member for Cambridge? In seeking to amend the
clause, does he think that people who have murdered and are currently
residing in youth offender institutions should not have punishment as
part of the purpose of their
sentence?
Mr.
Burrowes:
I am grateful for that intervention. It is
probably one of the easiest ones that I have had from the Minister. Of
course the answer is yes— [
Interruption.
]
If I can complete my reply, it depends on the context in which we look
at the purposes and whether the purposes need to have a focus and need
to underlie the sentencing regime. The implicit point of any sanction
is punishment. The point of prisons is punishment. If the argument put
forward to rebut the amendment is that removing punishment as a purpose
of sentencing inevitably mean removing prisons, that is obviously not
so—prisons are there to punish as much as any other sanctions in
the court system. The important point when one looks at punishment is
to look at what it achieves and at what sentencing, which in its very
nature is punishment,
achieves.
Ms
Keeble:
We can get very involved in semantics here. How
would the hon. Gentleman explain to one of his constituents that
punishment pure and simple is not required to ensure that people have
confidence in the criminal justice system? There are all the other
worthy things too. But when he is dealing with a constituent who is a
victim of crime how will he explain away the idea that punishment means
punishment?
Mr.
Burrowes:
The way to answer that is very
simple. Punishment obviously forms an inherent part of the criminal
justice system. The purpose of this amendment was to probe whether we
are achieving the purposes of sentencing on the ground. We need to
focus on those areas of reform and rehabilitation of offenders and the
protection of the public. We also need to look at the context in which
offenders come to court and how they are dealt with in family courts.
There is reference to
acting in the children’s best interests. Many clients come
through to the youth courts. Are the social welfare gaps that the hon.
Lady described being plugged by the youth courts? Unless such children
come within the statutory definition of a child in need, there are
often gaps in that system which are not dealt with properly.
Often a case will involve a
young person with special educational needs or family issues such as
abuse in the home or housing needs. If they come before the court for,
perhaps, a more serious offence but the courts are keen to deal with
matters speedily, particularly given the present guidelines for speedy
justice, the reality is often that the background of the offending is
not properly considered in depth. Often, all the needs of a child
attending court for the first time are not taken into account and
properly considered, and the effect is
limited.
When
discussing sentencing and justice, we need to take account of
reparation. That is the purpose of amendment No. 9. The courts often
give limited attention to reparation. On earlier clauses, we had
debates about restorative justice and the progress and improvements
that have been made, but unless restorative justice involves not just
conferencing and challenging offenders’ behaviour and their
relationship to victims, and unless that is seen in relation to proper
restitution and making of amends, its effects will be limited. That is
why the amendment seeks to include in proposed new subsection (1)(4)(d)
the words
“financial
compensation or other
appropriate”
before the
words
“reparation by
offenders to persons affected by their
offences.”
The
reality is that the number of financial compensation orders made in
youth courts is limited. The latest figures, which are for 2005,
suggest that 22,511 orders were imposed, but there are no centrally
collected figures to indicate how many were enforced and
collected.
Many people
consider that basic justice should involve people paying for their
crime and properly making amends, but they do not see that as the
reality. For example, offenders who commit property or shoplifting
crime do not accept that there are any victims. The horrible expression
“victimless crime” has come into common parlance but it
is something that one should treat with great caution. The concern is
that offenders who commit such offences do not understand that they
properly need to make amends for
their crime.
Let
us take the example of a prolific burglar who committed robberies in
the Enfield area. When he got into robbing local petrol stations, he
did not see a victim. As far as he was concerned, petrol stations were
fair game. He considered them to be part of an institution and not
bodies with which the concept of victim could be associated. He
certainly did not think that he should make any amends. The sentences
that he received during the years of his criminal life did not truly
require him to pay back the victims of his criminal
behaviour.
We
have all spoken about reparation. The purpose of amendment No. 9 is to
make the point explicitly that it must include financial compensation
or other appropriate reparation. That crucial element must become a
reality.
I ask the Minister to explain how the justice system will ensure that
reparation means what it says and involves the financial compensation
that many victims often
want. We have
discussed welfare issues, which are already a statutory duty, and the
suggestion that we should extend the duty to well-being, and broaden
the issues of which the court needs to take account with regard to
children. But the general concern of the public in respect of the
justice system is that victims are not included in discussions on
sentencing. The public want people to pay for their crime, and they
often want financial payment. It is important for there to be reality
in the purpose of sentencing, which is why we tabled the
amendment.
Mr.
Walker:
I have been in this place for two and a half years
and I still do not have a clue how to navigate my way around a Bill.
Proposed new subsection (1)(4)(d) refers
to
“the making of
reparation by offenders to persons affected by their
offences.”
It is
important that people in our communities see that those young people
responsible for making their lives miserable and for destroying the
environment in which they live are making financial reparation for the
harm and offence that they have caused. Like many hon. Members, I
attend public meetings at churches and community halls in which we
discuss antisocial behaviour. There is a strong desire among the public
for financial
reparation.
As I said
on Second Reading, when a group of youngsters are caught smashing up a
bus shelter for the first time, they must pay for the repair of that
bus shelter. I note that the provision refers to the making of
reparation by offenders
“to persons affected by their
offence.”
It should refer
to persons and organisations. The bus shelter would be owned by an
organisation. If the youngsters smashed up the bus shelter a second
time, they should pay for the repair—although it would probably
be their parents who pay—and receive a fine. In the case
of it being smashed up a third time, the youngsters and their parents
should appear together at the magistrates court. It is not on for young
people to be recidivist offenders without their parents taking an
interest in them and the reason behind their
actions.
Ms
Keeble:
The hon. Gentleman has particularly strong views
about violence against women with which I agree absolutely. I also
agree with him about reparation for minor crimes, but is that
acceptable for major crimes such as violence against women? If people
say that they are sorry for their actions, does he believe that they
should be allowed to go unpunished? Does he accept punitive
sentencing?
Mr.
Walker:
The hon. Lady draws me into a completely different
area. People who commit violence against others should be incarcerated,
so that they do not continue to pose a risk to law-abiding
members of society. While they are incarcerated, the underlying
cause of their violent behaviour should be addressed, be it their
addictions, their mental illness or whatever.
As for youth offending, it is
important that, when culprits are identified, they are not just given a
warning and told not to do it again. They must be made responsible for
their actions. Parents must also be made responsible for the actions of
their children. If my children were caught smashing up the local bus
shelter—and I hope to God that they would never do such a
thing—and I was told that it would cost me £500 to repair
it, I would make damn sure that they did not do it a second time. The
Bill must allow for that to happen and place responsibility on parents
for the actions of young children. Until they take an interest, we will
not get to the bottom of the
problem.
The
Chairman:
Before I call the Minister, I say to the hon.
Member for Broxbourne that a learned Clerk is sitting on my left, and
the Department of the Clerk of the House is here to help all hon.
Members. If he wants to be shown around a Bill, I assure him that those
in the Department can lead him a merry
dance.
3.45
pm
Mr.
Garnier:
I want to intervene briefly because the sedentary
chatter that has been going on might have disturbed the general
direction of the debate. I do not want to appear more pompous than I am
usually. Many hon. Members will find that impossible.
However, I wanted to try to
draw us back to the purpose of the Bill and the purpose of this
particular debate. I do not think that we need to get over-excited
about the points that have been made by people from sedentary
positions, when they say, “Oo-er, you have removed the word
‘punishment’”; that is a given. It seems to me
that the purpose of tabling this amendment and having this debate is to
ensure that we realise that the system is not just about punishment but
about disposing of young offenders’ crimes with greater purpose.
I do not think that that can be controversial; I am sure that the new
Labour party is very keen on punishment nowadays. I am also sure that
we all agree that punishment is a necessary part of the criminal
justice system.
However, we need to stress that
punishment by itself is not enough. The Minister and I have had debates
about this issue, in relation to custody. Sending somebody to prison
and doing nothing more is not enough; giving someone a young offenders
institution sentence and doing nothing more is not enough; sending
someone to a secure training centre and doing nothing more is not
enough. I suspect that the purpose of the amendment is to get us to
engage our thoughts about the whole breadth of purpose of the
sentencing system.
I
would have thought that those views are utterly uncontroversial. We all
know that, even if this matter were pressed to a Division, the
Government would have their day. So what? I think that we can be a bit
more grown-up about what we are discussing. Let us enjoy the fun of the
late Thursday afternoon and tease each other about whether the word
“punishment” is in or out, but let us also be serious
about what we are trying to achieve and let us hope that no Government
Minister will concentrate too much on what he thinks is a good debating
point and instead concentrates on the substance of the
issue.
Alun
Michael:
The hon. and learned Member for Harborough has
tried to row back from some of the discussion that has been going on in
this debate today. However, it is very important indeed that we
recollect something that has been referred to in this debate; that it
is the purpose of the criminal justice system, particularly in relation
to young offenders, to prevent reoffending. If a youngster offends,
there is damage to the victim, whoever that is, to the wider community,
very often to the offender’s parents and family, and certainly
to the offender themselves, in terms of their future prospects. So it
is in nobody’s interests that there should be
reoffending.
However,
in seeking to discourage offending and reoffending, it is very
important indeed that the message gets across that if someone offends
they will get punished.
[
Interruption.
]
Alun
Michael:
It is that message that Opposition Members sought
to resile from in this amendment. I think that they may have muddled
themselves; they may not have intended to do that. However, that is
what they did.
It is
also important, when deciding on the individual sentence and how a
youngster is punished, that other decisions are taken that will help to
get the youngster out of a pattern of offending and that they are taken
constructively. That is why the provision in the Crime and Disorder Act
1988 was put in place, and a very wise one it was, if I may say
so.
Opposition Members
need to recognise that it is important, from the point of view of
offenders or possible offenders, and also from the point of view of the
public, in terms of their confidence in the criminal justice system,
that we do not put the line through the word
“punishment”. It is not the same as the word
“punitive”. The word “punitive” means
punishment that is excessive in relation to the offence, and punitive
measures are not terribly constructive in helping to prevent
reoffending. I think that Opposition Members, in instigating this
debate, have simply demonstrated that they are a bit muddled about the
English language.
Mr.
Burrowes:
It is important to have a grown-up debate about
these important issues. I heard the right hon. Gentleman say that he
was concerned that the criminal justice system should prevent
reoffending. The amendment seeks to include reoffending, but no one is
suggesting that anyone, in any part of the House, wants to put in place
measures that will make it easier to reoffend. We are almost getting
into a debate over whether to include a phrase saying that we are
against that certain principle. He seems to want to make it clear in
the clause specifically that we want to stop
reoffending.
Alun
Michael:
I am glad that the hon. Gentleman has had the
opportunity to clarify his
position.
David
Howarth:
Is not an alternative view of the meaning of
punitive, that it is punishment that does not have a purpose? The
amendment is trying to make it clear that punishment should have a
purpose.
Alun
Michael:
I do not think that that is the case. I think
that that is a gross over-simplification. Punitive means a punishment
that is excessive and inappropriate. That is the simple
definition.
Mr.
Hanson:
I am grateful to have had this debate. I fear that
I will disappoint the hon. and learned Member for Harborough in my
response. The issue is not about having a childish debate. These are
very serious issues. I have looked at the amendment and at the clause.
I am a simple man and have been here for only 15 years. I still
occasionally look at Bills and decide how we can amend them, just as
the hon. Member for Broxbourne has done after two and a half years in
this House.
It is
clear to me that under the clause, the words “the punishment of
offenders” are there as the first purpose of sentencing. That is
associated with the issues on which we all have some agreement, such as
that we must reform and rehabilitate offenders, protect the public and
seek reparation. Simple man though I am, I look at the amendment and
see that the first purpose of sentencing is
“the reform and rehabilitation of
offenders”.
The words
from the Bill—“the punishment of
offenders”—are not
present.
The amendment
was tabled by the hon. Members for Somerton and Frome and for
Cambridge, the hon. and learned Member for Harborough, the hon. Member
for Enfield, Southgate and the hon. Member for Ruislip-Northwood, who
has just come in and has missed a very interesting debate. I
congratulate the hon. Members for Broxbourne and for Kettering for not
putting their names to the amendment. I think they will find that that
will curry favour with their constituents at some
point.
I am
astonished, rather like my hon. Friend the Member for Northampton,
North and my right hon. Friend the Member for Cardiff, South and
Penarth. There needs to be an element of punishment. There needs to be
an element of boundary also, but there must be some consideration that
there will be punishment. Whatever well-meaning words the Committee has
heard, the amendment does not put in the words that the purpose of
sentencing is “the punishment of offenders”. It
would delete those
words.
I simply say to
the Committee that I hope that the Liberal Democrat Members press the
amendment to a Division because I know that my hon. Friends will take
great pleasure in voting against it. I do not ask them to
withdraw it, but challenge them to put it to a Division. Let us see
what the Committee thinks of that
motion.
Mr.
Burrowes:
The Minister interestingly put a primacy on the
function of punishment. Does he put it ahead of paragraphs (b), (c) and
(d)?
Mr.
Hanson:
Punishment is important. The first point should be
punishment. We need to look at rehabilitation and the prevention of
reoffending, but ultimately, I can only defend to my constituents that
an element of punishment
is— [
Interruption.
]
The
Chairman:
Order. We have been sitting for nearly three
hours and I have been in the Chair for three hours. Personally, I
believe that this debate has been taken as far as it should have been
taken, but I am the servant of the Committee. I advise the Committee
that if it goes on much longer, I will suspend proceedings because I
believe that three hours of debate without any break is long enough. I
warn the Committee that quite shortly I shall suspend proceedings for
at least 10
minutes.
Mr.
Hanson:
I hope to complete my remarks before the stroke of
4 o’clock at the very
latest.
David
Howarth:
Will the Minister give
way?
Mr.
Hanson:
I would rather complete my remarks, if I
may?
David
Howarth:
This is a serious point about the legal
interpretation of the clause, to get away from the politics and back to
how the courts will read the clause. The Minister was just saying that
the clause should be read in order, so that an aim that comes first is
more important that an aim that comes afterwards, and that is a
hierarchy. For the sake of Pepper v. Hart, was that the
interpretation of the clause that the Minister
intends?
Mr.
Hanson:
All aspects of clause 9(4) are important, but I
emphasise that the punishment of offenders is equally important. If the
amendment is passed, that will not be in the Bill. I want to see the
prevention of reoffending, the protection for the public and
reparations. However, I also want individuals to know that they will be
punished for the crimes that they undertake, particularly serious
crimes. I can concur no more than with the
statement:
“The
purpose of punishing criminals is to deter crime and to send a clear
signal that it is
wrong.”
That is from the
Conservative party’s 2005 manifesto. The signal that the
amendment would send on the purpose of sentencing would be entirely the
wrong signal.
A
couple of other points were made during the debate. My hon. Friend the
Member for Leyton and Wanstead suggested raising the age to 19. I think
that that would confuse matters and respectfully tell him that I cannot
concur with it. Doing so would confuse the courts by crossing the
established boundary between youths and adults in youth
offending.
Some hon.
Members have also mentioned the question of reparation. I do not
consider that financial or other compensation needs to be directly
referenced in the Bill. If hon. Members look at section 1(30) of the
Powers of Criminal Courts (Sentencing) Act 2000, they will see that
courts already have a separate power to order any offender to pay
compensation.
Mr.
Walker:
All I suggested was the making of reparation by
offenders to persons affected by their offences. Would the Minister
consider adding, “persons and
organisations”?
Mr.
Hanson:
I will reflect on that. That is an amendment that
the hon. Gentleman could have brought forward.
I say to the hon. Member for
Cambridge with regard to new clause 14, that, while we have had a
gentle debate around the issues of the initial amendment, I accept that
it might be worth while including the words “including
reoffending” in the Bill. I will reflect on that and potentially
bring back a clause or amendment on Report.
I hope that the hon. Member for
Somerton and Frome will put amendment No. 135 to the Committee, because
I know that my hon. Friends would be grateful for the opportunity to
vote on it.
Mr.
Heath:
We have had a debate that was in part constructive
and sensible and in part deeply depressing for its unoriginality and
preoccupation. I had hoped that we might have had a sensible
debate about the purposes of sentencing and a proper consideration of
the attitudes that the Government have clearly expressed many times on
how to deal with the child. The hon. Members for Leyton and
Wanstead and for Northampton, North certainly touched on
that.
The hon. Member
for Northampton, North did not agree with the terms of my amendment,
and I accept that. She said, quite rightly, that the matters that I
wanted to ensure were taken into account before the point of going to
court and that there is a much greater duty on the agencies
that deal with the child before they come into the criminal justice
system and on the penal system after sentence than we sometimes
understand or recognise. I do not disagree with her at all. I simply
say that the court is a convenient point at which stock take can be
taken of all the things that should have been done by those agencies.
Using the sentencing procedure and bringing it into the same context as
the process that occurs in the family courts is an opportunity to see
whether the right support is being given to that individual for
the purposes of preventing reoffending and protecting the
public. That is what the penal system is
all about.
After
what was quite a sensible debate on that, we had this absurdity of
deciding whether the purpose of punishment had to be punishment. What a
nonsense of a debate. Labour Members were saying that they wanted the
first principle of punishment to be punishment. It was as if the
purpose of the Bill was to make a Bill. If that was the way that the
short title started I would be right to say that those words should be
deleted. The purpose of sentencing is punishment because sentencing is
punishment. As we say in amendment No. 135, sentencing is to ensure a
proportionate response to offending behaviour. A sentence is not
exerted unless it is punishment, but that punishment must have purpose.
The present Prime Minister used to say when he was Chancellor,
“prudence with a purpose.” Everything must have a
purpose. What we are trying to establish is the purpose of punishment
and sentencing. That is why I so deplore the way in which we have
descended into such a futile debate, simply because some thought that
they might be able to secure some petty political advantage. I
have
not got the slightest intention of prolonging this debate any further. I
find it very sad that we cannot have a serious debate about the
purposes of sentencing in this Committee without people making utterly
futile points. I therefore beg to ask leave to withdraw the
amendment.
Question
put, That the amendment be
made:—
The
Committee divided: Ayes 2, Noes
9.
Division
No.
1
]
Question
accordingly negatived.
The
Chairman:
The way in which the Committee has been
debating in the past few minutes indicates that a three-hour sitting
may be a little bit too
long.
Clause 9
ordered to stand part of the
Bill.
Further
consideration adjourned.—[Mr.
Khan.]
Adjourned
accordingly at
four minutes past Four o’clock
till
Tuesday 20 November at half-past Ten
o’clock.
| 
