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Lord Ackner: My Lords, this is yet another case which is covered by the memorandum which the Lord Chief Justice filed in the Library as representing his views and the views of the judges sitting in the Court of Appeal Criminal Division. I shall not take up your Lordships' time in reading it all out. I shall content myself merely with drawing attention to paragraph 62 on page 19, in which the Lord Chief Justice states:

I suggest that in any case involving a child the ability to have the maximum flexibility in the treatment of that child is absolutely essential.

Lord Clinton-Davis: My Lords, I support the view that judges should be able to exercise discretion. The onus falls heavily on my noble friend the Minister to aver that I am wrong. She has said that the cases that we have to consider are rare. That argument goes against her rather than for her. If they are rare, the judge should be able to exercise discretion rather than not. We have heard a raft of opinions expressed against her proposition. Who supports her proposition? Anybody at all? I may be wrong, but I would be very surprised if anybody were to come to her aid, apart from officials in the Home Office, who, I am sure, are exercising a benign influence on her.

I do not usually vote against my own government, but certain aspects of the Bill are unacceptable and this schedule is one of them. I am not sure that I shall vote against the Government, but I shall at least abstain. My noble friend may be able to persuade me that I am utterly wrong, but I doubt it. I am a great fan of hers and usually—but not always—take her advice, but I will be surprised if I do so on this occasion.

Baroness Scotland of Asthal: My Lords, my noble friend has thrown down the gauntlet and I am anxious

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to take it up. I empathise with all that has been said about the rarity and the difficulty of seeking to sentence juveniles.

I should point out to my noble friend Lady Mallalieu and the noble Lord, Lord Carlisle of Bucklow, that I too have had the privilege of representing children of tender years who have been in the tragic situation of having committed heinous offences, not least of which being murder. From practical experience, I recognise, as has been pointed out by my noble friend Lady Mallalieu, the noble and learned Lord, Lord Donaldson, and the noble Lords, Lord Carlisle and Lord Thomas of Gresford, that there can on occasion be dramatic changes in the nature of the child's behaviour.

However, I also recognise that there has to be a framework within which such decisions are made. I fully understand the purpose of the amendment moved so eloquently by the noble Baroness, Lady Anelay, and supported with such warmth by the noble Baroness, Lady Walmsley. It seeks to cure the flaw in the previous amendment and direct attention to the problem with the proposed amendment. It provides for juveniles to retain judicial tariff setting by retaining the current tariff-setting provisions for juveniles under the Powers of Criminal Courts (Sentencing) Act 2000. I reassure noble Lords that we have given the most anxious and careful consideration to whether it would be right and proper to remove juveniles from those provisions. We have concluded that it is essential for juvenile murderers to have minimum terms set according to those principles.

I want to make one issue absolutely clear. My noble friend Lord Clinton-Davis says that the judge must have discretion and I do not argue with him. The view was echoed by the noble and learned Lords, Lord Donaldson and Lord Ackner, both of whom have great experience of exercising that judicial discretion. Schedule 19 preserves judicial discretion. It is often forgotten, so it is important to recite it, that paragraph 8 of Schedule 19, in dealing with the aggravating and mitigating factors, states:

    "Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order".

So there, enshrined in the schedule—preserved—is the exercise of judicial discretion.

We therefore start with 15 years, but that is not where the judge, in exercising his discretion, may end. I also say to the noble and learned Lord, Lord Donaldson, that this is not a distortion of the judge's exercise of discretion. If one looks at the mitigating and aggravating features, one sees that those are all issues which a court should properly take into account when exercising its discretion and in seeking to do justice not only to the defendant but also to the victims and their families who have suffered and suffered grievously.

I say, too, that it is also important for the victims and their families to understand the basis upon which the court came to its decision. My noble friend Lord Clinton-Davis asked: who supports this provision? If one has had the privilege that I have had in talking to many of the families of the bereaved, one

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realises that they want to understand the system. It humbles one that they do not often seek vengeance, but what they do seek is an understanding of why the life of their loved one—often their child—was taken and why the court imposed that sentence upon the perpetrator.

These provisions enable the court to explain why and how the court came to that decision. I do not believe that that task is beyond our judiciary because it is a task that many of our judges have undertaken and discharged with great distinction for many years. Some of the best judges in this country make those decisions in a way that all who listen do understand. That is what these provisions achieve. They do not set a straitjacket. They do not say to the judge, "You must impose this". They set a framework within which the judges should work better to explain the decisions they make. I make that as a first point.

I do not apologise for reiterating some of the points I have made because I need to respond to what was said by the noble Baronesses, Lady Anelay and Lady Walmsley. I hope that they will try, as did I, to listen to the points that are made. I cannot stress sufficiently the importance of the figures. As a number of noble Lords have said, cases of murder by very young juveniles are extremely rare, with only one case on average every five to 10 years. Figures kept since 1998 indicate that since then 78 out of 81 murders by juveniles were committed by 15 to 17 year-olds, and none at all by children aged 10 to 11.

Excluding juveniles from these provisions would therefore have little effect on protecting very young offenders. Since the overwhelming majority of juveniles affected are in the bracket nearest the age of majority, this would lead to the undesirable possibility of sudden and considerable disparity in tariffs between 17 and 18 year-olds. Such caps would also lead to a serious loss of fairness, clarity and consistency. That point was emphasised by the noble Earl, Lord Russell, when dealing with the benefits and disadvantages of consistency.

It is also right to remember that the figures we are quoting are not too far from the reality with which we are currently faced. Juvenile tariffs in recent years have not been so far out of line with adult tariffs. Out of a sample of the 18 detainees in Her Majesty's prisons released on licence in 2000, the average tariff was almost 11 years and the average prison term served was 13.9 years. The minimum terms ranged from five to 16 years. There are therefore clear similarities in the levels.

Juvenile tariffs currently tend to average between 10 and 11 years, so nothing in the provisions would cause there to be a disproportionate attack on the issue with which we are dealing. As regards age, paragraph 9(b) states that:

    "the fact that the victim was particularly vulnerable because of age or disability",

must be taken into account, as must the age of the perpetrator. Age, as regards both the victim and the alleged perpetrator, used as a mitigating factor is

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echoed in paragraph 10. The courts can take those issues properly into account and can do justice in the way that noble Lords have sought.

The noble and learned Lord, Lord Ackner, drew attention to the guidelines of the Lord Chief Justice and his comments on maximum flexibility. We believe that these provisions maintain that flexibility. Therefore, a clear, simple and transparent sentencing structure is essential in maintaining public confidence in the justice system, particularly when pertaining to the crime of murder which is understandably the most high-profile crime. We have carefully considered the views and concerns expressed in Committee, but we have concluded that they can be addressed within the framework as drafted for the reasons I have just given. The framework provides the courts with the ability to take proper account of the special needs of juveniles.

It must be stressed that the starting points for the tariffs under Schedule 19 are not minimum sentences. Age is specified as a mitigating factor and the courts will have a discretion significantly to reduce from the starting points to arrive at sentences appropriate to the youth of juvenile offenders.

In practice, courts may be inclined to follow a rule of thumb such as that set out by the Lord Chief Justice in his direction dealing with juvenile tariffs, where the starting point is lowered according to the extent by which the juvenile is below the age of majority. The statute would allow for that. We believe that this flexibility is sufficient to allow for the special needs of the range of juvenile offenders without excluding them from the framework.

We have to ensure that everyone understands the basis upon which sentencing will be managed—that we will have the clarity and transparency we need so that the confidence which has diminished in our system can be restored. We believe that this framework—that is all it is; it is not a straitjacket, but a framework—does that which noble Lords would wish.

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