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Baroness David moved Amendment No. 237C:

Page 48, line 6, leave out ("child or").

The noble Baroness said: In speaking to this amendment I shall also speak to Amendments Nos. 238, 239, 240 and 242. Amendments Nos. 237C, 239 and 240 would restrict the making of detention and training orders to offenders aged 15 and over. Amendments Nos. 238 and 242 would restrict detention and training orders to those aged 12 and over.

Clauses 60 to 65 introduce a new detention and training order for 10 to 17 year-olds. Initially it will be introduced for 12 to 17 year-olds, but there will be a power for the Home Secretary to extend it to 10 or 11 year-olds by laying an order before Parliament at a later date. After sentence, the offender could be accommodated in Prison Service custody, local authority secure accommodation, a secure training centre or a youth treatment centre.

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We agree that there is a strong case for rationalising the courts' present complicated powers to detain juveniles. However, we are concerned that, in the case of offenders aged under 15, giving the courts strengthened powers to order detention could produce a sharp and undesirable increase in the detention of children, most of whom would be better dealt with by supervision in the community.

At present, courts can pass sentences of detention in a young offenders institution on offenders aged 15 and over. For that age group the new sentence would simply replace the existing power. However, it would significantly increase the court's powers to detain young people under 15. Offenders aged 10 to 14 can currently be sentenced to long-term detention under Section 53 of the Children and Young Persons Act 1933 if they commit an offence carrying a maximum penalty of 14 years (or more when committed by an adult); be sentenced to a supervision order with a "residence requirement" which requires the local authority to place the young person in local authority accommodation (where necessary, secure accommodation can be used) for a specified period of up to six months; or be taken into care through civil care proceedings if they are out of control and, if necessary, held in local authority secure units. We consider that this range of powers is adequate to ensure that juveniles can be detained wherever that is genuinely necessary, and we are very concerned about widening courts' powers to detain this age group.

The courts' powers are to be extended in two phases. First, in April this year, the Government will introduce the Secure Training Order, a new custodial sentence for 12 to 14 year-olds which was part of the last Government's Criminal Justice and Public Order Act 1994; and the Detention and Training Order contained in this Bill will then supersede it.

Past experience shows that removing young people from family and community life is likely to magnify their difficulties. Not only is the normal maturing process interrupted, but reintegration back into normal life presents great difficulties and can lead to long-term problems. All forms of institutional care or custody for young offenders have high reconviction rates; 89 per cent. of juveniles leaving Prison Service custody are reconvicted within two years.

However, high reconviction rates are not restricted to Prison Service establishments: they are also common to other forms of institution. Research into the effectiveness of approved schools (and community homes with education, as they subsequently became) indicates that they increased rather than reduced the likelihood of re-offending. The 1975 edition of the Home Office Handbook, The Sentence of the Court, showed that 65 per cent. of first offenders and 78 per cent. of offenders with previous convictions who were given approved school orders were reconvicted within five years. When the characteristics of offenders were taken into account, those leaving approved schools had a reconviction rate 49 per cent. higher than would otherwise have been expected from their characteristics and records.

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Even institutions which adopt constructive regimes invariably produce high reconviction rates for young people. Research studies from the late 1970s into secure units for juveniles--such as the Dartington Social Research Institute's study, Locking Up Children, published in 1978, by Spencer Millham, Roger Bullock and Kenneth Hosie (well-known names)--showed that reconviction rates were very high, even though secure units were taking younger and less delinquent children than had been the case several years previously. The Dartington unit found that boys in secure units were younger and less delinquent than in earlier years: 62 per cent. were under 14½ years of age. Yet of 587 boys released from secure units and followed up for two years, 76 per cent. of those released to the community re-offended. The majority then underwent a further spell in an institution, usually a borstal.

More recently, the Dartington Social Research Unit's study, The Experiences and Careers of Young People Leaving the Youth Treatment Centres (1989), followed up 102 young people leaving youth treatment centres between 1982 and 1985. After two years, 72 per cent. of boys released from youth treatment centres into the community have been reconvicted. The overall figure for boys and girls was 59 per cent., and after three years the proportion had risen to 73 per cent. The study found that,

    "some groups are more likely to be convicted than others, for instance, persistent delinquents who had three or more convictions prior to entry".

There is no reason to believe that detention and training orders will succeed in producing low reconviction rates when similar measures in the past have markedly failed to do so.

It is particularly disturbing that the Bill gives the Home Secretary a power to extend the Detention and Training Order to children aged 10 and 11. I find that really quite horrifying. Even if their sentences are served in local authority secure accommodation, it should be remembered that such establishments hold an increasing number of young offenders aged up to 16 serving sentences of long-term detention imposed for grave crimes such as murder, manslaughter, rape and robbery. Some of these things are really horrifying, and I hope that the Minister will respond with sympathy and perhaps think of changing some of these policies. I beg to move.

The Chairman of Committees (Lord Boston of Faversham): I should point out to the Committee that as Amendments Nos. 240 and 242 are also being spoken to, if Amendment No. 240 is agreed to, I cannot call Amendments Nos. 241 to 243 inclusive.

Lord Windlesham: I wish to raise the question of the provenance of the new detention and training orders for young offenders. As far as I can see, they were not mentioned in any of the three youth justice consultation papers nor, as a result, in the tabulated responses to those consultation papers which were helpfully placed in the Library. Unless I have overlooked something--and the Minister will tell me if I have--these highly significant new orders seem to have been a late addition.

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The first public reference to a "new custodial sentence" appears in Chapter 6 of the White Paper (Cmnd. 3809), published in November 1997. That document outlines the Government's intention to introduce a novel disposal for young offenders from the very early age of 10 to the age of 17: half the sentence would be spent in custody and half under supervision in the community, with a provision for shortening or lengthening the custodial element depending on the progress made. There is a considerable element of new administrative discretion, and that alone should command attention. The orders will run from a minimum duration of four months to a maximum of two years. We are told that it is the Government's initial intention to implement these new orders only for those aged 12 to 17, but with a power to extend by order to children as young as 10 and 11.

Although the proposed new orders for detention and training have some good features--for example, I think we should welcome the focus on preventing offending--there must nevertheless be reservations about the significant extension of powers of the courts to detain and even imprison children between the ages of 12 and 15, especially if there is a possibility of a later reduction of the age to 10. I shall have more to say later about custodial confinement of young and very young offenders, but I believe it is more appropriate to do so when we reach Amendment No. 245.

Will the Minister say whether the provision was a late addition? Secondly, will he say whether there has been any consultation with the agencies that will implement the new orders, apart from raising the matter for discussion by the Youth Justice Task Force? Thirdly, will he say whether the Government will accept that great care will need to be exercised in making young people under the age of 15 subject to these orders, even if they have a record of failing to respond to previous non-custodial penalties?

The Lord Bishop of Lichfield: In rising strongly to support these amendments, particularly Amendments Nos. 239 and 240, I assure the Minister that I share the very proper concern of the Government, and of other speakers, that people of whatever age, however young, should take appropriate responsibility for their actions and that the victims and potential victims of their criminal behaviour should be protected from further harm. That is what we mean by justice, and that is clear.

However, we must be sure that the degree of responsibility that we ask children and young offenders to take is commensurate with their capacity to understand it, to bear it and then to turn it to good use. Children of that age have all their lives before them. Surely we ought not to give up on them until everything constructive has been tried.

That is necessary not only for the sake of the children. In order to protect others from the future harm which may be wreaked on them by these children, we must be sure that the punishment meted out is a punishment which will be most likely to prevent these children and young people offending again. It must be a punishment, I suggest, which seeks to discover the reasons for the offending behaviour and how they might be remedied.

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It must seek to educate, to support and even to constrain; but its purpose must also be to divert the young people from offending again.

It is interesting to note that during the 1980s there was a substantial reduction in the number of young people receiving custodial sentences but that that trend has been sharply reversed since the early 1990s. I am told by the Children's Society that, in 1996, 5,300 young offenders aged 17 or under were received into prison custody--the highest number since 1986. Yet, as I understand it, there is no evidence that the behaviour of such children and young people was significantly better in the 1980s. The difference was the way in which we punished them. We punished them with a view to their futures by what has been called "tough love", by challenging them to face up to what they had done, educating them and standing no nonsense, but making clear that we had faith in them.

Since that time there have been many projects, some provided by the Children's Society, which have worked successfully with offending children and young people to turn them away from crime. Regrettably, many of those projects, and certainly those run by the Children's Society, have had to close because funds allocated by the previous government have not been renewed. If we have not provided such opportunities for every young offender to change, we have no right to lock up him or her.

We can be sure of one thing: from the evidence, custodial sentences do not divert young people from crime. Properly constructed, rigorous diversion programmes afford a better chance of doing so, at less cost and in a way which will fully express society's responsibility towards young people.

From the conditions contained in Clause 60, it is clear that the Government recognise that particular attention needs to be paid to offending under-12s and under-15s in respect of sentencing. As the law now stands, provision exists for locking up those few for whom, by any reasonable standard, no alternative exists.

It is worth noting that the inclusion of a power to sentence young people, particularly those under the age of 12, to a custodial sentence is completely out of step with the prevalent approach in Europe, where young people under that age are not usually viewed as criminally responsible.

There are no grounds for extending the current provision in the way laid out in Clause 60. I hope that the Minister is willing to think again.

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