Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 60-79)



Mr Shepherd

  60. Parliament has never voted on this. It has never agreed to it by vote.
  (Mr Denham) No.

  61. You are telling us prerogative power should rule?
  (Mr Denham) I am saying if you are looking at the question of whether this legislation is being taken into action effectively I am defending certainly the rights of the Houses of Parliament to do so.

Lord Lester of Herne Hill

  62. I think you are saying, Minister, if I could add, you think the Rights of the Child Convention is vaguer than the European Human Rights Convention and therefore it cannot easily be incorporated into domestic law?
  (Mr Denham) I think there would be some difficulties. It covers a much wider range of areas. There would be some very similar points also covering similar protections of rights expressed in different language. I am not a lawyer, I have to say this, but it seems to me there will be some difficulties in doing so.

Mr Shepherd

  63. The European Court takes it into its mind when making judgments?
  (Mr Denham) As do domestic courts.

  64. Therefore it is being applied indirectly to the law of this land?
  (Mr Denham) Right, indirectly. Certainly there have been cases where judges have referred to the Convention—and this is not the legal language but as I understand it—as a relevant piece of background information, something which gives them some indication of the values, I suppose, against which they should be making a judgment. I believe it has been used in that way, yes.

  Mr Shepherd: How is that democratic? You said it was democratic.

Lord Lester of Herne Hill

  65. Can I suggest a way?
  (Mr Denham) I am happy to sit back.

  66. I think I can help my colleague. The courts work on the presumption that Parliament when it legislates does not intend deliberately to flout Treaty obligations. It presumes when legislation is ambiguous that you give it a meaning which accords with the Rights of Child Convention if it is reasonably possible to do so. In that sense they are fulfilling their role of applying the law in a way which conforms with international law.
  (Mr Denham) I am sure that is what my brief says though not as eloquently as Lord Lester, thank you.

Vera Baird

  67. Juvenile justice, Minister, if we could consider that. One of the recommendations of the Committee was that the UK should "considerably raise the minimum age for criminal responsibility". We have the lowest in the European Union at present, the age of ten in England and Wales and Northern Ireland and eight in Scotland. Does the Government intend to follow that recommendation and review whether the age of criminal responsibility might not be raised to match other countries in the EU?
  (Mr Denham) Yes. I do not think we have plans at present to raise the plans of criminal responsibility. It is not for me to answer on behalf of the Scottish Parliament either but personally I am not aware of plans by the Scottish Parliament to raise the age of criminal responsibility.

  68. The Scottish Parliament, thank you, but would you say there are no plans in our government to do so despite the recommendation?
  (Mr Denham) Not at present, no.

  69. I know the government—turning to a different approach, perhaps, to the same concerns—and you have announced yourself the need for preventative plans for young people starting from next April.
  (Mr Denham) Yes.

  70. Local councils will have to produce plans showing how they are going to try and tackle potential criminals and deflect them. I think that covers the ages seven to 13. Can you tell us more about that? What action is being taken to develop alternative and more effective methods for prosecution to make children responsible for their criminal behaviour?
  (Mr Denham) There are a wealth of answers to that. Let me touch on the main ones. We have asked local authorities to work together to put together clearer preventative strategies for young people at risk. That is not just young people at risk of offending but young people who may be at particular risk of becoming drug abusers or young women who may become pregnant, unwanted pregnancies at an early age. We have backed that up by allocating part of the growth from the Children's Fund to working with those local authorities to have identification and referral and tracking systems for young people so we can identify as many as we can of those young people at risk and therefore to be able to have a preventative intervention at an early stage. The Prime Minister announced recently that we will be publishing a Green Paper in the spring taking those basic building blocks further, again looking not just at young offenders, I need to stress, but the wider age of young people who are at risk. We have instituted already a range of preventative measures, some of which have legal force, some of which do not, but, for example, parenting orders which are proving successful where they have been used in working with the parents or families of young offenders and those who are getting into other sorts of difficulties, giving parents support in bringing up their young people with the hope of diverting them away from offending or whatever type of risk it is they are facing. What we want to do is look at how we can build on the measures which are in place already to address the needs of these young people better. I think the starting point for much of what we do is a feeling that there is a set of young people who are often known to schools, maybe known to the police and social services but the different agencies are not co-ordinating their interventions at an early enough age and at the moment we end up dealing with those young people when they have entered the criminal justice system; that is the area that we need to address. On the age of criminal responsibility, can I just pick up a point there. One of the issues, therefore, that we have to weigh is that one of the things you can sometimes do through the criminal justice system is to ensure there is some sort of intervention in the young person's life, either what you do with them or what you may do with their parents, for example the implementation of the parenting order may follow from a case taken through the criminal justice system. I think it is very important to make sure that we have the ability to get effective preventive interventions in place and, on occasion, having the gateway through the criminal justice system can support you in doing that. It is not purely about the age at which punishment, if you like, kicks in, it can be the ability to take effective measures which may include sanctions but may well include supportive measures too.

  71. There was a debate in Westminster Hall in October about the Convention on the Right of the Child and I asked you then—I do not know if you recall—about what I saw as an inequity of treatment between young offenders facing serious charges in the crown court and the protections which were given to child witnesses. You said—let me read it because it is a cause of some vanity to me—that I had ". . . raised some important and well informed points about young offenders facing serious charges . . ." but, seriously, you went on then to say they included points on which you would like to reflect and I wonder if you have had a chance to reflect?
  (Mr Denham) I have to some degree, at least. When they were raised in Westminster Hall they were issues because I do not deal directly with this area of policy, which had not been put to me previously.

  72. Yes.
  (Mr Denham) I think we have made, as you acknowledged, some changes to the way in which the courts operated for defendants. I have not reached the conclusion since the debate that we should do more than we have done currently. I do feel—I have to say this is not on the basis of a lengthy reconsideration—that the issues are slightly different. On the one hand we are setting out to making sure that courts are not run in such an intimidating way that a young defendant cannot give a proper account of themselves, understand the procedures and the rest of it and the measures we have taken throughout the criminal justice system to protect vulnerable and intimidated witnesses who are in a position of possibly having to give evidence against somebody who may have been responsible for a serious assault, for example, or something of that sort, the two issues are not precisely the same. I am not sure I am convinced at the moment we need to go further on the position of young defendants. The old committee, of course, did recommend a strengthened youth court with a judge with two experienced magistrates to try young defendants who were accused of grave crimes. We have consulted on various options in the White Paper which we published last summer, particularly looking at the problematic issue of what you do about an older juvenile who is co-accused with an adult. I am not able to announce our conclusions today but I hope we can do so before too long. There were specific issues in the White Paper which we did commit ourselves to look at and which were raised with us by Lord Justice Old.

Lord Lester of Herne Hill

  73. Can I ask a supplementary. Has the department, Minister, looked at why we have such a low age of criminal responsibility compared with other democracies in Europe and what the experience of those other countries is compared with ours in having a higher age of criminal responsibility?
  (Mr Denham) I think the reason they have is that it has evolved in that direction through a mixture of the view of the public and the judgment of politicians about the right age which enables the criminal justice system to sanction effectively. What I think we recognise is that there is no uniformity across Europe about the level of the age of criminal responsibility and that the criminal justice systems seem to operate quite differently in a number of different countries, indeed the Scottish system is quite different in many respects from the English system for dealing with young offenders. One of the things we will want to look at as part of the Green Paper which I talked about earlier is whether further changes are needed to the way in which we run our youth justice system. I do not anticipate at the moment—but this is early days—addressing necessarily specifically the issue of criminal responsibility but it may be there are other changes we need to make to make sure we are more effective at stopping people becoming long term persistent young offenders which we will need to make through that Green Paper.

Vera Baird

  74. Can I leave the topic that I was pursuing with you, Minister, about the protections for young offenders with just this thought: children are treated as automatically vulnerable witnesses entitled to and indeed needing all the protections that are given to them and it is very odd in that context that a defendant who is a child who gives evidence is not entitled to any of them.
  (Mr Denham) No.

  75. Children in custody, if we can go further on through the criminal justice process, when a young person has lamentably got into it. I think the Committee was pretty concerned, also, that a lot of children between 12 and 14 were being deprived of their liberty now in the UK and they were very concerned at increasing numbers of those children at earlier ages, it seemed to them, certainly for lesser offences and for longer sentences. In particular they drew attention to the impact of the detention and training orders. What steps will the government take to ensure that the courts are aware that imprisonment of children must be only a measure of last resort for the shortest appropriate period of time?
  (Mr Denham) The guidance which goes out to the youth courts, which is the guidance issue by the Judicial Studies Board, does make it clear that custody should be considered only for offences of high level seriousness but also taking into account the risk of reoffending. We have been developing a range of alternatives to custodial sentences, including intensive supervision and surveillance orders, for example, which are designed to be an alternative to custody but also to deliver some of the support and the structured response to the needs of the young person which are needed. I think we have to recognise, though, that there are rights of other young people who have been the victims of crime who are rarely spoken about and rights of the wider community on occasion to be protected from young people who will otherwise be serious offenders or serious repeat offenders. I think if you look at our strategy overall you can see that the Youth Justice Board in particular has introduced a range of measures which are intended to give the courts alternatives to custody which they can use where appropriate.

  76. I can tell you that in the area of Redcar, my own area, ISSOs seem to have been highly successful.
  (Mr Denham) Yes.

  77. Is there a case for looking at detention and training orders and perhaps reforming their procedures?
  (Mr Denham) They are relatively new and the idea behind detention and training orders, as the Committee will be aware, is really to try to make sure that we bring a more structured approach into the education and training and supervision of young people than would happen normally in a traditional detention in a young offenders institution. I think it is much too early at the moment to suggest that some radical changes are needed to the detention and training orders because I think they are an attempt to improve the type of treatment that a young person gets when it is necessary for them to have a period of custody.

  78. Your approach is really to say they must stay there as a backdrop but they are improving non custodial models very quickly in a very diverse way?
  (Mr Denham) We are trying to address this right through the system. We are trying to have better early prevention. We are trying to have better ways of dealing with young people so, for example, referral orders which take place when somebody pleads guilty to a less serious first offence which now goes to a community panel. We are trying to have better alternatives to custody through the ISSPs and then, also, you have detention and training orders which are trying to ensure the custody is more likely to reduce the risk of reoffending because there is a much better focus on well planned time both in custody and also the support that is there after release. We have been trying to improve every element of the system of youth justice sentencing.

  79. Looking then at children in custody, I think you said in answer to Hilton Dawson in the same Westminster Hall debate that whether or not the Children Act applies to children in custody—and I am quoting you now—". . . the welfare, care and needs of young people in young offender institutions are central to what the government wants to achieve". If that is so, setting aside whatever the outcome of the current case is, should the government not take action to provide that the Children Act does apply in these circumstances giving statutory recognition to your own objectives, as it were?
  (Mr Denham) I think I will skirt around the legal action, if I may, Chairman. Let us remember the action that is being taken. We are moving well on the target towards 30 hours of education a week in young offender institutions. We are making good progress to that target which should be in place by March 2004. If you take, for example, the area of education, I think we can demonstrate that irrespective of whether the law does or does not apply we are making moves in the right direction. There have been very significant efforts made over the last couple of years to improve the risk assessment, the health support, for example, that is there to reduce the risk of suicide which is a major issue, obviously, in young offenders institutions. I think we are in a position here where we can say the government is undoubtedly acting, whether or not it is compelled to by law, we are doing it because we recognise the needs of these young people.

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