Criminal Justice and Courts Bill

Lord Beecham Excerpts

Wednesday 23rd July 2014 Lords Chamber

[Lord Woolf (CB)]

My Lords, I am not as expert in the matters raised as many who have already spoken in this important debate, but I have one advantage, which is that I am fully instructed by the Prison Reform Trust. The second is that, at one stage, I had to make a report—known as the Strangeways report—into deep problems in our prison system. Certain general lessons were set out in that report, which I think I am right in saying all those who are knowledgeable in this area still regard as being the right recipe for positive progress. We have had great advantage in hearing from the noble Lord, Lord Cormack, based in turn on what was said by the noble Lord, Lord Ramsbotham. I urge the Minister to take the very wise course that is being pressed upon him. We do not want to make a mistake of the sort that has been indicated could happen.

[Lord Beecham (Lab)]

My Lords, as noble Lords have already demonstrated, there is no shortage within your Lordships’ House of people with not only an interest in but considerable expertise of—derived perhaps from professional or even judicial experience—the problems that we are discussing. However, I think we would all agree with the noble Lord, Lord Cormack, that there is none with the particular degree of involvement and expertise of the noble Lord, Lord Ramsbotham. The House is indebted to him for his continuing interest in this problem and for the positive way in which he seeks to assist the Government and, through the Government, society in dealing with an intransigent and difficult problem affecting numbers of our young people.

I was particularly interested to hear from the noble Lord today about the local academy which is to start, I think he said, next year, and also about the Missouri experience. If indeed there is—and it is clear that there will be—an opportunity to see how the proposed academy, which I think he said would be built in Haringey, works, then surely it would be sensible to learn from that experience and, if it is successful or even if it is not, to build on that experience in order to craft a way of dealing with the Government’s proposal here. As I said at Second Reading, and again on Monday in Committee, we all agree with their proposal to the extent that we recognise the importance of providing education as part of the way of dealing with the problems of these young people. If, instead, the Government go ahead with their own proposal, next year there will be built an institution catering for 320 youngsters. There is a widespread view in this House and certainly outside it that that is simply too large a number of young people to afford a realistic possibility of attending adequately to their problems.

It so happens that I had tabled an amendment which proposed a much smaller college as a pilot. The number of places that I suggested was 50. I did not know about the Missouri experience in suggesting that figure but, on the basis of some of the discussions that have been held outside this Chamber, it seemed to be a reasonable size. I am reassured by the noble Lord’s confirmation that that appears to be a very successful project. Again, I commend that kind of approach to the Government in looking at how they might carry forward their very well intentioned objectives. I also refer them to the experience of Finland, which has a very good record in dealing with youngsters who have committed offences, and it has a successful record in ensuring that they emerge from care—let us call it that rather than “custody”—into society.

I do not know the extent to which the Government have looked beyond these shores, as the noble Lord suggested and as I am now suggesting, to see what the experience of other countries and jurisdictions might contribute. However, as matters stand, many of the criticisms that were voiced earlier remain unanswered. The noble and learned Baroness, Lady Butler-Sloss, asked a perfectly valid question about her local institution. She asked where the secure unit in Exeter will go. The same question remains to be asked about a whole range of institutions that are currently operating at, as I acknowledge, different rates of cost.

In Committee on Monday, I referred to the fact that the number of places in secure children’s homes has been reduced to 138, so there has clearly been a reduction—of 28 places nationally—in that area. It remains to be seen what the future will be not only of those homes but of the other training facilities, because it is envisaged that some of those who are currently in other institutions will transfer to this new college and presumably any other new colleges that might come on stream. Therefore, there is a very real risk to the kind of institutions that the noble and learned Baroness referred to.

As the noble Earl, Lord Listowel, and my noble friend Lord Ponsonby said, there is so little detail in the proposal that it is difficult to be confident that, at the end of the day, we will emerge with a fully developed project that will do the job which the Government intend—we agree with that intent—to see carried out. I do not expect the Minister, just two days later, to answer the questions that I posed on Monday. However, some of them are worth repeating. As is his normal, courteous practice, he said he would identify questions asked by noble Lords, write to us and place the reply in the Library. I will touch on some of them as a gentle reminder of some of the issues that were raised. One was the report of the Joint Committee on Human Rights and, in particular, its concern that there was no equality impact assessment. That seems particularly important in relation to gender, as there is a real concern about the current proposal of having girls in the same large institutions as boys. A second concern was the requirement for special educational needs to be catered for.

There are also questions around the secure children’s homes, to which I have already made reference. The Minister implied that there were, perhaps, some shortcomings in these establishments. What improvements in service have been identified as requiring attention? We have heard from the noble Earl, Lord Listowel, that a place in one of those homes costs around £200,000 a year. If that is regarded as too high, what do the Government consider an appropriate figure, both for the individual, on a per capita basis, and in terms of the aggregate cost? Reverting almost to the question posed by the noble and learned Baroness, Lady Butler-Sloss, how many children now in secure homes do they envisage will transfer to the larger college? It is slightly disturbing that the duty to use best endeavours to ensure that the needs are met of children who have been assessed as needing EHC plans would be placed on the principal of a secure college. On Report in the other place, the Minister said that,

“a great deal of further thought will be given to how those needs can be met”.—[Official Report, Commons, 12/5/14; col. 538.]

It is only two months since that observation was made, but can the Minister indicate—not necessarily today—that that has been followed up and with what result?

Many noble Lords are concerned, as I am, about staff to children ratio. Can we be assured that it will not simply be left to the contractor to opt for a figure just in terms of numbers, but that these will be numbers with the sort of qualifications that, as noble Lords have indicated today and in previous debates, would surely be required to attend to the complex needs, including the educational needs, which are the main object of the project?

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[Lord Faulks]

It is true, and I am going to come on to deal with that. The different establishments are there, in the view of the Youth Justice Board, to deal with the different challenges that the individuals present. My point is that secure children’s homes are no panacea. The starting point is that the overall rate of reoffending is simply not acceptable. That is why we are introducing secure colleges.

I entirely accept the point made by the noble Earl, Lord Listowel, that the Government should be aware of the long-term cost as well as the short-term cost. Indeed, the whole purpose of secure colleges is that, with the benefit of proper education, the Government consider that there should be a cost-saving in the long term because of the accrued benefit for young people who go to secure colleges.

[Lord Beecham]

I am sorry to intervene at this point, but it is sensible to do it now rather than later. Are we to infer from that that the Government’s ultimate intention is to dispense with the 138 places in secure children’s homes or is it their view that there will still be some place for secure children’s homes? If so, how will they approach determining how many?

[Lord Faulks]

I respectfully ask the noble Lord to be a little patient; I am going to deal with that point in the course of my remarks. I have not been speaking for long. I have been much criticised for not giving the House information. I should perhaps remind the Committee that there were meetings offered first to the party opposite, then to this side and to Cross-Bench Peers. There has been written information and there was a further meeting at which the details of secure colleges, including demonstrations on visual display units, were supplied. That, together with the answers I have given and the answers I propose to give further, should give the Committee at least as much information as it can reasonably expect.

I have heard in the course of the debate arguments that there are better ways to improve the youth custodial estate and particular emphasis was placed on the secure children’s homes. The noble Lord, Lord Ramsbotham, for whose expertise the Committee is indebted, mentioned a number, in particular Diagrama, a Spanish not-for-profit organisation that runs custodial facilities. The Ministry of Justice is aware of the work of Diagrama, and it is an example, as I understand it, of the type of innovation that we want to introduce and attract into secure colleges. We have, as I said previously, an open mind, and we are anxious to encourage innovation. However, as the noble Lord quite rightly said, he would not expect me to comment from the Dispatch Box on the advantages or disadvantages of the specific matters that he raised in his speech, valuable though his contribution is to the general approach to trying to find the right answer to these difficult problems.

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Moved by

[Lord Beecham]

44: Schedule 6, page 92, line 28, at end insert—
“(4) Where the Secretary of State enters into a contract with another person under paragraph 1(1), and that person is not a public authority for the purposes of section 3 of the Freedom of Information Act 2000 (public authorities), that person shall be designated by the Secretary of State as a public authority for the purposes of that section in relation to that contract.”

[Lord Beecham]

My Lords, the Committee will be pleased to hear I will not detain it long on this amendment, which follows similar amendments moved during earlier parts of the Bill. The amendment seeks to ensure that the Freedom of Information Act procedures will be available in respect of the operation of the secure colleges, if they are built, by designating them as a public authority. The amendment would require the Secretary of State, when entering into a contract to provide or run a secure college with another person that is not a public authority, to designate that person as a public authority for the purposes of that section of the Act.

The Minister just referred to two possibilities: one is that the Secretary of State enters into a contract with such an outside body to provide the facility; the other is that the Secretary of State, the department or some other public body—perhaps the Youth Justice Board, which is a recognised public body—would carry out that function. The intention, clearly, is that it should be a contracted-out service. I understand that four bidders to provide the service have been selected, and I believe them to be—I may be wrong and, if so, no doubt the Minister will correct me—effectively private sector bodies.

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[Lord Faulks]

My Lords, Amendment 44 seeks directly to extend the Freedom of Information Act to providers of secure colleges who have entered into a contract with the Secretary of State under Schedule 6 to the Bill. The amendment, as the noble Lord, Lord Beecham, said, is similar to Amendment 11, which we debated in Committee on day one. It would provide for private providers not currently subject to the Freedom of Information Act to make information available both in response to FoI requests and proactively through publication schemes.

As the noble Lord said, the amendment differs in one respect from Amendment 11 in that it would lead to the formal extension of the FoI Act to providers of secure colleges, whereas the amendment debated previously sought to achieve the same ends in relation to providers of outsourced electronic monitoring services through the code of practice that the Secretary of State would issue under new Section 62B of the Criminal Justice and Court Services Act, which is being introduced through Clause 6 of the Bill.

As we set out in the debate on Amendment 11, the Government recognise that there are concerns about the position of private providers of public services, under the Freedom of Information Act. The issue of outsourced public services was considered in some detail during the post-legislative scrutiny of the Freedom of Information Act carried out by the Justice Select Committee in 2012. The committee recommended the use of contractual provisions, rather than the formal extension of the Freedom of Information Act, to ensure that transparency and accountability are maintained. In particular, the committee said that it believed that,

“contracts provide a more practical basis for applying FOI to outsourced services than partial designation of commercial companies under section 5 of the Act”.

The committee also felt that,

“the use of contractual terms to protect the right to access information is currently working relatively well”.

The Government recognise not only that concerns exist in this area but the potential challenge that the increased delivery of public services by non-public sector providers poses to transparency. It is for that reason that the Government accepted the committee’s recommendation. Later this year, the Government will issue a revised code of practice under Section 45 of the Freedom of Information Act to promote transparency about outsourced public services in response to FoI requests. As we explained in the debate on Amendment 11, the guidance to be provided in the code will promote and encourage the use and enforcement of contractual or sub-contractual obligations to ensure that contractors provide information held on behalf of public authorities. It will go further than the current obligations under the Act. It will encourage contractors voluntarily to provide additional information beyond that held on behalf of the contracting public authority where, for example, doing so would help the contracting public authority to provide a more meaningful response to requests.

The Government and the Information Commissioner will monitor the effectiveness of the code. If it does not prove successful, the Government have said that they will consider what other steps may be necessary to ensure accountability, including the possible formal extension of the Freedom of Information Act to contractors. As I have indicated previously, we believe that our approach represents an appropriate balance between transparency and minimising burdens on business. As a result of the steps that we are taking, I suggest to the House that the measures proposed through these amendments are, with respect, unnecessary. I invite the noble Lord to withdraw his amendment.

[Lord Beecham]

My Lords, I will withdraw the amendment and I am grateful to the noble Lord for reaffirming the Government’s general position. He did not—I do not criticise him for this—quite deal with the further point I made about having a monitor, particularly the issue of the Secretary of State reporting on the outcome of such issues. He may wish to consider that. I hope we can clear up that point because, if the Secretary of State is issuing or preparing a report, it should be in the public domain. That may very well be intended but perhaps we can deal with that matter before Report. I beg leave to withdraw the amendment.

Amendment 44 withdrawn.

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[Lord Marks of Henley-on-Thames]

My Lords, I have added my name to Amendment 48B, as have my noble friends Lady Linklater and Lord Carlile of Berriew. We have also tabled Amendment 48F. However, the purposes of our amendment are identical to those of the noble Lord, Lord Ponsonby, so I will be brief.

There are three purposes to this group of amendments. The first is to ensure the extension to electronic media of those provisions dealing with restrictions on reporting of offending by children—restrictions that in a previous era applied to newspapers and standard television broadcasts. The public electronic media should all be treated in the same way. The second purpose, as the noble Lord, Lord Ponsonby, said, is to deal with pre-charge naming of children, which undermines the anonymity granted to them only later. Section 44 of the Youth Justice and Criminal Evidence Act 1999 would deal with that but has not yet come into force. The purpose of the final subsection of the proposed new clause in Amendment 48B is to deal with that. The third point, as the noble Lord explained, is to amend Sections 39 and 49 of the Children and Young Persons Act 1933 to establish that anonymity given to children should last beyond their 18th birthday unless there is a substantial reason why the position should be changed. That would be subject to an order of the court. In those circumstances, I invite the Minister to accept these amendments and ask the Committee to do so, too.

[Lord Beecham]

My Lords, it would appear that in this area, as in others, we are short of information about the number of cases in which young offenders are named. There does not appear to be a dataset indicating how many of these young people are being named and, apparently, has there been no research of any great depth on the impact of being named on such young offenders or their families—as my noble friend pointed out, particularly in relation to their siblings.

The UN Convention on the Rights of the Child, as long ago as 1989, stated that as well as the right to privacy, “best interests” of the child should always,

“be the primary concern in making decisions that may affect them”.

It is striking that, although it is a matter for the courts whether the child should be identified, the applications tend to be made by the media on the grounds of public interest. The capacity of the media to identify their interests with the public interest is of course unlimited, but in this rather sensitive area it might be thought that the principles of the convention should be taken a great deal more seriously. Some of the ways in which the media have portrayed young offenders, complete with photographs—my noble friend mentioned a case where a child’s photograph was prominently displayed—and emotive language such as how “young thugs” should be dealt with, are not conducive to meeting the requirements of the convention, which we should all respect.

I understand that the Government are looking at the existing law on reporting restrictions and had indicated that they would be coming to a conclusion some time this year. They may not have done so, but I do not know whether the Minister is in a position to indicate when that review might be completed. It would be helpful to the House to know when that might occur. In fact, the Government—I should, in fairness, say successive Governments—have not responded to the UN committee’s report, which is dated as long ago as 2008. In addition to the general principle to which I referred, that report made the strong point that respecting privacy should extend especially to avoiding messages that expose the child to shame and are against their best interests.

This is potentially quite a serious issue. From my experience as a councillor and, indeed, as chairman of the social services committee in Newcastle in the 1970s, I recall very well the famous case of Mary Bell, who was a young child when she committed offences that became notorious. Rather like the subsequent Bulger case—or rather, those who were guilty of killing Jamie Bulger—she became exposed to a great deal of publicity. That made assimilation into adult life extremely difficult for her, as it has for other defendants, it would appear, including those in the Bulger case. This is a very sensitive area in which we need a clear position from the Government in terms of a response not only to the amendment but perhaps more importantly to the UN convention requirements of as long ago as 2008.

Of course, there may be public interest in knowing what is happening, but a public interest in knowing does not necessarily amount to a matter of public interest. The two terms become confused. I hope that that is not the position that the Government ultimately end up with. There are clearly issues here that can have a long-term impact on young offenders. I entirely take the Minister’s point: the whole point of dealing with these young offenders is to ensure they do not offend again and can assume their place in society. We should not facilitate making that any more difficult by permitting disclosure when it is not necessary. I hope that the Government will look sympathetically at the amendment moved by my noble friend and respond to the long outstanding report and recommendations of the UN convention.

None of us would say that people—even young people—who commit serious crimes should not be punished or go through the processes that the law prescribes. They should not, however, be subjected to public obloquy in addition to that. It is rather disconcerting that, at the time of the riots in London a few years ago, the Home Secretary seemed keen to publicise the identity of some of those, particularly young people, who were involved in criminal and quite disgraceful behaviour. I think that many of us would feel that, in that sort of case and for that sort of young offender, publicity might be regarded as almost a badge of honour and is therefore not to be encouraged from any perspective. I hope that that situation will not recur. In the mean time, we have a number of offenders, some of whom are involved in very serious offences, whose anonymity has been done away with in a way that cannot be conducive to helping them to reform and to assume a normal place in society.

[Lord Faulks]

My Lords, I am grateful for the amendments tabled by the noble Lord, Lord Ponsonby, and those tabled by the noble Lord, Lord Marks, the noble Baroness, Lady Linklater, and the noble Lords, Lord Carlile and Lord Dholakia. All have shown considerable commitment to the subject of how we respond to children and young people in the youth justice system. Some have direct experience of how children and young people are dealt with in court, as magistrates, lawyers or counsellors, in one or more of those capacities or in some other capacity. I welcome the opportunity to debate the issue of youth reporting restrictions. Noble Lords’ amendments bring into focus a range of issues, each of which I will deal with in turn.

First, as to online content, noble Lords are seeking to address a potential lacuna in the existing reporting restrictions framework which was remarked upon by the High Court in the case of MXB v East Sussex Hospitals NHS Trust. The court commented that information that would normally be prohibited from publication in a newspaper could be published and made available to the public via Facebook or Twitter. The present position therefore appears to be not entirely clear, although it may conceivably become clearer in the light of further developments in case law. However, we know that the publication of information through online content is in many ways quite different from the more traditional forms of communication that Sections 39 and 49 of the Children and Young Persons Act 1933 were intended to cover. For example, information can now be published, updated, viewed and replicated almost instantaneously in a way that could not have been envisaged by Parliament many decades ago.

However, the ability to view such information may be restricted by the author of the online content to a very limited set of individuals indeed. We must be mindful of the boundary between private correspondence via e-mail, which the current youth reporting restrictions framework, rightly, in no way seeks to curtail, and publication to the world at large. It is worth noting that, in its recent reports on the law of contempt, the Law Commission considered what statutory definition might capture online content and identified a drafting solution very different from that put forward by the noble Lord. I wish to reassure noble Lords that the Government are aware of the concern that has been raised and are giving further thought to this very technical and complex issue. In light of that assurance, I hope that, in due course, the noble Lord will withdraw his amendment.

As to criminal investigations, Amendment 48B, also in the name of the noble Lord, Lord Ponsonby, seeks to commence Section 44 of the Youth Justice and Criminal Evidence Act 1999, which has been on the statute book for some time. Section 44 applies whenever a criminal investigation begins into an alleged offence and means that no information enabling the identification of a young person under 18 suspected of committing the offence may be reported by the media. Section 44 also gives the Secretary of State the power to extend the protection to children and young people who are alleged to have been the victims of, or witnesses to, a criminal offence but only by means of an affirmative order. Hansard indicates that on 29 June 1999, during Committee stage in the other place, the affirmative procedure in respect of victims and witnesses was introduced by the Opposition when in government. A number of objections were raised in respect of Section 44 and were considered in a process in which parliamentary scrutiny went hand in hand with discussions with the print and broadcast media. I have recently received letters from the Newspaper Society and the BBC outlining similar misgivings.

During what I referred to as hand-in-hand discussions, it was suggested that it may be time to look at whether the media’s own regulatory arrangements to protect vulnerable young people could be strengthened in a way that is specific to young people who might be harmed by publicity about crime. Given the significant restriction that Section 44 potentially imposes on the freedom of the press and the possibility that its aims might be achievable through other means, it was determined that Section 44 should be extended to victims and witnesses only after both Houses had been given the opportunity to debate the issue again. Since then, the section has never been commenced and guidance and regulations have been pursued instead.

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[Baroness Howe of Idlicote]

My Lords, I support the amendment in the name of my noble friend Lord Listowel. Article 1, as he said, of the United Nations Convention on the Rights of the Child defines a child as a person under the age of 18. In 2010 the Government made a commitment to have regard to children’s rights when developing law and policy affecting children. In the majority of the youth justice system, 17 year-olds are rightly treated as children and so are entitled to the same protection as all other children. The police station is the only part of the criminal justice system where 17 year-olds are not—uniformly, at any rate—recognised as children.

At present, one other anomaly remains: 17 year-olds are still not entitled to the protection afforded to other children when they are cautioned. However, I think we all welcome the fact that Clause 32 rectifies that. Of particular concern is the fact that if they are detained by the police, 17 year-olds are not entitled to a local authority bed—my noble friend made the point firmly that they must still be detained in police custody.

Police custody is an intimidating and frightening environment that is unsuitable for children, particularly the sort of children who are as damaged as those who are likely to be in that situation. We have heard about the tragic consequences that can result, and I offer my condolences to the family of Kesia Leatherbarrow, the 17 year-old who was found dead following detention in police custody. By contrast, local authority accommodation has trained staff. As my noble friend Lord Listowel has mentioned on many occasions, trained staff are important in such situations. They are more supportive and far more appropriate.

I cannot see the rationale for denying 17 year-olds access to local authority beds. It is clearly desirable and is in keeping with the UNCRC. The Government are still making progress in other areas to ensure that 17 year-olds are treated as children in the youth justice system—for instance, under Clause 32. I urge them to do the same with regard to the provision of local authority beds, and to accept the amendment.

[Lord Beecham]

My Lords, the Committee is indebted to the noble Earl, Lord Listowel, and to other noble Lords who have spoken in the debate, for raising a matter of concern and for pointing out the inconsistency that now applies, particularly in regard to the welcome change that the Bill incorporates, and to which other noble Lords have referred, about having an appropriate adult present when a 17 year-old is being charged or interviewed.

Noble Lords have spoken in moving terms about the problems faced by vulnerable young people in the circumstances that the amendment addresses. Clearly, from their point of view, it would be highly desirable for a different sort of accommodation to be made available. Perhaps the noble Lord, Lord Paddick, who has not participated in the debate, might agree that it is better from the police’s point of view if they do not have responsibility in an area where, as the noble Baroness has just pointed out, they do not have the expertise to look after vulnerable young people who might be capable of inflicting harm upon themselves in a difficult and unusual situation.

Both sides of the equation, as it were, argue for a change and a degree of consistency across the legislative framework. It would, however, be desirable, if it has not yet been undertaken, to consult with the Local Government Association representing local authorities in England and Wales to ensure that the local authorities have an awareness that this will, necessarily, impinge to some degree upon their responsibilities, and for an adjustment to be made in the financing that would no doubt be required to provide a safe, temporary haven for these young people before they make their court appearance. If the Minister is unable to give an unequivocal response today, I join others in hoping that, between now and Report, matters might be progressed.

This may be seen primarily as a matter for the Home Office but it is clearly of interest for the Ministry of Justice and I hope that the two departments between them—possibly with, as I said, the involvement of the Department for Communities and Local Government and maybe even the Department for Education, which has a potential interest in respect of children’s services—might come to a fairly rapid conclusion about what is not an inherently complex matter in a way that would satisfy the noble Earl, Lord Listowel, and, more particularly, those who have undergone a traumatic experience with their own children and do not wish to see that repeated in respect of other 17 year-olds and their families.

[Lord Faulks]

My Lords, I begin by acknowledging the contribution that the noble Earl, Lord Listowel, has made to our debates generally on the plight of young people, particularly those who are or have been in care, who, sadly, often find themselves in the position that this amendment particularly focuses on. I join others in expressing the Government’s deepest sympathy with the family of Kesia Leatherbarrow. It was, as all noble Lords have pointed out, a tragic case.

The main purpose of the amendment is to include, within the definition of “arrested juvenile” in Part 4 of the Police and Criminal Evidence Act 1984, 17 year-olds in the context of police detention following charge. I acknowledge that although 17 year-olds may often appear confident and adult, that can conceal vulnerability, as the noble Baroness, Lady Kennedy, pointed out. In line with the current treatment of 10 to 16 year-olds the amendment would have the effect of requiring a 17 year-old who has been charged and denied bail to be transferred to local authority accommodation when it is both appropriate and practicable for the police to do so.

I understand that this proposed amendment, which has at its heart a laudable intention, is related to the Hughes Cousins-Chang High Court ruling of April last year. The Government did not appeal that ruling and accepted the findings of the court, which related solely to the Police and Criminal Evidence Act codes of practice C and H. Specifically, the ruling required that 17 year-olds, when arrested on suspicion of committing an offence, must be provided with an appropriate adult and have a parent or guardian informed of their detention. The Government made these changes in full as soon as possible, allowing for the statutory obligation to consult on all changes to the PACE codes, and these provisions were made mandatory in October.

Since the implementation of the High Court ruling, the Government made clear their commitment to review the primary legislation relating to the treatment of 17 year- olds as adults in the criminal justice system. This was to consider whether changes should be made for similar reasons. I can confirm, as noble Lords have already indicated, that an internal review has already been launched and that the work is continuing. Whereas this amendment concerns specifically the case of detention following charge, the review covers all the legislation where 17 year-olds are treated as adults in the criminal justice system. It includes, for example, Section 65 of PACE, which relates to the age at which a person can give their independent consent to the taking of fingerprints, impressions of footwear, and intimate and non-intimate samples at the police station.

The Home Office review also covers the consequential changes that would need to be made to other legislation should 17 year-olds be regarded as juveniles. For example, an amendment to Section 37(15) of PACE, which is the proposition here, would also require amendments to the Children (Secure Accommodation) Regulations 1991, the Bail Act 1976, the regulations of 1991, the Children and Young Persons Act 1933, and so on. These are just some examples, for which other departments have responsibility. Those examples demonstrate the breadth and complexity of the legislation, which needs to be properly thought through before change is made.

It is of the utmost importance that any change in the law is workable in practice and not merely symbolic. We need to be sure, for example, that local authority accommodation will be available to 17 year-olds were the law to be changed, that adequate transportation exists and that police officers are trained properly to understand the requirements of this change. The appropriate adult change, which has been referred to, is considerably less complicated operationally than that which is the subject of this amendment. Any amendment to primary legislation needs to be subject to proper consultation, appropriate consideration and full scrutiny by Parliament. This amendment, though laudable in its aims, represents, we respectfully say, a somewhat hurried approach to the issue of how we treat people at the age of 17 at the front end of the criminal justice system.

The noble Baroness, Lady Howe, referred to the police’s knowledge of young people in dealing with 17 year-olds. The noble Lord, Lord Beecham, tried to elicit a contribution from my noble friend Lord Paddick as to the unsuitability of the police to deal with 17 year-olds.

[Lord Beecham]

In fairness, I was not saying that the police were not suitable but that it is placing an undue burden upon them. That is a rather different point.

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[Lord Ponsonby of Shulbrede]

My Lords, I welcome the Government’s move to single justice procedures. I have sat on many hundreds of these types of cases and it is absolutely not necessary for three justices to sit to make such determinations.

I have three amendments—the noble Lord referred to them in his comments—which the Magistrates’ Association has asked me to put forward to clarify particular issues. As the noble Lord said, Amendment 50A is an amendment to the Government’s amendment which seeks to add that specified and relevant information should be made available to the court. The concern raised by the Magistrates’ Association is that magistrates should have access to the right information, such as DVLA records, as appropriate. The amendment was worded in a wider sense because if one was dealing with television licences one would need information on non-payment. The amendment is to ensure that magistrates, when sentencing, have specific and relevant information in front of them.

Amendments 50B and 51A would require the court to give public notice of trials under the single justice procedure and to publish the outcomes of these trials. I know the Magistrates’ Association has been consulted fully on these changes and everyone is aware that we are dealing with high volume, low level regulatory cases more than anything else. Nevertheless, it is important that these cases are dealt with properly and that the public should have confidence in our legal system. Therefore they need to know when the trials are happening and the results of those trials. The purpose of the amendments is to provide some clarity on what the Government intend to do in making sure that the trials and their results are well published.

As the Minister pointed out in his comments, if anyone turns up for a trial, the matter would be put off to be dealt with by a Bench of three. That is, of course, right and proper.

[Lord Beecham]

It is some 23 years since I last appeared before Newcastle magistrates. I should make it clear that I was in a professional capacity, although I had the pleasure recently of seeing them in a political capacity. As I think I mentioned at Second Reading, I attended a meeting of what is now the Northumbria Bench—in the current state of play, of course, there is no longer just a local Newcastle Bench. Unlike my noble friend Lord Ponsonby, who of course has long experience as a sitting magistrate, I was initially attracted to the notion that some have suggested; namely, that, although the procedure is generally to be welcomed, it should be not one magistrate but two who sit on these matters. However, I am persuaded not only by the eloquence and logic of my noble friend but, perhaps more relevantly, by the almost unanimous opinion of the local Bench in Newcastle and Northumbria that such a precaution is unnecessary.

There are, however, a number of issues, which are the subject of amendments to which I shall now refer. The first of those is Amendment 49A, which would ensure that there is a proper procedure for determining which offences can be tried under the new system. It is obviously sensible for many of the offences which have been canvassed in discussion—television licences and matters of that sort—to be dealt with in this way, but the amendment would require that the issues be determined by regulations and approved by Parliament. We do not want added to the list for disposal in this way matters which are not necessarily the first that come to mind as more or less formalities. It would not be asking too much of the Government for them to indicate what they intend and how many offences and for them to proceed by way of regulation. In this case, the negative procedure would be quite acceptable.

Amendment 49B would remove the automatic paper trial if the defendant did not respond to the notice that would have been given. There is a potential for difficulty to be encountered here if, for example, the defendant does not understand English or the purport of the document. What is sought in the amendment is that failure to respond would not itself trigger the automatic transfer to dealing with the case on the papers.

Amendment 49C, on the provision of evidence in respect of vehicle licensing cases, would require the court to be satisfied with the position as recorded by the DVLA, so that the defendant would have an opportunity to say that matters had been dealt with on the basis of the DVLA providing information. It is a relatively modest requirement.

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[Lord Faulks]

I defer to the noble Lord’s experience in that regard, although the new format of the driving licence makes it slightly less destructible than its predecessor. I maintain nevertheless that the courts do have access to the DVLA records, so, when trying a motoring offence, a single justice will have the information even if the defendant does not produce a driving licence at all. I am therefore confident that the safeguards we have built into this procedure make the amendment unnecessary.

Amendment 50AA would remove the provision that a court can decide a case under the single justice procedure other than in open court. That would undermine one of the main drivers behind this policy. We consider the time wasted and costs incurred in requiring magistrates to sit in open court and decide cases disproportionate in the type of straightforward, low-level cases that this procedure will apply to. Safeguards are in place to enable a prosecutor to ensure a case is heard in open court by issuing a requisition and a defendant to ensure the same by indicating his or her wishes in response to the single justice procedure notice. I reassure the noble Lord that the fact that a case is heard under the single justice procedure will not impact on the court’s duty to ensure that proceedings are open and transparent. The press and public will continue to have access to information about these cases, as they do now.

Amendment 50C would allow a single justice to hear and consider evidence from a party to the case if they turn up when the single justice is considering the case. In practice, parties will not know when a case will be considered by a single justice under this new procedure, so it is extremely unlikely that this situation would occur. However, there is a risk that it could be seen as encouraging prosecutors to turn up and assist the court. That could be perceived as unfair and unequal, particularly if the case was being heard other than in open court. We could not allow evidence to be heard by a magistrate when a single justice was making a decision, as that would lead to unfairness if the other party had not been given the opportunity to consider that evidence. In any case, there is clear provision in the Bill stating that when a person wants to be heard by a magistrates’ court, they are perfectly able to request a hearing.

Amendment 51B would introduce a legislative requirement to publish in advance details of cases to be heard under the single justice procedure and to publish the outcome of these cases. It is, of course, vital that the media and the public continue to have access to information on these cases under the new single justice procedure. However, the appropriate place for such provisions is within the Criminal Procedure Rules. Those make it clear that certain specified information must be made available to journalists and other members of the public on request. The rules also allow the court to make certain additional case information available to third parties on request. The Criminal Procedure Rule Committee will be invited to review the Criminal Procedure Rules to make sure that they are fit for purpose for the single justice procedure.

I can reassure the noble Lord that the fact that a case is heard under the single justice procedure will not impact on the court’s duty to ensure the proceedings are open and transparent. The press and public will continue to have access to information about cases, as they do now. There is a protocol in place between Her Majesty’s Courts and Tribunals Service, the Newspaper Society and the Society of Editors whereby magistrates’ courts routinely make written lists of cases and results available to local media, most often by e-mail. This arrangement will continue.

Amendment 52A introduces another condition on which a defendant can make a statutory declaration so that, in addition to being unaware of the proceedings, the defendant can state that they did not understand the information contained in the single justice procedure notice and the accompanying documents. This deals with the point made by the noble Lord, Lord Beecham, about things such as language difficulties. The associated documentation sent to defendants under the single justice procedure will be no more complex that the documentation which is currently sent in this type of case; indeed, we are confident that the flexibility afforded by this new procedure will enable us to make the whole system for these cases more easily understood by defendants. As with the existing process, prosecutors have developed strategies to identify those who may require further assistance and Her Majesty’s Courts and Tribunals Service is also considering, as part of implementation planning, how it will continue to discharge its duty to provide assistance to unrepresented defendants. The provisions, as set out, provide magistrates’ courts with the flexibility they need to operate the single magistrate procedure effectively while ensuring that the rights of defendants are protected.

I will say a little more about the suggestion put forward by the noble Lord about the availability of information on case outcomes. I agree that the information should be available as soon as possible after the trial has concluded. In both cases, the noble Lord suggests that this should be within 21 days. However, such detailed procedure should not be contained within the legislation itself. As I said earlier, the appropriate place for such detail is within the Criminal Procedure Rules.

We know that journalists and the general public seldom attend to watch this type of hearing and this is the reason behind the protocol to which I referred. As to the listing, we accept that it is vital for there to be access to information and we anticipate that cases will initially be listed in the same court buildings as they are at the moment. This arrangement with local media will replicate exactly what currently happens in practice. In future, we will want to take advantage of the fact that consideration of cases in writing can happen anywhere, and maximise the efficiency that can be derived from this greater flexibility. In doing so, we will want to maintain flexibility and transparency.

There are opportunities, as part of the criminal justice system digitisation agenda, to look more radically at how we can use the opportunities of digital to preserve and perhaps enhance open justice. It is our intention to make case information available on a self-service basis and enable the press and public to access cases in real time and follow the progress of the digital process online in a more meaningful way than they can at present. The rule committee will be invited to review the rules to ensure they are fit for purpose for the single justice procedure. I am sure that such a review will want to take into account the proposals made by the noble Lord, Lord Ponsonby. Any necessary amendments can be made, subject to annulment by either House of Parliament in the usual way.

I hope that, in the course of rather too long a response to those amendments, I have been able to allay any concerns and explain the thinking behind the single justice procedure. With that reassurance, I hope noble Lords will not press the amendment.

[Lord Beecham]

That was a very thorough response for which I am extremely grateful, but one thought has just occurred to me in relation to some of the noble Lord’s later remarks. I may be wrong, but I understand that it is possible that some of these cases will be taken, as it were, to some other court and thus will not necessarily be heard in the place where the offence was committed. Perhaps I have misunderstood the noble Lord, but if that is right, does that not make the question of the openness of the process in terms of recording the outcome more difficult? There will not be a local reporter in, say, Newcastle for a case that has been transferred from there to Middlesbrough. Perhaps the noble Lord could look into this because I would be interested to hear his views on it. I think that it would be regrettable. If we are to have this process, it should be based in the local court where the offence occurred and where it would normally be dealt with.

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[Lord Faulks]

My Lords, Amendment 63A is designed to provide clarity about the operation of Section 22A of the Magistrates’ Courts Act 1980, inserted by Section 176 of the Anti-social Behaviour, Crime and Policing Act 2014, which made low-value shop theft a summary offence. Your Lordships may recall that although theft from a shop of property valued at £200 or less became a summary offence, the defendant’s right to elect to be tried by the Crown Court was retained. Where it is exercised, Section 22A provides that the case is to be sent to the Crown Court. The basis on which the magistrates’ court would now do so is that once the defendant has elected, as the court has no option but to send to the Crown Court, the offence becomes indictable only and falls to be sent there on that basis under Section 51 of the Crime and Disorder Act 1998.

Amendment 63A provides absolute clarity about the basis on which such a sending takes place as it is not sufficiently clear in the legislation. It makes clear that a low-value shoplifting case in which the defendant elects is to be treated in the same manner as an either way offence in which the defendant has elected. The magistrates’ courts will still be obliged to send the case to the Crown Court where the defendant elects and will continue to do so under Section 51 of the Crime and Disorder Act. Amendments 84A and 84B provide for that change to come into effect two months after the Bill is passed. Amendment 63F is required to put beyond doubt the role of the court in relation to the imposition of the criminal courts charge.

The Serious Crime Bill includes a provision that amends Section 13 of the Proceeds of Crime Act 2002 to make clear that the imposition of the confiscation order should not be taken into account when the court makes a victim surcharge order. That is because the court has no discretion over whether to impose victim surcharge, or how much. In a similar way, the court’s charge will be imposed by the court in any case where an adult is convicted of a criminal offence and the charge levels will be specified in secondary legislation. Amendment 63F therefore makes a similar change to Section 13 of the Proceeds of Crime Act to include the criminal court’s charge as an order in relation to which the imposition of a confiscation order should not be taken into account. I beg to move.

[Lord Beecham]

My Lords, I am grateful to the Minister for explaining the amendments. I am not quite sure what difficulties have been occasioned by the subject of the first amendment, in particular, or whether this proposal will make any difference in the real world. Could the noble Lord kindly explain it a little further? Unless he can show that it has, in fact, led to difficulties, I am somewhat puzzled.

In respect of the second matter, I suppose the question of consistency is relevant. I wonder whether there has been any review of the impact of the victim surcharge order in relation to outstanding fines. This, of course, deals with the confiscation order but, as we have established, there is a huge backlog of confiscation orders that have not been enforced and fines that have not been collected. While this is a tidying-up exercise, the practical effect may be negligible unless considerably greater efforts are made to enforce both fines and confiscation orders. Perhaps the noble Lord will enlighten us as to what the Government will do about the substantial backlog running into, as I recall, something like £2 billion under these heads. Otherwise, this will become a cosmetic change, with no real likelihood of the grave current situation being improved. In fact, unless additional resources are provided, matters will potentially get worse since efforts are presumably not now being made which would be brought into the scope of the provisions on confiscation. That might be an added case load which there seems little realistic prospect of achieving. Perhaps the noble Lord could clarify, in respect of both these matters, where the Government are and, more particularly, what they will do to make sense of the confiscation order procedure under whatever head it takes.

[Lord Faulks]

The noble Lord asked whether any problems have arisen. We are not aware of any, but the purpose of the amendment is simply to clarify the position for the purposes of a good law. The Government’s view on the existing drafting is that, after election for trial, this offence is sent up under Section 51(2) of the Crime and Disorder Act 1998. The noble Lord is no doubt anxious to know the answer to the question. This is not stated clearly in the 2013 Act and the interpretation has consequences which, although not significant in practice, make little sense. One example is low-level shoplifting cases where the defendant, as elected, would be brought within the ambit of the unduly lenient sentence scheme. The present amendment clarifies the position and avoids the consequences; it is the simplest way to deal with the issue.

Amendment 63F is simply a consequential amendment to remove any possible doubt as to whether the court has any discretion over imposing the criminal courts charge or the level of that charge. It would not be appropriate for courts to exercise discretion over a charge that directly contributes to the funding of the courts, but we will consider the role of charging in the next group of amendments. If I may, I will deal then with the questions of charging and victim surcharge and the appropriateness of those.