Police, Crime, Sentencing and Courts Bill

Lord German Excerpts

Lords Hansard - part one & Committee stage
Wednesday 17th November 2021 Lords Chamber

As the noble Lord, Lord Dholakia, is not present, it falls on me to urge the Government to accept Amendment 220.

[Lord German (LD)]

My Lords, I present the apologies of my noble friend Lord Dholakia, who is unwell and in some considerable pain. He is therefore not able to attend your Lordships’ House. On his behalf, I have his speech, from which I should like to read some extracts. I am sure that Members of the House of Lords will recognise, of course, that my noble friend had a Private Member’s Bill precisely on this issue, and that it passed all stages in this House. It fell because of Prorogation and therefore had no time in the House of Commons. This House has certainly made its view well known and presented it to the House of Commons. This amendment gives us an opportunity to make sure that what was decided by this House is carried forward.

My noble friend Lord Dholakia has said that, at present, in England and Wales, children are deemed to be criminally responsible from the age of 10, and this provision was last amended more than 50 years ago, in 1963, when the age of criminal responsibility was raised from eight to 10 by the Children and Young Persons Act of that year. This means that children who are too young to attend secondary school can be prosecuted and receive a criminal record. A 10 year-old who commits a “grave crime”—which includes serious, violent and sexual crimes but can also include burglary—will be tried in the adult Crown Court. A child of 10 or 11 who is accused with an adult will also be tried in the Crown Court.

The age of criminal responsibility in the United Kingdom is the lowest in Europe. In Ireland, in 2006, the age was raised to 12, with exceptions for homicide, rape or aggravated sexual assault. In Scotland, where the age of criminal responsibility was particularly low, at eight, legislation in 2010 amended it to age 12. Outside the British Isles, the age of criminal responsibility is invariably higher. In Holland, it is 12; in France, it is 13; in Germany, Spain, Italy, Austria, Hungary, Bulgaria, Slovakia, Slovenia, Croatia and Romania, it is 14. In most other European countries, it ranges between 14 and 18. Across Europe the average age is 14.

The United Nations Committee on the Rights of the Child has repeatedly stated that our minimum age of criminal responsibility is not compatible with our obligations under international standards of juvenile justice and the UN Convention on the Rights of the Child. In a statement in 1997, the committee said:

“States parties are encouraged to increase their lower minimum age of criminal responsibility to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level.”


In subsequent reports in 2005 and 2007, the committee reiterated that a minimum age below 12 is not internationally acceptable.

Taking 10 or 11 year-olds out of the criminal justice system would not mean doing nothing with children who offend; it would mean doing what other countries do with 10 and 11 year-old offenders. It would mean doing what we do with delinquent nine year-olds. In other words, it would mean dealing with the causes of these children’s offending through intervention by children’s services teams. In the minority of cases where court proceedings are necessary, it would mean bringing children before family proceedings courts, which can impose compulsory measures of supervision and care. In the most serious cases, this can mean detention for significant periods in secure accommodation, but this would be arranged as part of care proceedings rather than as a custodial punishment imposed in criminal proceedings.

In 2012, the Centre for Social Justice, which was set up by the former Secretary of State for Work and Pensions, produced a report on the youth justice system entitled Rules of Engagement: Changing the Heart of Youth Justice. It said:

“There is now a significant body of research evidence indicating that early adolescence (under 13-14 years of age) is a period of marked neurodevelopmental immaturity, during which children’s capacity is not equivalent to that of an older adolescent or adult. Such findings cast doubt on the culpability and competency of early adolescents to participate in the criminal process”.


The evidence internationally is overwhelming, and from the United Kingdom and from this House. There is extensive evidence from neuroscientists, psychologists and psychiatrists demonstrating the developmental immaturity of young children. The Royal College of Psychiatrists has expressed the view, based on evidence, that our age of criminal responsibility is too low.

While a 10 year-old might know that stealing something is wrong, their ability to apply that knowledge to their actions will be very different from that of an 18 year- old. This does not mean that children aged 10 or 11 have no responsibility for their actions, but on any reasonable interpretation of the evidence, they must be regarded as less responsible than an older adolescent or an adult.

The age of criminal responsibility is an anomalous exception. In relation to the age of consent for sexual activity, for example, we regard any purported consent as irrelevant in order to protect children from abuse or immature sexual experimentation. It is completely illogical that we regard immaturity in this context as worthy of protection by law but take a diametrically opposite approach when it comes to criminal responsibility. The illogicality of our current law is increasingly recognised. The Law Commission concluded last year that the age of criminal responsibility is not founded on any logical or principled basis.

The fact that the numbers involved are relatively small is a strong argument for this amendment. It means that it will not be a huge burden on resources to make alternative provisions through welfare interventions; nor would dealing with these children through non-criminal processes put the public at risk.

Children who are officially labelled as offenders often react by trying to live up to the label and acting in increasingly delinquent ways to achieve status in front of their friends. While the numbers are low, the resources needed to execute a shift towards treating these vulnerable children through a welfare lens, rather than a criminal justice one, would be small, and the positive benefits for them and for wider society considerable.

Even though some changes have been made to court processes involving children, it remains true that exposing young children to a criminal trial is no way to achieve justice. This is a short amendment but its recommendation, if implemented, will change the shape of our criminal justice system for our children.

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[Lord Marks of Henley-on-Thames (LD)]

My Lords, I apologise to the noble Baroness for speaking before her; I did not realise that she wanted to speak. I also apologise for erroneously referring to her as the noble Lord, Lord Sater.

[Lord German (LD)]

My Lords, I too have added my name to Amendment 221A, which would make youth diversion schemes statutory. I will say a few words about that, as well as about Amendment 219B in the name of the noble and learned Lord, Lord Falconer.

Formal criminal justice system processing—for example, through prosecutions or out-of-court disposals—makes children more, not less, likely to offend. The further a child is processed inside the formal criminal justice system, the greater the likelihood of reoffending, especially for lower-risk children. There is strong evidence both nationally and internationally that youth diversion can reduce crime, cut costs and create better outcomes for children. However, it is currently a non-statutory function for youth offending teams.

We know that practice varies considerably between areas and that some areas have no diversion scheme at all. The 2019 mapping exercise carried out by the Centre for Justice Innovation found that, of the 115 youth offending teams responding, 19 said that they did not have a point of arrest diversion scheme. There is a wealth of great work going on across the country, but there is a dearth of best-practice exchange. I believe that it is quite correct that there should be the principle of local decision-making because that can bring together the wide range of partnerships needed to make any programme work. Keeping it local means that the team can do its work best.

However, the picture is of a set of procedures that are variably practised—some with both breadth and depth, and some without one or other of those attributes. Locally, practitioners are dedicated and have built up some very impressive practices, but in many areas the eligibility criteria are unduly strict, the referral processes slow and the interventions too lengthy. Youth offending teams are not to blame for the variation we see. Because it is non-statutory, we lack robust data and data analysis. Many youth offending teams struggle to keep their services within budget, and staff and funding may not always keep pace with the increased workload, especially when it is non-statutory.

We need a better understanding of what is happening on the ground, where the gaps in provision are, how good schemes can be supported and how good practice can be passed on. The way to achieve this is to make the service statutory and to support the work with funding as necessary. Amendment 219B, in the name of the noble and learned Lord, Lord Falconer of Thoroton, has much the same knowledge request. Basically, you cannot know what you do not know, and if you do not know what the figures and statistics are, you will be unable to take action accordingly. Understanding this better matters both locally and nationally. I believe that making this statutory would ensure that the good practice which abounds in our country is given the opportunity to grow even more, so that we can divert as many young people as possible from the criminal justice procedure. But to do that, we need certainty, and this amendment provides it.

[Lord Falconer of Thoroton (Lab)]

My Lords, I join noble Lords in wishing the noble Lord, Lord Dholakia, well and a fast recovery. He has played an important part over many years in the debate on child responsibility and the criminal responsibility age. We miss him today in this debate.

I also express my unconditional support for Amendment 221A in the names of the noble Lords, Lord Marks and Lord German, which would put pre-charge diversion schemes on a statutory basis. As the noble Lord, Lord German, said, these good schemes are present in many places; it would be a good thing if they were put on a statutory basis.

I agree with many of the points made by the noble Baroness, Lady Sater, on Amendment 221B. I will be interested to hear what the noble Lord, Lord Wolfson, says about it. I do not know whether a review of the whole sentencing position in relation to the youth court is the right answer—let us see what the Minister has to say—but the noble Baroness’s points were powerful and important, and the Government need to deal with them.

The main issue in the debate on this group is the age of criminal responsibility. The case for increasing it has been made overwhelmingly and I agree with it, particularly the point about evidence on the maturation of children and whether they should be viewed in the same category. I strongly support the view that that would increase reoffending because it would make a child see himself or herself as a criminal, which is bad for society. I was also influenced by the point that we are an outlier and that what we do with children, whether in the care system or in the criminal justice system, should not be different.

I have one big concern, however. I do not accept the characterisations of the noble Lord, Lord Marks, and the noble and learned Baroness, Lady Butler-Sloss. Both referred to the incredibly tragic Bulger case, saying that you should not give way to pressure because it does not show leadership when dealing with a case like that; the noble and learned Baroness referred to the tabloids. What happened in the Bulger case was awful and had an utterly legitimate effect on the Merseyside community. To try to dismiss that as something “got up by the tabloids” is, in my respectful view, to misunderstand utterly the significance of the event. Also, if you speak to people who were involved in the Bulger trial, you realise that it was an incredibly important trial. It lasted a month and brought to the fore a whole range of things that were troubling the community, and it also identified what had happened.

For justice to work in our country, it must to some extent reflect reasonable views about what should happen. I do not say that as a result of the Bulger trial, the age of criminal responsibility should be 10. But in considering how to deal with the age of criminal responsibility, which may well go up to 12—the evidence on that is overwhelming—you have to have a justice system that functions properly to deal with that sort of case. Otherwise, the community reacts not because they are inflamed by the tabloids, but honestly and in a normal way to what has happened.

Jamie Bulger’s parents, quite legitimately, made public what had happened and the community knew what had happened. The justice system must be able to deal with that, perhaps through some sort of intermediate proceedings; however, we do need to address this. To those noble Lords, such as the noble and learned Lord, Lord Brown, who say that it casts a long shadow, I say this: it does and it is still there, and it must be dealt with.

Subject to that, I am in favour of increasing the age of criminal responsibility from 10 to something higher. I am not as dismissive as other noble Lords of having some sort of review to deal with this. It would need to look at the issues raised by the noble Lord, Lord Hogan-Howe, which are important. Also, if you are taking 10 to 12 year-olds out of the criminal justice system, it would need to consider how to deal with the issues raised by the Bulger trial, perhaps not through criminalising but through some other process.

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[Lord Falconer of Thoroton (Lab)]

I am going to talk about Amendment 223B onwards; Amendment 223A comes first, but I am happy to start with those.

Amendments 223B to 223F have been suggested by the Mayor of London’s office to place a new duty on relevant local authorities in England to convene a new secure accommodation local partnership board that would assess the need for secure accommodation and develop a strategy for tackling any shortfall in secure accommodation. There is, as everybody knows, a significant lack of secure beds in London for young people who come into contact with the criminal justice system. This results in them being dispersed across the country, far away from their families and the professionals committed to their care and well-being.

While this is a particular concern in London, it is also the case in other parts of the country. There are only 15 secure children’s homes in England and Wales, and none in the London area. The recent decision of the Ministry of Justice to remove all children from a key institution detaining young offenders in the United Kingdom—namely, the Rainsbrook Secure Training Centre—meant that more London children were sent away from where they lived. They are being provided with neither the care nor the welfare that they need as vulnerable young people. The recent critical inspection report on the Oakhill Secure Training Centre, alongside the decision to close Rainsbrook, also raises worrying concerns about the future of this type of facility.

It is crucial that such provision is available for those who might be placed there on welfare grounds and for those within the criminal justice system. Amendments 223B, 223C, 223D, 223E and 223F, in the name of my noble friend Lord Ponsonby, give effect to this proposal.

[Lord German (LD)]

My Lords, I apologise for being slightly out of turn; I will speak to Amendment 223A in my name and that of my noble friend Lord Marks, on secure accommodation and local authority provision. In December 2016, the Government committed to phase out juvenile young offender institutions and secure training centres and to replace them with a network of secure schools. These have since been renamed secure 16 to 19 academies. Legally, they will be approved by the Secretary of State for Education as secure accommodation and are defined in the Bill as “secure children’s homes”.

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[Baroness Blower (Lab)]

My Lords, it takes a very particular kind of person to be a teacher, but it takes a much more particular kind of person to work in an institution with young people who are clearly already damaged when they arrive. The idea that the Government appear to be taking—a rather dogmatic view about how 16 to 19 provision should be run, in terms of there being only academies and only reflecting the way academies are seen in law in the schools sector—seems to be completely wrong.

It is obvious that the profit motive simply cannot function in this type of provision. Teachers, whether in secure accommodation or other places, are not as well paid as they should be, but the fact is that they are not motivated in general by the level of their salary. Therefore, there is absolutely no reason why we should think that anyone affording that provision should be motivated by profit.

My own experience of young people of this type is that I did, very many years ago, work in a non-custodial, non-residential setting for young people who were at risk of care or custody. I have to say that they were all at risk of custody. But the fact that I worked in a local authority provision, where we were able to work very closely with the youth offending team, our local social services and our probation service, and all of our play therapists and other types of therapists, meant that, in general, it was a very successful provision.

I have, like the noble Lord, Lord Carlile of Berriew, had the opportunity through my union experience to visit teachers working in a whole range of institutions—some of which, I am sorry to say, no longer function. This type of provision, as my noble friend Lady Chakrabarti said, should be at the irreducible core of what the state does and affords for some of our most vulnerable young people. For that reason, I am very happy to support the amendments.

[Lord German (LD)]

My Lords, I am very grateful to those who have spoken in this short debate. Clearly this amendment is at the centre of this group of amendments. In summing up what everyone has said, I would say that the direction everyone has travelled in is not that these schools or academies should be provided by local authorities, but that they should be given the right to tender to provide those schools or academies.

The judgment that the noble Lord, Lord Carlile, made, was that it does not matter who runs them, providing they get the very best education for these very vulnerable children. The standard of education is what is important, not who runs them. At present, local authorities are excluded simply because there is a view that anything called an “academy” in England cannot be run by a local authority, which seems to create an absolute block to the opportunity for everyone in these institutions to have the best opportunities for life and education.

As the noble Baroness, Lady Chakrabarti, said, these are the most vulnerable of children and young people; their lives and futures are at stake. The noble Baroness, Lady Blower, talked of the qualities of the teachers. These teachers have to be the very best, because they are facing the most difficult of circumstances and it becomes a real challenge. It requires a very special person indeed to devote their life to this sort of education. Where you find the best teachers is in the quality of the tender exercise for these establishments.

Excluding local authorities because they breach the Government’s standard that any academy must not be run by a local authority seems to miss the point. My noble friend Lord Marks talked about the experiment with the rehabilitation companies. A lot of effort went into those. The one thing that was totally absent at the end was the engagement of the charitable and voluntary sector. In other words, because they were driven by having to meet a contract, they were not driven by providing the best service for rehabilitation. Quite rightly, that system has now been overturned.

It drives one to think that, if you have as your goals what is best for the child and what are the best services you can provide, excluding those with the most expertise in this area seems simply crazy. I hope that the Minister will be able to address these matters and take on board the whole point of these amendments, which is not to prescribe local government but to offer it the opportunity where it can compete, providing it can offer the best. What matters is the best for our children, not who should run the service.

[Lord Wolfson of Tredegar (Con)]

My Lords, I first turn to Amendment 223A from the noble Lord, Lord German, which would allow local authorities to “establish and maintain” secure academies and prevent any for-profit corporation doing this.

Dealing with those points in turn, first, we are not aware of any specific legislative barrier to the provision of secure 16 to 19 academies by local authorities. However, it is government policy that academy trusts are not local authority influenced bodies. As a result, no academy in England is operated by a local authority and our position here is to mirror academies’ policies and procedures in secure schools to the greatest extent possible. That said—