Anti-social Behaviour, Crime and Policing Bill

Earl of Listowel Excerpts

Wednesday 20th November 2013 Lords Chamber

Moved by

[The Earl of Listowel)]

22KB: Clause 29, page 16, line 27, after “person” insert “over 18”

[The Earl of Listowel (CB)]

My Lords, in moving Amendment 22KB in the name of my noble friend Lord Ramsbotham, I shall speak to Amendments 22KC, 22NZA and 22NZB. My noble friend apologises to the Committee for his absence. He has a long-standing commitment and asked that I might present his case for him. There seems to have been a little confusion. His amendments were tabled late in the day and I, also late in the day, called for a clause stand part debate. I do not think that I will need to call for a clause stand part debate, given the useful amendments tabled by my noble friend. The amendments deal with Clause 29, on the breach of orders, and Clause 37, on offences. They would take minors out of both those clauses.

As an aside, several of my colleagues who would be interested in our debate are involved in the Children and Families Bill, as am I, and there has been confusion about the timing of that Bill, which may have been an obstruction to colleagues interested in the area of children to come to discuss this Bill. If the Minister has not agreed to this already, perhaps there may be an opportunity to meet with him and officials to discuss how this Bill affects children with those Peers who are particularly interested in the welfare of children.

Over the past few years, there has been a welcome reduction in the number of children in custody, as a result of the recognition by Her Majesty’s coalition Government that imprisonment is not an effective way to deal with children’s offending behaviour. As your Lordships will be aware, the new police dispersal power to tackle anti-social behaviour is introduced by the Bill. Children who breach the order and are convicted of failing to comply with the police dispersal order are to face a fine and/or up to three months in prison. I suggest that those sanctions are disproportionate, counterproductive, incompatible with children’s rights and risk reversing the positive downward trend seen in children’s custody numbers.

As a bit of background, currently, nearly seven in 10 children breach their anti-social behaviour orders. That is typically due to a lack of support, rather than wilful non-compliance. It is a much higher breach rate than for adults. Imprisonment is imposed as a sanction for juvenile ASBO breaches in 38% of cases, with an average sentence of just over seven months.

The purpose of the amendment is to remove imprisonment as a sanction for children when they fail to comply with a dispersal order. The amendments replace imprisonment with robust community alternatives. I have mentioned several times my concern about the guilt that many of those young people will carry with them. They will feel responsible for the failures in the family. I have spoken to young men who have made it their job to be at home when their father has returned home from the pub so that they can stand between their mother and their father at the time. I have already spoken about those boys who grow up without a father in the home. Of course, there are young men who are beaten by their father on a regular basis. Those young men feel responsible for having to stand up to their father and protect their mother, for being beaten by their father or for having their father absent from the home.

My wide experience of this is that children do not think rationally in those times. They tend to think that they are responsible for those failures. Being too harshly punitive of young children may be counterproductive. I spoke recently to a lawyer with several years of experience of working as a defence lawyer for such children. To get them prepared to stand up in the witness box and give a reasonable case, he would say to a child, “Look, Richard, I know that there is good in you. My partner, Margaret, knows that there is good in you. You can make the choice. You can do the good, the right thing or you can choose not to”. By speaking in those terms to the child, he gets the best from them.

My concern is that if we are overly harsh, if we imprison children, if we punish them too severely, they will be confirmed in their belief that they are bad to the bone, that they are responsible for all the bad things in their life and will go on to be a nuisance to society and cost society a large amount of money when they are later imprisoned. A further problem, to which I just alluded, is that once children get involved in the prison system, there are much more likely to get involved with it again. They will be returnees. I look to the Minister for some reassurance in his response.

[Baroness Hamwee]

The noble Earl has raised extremely important points, and I do not want to repeat arguments that I made on my earlier amendment about publicity, which also apply here. It is not only the noble Earl, who has massive experience, who makes these points. As I said earlier, so many organisations which have practical experience and great success in diverting children at risk of going down the route of a criminal career back to a better road, have suggested that such amendments should be made. We should take that extremely seriously.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, I thank the noble Earl, Lord Listowel, for picking up the amendments of the noble Lord, Lord Ramsbotham, and presenting them in the way that he has. In replying, I am very happy to have a meeting with those Peers who are interested in the impact of the Bill and its provisions in general on young people. That would be useful. We have had some productive debates on the issue here in Committee. I hope that I have been and am able today to show that we see our role in seeking to prevent anti-social behaviour as one that tackles the difficulties that some young people have, and in rehabilitating and supporting them.

This brings us back to whether it is right for young people to face the full range of criminal sanctions when they act in a way that is seriously anti-social: I emphasise “seriously”. I understand the points that have been made by all noble Lords who have spoken: the noble Earl, Lord Listowel, my noble friends Lady Hamwee and Lady Linklater, and the noble Baroness, Lady Smith of Basildon. They have all expressed the importance of rehabilitation, especially in cases concerning young people. That is why it is so important that the injunction under Part 1 and the criminal behaviour order that we are discussing here can include positive requirements to help them turn their lives around.

Youth rehabilitation orders are often a fair and proportionate way to deal with a young person who has been convicted of an offence as an alternative to custody. Use of such orders is in line with the intentions of the Bill: that informal interventions and rehabilitative approaches should be used first and foremost, in particular, when dealing with young people. However, it is right that tough sanctions are available on breach.

Amendments 22KB and 22KC seek to restrict the sanctions on breach of a criminal behaviour order for under-18s so that a youth rehabilitation order must be made. Breach of a criminal behaviour order is an offence. There is no danger of this criminalising someone for the first time because an order can be made only once they have been convicted of a criminal offence. It is worth remembering that the criminal behaviour order is aimed at tackling the most serious offenders, and that by the time that it is breached an offender may already have failed to respond to positive requirements aimed at addressing the underlying cause of their anti-social behaviour. They may also already have had a youth rehabilitation order made in respect of their offending. We would expect the youth courts to do all they can to ensure their rehabilitation when considering the sanction for a breach. This may well be a rehabilitation order but it is right that they have the discretion to impose the most appropriate penalty in a given case, including a fine or, in the most serious cases, custody.

On the dispersal power, there needs to be an effective and serious consequence to breaching a dispersal order which is imposed by a police officer. Clause 37 provides the option to apply a fine or a prison sentence of up to three months. We expect the court to use these sentences appropriately and proportionately in accordance with sentencing guidelines. The three-month sentence is the maximum sentence available to the court and it may impose a lower sentence if appropriate, including a youth rehabilitation order if the offender is under 18. However, there may well be some young people for whom a fine or even detention is appropriate, and I would not wish to tie the hands of the youth courts which, after all, will have access to all the evidence and will be best placed to make a decision in individual cases.

I hope I have been able to reassure the noble Earl that the sanctions available on breach of the CBO and the dispersal power will help the courts. From the comments of the noble Baroness, Lady Smith, one could be forgiven for thinking that breach of an ASBO was not an offence subject to a maximum penalty of five years’ imprisonment, which is what the previous Government legislated for. This sanction applies to the ASBO and the sanction of imprisonment applies to young people as it does to adults. Like the previous Administration, we believe that tough remedies should be applied on breach where it is appropriate. It is for the courts to test what is appropriate, and the test for the CBO is analogous to that for the ASBO, as the noble Baroness would expect.

[The Earl of Listowel]

My Lords, I thank the Minister for his careful reply. I hear what he says and will take it away and consider it. I am concerned about looked-after children, who have often been so badly failed by their family. While the state is improving in its job as a corporate parent and the Government are doing good work in improving the consistency and quality of social workers, still so often the young people I meet are let down left, right and centre by the state itself by having too many different social workers and not being properly cared for in their residential care.

I am concerned that young people who will be caught by these measures will be troubling, but often very troubled themselves. They can be such a nuisance and so difficult to deal with that the risk is of a kind of unintentional ratcheting up of the response by the state until these terribly troubling—and terribly troubled—young people, who have often been very poorly treated in their own home, get punished by the state because their parents were not good enough for them. It falls to us to try to be as careful as possible to get a positive influence and impact on their lives.

For instance, in a children’s home, one might find that if a child is acting out in an aggressive and unhelpful way and if you have poorly trained staff, in the worst instances they will hit back at a child. They simply will not know how to respond. In the best establishments, one finds that the staff are really well supported and very thoughtful. They get in there really early on, before the child starts acting out, and prevent the escalation to where the police are called and the child gets reported and put into the criminal justice arena. I am being a bit longwinded here. It is so easy for Governments to ratchet up their response to these children because they are so difficult. One does not want to see a return to the past where we had the highest rate of juvenile imprisonment in Europe, which was a shame on this nation.

[Lord Taylor of Holbeach]

Perhaps I might intervene to reassure the noble Earl that what we are seeking to do with the Bill is to get early intervention of the type he is suggesting. When we are talking about CBOs, we are talking about people who have been convicted of a criminal offence. Our task must surely be to try to avoid people getting to that stage. That is why we are looking to build in early intervention and, even when criminality has occurred, to look at methods of rehabilitation as a vehicle whereby we can address the issues, which I agree are extremely sensitive, in the way that the noble Earl suggests. I hope that he does not mind me interrupting him.

[The Earl of Listowel]

I thank the Minister for his response. I need to look very carefully at what the Government are doing here and the nuanced way that they are trying to approach this. I hope I can be comforted by that. I am most grateful to the Minister for agreeing to have a meeting at some point with those Peers who are particularly interested in this area. I beg leave to withdraw the amendment.

Amendment 22KB withdrawn.