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Criminal Justice and Immigration Bill

My Lords, I welcome the amendment tabled by the noble Earl, Lord Onslow, which gives an opportunity to debate these important matters. As ever, he spoke eloquently and with charm. This goes to the heart of our debates about the youth custody system. Again, noble Lords have expressed their concerns about the number of young people in custody and have made comparisons with other countries. While one needs to be a little cautious about international comparisons, I have already made it clear that the Government share the aim of all noble Lords who have spoken in our debates that custody should be the last resort. I also acknowledge the comments made by the noble Lord, Lord Ramsbotham, about the need for an integrated approach between the Youth Justice Board, the work of YOTs at local level and the contribution that local authorities should make. The noble Lord will know that the youth crime action plan is being developed. He will also be aware of the new arrangements for accountability and the role of the Department for Children, Schools and Families alongside my department in terms of the relationship with the Youth Justice Board. I would also refer the noble Lord, Lord Ramsbotham, to the new approach to local area agreements with local government, which gives local authorities much more ownership of those agreements and will have the benefit of focusing local authorities much more on the group of young people with whom we are all concerned. While I do not believe that anyone has a magic wand that can produce the resources needed or the quality of service required, I believe that we are facing in the right direction. We clearly need to build and enhance that. The whole purpose of the YRO structure we are debating is to produce a much more rational, co-ordinated approach in which it is clear from the intent that custody is the last resort. Before responding to the noble Earl, Lord Onslow, in particular, I shall speak first to my amendments, which I hope show that the Government have listened carefully to what noble Lords have said on this matter. Section 174 of the Criminal Justice Act 2003 already places a duty on a court to make a statement giving its reasons for and explaining the effect of a sentence. In particular, where custody is imposed, it must say in accordance with Section 152(2) of that Act, that, "““it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence””." So the court has to explain why it is of that opinion. The government amendments would supplement this provision to require the court, when sentencing a young person aged under 18 to custody, to include a statement that it is of the opinion that a youth rehabilitation order with intensive supervision and surveillance or intensive fostering cannot be justified for the offence and to explain why it is of that opinion. That goes a long way to providing the safeguard that noble Lords require. The noble Lord, Lord Elystan-Morgan, referred to existing legislation. He said that it is not so much the legislation; it is the practice of sentencers. In our debates on the Bill, we have been to and fro between discretion and direction to sentencers. I hope that my amendment gets the balance right. It does not seek to fetter the discretion of sentencers, but gives the sentencers another point to consider. A statement on why the YRO with intensive supervision and surveillance or intensive fostering cannot be justified would have to be made. In that sense, a custodial sentence is justified. Noble Lords are saying that I do not go far enough, and I am grateful for the conversations that I have had with noble Lords on this matter in the past 24 hours or so. I think that we have agreed on the requirement that a statement should be in writing. My understanding is that that is already a requirement of the law. If the magistrates’ court imposes custody, its reasons must be set out in the warrant of commitment and a transcript of Crown Court proceedings will always be made as there may be an appeal to the Court of Appeal. The noble Earl, Lord Onslow, has already acknowledged that point. I turn now to the noble Earl’s amendment and its potential to raise the custody threshold, which is our concern. We are concerned that asking the court not just to look at the seriousness of the offence, but also to assess the risk the offender may pose to the public in the future, raises the threshold unnecessarily. I know that noble Lords have argued that if an offender commits an offence they ought not necessarily to have to face custody unless they also pose a future risk to the public, but one has to think about the consequences of that. If an offender could commit a really serious violent offence, as the law stands they could be found guilty perhaps of grievous bodily harm with intent. My understanding of the amendment is that, in that situation, the courts could not impose a custodial sentence unless the prosecution could also prove that the offender is a risk to the public. It might be argued that if someone commits such an offence, it is axiomatic that they must pose a risk to the public. I understand that argument. But the problem that I have, and the advice that I have received on this, is that similar provisions are already on the statute book in the dangerousness provisions of the Criminal Justice Act 2003. My understanding is that very few offenders are assessed as dangerous—according to the Youth Justice Board, there were only 24 in 2005-06. But, as the sentencing statistics for 2006 show, to which I referred in my very long letter of 10 March to the noble Baroness, Lady Stern, more than 1,000 young offenders were sentenced to custody for serious violent offences alone. So we have a real concern that if we were to accept the amendment, it perhaps would have the unintended consequence of ensuring that even young people who had committed a very serious offence—where it would not be possible to prove the risk to the public—would not be given a custodial sentence. I understand why noble Lords are concerned about the number of young people in custody and I accept that this is a genuine concern that many of us have, which is why we want to make custody a last resort. But custody sometimes will be a necessary condition and we would be concerned about the unintended consequences of the amendment proposed by the noble Earl, Lord Onslow. The Government have listened very carefully to the arguments put forward in Committee and I hope that noble Lords, on consideration, will consider that my amendment at least meets noble Lords somewhat more than half way. It reflects a shared concern about ensuring that sentencers understand the importance of custody being the last resort.