Previous Section Back to Table of Contents Lords Hansard Home Page

The Earl of Mar and Kellie moved Amendment No. 241:

Page 48, line 15, leave out ("is a persistent offender") and insert ("has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them").

The noble Earl said: With the leave of the Committee, perhaps I may speak to this amendment on behalf of my noble friend Lord Dholakia. Amendment No. 241 does not alter the Bill; it merely alters the wording. It sets out to provide a definition for the emotive term "persistent offender". Such an offender is rightly defined in the amendment as a teenager who,

It is always helpful to have this clearly in the Bill so that everyone knows what is meant. There is a difference between a persistent offender and an offender with some previous convictions. The former has a different attitude to his offending behaviour, identifying a lack of motivation to curb that offending behaviour. The latter can be thought of as a teenager trying frustratingly to find the limits imposed by society, and learning, albeit slowly, from the experience.

My initial reaction to seeing the words "persistent offender" in the Bill was that this was an unhelpful outbreak of labelling. Telling anyone whose behaviour must change that he is a persistent offender runs the risk of confirming the situation and, what is worse, creating a justification for continuing offending behaviour. I believe that the amendment avoids this unhelpful and counterproductive labelling process. I also note that the wording of the amendment has been lifted from the Criminal Justice Act 1982. I beg to move.

3.45 p.m.

Lord Henley: My amendment, Amendment No. 243, has been grouped with Amendment No. 241. Although it is not really on the same subject, it will do no harm

3 Mar 1998 : Column 1106

if I say a word or two about it while also offering a degree of support for the amendment moved by the noble Earl, Lord Mar and Kellie.

Again, our amendment is merely one that changes the wording of this clause and suggests that the words "further offending by him" in subsection (2)(b)(i) be replaced with the words "serious harm". Those words are more inclusive words in terms of the kind of problems the persistent offender, or whatever he might be called following the amendment moved by the noble Earl, might cause. They are designed to offer better protection and better guidance to the courts as to when they should make use of the power. I shall be interested to know what the Government think in relation to that amendment and I shall listen carefully to what the Minister has to say.

The Chairman of Committees: As Amendment No. 243 is being spoken to, I should point out to the Committee that if Amendment No. 242 is agreed to, I cannot call Amendment No. 243.

Lord Northbourne: I should like to speak briefly in support of Amendment No. 241. It is a well known principle of education that you do not tell a child that he is a bad boy; you tell him that he is a boy who has behaved badly. The use of the words "persistent offender" will tend to encourage a child to role play the part of a persistent offender and it may well give him street cred among his peer group. I support Amendment No. 241.

Lord Monson: As a layman, it seems to me that both the Liberal Democrat amendment, Amendment No. 241, and the Conservative amendment, Amendment No. 243, are well thought out and would improve the Bill. I hope that the Government will give them both serious consideration.

Lord Renton: I wish I could think that they are well thought out. Those of your Lordships who have had the responsibility of sitting in court in a judicial capacity--we have with us a former Lord Chief Justice--will realise that when fixing a sentence the court needs to have very specific evidence. There is no more specific evidence than the evidence of previous convictions. The expression "persistent offender" makes it quite clear that the obligation of the court is to consider previous offences.

If, as an alternative and instead of using that expression, the court has to go into a history of failure to respond to non-custodial penalties and the question of whether the child was unable or unwilling to respond, a great deal of evidence will have to be taken and conclusions from that evidence could very well vary. In order that justice may not only be done but appear to be done with a degree of certainty, it is far better to stick to the phrase "persistent offender".

Baroness David: I have to disagree with the noble Lord, Lord Renton. I have sat in a judicial capacity as a magistrate; admittedly it was rather a long time ago. I do not think it will be too difficult to find out whether

3 Mar 1998 : Column 1107

someone has been unable or unwilling to respond. A probation officer or a social worker could perfectly well explain what had happened. I very much dislike the phrase "persistent offender" and I am totally in sympathy with the mover of the amendment and the other noble Lords who have spoken in favour of it. I hope that this time the Minister may have a better response.

Lord Williams of Mostyn: I am sorry to say that the noble Baroness is likely to find me a persistent offender until later in the evening. I spoke at a little length on the first group of amendments. I said then that we found the present provisions for custody not focused or coherent. Therefore, we are looking to something which is new and capable of being flexible, positive and constructive. I have already set out the conditions and I do not repeat myself.

Amendment No. 241 would change the additional test which must be met before an under-15 year old can be made the subject of a detention and training order. Instead of the court simply having to satisfy itself that the offender is persistent, it would have to go through the further test of a history of failing to respond to non-custodial penalties and also that the offender was unwilling or unable to respond to them.

I take the point made by the noble Lord, Lord Northbourne, that telling someone he is a persistent offender is not going to be a badge of merit; but, equally, telling him that he has a history of failing to respond to non-custodial penalties and he is unable or unwilling to respond to them, is not likely to improve the shining hour. So with great respect to the noble Lord, I do not believe that his point is well made. We believe that to limit the court's discretion to impose a detention and training order where it would be appropriate, is not the way forward.

Amendment No. 243 is a still further narrowing of the criteria on which a detention and training order could be imposed on 10 and 11 year-olds, should the provision subsequently be introduced for that age group.

We believe that Amendment No. 243 is narrowing too far. It is deeply distressing, but there are offenders of that age who cause a good deal of harm to other vulnerable sections of the community. Children are particularly vulnerable, but not uniquely vulnerable. Quite a lot of people have their lives made a misery by very young offenders. The Government have a duty to attend to their interests as well--not to put their interests above all else but to give them a decent regard.

If the order is made by the Secretary of State in due time, and if one has someone who is already a persistent offender at that age and the court is convinced that custody is the only way to protect the public from further offending, we believe that court intervention, as an opportunity, should be there. We do not believe that raising the threshold any further does anyone any favours, neither the victims nor the defendants. We have struck a balance in the legislation between restricting the use of custody and giving the courts sufficient discretion.

3 Mar 1998 : Column 1108

I stress again that before one comes to the conclusion in many cases that a child needs to be in custody, or should be in custody, there are alternatives which we are providing. We believe that they are capable, if worked properly, of transforming the way in which we deal with young children. I refer to the action plan, the reparation order and other remedial measures which do not involve custody. We specified them on earlier occasions. Sometimes small children can do infinite harm whether or not they recognise it. Sometimes they will need to be dealt with constructively, carefully, but nevertheless firmly.

The Earl of Mar and Kellie: I am grateful to the noble Lord for his answers. While it may be for the convenience of the more judicially-minded Members of the Committee that a persistent offender is just someone who has committed many offences, as someone coming more from the social work end of the process, there is a difference between an offender who commits the same offence several times and someone who commits a different offence each time. Persistence means continuing to commit the original offence. From the social worker's point of view, trying to promote change is never helped by labelling because, as I have said, it allows the offender to say, "I am fated and predestined to do it". That is not a useful thing.

The Minister has declined to accept my definition. I was hoping that he would very willingly insert it in Clause 92, which gives the opportunity for a definition. Perhaps it may appear as a government amendment later. The Minister has kindly smiled at me. Therefore, without more ado, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 242 and 243 not moved.]

Next Section Back to Table of Contents Lords Hansard Home Page