Age of Criminal Responsibility Bill [HL]

Lord Faulks Excerpts

Friday 29th January 2016 Lords Chamber

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I join other noble Lords in congratulating the noble Lord, Lord Dholakia, on introducing this Bill and bringing this important debate to the House. I am grateful to all noble Lords for their contributions today. The debate reflects a long-standing commitment on the part of the noble Lord, and indeed there are many noble Lords who have considerable interest and experience in these matters.

In order to avoid any unnecessary suspense, I should say that the Government have no plans to raise the age of criminal responsibility from 10 to 12. I know this will disappoint the noble Lord, Lord Dholakia—but I hope he will at least be consoled by the fact that he will not have to embrace me, as was suggested by my noble friend Lord Cormack.

Although at the moment we are not able to accept that there should be a change, we none the less share the concern of the noble Lord, as indeed do all noble Lords who spoke, about the proper way to deal with young offenders. The Government believe that children aged 10 and above are, for the most part, able to differentiate between bad behaviour and serious wrongdoing and should therefore be held accountable for their actions. Where a young person commits an offence, it is important they understand that it is a serious matter. The public must also have confidence in the youth justice system and know that offending will be dealt with effectively.

The Jamie Bulger case casts a shadow over all our considerations in this area. That case was, I am glad to say, very unusual. The noble and learned Lord, Lord Brown, referred to the principle of doli incapax. There was a rebuttable presumption in 1993, at the time of the hearing, which was then removed in 1998. The court in that case specifically considered doli incapax and decided that both boys clearly knew that what they had done was wrong, and so the presumption was rebutted.

A number of points were made during the debate about whether or not the full panoply of a trial at the Old Bailey was really appropriate for boys of this age. I entirely understand that point. We have to bear in mind that this was an issue of national concern and, of course, an absolute tragedy for those connected to Jamie Bulger. It is difficult for a country somehow to balance the fact that we are dealing with very young people with, at the same time, acknowledging the seriousness of something of that sort.

Unusually, I agree with the noble Lord, Lord Bach—in two years, it is very rare that we have agreed on anything, at least across the Dispatch Box—that the Government do have a duty to respond to what the public want. With very great respect to the noble Baroness, Lady McIntosh—who is now on the Woolsack: a somewhat different position from when she made the point—they are not simply responding to the Daily Mail, although the Daily Mail clearly has a capacity to influence policy in a number of respects.

The noble Lord, Lord Parekh, made the point that European countries do not share our view about the age of responsibility. Of course, other countries and different states in the United States vary. It is a matter for each country to make its own judgment. It is not simply a question of our following what others say.

It is important to note that serious crimes committed by children are mercifully rare and we do not want to see 10 and 11 year-olds prosecuted for minor offences. Indeed, most such offending will be diverted away from the formal criminal justice system. We have recently invested a significant amount, £3 million over two years, in restorative justice conference facilitator training for youth offending team staff—I know my noble friend Lord Cormack is an enthusiast for restorative justice—and referral order lay panel members to encourage support for and promote greater use of restorative justice conferencing. However, it is important that, where appropriate, serious offences can be prosecuted and the public protected.

The noble Earl, Lord Listowel, who has great knowledge of and concern for the welfare of young people, particularly those who make up much of the prison population—possibly as a result of the care system or the origin of their lives, which cause them to be in the care system—made a point about the expense this caused and asked me to give the costs of the full criminal process compared to more informal disposals. That is a factor but the real costs lie in where someone is sent for punishment. The average price per year in a secure children’s home is £204,000; in a secure training centre it is £163,000; and in an under-18 young offender institution it is £75,000. These are very large sums of money. Fortunately, we do not send nearly as many young people to any of those disposals as we used to. It is very much a punishment of last resort.

Returning to the question of 10 and 11 year-olds, between 2004 and 2014, the number of 10 and 11 year-olds who received a custodial sentence was 12. Maintaining the minimum age of criminal responsibility at 10 does not, however, lead to the prosecution of a large number of 10 and 11 year-olds. In 2014, only 136 10 and 11 year-olds were proceeded against at court compared to 6,860 12 to 14 year-olds, and 65 of those 10 and 11 year-olds were given community sentences. The others were found not guilty, fined or given a conditional or unconditional discharge. Many crimes committed by those aged 10 or over will not result in a prosecution at all.

We are keen to ensure that, whenever possible, children are not prosecuted as research shows that this can be counterproductive, as many noble Lords have said. The principal aim of the youth justice system is to prevent young people offending. We need to keep our focus on that.

Legislation specifically requires courts to have regard to the welfare of under 18s. Section 44 of the Children and Young Persons Act 1933 provides that every court, in dealing with a child or young person who is brought before it, shall have regard to their welfare. This is reinforced by detailed guidance contained in the sentencing guideline Overarching Principles—Sentencing Youths.

Having the age of criminal responsibility set at 10 years allows flexibility to deal with young offenders. If particular needs are identified in a youth offending team’s assessment of a child or young person, the multiagency youth offending team, which includes representatives from health, housing, children’s services and education, can refer the child on to other statutory services, such as children’s services departments and child and adolescent mental health services, for further investigation and support. That support can include addressing attendance and attitude to school, referral to speech and language therapy and, where appropriate, referring parents to parenting courses. A youth caution can also be given for any offence where the young offender admits an offence and there is sufficient evidence for a realistic prospect of conviction, but it is not in the public interest to prosecute.

Youth cautions usefully aim at a proportionate and effective resolution to offending and support the principal statutory aim of the youth justice system of preventing offending by children and young people. Youth conditional cautions require young people to take responsibility for their actions, including by agreeing to conditions that require them to put things right or seek help for their behaviour. The conditions that can be attached must include one or more of the objectives of rehabilitation, reparation and punishment. The rehabilitative conditions may include attending one or more of a range of interventions available to the youth offending team for addressing offending behaviour. Reparation can include apologising, repairing or otherwise making good any damage caused, provided that this is acceptable to the victim. Punitive conditions may include attendance at a specified place to undertake an agreed activity. I should however emphasise that in any case where the police or the CPS are considering offering a youth conditional caution or a second or subsequent youth caution, the case must be referred to the local YOT to provide a check on the appropriateness of the disposal and the interventions that should go alongside. This will all be well known to the noble Lord, Lord McNally, as chair of the Youth Justice Board.

When a young person aged 10 to 17 pleads guilty to an imprisonable offence, is convicted for the first time and does not warrant an absolute discharge, conditional discharge, hospital order or a custodial sentence, the court must give a referral order. A referral order is based on restorative justice principles and may be between three and 12 months in length. The offender is referred to a youth offender panel made up of trained community volunteers and a member of the youth offending team.

There is a great deal more I could tell the House about, but it is important to stress that in these and other interventions, custody of any sort is always very much the last resort. As the noble and learned Lord, Lord Brown, emphasised, very often the destination, as it were, is one that is reached in the interests of the child whether it comes by welfare provision or via the criminal justice system. Custody is available, admittedly at great expense, for 10 and 11 year-olds only if they commit a grave or serious crime, normally one where an adult would be liable to a maximum penalty of 14 years’ imprisonment or more. A child would only be placed in a secure children’s home with a strong focus on addressing their and their family’s needs as well as the offending behaviour.

Reference was made to the report being produced by Charlie Taylor, who I know is doing an extremely thorough job, as was confirmed by the noble Lord, Lord McNally. He is a former head teacher and an expert in child behaviour. His interim report is due to be published shortly and the final report will follow in the summer. We believe that, partly as a result of the legislation which has been introduced and other steps, this has all contributed to a significant fall in the number of under-18s being dealt with in the criminal justice system. The noble Baroness, Lady Massey, asked about the numbers. The legislative changes are not the only factor, and one clear contributory factor was doing away with the police target introduced under the last Labour Government for offences brought to justice, but which was very sensibly dropped by that Government in 2008. Since youth offending peaked in 2007, proven offences have fallen by 78% and there are 64% fewer young people in custody. At the end of November only 991 under-18s were being held in the youth secure estate. However, we are not complacent. We recognise that there is scope to make the youth justice system better and to improve the experience of young people who the courts consider need to be detained. We will be better informed after Charlie Taylor reports.

In conclusion, the Government believe strongly that the current age of criminal responsibility is appropriate to hold young people to account for their actions if they commit an offence and reflects what is required of our system. We are of course most anxious to ensure public confidence in the youth justice system, and that communities know that young people’s offending will be addressed to counter the negative effects on victims and the community. We must, above all, however, ensure that young people are rehabilitated and educated if we want them to cease their criminal activities.

By bringing back his Bill, the noble Lord, Lord Dholakia, focuses our attention on what we do about young offenders. He reminds us of the causes that often precede their arrival in the criminal court system. He and other noble Lords have emphasised that we must look at the problems that young offenders pose for society, as the right reverend Prelate did, in terms of our responsibility as a society, and we must react to that appropriately. In doing so, he does us and the House a great service. While we do not support the Bill, we very much support many of the expressions of concern for youths and the justice system that we have heard today. This has been a valuable debate and I congratulate the noble Lord and others on bringing these matters to our attention.