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Lord Williams of Mostyn: My Lords, there does not seem to be any disagreement that the ancient presumption is in need of reform. Therefore, the question seems to be: should it be reversed or should it be abolished? When we were deciding how best to proceed we considered whether reversal or abolition was the better course. We put it out to consultation. I respectfully remind your Lordships of what I said earlier. Of those who responded to the consultative paper Tackling Youth Crime, 111 out of the 180 who expressed a view said that abolition was appropriate.

I have listened with care to the argument. Perhaps I may respond in particular to one or two distinct aspects. The noble and learned Lord, Lord Ackner, with great respect, is quite right. We are not talking about a retributive system. I echo, again respectfully, what the noble Lord, Lord Northbourne, said. What one is looking for here is intervention which ought to be able to offer not retribution but rehabilitation, help and support. I agree entirely with the noble Lord, Lord Judd, that we must not look to an over-punitive regime. What we have done in dealing with children over the past years is to leave intervention and the opportunity for informed, structured rehabilitation far too long. One needs to make a careful distinction between, as the noble Lord, Lord Campbell of Alloway, said, intervention with a criminal prosecution and what one does if guilt is proved.

No one wants to be over-punitive of small children but one has to bear in mind that some small children do extraordinary harm. We have to bear in mind the legitimate and reasonable concerns of victims. Quite often it is notoriously, though sadly, true that the victims of young criminals are vulnerable people such as old people living alone. They are also entitled to a reasonable regard for their rights and freedoms just as one has to have a proper and tender regard for young children. We believe that we have the balance right here.

I go a little further, if I may, and repeat and adopt what the noble Lord, Lord Northbourne, said. What one wants here is early intervention; not early savage punishment but early assistance. It does a child no favours to let it drift on without knowing, particularly in a modern sophisticated society, that if it commits criminal acts there will be a sanction. It may well be a sanction by way of intervention and rehabilitation, not punishment, but that a sanction is required upon these occasions we believe is beyond doubt.

The noble Baroness, Lady Mallalieu, for whose opinions I always have great respect and regard, put the illustration of a young man from Somalia who had committed rape. There was therefore a victim of a gross offence. I have to say that in respect of that illustration I was not myself satisfied at all about the validity of her point. She asked specific questions. Your Lordships will

19 Mar 1998 : Column 837

have seen that sitting next to me is the Solicitor-General, with his responsibility for the Crown Prosecution Service. I am happy to give the indication which the noble Baroness wanted.

Before a child appears in court accused of a criminal offence there will be several stages. At each stage a decision will have to be made about whether a criminal charge is appropriate. The first is the police, who will decide whether to charge or caution the child. If they decide to charge, the case will go to the Crown Prosecution Service, which will decide whether to prosecute. In making that decision--I take the noble Baroness's phrase and adopt it--of course the Crown Prosecution Service will continue to look rigorously at all the circumstances. It will, of course, decide whether there is a reasonable prospect of conviction. It will also continue to bear in mind whether or not it is in the public interest for a prosecution to be brought. The public interest, I respectfully repeat, does not limit itself only to the public interest in the welfare of a prospective defendant child. In making those decisions the Crown Prosecution Service will consider the welfare of the child because the courts are required to do so under Section 44 of the Children and Young Persons Act 1933. Those safeguards will continue, but we believe that is the proper way forward.

I also ought to tell your Lordships, as a matter of courtesy and, I hope, convenience, that the Government intend to introduce at Third Reading an amendment to the existing provisions relating to inferences which may be drawn from the refusal of a defendant to give evidence or answer questions in court. The provision applies at the moment only to those aged 14 or older. Our proposed amendment would extend the provision to all those who are over the age of criminal responsibility. That deviates from the point here but I thought it appropriate that I should mention it so that those of your Lordships who may have an interest in that area will have ample opportunity and notice.

I have listened to the submissions. I realise that there is not unanimity and that those who have anxiously held views about child welfare may come to different conclusions, as perhaps has the noble Lord, Lord Judd, on the one hand, and the noble Lord, Lord Northbourne, on the other. I hope your Lordships will think I have given due regard to the propositions that have been put, but I regret that we cannot accept the amendment. I further say to my noble friend Lord Judd that I cannot say that I will reconsider it with an open mind because we have come to our conclusion.

Lord Goodhart: My Lords, I am most grateful to all noble Lords who have spoken on this amendment and I am particularly grateful for the contributions from the other side of the House of the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Judd. I am grateful that the Minister recognises that help and not retribution is the aim when one is dealing with young children who have committed acts that in the case of an adult would clearly be criminal. The case is simply: what is the right place for that help; should it be the criminal court or the family proceedings court?

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I certainly believe that for a child who does not understand what he has done is seriously wrong, the appropriate place for that help is the family proceedings court.

I have taken note of what the noble Lord, Lord Williams, said at the end of his speech about the proposal to allow inferences to be drawn from the silence of children under the age of 14. On this occasion I shall say only that that causes me very considerable concern. But that is a matter for another time. I regard this amendment as a matter of importance and of principle and I therefore think it necessary to take the opinion of the House.

4.49 p.m.

On Question, Whether the said amendment (No. 81) shall be agreed to?

Their Lordships divided: Contents, 32; Not-Contents, 105.

Division No. 2

CONTENTS

Addington, L.
Avebury, L.
Beaumont of Whitley, L.
Calverley, L.
Carlisle, E.
Dholakia, L.
Ezra, L.
Goodhart, L. [Teller.]
Hamwee, B.
Hooson, L.
Hutchinson of Lullington, L.
Hylton, L.
Kennedy of The Shaws, B.
Kennet, L.
Linklater of Butterstone, B.
Ludford, B.
McNair, L.
Maddock, B.
Mar and Kellie, E.
Meston, L.
Methuen, L.
Newby, L.
Nicholson of Winterbourne, B.
Rodgers of Quarry Bank, L.
Roll of Ipsden, L.
Russell, E.
Sainsbury, L.
Thomas of Gresford, L. [Teller.]
Thomas of Walliswood, B.
Tope, L.
Wallace of Saltaire, L.
Wigoder, L.

NOT-CONTENTS

Ackner, L.
Acton, L.
Alexander of Tunis, E.
Alton of Liverpool, L.
Archer of Sandwell, L.
Barnett, L.
Bassam of Brighton, L.
Blackstone, B.
Borrie, L.
Brightman, L.
Brooke of Alverthorpe, L.
Bruce of Donington, L.
Burlison, L.
Burnham, L.
Callaghan of Cardiff, L.
Campbell of Alloway, L.
Carmichael of Kelvingrove, L.
Carter, L. [Teller.]
Castle of Blackburn, B.
Charteris of Amisfield, L.
Chorley, L.
Clanwilliam, E.
Cledwyn of Penrhos, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Coleridge, L.
Davidson, V.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Elis-Thomas, L.
Elton, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Gallacher, L.
Gilbert, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Halsbury, E.
Hardie, L.
Hardy of Wath, L.
Haskel, L.
Hayman, B.
Henderson of Brompton, L.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes, L.
Hughes of Woodside, L.
Hunt of Tanworth, L.
Hylton-Foster, B.
Irvine of Lairg, L. [Lord Chancellor.]
Jay of Paddington, B.
Jenkins of Putney, L.
Kilbracken, L.
Lane of Horsell, L.
Lockwood, B.
Lovell-Davis, L.
McIntosh of Haringey, L. [Teller.]
Masham of Ilton, B.
Merlyn-Rees, L.
Milner of Leeds, L.
Molloy, L.
Monkswell, L.
Montague of Oxford, L.
Nelson, E.
Noel-Buxton, L.
Norrie, L.
Northbourne, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Palmer, L.
Patten, L.
Peston, L.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Renton, L.
Richard, L. [Lord Privy Seal.]
St. John of Fawsley, L.
Shaughnessy, L.
Simon, V.
Skelmersdale, L.
Stallard, L.
Strabolgi, L.
Swinfen, L.
Symons of Vernham Dean, B.
Tenby, V.
Thomas of Macclesfield, L.
Turner of Camden, B.
Warnock, B.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
Wharton, B.
Whitty, L.
Williams of Elvel, L.
Williams of Mostyn, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

19 Mar 1998 : Column 839

4.58 p.m.

Lord Archer of Sandwell moved Amendment No. 82:


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