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Baroness Walmsley: My Lords, I support the amendment. The crux of the argument is this: the Government have set up a distinct youth justice system

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and, in their Green Paper Youth Justice—The Next Steps, reiterate their basic approach as follows:

    "When children and young people do become involved in crime we would continue to operate a distinct youth justice system broadly on present lines, with a clear and visible response to offending behaviour from age 10 upwards".

If that is so, why are the Government so reluctant to remove young people from some of the elements of the new legislation? One of the main themes in the Green Paper is,

    "managing young remandees in ways which help to prevent the guilty reoffending".

If that is the case, keeping them in a police station for up to 36 hours and taking fingerprints without consent will not help. It is just treating the young person like a criminal, so the danger is that he will think that he might as well fulfil the prophecy.

Section 6 is the most serious issue. It increases the period of detention without charge for a non-serious arrestable offence to the same time that currently applies only to serious offences—an unwarranted escalation. The Minister says that it will be used only in unusual circumstances, but, as my noble friend Lord Thomas of Gresford said in Committee, if the police cannot get their act together in 24 hours, they should send the person home. After all, by definition, we are talking about non-serious offences.

On street bail, my concern, like that of the noble Baroness, Lady Anelay, is to keep young people out of police stations. But I am concerned that in the hurly-burly of the street it will be difficult for a police officer to operate all the safeguards appropriate to young people. During private meetings referred to by the noble Baroness, Lady Anelay, the Minister mentioned the guidance and training of police officers in that regard. However, it would be very helpful to your Lordships' House if she could give us some reassurance on the record today about how that would operate.

Baroness Kennedy of The Shaws: My Lords, I, too, support the amendments. I have the same concern about children being expected to comply with systems set up for adults. It is not good enough for the Government to say that such powers will be used only in exceptional circumstances. When governments legislate, they should always look in their wing mirror for the less benign government that may come into power later. That is why it is so important to ensure that the ground rules are sensible and not likely to be abused. It is not good enough to legislate while saying, as we have heard repeatedly in the Bill, that the powers will be used only exceptionally. We cannot accept a promise from the Minister as one that will be held to by others who may follow in her footsteps.

I ask the Minister, whose life in the law has centred around issues connected with children, in particular to recognise the importance of separating children from adults for the very special reasons that we know should apply: their inexperience and vulnerability matter; therefore, we should give them special protection.

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I happen to believe that there should be a separate system altogether for children and that they should be taken out of the criminal justice system. The Government certainly do not seek to be as bold as I would like them to be. I would have thought that a truly bold and modernising Labour government would have thought of doing that. I certainly would not have thought that one would wish to include children in some of the powers that the Bill affords to the police and the authorities. I ask the Government to think again.

Lord Dholakia: My Lords—

The Lord Bishop of Worcester: My Lords, I thank the noble Lord for giving way. I, too, support the amendment. I, too, have received from the Children's Society and others notice of their concern that the Bill is flawed at a number of points—both here and in later amendments—in its assimilation of children into the criminal justice system that it is creating for adults.

I wish to amplify the point made by the noble Baroness, Lady Kennedy, that powers intended for exceptional use might be used by a less benign future administration if they are built into a statute. We know that the relationship between the generations in society is not always healthy. The pressure of rhetoric and journalism to move towards a less benign attitude towards children and their discipline is not just something that we might hypothesise could happen under a future administration; it is a very present reality.

Even this Government could not ignore the pressures, if another notorious case involving children arose, to deal with them by a reflex response that would subject them to methods of discipline and punishment inappropriate for use against children. That pressure is a present reality. Noble Lords must, therefore, be very vigilant at every point in the Bill where children are being drawn into the criminal justice system. We should be very clear that there are safeguards against present—not future—popular acclaim for a kind of toughness that I doubt is always appropriate for adults and is certainly not appropriate for children.

Lord Dholakia: My Lords, concern has been expressed from almost all sides of the House. The police have wide discretion, particularly on arrest and bail. Have the guidance notes made them aware of the importance of how the powers are used, bearing in mind that previous monitoring of similar exercises shows a tendency to pick on particular racial groups? That seems to feature prominently later in the criminal justice process.

I take it that, as with normal bail, the presumption is that a person will be granted street bail unless the offence is very serious. If that is the case, is it necessary to proceed with the arrest of youngsters when they could be taken home, as the Children's Society mentioned, and their parents or respective adult asked

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to appear with them at the police station at an appropriate time, rather than starting a criminal process so early?

Lord Corbett of Castle Vale: My Lords, I share the general concerns voiced around your Lordships' House. But there is a danger that we are not paying enough attention to other things going on, well ahead of any criminal justice system, affecting under 18 year-olds.

From my experience as an MP, there were children as young as 13 and 14 who I might otherwise flippantly suggest were orphans—I knew that they were not—whose behaviour was menacing and frightening to everyone who lived around them. So I do not think that we should get starry-eyed about what happens on the ground in too many areas of the country. However, one would hope that by the time anyone under the age of 18 was even considered for what is proposed in this part of the Bill, other things would have happened. The Youth Justice Board, which enjoys support throughout your Lordships' House, is in place and there are attempts at earlier intervention through schools with parenting orders and other such things.

I am saying only that we should consider these things in the round. In doing so, we should recognise that there will be some circumstances—and one hopes that there will be few—when to have a cut-off that says that none of these powers can be used unless the person concerned is 18 will encourage some people to behave badly. Some Members of your Lordships' House may have anecdotal experience of children as young as nine taunting police officers saying "You can't touch me and I know that". They boast about it. I wish to add that note of caution to this debate.

The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I thank my noble friend Lord Corbett for reminding us of the reality of what happens on the ground and for bringing a sense of balance to our discussion. All Members of this House are totally committed to making sure that children have the right sort of support, guidance and assistance, and my noble friend is right to say that we must set that in the context of all that has been done—with the Youth Justice Board, the opportunities that we are providing in this Bill and others and in the system that we have provided to give children a proper alternative to the behaviour that some of them regrettably exhibit. The Government are not being starry eyed about children. We are seeking to address their needs in a proportionate way.

I also hear what my noble friend Lady Kennedy of The Shaws says about recognising the importance of separating children from adults. Noble Lords will know that, in many places in the Bill, that is precisely what the Government have done. We have sought to provide a proper protective net for children so that we differentiate in an appropriate way. I also hear what my noble friend says about not being able to dictate if there is a less benign government. I hope that I will be forgiven for saying that, at the moment, that does not seem entirely likely.

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I very much take on board what was said by the noble Baronesses, Lady Anelay and Lady Walmsley, about needing a proper discussion at this stage and placing on record the sorts of aspirations and expectations that we are putting in place. Amendment No. 1 would exclude persons under the age of 18 from the important changes to PACE contained in Clauses 4, 6, 8 and 9. All those clauses are designed to make important contributions to the effectiveness of police investigations, the improvement of police efficiency and the whole process of dealing with and reducing crime. Tackling juvenile crime is at the core of that process and completely exempting this group from the changes we are proposing would significantly lessen their impact.

I take on board what the right reverend Prelate the Bishop of Worcester said about the tendency of some people to treat children with a reflex response that is all about discipline and punishment. We do not believe that to be the right approach and it is not in evidence in the Bill. However, unfortunately, juveniles commit a very high proportion of crime and they are responsible for a great deal of reoffending. Latest available figures show that 25 per cent of the total notifiable arrests were of juveniles and that 26 per cent of convicted juveniles were reconvicted within a year.

Clause 4 provides the police with the option to grant bail to arrested people without the need to take them to a police station. The key aim here is to keep more officers on patrol for longer periods so that they are visible to the public and can deter and deal with crime. We fully recognise that officers must apply careful discretion in deciding whether to grant street bail and that is particularly important where juveniles are concerned.

The draft guidance, agreed with representatives from children's charities following proceedings in Committee, emphasises the special considerations necessary in relation to juveniles before, during and after the granting of street bail. For example, it is particularly critical in relation to a juvenile that the officer is satisfied that the juvenile fully understands the process and what is happening.

The welfare of juveniles is a prime consideration and that means listening to what they have to say about their particular circumstances and taking into account factors such as the time of day and any possible risks the juvenile may face from parents or other carers. Arrested juveniles are entitled to the support of an appropriate adult at the police station and that would apply in the same way when they answer to street bail. The Government seek to give the officer an opportunity to exercise his or her discretion in a way that could inure to the advantage of the juvenile. Both the noble Baronesses, Lady Anelay and Lady Walmsley, said that they would not wish to see juveniles unnecessarily detained in police stations if there were no good reason for that. I absolutely agree.

Clause 6 increases senior officers' discretion so that they can authorise extended detention up to 36 hours in relation to a broader range of offences. The existing 24-hour limit means that the police can be forced to rush through investigations or content themselves with

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a lower quality of evidence than might have been achievable if more time had been available. The use of the extended power is likely to be particularly relevant in cases of street robbery or when the police have to deal with a large of number of suspects. It would be wholly inappropriate to exempt juveniles in view of their regular involvement in offences of this nature.

We want this provision to help to ensure the successful investigation of offences. The key safeguard is the requirement for a senior officer of at least superintendent rank to make the decision in each individual case. In addition, the guidance we have drafted in relation to this provision stresses that detaining a juvenile beyond 24 hours will be justifiable only in exceptional circumstances or when the offence is indeed a serious one. The guidance emphasises the need to have strong regard to juveniles' special vulnerability and to seek and consider the views of the appropriate adult protecting their interests.

Clauses 8 and 9 involve amendments to Sections 61 and 63 of PACE and will allow the police to take fingerprints and a non-intimate sample from all persons arrested for a recordable offence and detained at a police station as a matter of routine. It is important that the police can take fingerprints quickly in order to prevent persons who may have previously come into contact with the criminal justice system from evading justice by giving the police a false identity and also for the police to be aware of any persons who may pose a risk to themselves or to others. That is a real problem in many cases. Sometimes it is necessary to take protective measures because of the innate vulnerability of that person, but the police can take them only if they know who they are.

Establishing the true identity of a juvenile, or even that the person is a juvenile, is vitally important both for the individual and the police officers dealing with them. The fingerprints and the profile obtained from the non-intimate sample can be checked against the two databases to see whether they match any taken from a crime scene. Potentially, that will allow more crimes to be resolved at an earlier stage.

Many young people who may be arrested as juveniles are not charged and may never go on to commit an offence. However, it is difficult for the police to distinguish between those who may or may not commit a crime in the future. It is, therefore, a sensible precaution to retain DNA profiles as a norm. Retaining an arrested person's fingerprints and non-intimate sample, whether it is a juvenile or an adult, as the norm is proportionate to the benefits to society and the prevention and detection of crime. Law-abiding citizens have no reason to be concerned about their fingerprints and samples being retained on the databases. The law already makes it clear that their use is restricted to the prevention and detection of crime, the investigation of an offence or the conduct of a prosecution. The DNA profiles on the database of persons who have not been convicted of an offence have a marker to indicate that. The profiles of persons who have been arrested but not charged will also carry a marker to that effect.

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The National DNA Database is not a criminal record. Just over 5 per cent of the 2 million profiles on the database are of individuals who have not been convicted of an offence. DNA profiles and the personal identification data associated with them are held by the laboratories that analyse them and the custodian of the National DNA Database. The laboratories and the custodian are subject to the provisions of the Data Protection Act 1998, and their databases are registered with the Information Commissioner. Personal data are kept securely and are accessed only on the authorisation of a designated person.

I do not think that there is a sufficient case to exempt juveniles from any of the important changes. Doing so would seriously dilute their effectiveness and the guidance and safeguards to which I referred will help to ensure that there is no adverse impact on juveniles resulting from their special vulnerabilities. On that basis, I hope that I have given a full explanation of the reasons why we think that our response is proportionate. I hope that the noble Baronesses will not press the relevant amendments.

Clause 6 will enable the investigative process at the police station to be completed effectively in the best interests of ensuring successful outcomes in the criminal justice system. Amendment No. 10, tabled by the noble Baroness, Lady Anelay of St Johns, would defeat that objective by continuing to limit detention beyond 24 hours to those offences deemed "serious arrestable". There are circumstances relating to a broader range of offences in which additional time will be necessary to achieve a successful outcome. Consideration must be given on a case-by-case basis and on the decision of a senior police officer, namely a superintendent or above.

The application of the new power will be considered on an exceptional basis, and the officer requesting or authorising any increased period will have to consider what circumstances merit the use of the new power. Although we are authorising extended detention for a broader range of offences, the circumstances of the case are the determining factors, rather than the type of offence. That is an important distinction. We do not want to use the power as a blanket; we want it used only if and when it is absolutely necessary. That approach meets our broader objective of allowing senior officers the relevant discretion for a set of offences that fall below the highest level of seriousness. That is an important distinction and should be emphasised.

Amendment No. 11 would have an adverse impact on that approach, as well as the undesirable consequence of reducing the existing scope for extended detention. Restricting the extended period of detention to indictable-only offences would reduce the number of offences that benefit from the longer period before charge. For example, the offence of theft is triable either way. Under PACE, it may be deemed a serious arrestable offence depending on the scale of loss to the victim or level of gain to the offender. The amendment would take away investigative powers already available to the police.

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I was asked to emphasise the relevant parts of the guidance. In particular, the noble Lord, Lord Dholakia, asked about that. The guidance emphasises that use of the power is, generally, unlikely to be justified in more than a relatively small set of circumstances. Specifically, its use in investigations involving juveniles and other vulnerable groups should be considered only on a wholly exceptional basis. It is also important to remember that the Human Rights Act 1998 gives additional protection.

I was asked why we did not just allow the police officer to take the child home on bail. We have made it clear that, if someone is arrested, they will generally be taken to a police station from where they may ultimately be bailed, unless the circumstances make street bail the right step to take. A key purpose of police bail is to enable officers to stay out.

I hope that I have said enough and have been as comprehensive as both noble Baronesses wanted me to be. I hope that I have satisfied them that everything that should be on the record is now on the record and is consistent with the conversations that we have enjoyed for months.

4.45 p.m.

Baroness Anelay of St Johns: My Lords, the noble Lord, Lord Corbett of Castle Vale, invited us not to be starry-eyed. As somebody who chaired a youth court for several years before coming to the House, I assure him that I am not. In a youth court, one sees before one a procession, sadly, of dead eyes. They are the eyes of people who are dead to the world around them and have no care for what it can do to them.

I took to heart the words of the right reverend Prelate the Bishop of Worcester. We must be wary of drawing children into a system that is designed for adults. We must be careful that, when children and those under the age of 18 commit something that is defined as an offence, we treat them appropriately, taking account of the fact that they are children and may need treatment different from that required for others who have committed a similar offence.

I am grateful to the Minister for doing exactly as I invited her to do and hoped that she would. She has put on record a clear explanation of the discussions that have been held and of the Government's position on the matter. She will not be surprised if I say that, although she has gone a long way to meet my concerns, I must ask the Children's Society and other children's groups whether they believe that there is anything further that should be brought back at Third Reading. That may not be the case, and we may address such further concerns in other amendments. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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