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Baroness Walmsley: I should like to add my voice to those already supporting Amendment No. 212, which is aimed at ensuring children under the age of 18 are removed from the provisions of Clause 254 and that it will remain at the discretion of the trial judge to set the minimum term in open court. Section 60 of the Criminal Justice and Court Services Act 2000 makes provision for that. On these Benches, we believe that that should be retained at all costs.

The starting point is that children should be treated separately and not simply as young adults. If they were, why should we bother with the youth justice system at all? The truth is that in using every criterion of civilised, sensible, informed and humane behaviour within our criminal justice system we recognise that children are not simply small adults. A different system, different criteria, different knowledge and different expertise, with a common humanity, dictates a different approach. This includes the Sentencing Advisory Panel whose advice to the Court of Appeal on minimum terms in murder cases was that Ministers should not set tariffs for juveniles sentenced to detention during Her Majesty's pleasure and that there should be a sliding scale related to age.

Part of the just and realistic sentencing of children is the recognition that they are, by definition, immature, both emotionally as well as socially and, often, physically as well. Therefore, they will change, mature and develop in a number of crucial ways as they grow up. A 15 year-old is simply not the same person when he is 17 years-old. All of us who have had children know that. Every parent has experienced the change that children go through during their teenage years. Most institutions in our society are predicated on that self-evident fact. Therefore, it seems entirely unreasonable to pass a sentence of 15 years, which is rigid and takes no account of that change.

Let us think, for example, of the difference between a 15 year-old and a 30 year-old. To inflict such a penalty without being able to take account of such change or development, and its implications for differences in levels of dangerousness, understanding, remorse or contrition and without bothering to take account of notions of forgiveness or redemption, is unacceptable.

There are very few children who commit murder each year. Their offences are so different that there are no detectable or useful patterns or guidelines which could give a rationale to a blanket approach. All that the children have in common is that they are deeply damaged individuals, usually from deeply damaged families. They are almost always victims, too. That is not an excuse, but it aids understanding of the situation with which we are faced.

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Unless the trial judge can take into account the individual facts of the case and the age of the defendant, he or she will be denied justice. Article 37 of the UN Convention on the Rights of the Child is relevant here, as is Section 44(1) of the Children and Young Persons Act 1933, where it states that the welfare of the child should be paramount. We shall be coming to issues about that later in Committee.

The Sentencing Advisory Panel's advice to the Court of Appeal was that consideration should be given to the release of the child as soon as it is realistic to do so. As soon as the point has been reached where the child could safely be released, that should not be delayed. That, in turn, depends on the assessment being made in each case. I hope that the promised review of this clause in relation to children has happened and that the Home Secretary and the Minister can reassure us that common sense and humanity about children has prevailed.

The Earl of Listowel: I speak to Amendment No. 212 standing in my name and to illustrate, in another way, what the noble Baroness, Lady Walmsley, said. I recently visited a residential school for children with emotional and behavioural difficulties. The school has an excellent reputation in the field and had just had a highly favourable Ofsted report. The young woman who guided us through the classrooms had been in the habit, when she arrived, of punching out at staff and had broken the glasses of one staff member. Today she is entrusted to show around VIP visitors. A former pupil, a bright young Asian man, hailed the principal from across the lawn. This boy, once so wild, is now managing a BMW dealership. We heard of a deeply troubled girl who had recently returned to visit the school. She is now a grown woman, living with her husband, a steady professional man, and her young children. These individuals had managed to put their emotional and behavioural difficulties behind them; they had changed.

Children and young people who commit serious crimes are often also themselves vulnerable and poorly developed for their age. The principal of the school explained that swings were provided to be used by the 17 and 18 year-olds in the school. This child's play area was sited out of the view of children not attending the school and reflected the fact that those children and young people who have not had a full childhood need to experience their infancy at whatever age they are permitted to enjoy it.

On the same visit I enjoyed a game of Pelmanism with two seven year-old girls in the new junior school. Both had long, curly fair hair. They beat me at the game, perhaps because they had had more practice. I hope very much that, with the help of the school, they will be able to get to the root of their behaviour and experience achievement and recognition of that achievement, enabling them to become more at peace with themselves. But if they fail and if, heaven forbid, they harm someone else, I hope that the judge will be free to look at their actions and circumstances as a whole and determine the necessary sentence without undue government interference.

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With regard to Schedule 17, the Minister conceded earlier that the length of custodial sentences for serious offences will increase significantly as a result of the introduction of starting points, as set out in the schedule. What of those who do respond well to rehabilitation and no longer pose a threat to the public? Are they to be kept in prison, unproductive and weighing down the taxpayer, removing resources from other prisoners and perhaps becoming hardened, embittered and irredeemably institutionalised? Only this morning, prison officers at HMP Grendon told me that they had had to remove therapeutic services from lifers and offer them to those who had committed less serious offences because, as I think I understood, of the pressure of prisoner numbers.

I shall not trouble the Committee any longer at this hour. I look forward to the Minister's response.

Lord Hylton: As a mere layman, I find Schedule 17 deeply undesirable. Be that as it may, however, Clause 254(6) surely confers almost unprecedented powers on the Secretary of State, whether he is minded to make the law more severe or more lenient, whichever way it might fall out. For those reasons, I strongly support the amendment moved by my noble and learned friend Lord Lloyd of Berwick.

Lord Chan: I rise to add a small point which is relevant here. I support all that has been said by the noble Baroness, Lady Walmsley, and by my noble friend Lord Listowel. The younger the offender, the greater is the ability and the potential for change. That should be taken into account.

10 p.m.

Baroness Scotland of Asthal: It may be appropriate if I respond first to the amendment tabled by the noble and learned Lord, Lord Lloyd, referring to Clause 254(6). I shall try to deal with that issue as briefly as I can. Perhaps I may say to the noble Lord, Lord Thomas of Gresford, that in speaking to the last group of amendments, I said much that would respond to the comments he has made. At this hour perhaps we may take it as read that I have repeated those words and I shall confine myself to this one issue.

Of course I understand the concerns that have been expressed by my noble friend Lord Borrie and by the noble and learned Lord, Lord Lloyd, echoed by the noble and learned Lord, Lord Cooke, and the noble Lord, Lord Hylton, that these provisions give the Secretary of State very wide powers. The order-making power—which is what this is—will be subject to the affirmative resolution procedure. Its purpose is to enable the Home Secretary to make amendments as appropriate. The schedule is very detailed. However, we cannot foresee all the mitigating or aggravating factors that may arise in the future that should properly be included. We recognise that there may be a need to respond to new circumstances which we cannot now envisage. Many circumstances have come to the fore in the past five or 10 years which appear to be significant, either by way of mitigation or by way of aggravation, and which should properly be included.

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I hear what my noble friend Lord Borrie and others say about the particularity with which this issue has been looked at, and the comments of the noble Lord, Lord Thomas, about the somewhat mechanistic approach he described. The schedule describes the process that a judge goes through when trying to determine the appropriate sentence. He has to look at the circumstances of the offence, the aggravating features and what is said in mitigation before he arrives at a settled position.

Many noble Lords will have heard, as I have, of judges going through a similar exercise when determining the nature of sentence and explaining to the defendant and the public the way in which he has arrived at it. The judge will say, "I take into consideration the fact that this was a premeditated offence. I also bear in mind that at the time the victim was a person of tender age and/or mental incapacity", and so on. So, as the judge heads towards sentence, one sees that these are precisely the kind of issues that are expounded. We are not doing anything very unusual.

The other complaint is that this is micro-management—or, as the noble Lord, Lord Carlisle of Bucklow, would say, that we are teaching our granny to suck eggs. But there is a real issue of continuity, consistency and clarity, and anyone looking at these provisions will know the factors of aggravation and mitigation that have been taken into consideration. That should, we hope, assist in preventing ill informed comment.

The provisions will be subject to continuing parliamentary scrutiny under the affirmative resolution procedure.


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