Police, Crime, Sentencing and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

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

[Lord Hogan-Howe (CB)]

My Lords, I broadly support a rise in the age of criminal responsibility. I think the review is a good idea, and of course it should be science-based. The danger of going for 12 years, which is an improvement, is that it could be higher if only we thought about it well. I would be open-minded on whether it needs to be a matter of law or a government commitment to carry out a review.

There is just one area which I hope such a review might consider. The Bulger case is often referred to, for obvious reasons. Hard cases can make very bad law; we are aware of that. But I do think that that type of case imposes a duty on government to consider people’s concerns. There are two concerns that people might have if they lived in the area. One is where the child would live on return to society. That could be covered through care proceedings—you can control where someone lives and who they live with. The second is their occupation. If, at the age of 18, the murderers were released—as they were in the Bulger case—and wanted to go into childcare, or any of the care professions, would people be content with that? There would at least be a question about whether that would be wise. If they only have a care proceeding against them, they would be perfectly entitled not to declare what they were involved in at the age of 10. My point is not that they should be criminalised and therefore always carry that with them, but about how you manage their occupation, subsequent to their reaching an adult stage. It can be managed without criminalisation, but such a review might want to consider how that could be done most efficiently.

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

My Lords, I am constantly amazed by the persistence of this generally civilised country in being willing to treat children of 10 and 11 as criminally responsible.

The noble and learned Baroness, Lady Butler-Sloss, my noble friend Lord German, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and all other noble and noble and learned Lords who have spoken have made the argument persuasively and on the basis of the scientific, social and international evidence. I say no more about the strength of the evidence.

The noble and learned Baroness, Lady Butler-Sloss, also pointed out the degree to which government inaction on this issue has been based on public prejudice and the Government’s pandering to it. Bluntly, that is moral cowardice, not leadership. Many of us find it unbelievable that, uniquely in western Europe, our children of 10 and 11 can be treated as criminals, when it is entirely clear that they lack the psychological maturity that is appropriate for any legitimate view of criminal responsibility. Why did change come successfully to Scotland and yet the Government seem unprepared to make it here?

I pay tribute to my noble friend Lord Dholakia, who has campaigned tirelessly on this issue for many years. I know he will have been most disappointed to have been unable to attend to speak today. But the House has fully recognised in this debate his commitment and his major contribution on this issue, and we will wish to send him our good wishes for a full and swift recovery.

Amendment 221A in my name and that of my noble friend Lord German has a different purpose. It is to pursue the worthwhile goal of diverting young offenders away from the criminal justice system and towards alternative methods of encouraging them to avoid offending. Youth offender teams have been established since 1998 and have as their function helping young offenders under 18 under supervision of the Youth Justice Board. Central to their function has been to establish services within their local communities to help prevent offending and reoffending. They have a wide remit that permits them to organise a range of activities in an effort to keep young people away from crime. Sometimes this involves involving young people in a form of restorative justice by bringing them into contact with their victims and helping them to organise reparation where it is thought that might help the offender and be accepted by the victims. Among their functions is to help supervise community sentences for young people. Our amendment is designed to help youth offender teams fulfil their function by diverting young people within their area away from the criminal justice system.

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[Baroness Sater (Con)]

My Lords, I rise to speak briefly to Amendment 221B in my name, which is a probing amendment on the need for a review of youth sentencing. I would also like to refer to my interests as set out in the register.

I appreciate that this is a very extensive Bill, and as a former member of the Youth Justice Board and a youth magistrate I note that there has been little reference to the youth courts. It would be a real opportunity lost not to commit to undertake a review of youth sentencing, especially with the ever-evolving criminal justice landscape.

As I mentioned on Second Reading, I have several concerns relating to youth sentencing, and one in particular that I would like to refer to today, which is the unfairness in the treatment of the jurisdiction of young offenders under 18 years of age with regard to the dates of the offence and their first court appearance. Simply put, young people who commit an offence as a child but are then not brought to court before their 18th birthday through no fault of their own are treated as adults in the adult courts. However, defendants who do not get to court before their 18th birthday will go to the youth court where they will benefit from all the specialisation and expertise of the youth court, the youth court practitioners and the youth court’s specific focus on the defendant’s needs and welfare.

It should not be a postcode lottery of where you live due to multiple issues, including court scheduling, that can affect which court you end up in and therefore how you are dealt with. Reforming this now is important, so that defendants are instead dealt with according to their age at the time of the alleged offence, which would mean that youth justice principles would be followed and all defendants would be given the same opportunity and fairness in having access to the youth court services and the support that is so needed to reduce reoffending. We know that the adult court cannot offer the same specialist support as the youth court.

In February, the MP for Aylesbury, Rob Butler, introduced a 10-minute rule Bill on this issue in the other place, where he outlined how his proposals garnered a wide range of support, not only cross-party support but support from key stakeholders and organisations including the YJB, the National Association for Youth Justice and the Magistrates’ Association. There seems to be no common sense or fairness that these young people are treated so differently.

The Covid-19 pandemic has thrown up challenges and, in turn, some positive innovation in youth justice. At the same time, there remain outstanding anomalies in youth sentencing that pre-date the pandemic; I have spoken about some of those issues before in this place, and again today. All taken together, surely now is the right time to commit to a wide-ranging review and for the Government to bring forward a report. In doing so, not only can we address and meet future challenges, and keep under review the innovation we have seen, such as the use of video linking, to ensure that it results in the intended outcomes; importantly, we can also help to address the historical anomalies in the system that existed well before Covid-19.

I look forward to hearing from my noble friend the Minister and hope that he will consider this review, which I hope will help to deliver and improve outcomes in youth justice.

[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.

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[Lord Falconer of Thoroton (Lab)]

I agree that it does not need to be dealt with in a criminal trial, but there needs to be some process. Before one increases the age of criminal responsibility from 10 to 12, which we should do, this must be looked at. This is why I rather favour the second amendment, tabled by the noble Baroness, Lady Chakrabarti, which is a review of this, because broadly the case is made in relation to it. It probably should not be something ad hoc, as is the nature of an inquiry, but it should have some recognition that cases such as the Bulger case, which have a significant effect on not only the local but the national community, must be dealt with in a special way.

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

My Lords, I associate myself with everything that the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Carlile, have said. I am not sure that the noble and learned Lord, Lord Falconer, has accepted my point, which to a certain extent is the same as that made by the noble and learned Baroness, Lady Butler-Sloss, that we do not wish to reduce or minimise the importance of the Bulger case. My point is that, where publicity is as extensive as it was following that case and where the publicity seems to be directed as in the example that the noble and learned Baroness gave, producing a result where children under the age of 12 would be sent to prison for life and be treated by ordinary criminal process, which is entirely unsuitable for children of that age, the Government must show moral leadership and change the position based on the evidence, rather than taking a political view that it might be easier to duck the question when the evidence is so clear. That is the point that I invite the noble and learned Lord to take. I understand that he supports the increase in the age of criminal responsibility, but I do not hear him saying that the Government must show the leadership to do that in spite of publicity to the contrary.

[Lord Falconer of Thoroton (Lab)]

I accept that the age of criminal responsibility should go up. I strongly endorse what everybody is saying about the Government and, in particular, I endorse what the noble Lord, Lord Marks, is saying about the Government showing leadership in this respect. I also endorse what he says about the Government needing to show leadership in standing out against campaigns that seek to criminalise people under 10 or, in the campaign that he was referring to, between 10 and 12. My point, which I keep coming back to, is that this Committee should not underestimate, or treat as simply got-up, campaigns concerning the justice system, which in some ways expands beyond the criminal justice system, in cases such as the Bulger case.

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I will say one final thing on this to the Minister; I do so rather crushed by the way the debate on the previous group ended, with the door being slammed on even reviewing the age of criminal responsibility. We debated very serious crimes and rightly so, such as the Bulger case and so on, but for many other children criminality is about things such as common assault, slightly more serious assault, criminal damage or crimes of dishonesty. The reality of family life and children’s lives is this: one child will be treated one way because they have the support of their family, and another child, in particular a child who comes from a chaotic family with a lack of support and parenting, or who is looked after by the state, will face a very different outcome and will be much more likely to find themselves incarcerated, under whatever label of institution. That is why it is particularly pernicious that any such institution should ever be run for profit. We the community have already failed that child and we need to compensate for our failure when we look after these most vulnerable children. That is why I support noble Lords’ speeches and the amendment from the noble Lord, Lord German.

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

My Lords, our first aim with Amendment 223A, to which I have added my name, is to ensure that secure academies may be run by local authorities. The present position is that, under the Academies Act, the local authority may not maintain a school that becomes an academy. The result is, as my noble friend Lord German said, to prevent local authorities running secure academies, apparently in the interests of consistency between secure academies and other academies.

Our amendment would enable a local authority to play its part. However, it is entirely non-prescriptive and does not require secure academies to be run by local authorities. It simply permits them to be so. We believe that local authorities have a very important part to play in the running of secure academies, with the very best prospect of success in educating, training and rehabilitating young offenders.

The noble Lord, Lord Carlile of Berriew, mentioned Charlie Taylor. He has always taken and expressed the view that education for young offenders is at the heart of youth justice, and at the heart of reform and rehabilitation. We have considered in Committee the role of local authorities in youth justice at a number of levels and in a number of spheres. Education is, of course, at the forefront, but we should also not underestimate the importance of the local authority role in housing and social services. Both departments have a great deal to do with the criminality of young people. There can, we suggest, be no justification at all for ruling out local authority involvement in these secure academies.

I agree with the noble Lord, Lord Carlile of Berriew, that generally we should be keen to avoid dogma and that what we are doing should be about outcomes. Nevertheless, the second purpose of our amendment is to ensure that secure academies are run on an entirely altruistic basis by not-for-profit organisations. The purpose of this part of the amendment is to ensure that secure academies must be run not for profit but for the good of those who attend them as students.

We have all seen the difficulties that befell the probation service under the Grayling changes, which have since been abandoned. Then the larger part of the probation service was shunted off to community rehabilitation companies, and that led to a decline in voluntary sector involvement, which is particularly important in this area. A failure of collaboration with local authorities and an excessive and single-minded pursuit of profit was to the detriment of the clients that the CRCs were established to help and look after.

I do not believe for a moment that that is in the Government’s mind, but it is a danger that may be inherent in the present proposals, and we suggest that the care of damaged young people who have been sent to secure academies by the courts should never be in the hands of organisations run for profit.

[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 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—

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

I am grateful to the Minister for giving way. Has he had regard to Section 6 of the Academies Act, which provides that a local authority must cease to maintain a secure school if it becomes an academy? That seems to have the effect of ruling out local authority involvement, even if it operates in a slightly circuitous way.

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[Lord Wolfson of Tredegar (Con)]

My understanding is that the £259 million was announced in the spending review to continue the programme to maintain and expand capacity in both secure and open residential children’s homes. I am not able to say any more than that; it might be a question for my Treasury colleagues to clarify. However, I am also able to clarify it to the noble and learned Lord. Perhaps I can drop him a line on that specific point.

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

Before the Minister sits down and before I admit to nodding, the point he made is why I referred to the operation of Section 6 as being possibly circuitous. It seems that in certain circumstances it may well apply, and it may well apply more generally.

[Lord Wolfson of Tredegar (Con)]

The reason why I did not say it in terms that I was certain that the noble Lord had got it wrong was precisely that point. It seems that we might be approaching this point from different ends, but I will look at it myself and, if necessary, I will drop noble Lords a note. It may not be necessary given what has now been said.

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[Baroness Armstrong of Hill Top (Lab)]

My Lords, I am enormously grateful to the noble Lord, Lord Paddick. I am chairing a Select Committee. I will come back for the rest of the debate, but I have to come back from Millbank, and I am not as fast as I used to be.

I want to be brief, but I return to an issue that I have consistently raised with the Minister over several Bills: the position of girls and women who are being sexually exploited, abused and subjected to violence. I want to help the Government to get out of the hole they are digging themselves into, where they are losing what they learned during the passage of the Domestic Abuse Bill about coercive control and about what happens to women who have been traumatised by this sort of behaviour. I want them to think about that in relation to my amendment on these very difficult serious violence reduction orders. I am not going to intervene in the rest, because I will support them if there is a vote at Third Reading, but this is a very specific amendment.

I realise the pressure on the Minister. I hope she has had a chance to look at the very short video that I sent her of a young woman from Newcastle—so the Minister should recognise the accent—telling of her inability to tell anyone of the activity of the perpetrator who was grooming and abusing her until she had been sentenced for something ridiculously small that was technically nothing to do with her abuse. Once she got to see a probation officer, she really felt that she had to say something about why she had been involved in criminal activity, and she was then referred to the charity Changing Lives; I ought to say that I still mentor the person who deals with women in that charity. The young woman from Newcastle was then able to talk about the abuse that she had suffered, the effects of what the perpetrator had done to her, and why this had led her to behave in the way she did.

It does not take much imagination to recognise that women who have been trafficked, groomed and subjected to physical, psychological and sexual abuse are not going to say what they know about the criminal activity of their abusers without themselves being supported and protected by those who understand trauma and what has happened to them. This amendment seeks to remove the “ought to have known” provision that will mean that women and girls who are judged that they “ought to have known” that someone in their company was in possession of a bladed article or offensive weapon could face two years’ imprisonment for a breach of the order’s terms. This simply criminalises women who are already being subjected to appalling criminal abuse. I do not believe that that is what the Government want to do. We know how we can change women’s life chances in these circumstances. We can do it. I work with people who do it, but this is not the way. This will not help them into a more stable and secure life. This will drive them into more criminal behaviour and into entrenching their problems.

I gather that this is seen as an extension of the joint-enterprise laws. The problem the Government have is that these laws have brought women into the criminal justice system when they had no involvement in the alleged offence. Research has found that in 90% of joint-enterprise cases against women, they had engaged in no violence at all, and in half of the cases they were not even present at the scene. We also know from research that more women and girls from BAME backgrounds are likely to be picked up under this sort of provision, and the Government really need to think about that, too.

This provision was not included in the consultation on these orders. I really do think that the Government did not have the opportunity to think the provision through in relation to the women and girls I am talking about. They have the opportunity to quietly drop it now before Report, and I hope and trust that they will.

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

My Lords, my noble friend Lord Paddick will speak from the Front Bench for my party on this group, but he has quite a lot to say and, in view of the time, he has asked me to speak now, so with your Lordships’ permission or agreement, I shall address a number of points where serious violence reduction orders—SVROs for short—offend against cardinal principles of justice that our criminal law generally holds to be of the greatest importance.

I say at the outset that we should be in no doubt that an SVRO is to be a criminal sanction. That is, first, because of the requirements and prohibitions it imposes on an offender who is made subject or is to be made subject to such an order. It is, secondly, by reason of the draconian powers exercisable by the police in respect of an offender who is to be made subject to such an order, which are the equivalent of a criminal sanction on that subject. It is, thirdly, because the exposure of an offender subject to an SVRO to further criminal sanctions for the breach of any conditions attached to it amounts to a criminal sanction in its imposition.

Against that background, my first objection of principle is that it is wrong that a criminal sanction should be imposed independently of any criminal offence. Amendment 225, in the names of my noble friend Lord Paddick and the noble Baroness, Lady Meacher, is addressed to the novel and unwarranted approach to carrying a bladed article in the proposed new subsections 342A(3)(b) and (4)(b). As their explanatory statement makes clear, carrying a knife is not of itself a criminal offence, yet these provisions would render an offender liable to be made subject to an SVRO if either the offender or a joint offender with that offender had a knife with them, for whatever reason, whether the carrying of that knife was an offence or not. These orders as proposed would impose criminal sanctions for conduct which did not amount to an offence known to the law. That is contrary to principle in a profound and unacceptable way.

My second objection is that our criminal law generally insists on proof of guilt to the criminal standard, beyond reasonable doubt, before any criminal sanction can be imposed. Certainly, the civil standard of proof has its place in the criminal law, but that is generally when the law imposes a burden of proof upon the defendant to establish the facts of a defence which, if proved, would justify conduct that would otherwise be criminal. However, what is proposed here is that a criminal sanction can be imposed on the basis of proof, to the civil standard only, of the primary facts giving rise to that sanction. Again, that is contrary to principle and is calculated to water down, even to undermine, one of the most fundamental principles of our criminal law—one that I venture to suggest is probably the best known of any of those principles among the general public.

My third point concerns the unwarranted extension of the law relating to joint enterprise embodied in the proposed new subsection 342A(4). That is why I have added my name to Amendments 226A and 226B just spoken to by the noble Baroness, Lady Armstrong of Hill Top. I do not understand how it can be contended that an offender should be subject to criminal sanction if that offender did not know that a bladed article or offensive weapon would be used by a joint offender in the commission of an offence on the basis that he merely “ought to have known” that fact. That is proposed new subsection 342A(4)(a).

Proposed new subsection 342A(4)(b) is even worse: an offender is to be subject to the criminal sanction of an SVRO because a joint offender had a bladed article or offensive weapon with him at the time of the offence, even if the offender did not know that, simply on the basis that he “ought to have known”. And all this to be proved to the civil standard only, notwithstanding that possession of a knife is, of itself, not a criminal offence.

That is not all. I shall be supporting the noble Lord, Lord Ponsonby, in opposing Clause 140 standing part of the Bill because, in addition to all that I have said so far, SVROs are to be imposed without any right to trial by jury; they are to be imposed by a judge alone, following conviction. As for the evidence to be adduced to support their imposition, in the words of proposed new subsection 342A(8), it is not to matter

“whether the evidence would have been admissible in the proceedings in which the offender was convicted.”

That anomaly is the subject of Amendment 231, in the name of my noble friend Lord Paddick. I simply ask, in connection with these SVROs, where are we heading. It is in the wrong direction for our criminal justice system.

Debate on Amendment 224 adjourned.