Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Linklater of Butterstone Excerpts

Wednesday 15th February 2012 Lords Chamber

Moved by

[Baroness Linklater of Butterstone]

186: Clause 128, page 109, leave out lines 6 to 19

[Baroness Linklater of Butterstone]

My Lords, I shall speak to Amendments 186 and 187 which relate to Clause 128, which seeks to extend mandatory prison sentences to children under 18 who carry or threaten with a knife, except in exceptional circumstances.

There are two main underlying questions here which must be addressed. The first is whether mandatory prison sentences for children are the proper tool for sentencers in terms of proportionality or appropriateness. The second is what are the likely outcomes of such a proposal. For example: will these sanctions actually deter children who carry knives from carrying them; will imprisonment today prevent further knife carrying tomorrow; will our streets be significantly safer in the future; or will they help to address the issues which lead children to carry knives in the first place?

Mandatory sentencing for certain types of offence for children is, to quote the Justice Secretary,

“a bit of a leap for the British judicial system”,

a remark that has more than a touch of irony in it. The essence of appropriate, proportionate, constructive sentencing, particularly where children are concerned, is the ability of the sentencer to look at all the circumstances which lead a child to offend in a particular way, and in this specific context mandatory sentences would seem to run contrary to good sentencing practice. Furthermore, when sentencers are considering their decision in such cases, deterrence is not one of the statutory purposes of sentencing for juvenile offenders under the Criminal Justice Act 2003.

However, it should give comfort to an anxious public that sentencers in fact already have powers to imprison children convicted of carrying a knife in a public place for a maximum of two years. The point at issue here is that the crucial change this clause would make is to remove the discretionary element for the sentencer. This, I believe, is simply unjust where children are concerned, and is something no sentencer wants. Indeed, the chairman of the youth courts is on record as saying that he is not in favour of this proposed change.

We know from the most recent MoJ statistics that 85 children were given an immediate custodial sentence for offences involving possession of a knife or offensive weapon in the third quarter of last year. Custody consistently accounts for roughly 9 per cent of all disposals. In other words, the courts already have the necessary powers to deal with the problem and are using them, and they must be able to take into account all the circumstances of a child’s offence, and his or her needs, as well.

Children are not small adults and must not be treated as such. This is where the skill, knowledge and understanding of sentencers are extremely important. In fact, the number of children committing possession-related offences is going down, which suggests that the current sentencing framework is working appropriately, combined with knife-prevention programmes and the like. Therefore, it is clear that the proposed mandatory sentences for this type of crime where children are concerned are both unnecessary and inappropriate. In fact, despite public anxieties about the growth of possession of knives, the statistics issued by the MoJ also show that last year between July and September there were 904 offences involving possession of a knife, which was down 48 per cent on the same period three years ago. This suggests that, once again, the current sentencing framework is getting it right.

The riots of last year were and are a cause for real concern. We still do not really have a proper understanding of what lies behind those extraordinary events, which are mercifully atypical of public behaviour in this country. Those pockets of inner-urban areas where there is an undue amount of trouble, which buck this overall trend of falling knife crime, are now the subject of debate. I am always impressed by the skills of the police and other agencies in dealing with the issue, and we must work with them to deal still more effectively with it. But the figures overall simply do not justify a knee-jerk response of the introduction of mandatory imprisonment for children as a response to exceptional events like the riots, by simply changing the law as is proposed. Any change of any kind should only be the result of careful, thoughtful inquiry and discussion.

Equally important for society is to consider what in fact the outcomes of such sentencing are likely to be where children are concerned. Professor Ashworth put it quite bluntly in 2010, when he wrote that the evidence of any deterrence value of mandatory sentences of imprisonment for 16 and 17 year-olds is “non-existent”. The Halliday report back in 2001 equally found that there is no evidence to suggest that, for children, there was a link between sentence severity and deterrence effects. Rather, it is the risk of being caught that is most likely to affect behaviour. Indeed, Frances Done, the distinguished chair of the Youth Justice Board, said that the risk of being caught is,

“about twice as important as the punishment”.

A range of other studies has also come to the same conclusion.

The fact is that young children are often not capable of looking ahead and assessing the likely long-term effect of carrying a knife, or what that might mean to them and their families. Understanding consequences requires a degree of maturity that such children often simply do not have. Nor do they have independence of mind when they may be surrounded by others who are older who carry knives. Furthermore, there is a consensus among those who work in the field that what are referred to as fear and fashion have a great impact. I declare an interest as a trustee of the Esmée Fairbairn Foundation, which has funded work in this field that has been highly relevant and effective.

Three-quarters of the number of children who carry knives do so to protect themselves rather than to use them aggressively on another person. They do so because they are scared. It is a really sad thought that children should feel that way in this country. The corollary is that it becomes as fashionable to carry a knife as it is to have the latest mobile phone or iPod.

Complex social problems underlie knife carrying, and we must continue to do more to address them. That involves a lot more education and awareness-raising about the consequences. Mandatory four-month prison sentences involving two months in custody and two in the community on licence will do little to deal with those problems. That will achieve a purely punitive response. Although punishment is one element in the armoury of the sentencer, it must be balanced with the other purposes in sentencing for children, as every judge or magistrate knows.

I reiterate that short mandatory sentences for carrying or threatening with a knife is punishment as political gesture, which has little chance of achieving anything positive. Difficult as I know it is for him, but in the interests of justice, I urge my noble friend to look again at Clause 128. I beg to move.

[Lord Lloyd of Berwick]

My Lords, I support the amendment moved so well by the noble Baroness, Lady Linklater, but I would like to go further than she has. If the Committee accepts her amendments, as I very much hope that we will, we might as well go a little further and get rid of Clause 128 altogether, because it serves no useful purpose.

I start with subsection (1). Carrying an offensive weapon in public has been an offence under the Prevention of Crime Act since 1953—a long time ago. It carries a maximum sentence of four years. Incidentally, those were the days when the whole of one year's legislation could be included in a single volume of ordinary size, which one could read in bed, if one was so disposed. Compare that to what we have today: eight enormous volumes which one can hardly lift at all. That is by the way.

In 2003, the Court of Appeal issued some guidance in which it said that if the offensive weapon is used to threaten someone, the sentence should be at the upper end of the scale, approaching four years. I ask a simple question. What can be the purpose of creating a new offence of threatening with an offensive weapon when it is already adequately covered by the Prevention of Crime Act 1953 with exactly the same maximum sentence? Surely a sound principle of legislation in the criminal field, as in other fields of life, known as Occam's razor, is that offences should not be multiplied without good reason. I can think of no good reason for enacting Clause 128(1). If the noble Lord can think of some good reason, I hope that he will let us know what it is.

Exactly the same applies to subsection (2). Carrying a knife in a public place or on school premises has been an offence since the Criminal Justice Act 1988. It also carries a maximum sentence of four years. Again I ask: what can be the purpose of creating a new offence of threatening with a knife when it is already covered by the 1988 Act with exactly the same maximum sentence?

It would surely be fanciful to suppose that by the addition of the words “threatening” or “threatens” in the description of the offence anybody is going to be deterred in real life. In real life, those who carry knives do not pay much attention to what we say here in Parliament. The courts already have ample powers under the existing law to deal with those who threaten with knives. Let us leave it to the judges, because nothing more is needed.

--- Later in debate ---

[Lord McNally]

My Lords, we believe that currently there is no offence that specifically targets the behaviour covered by this clause; namely, the most serious of threatening behaviour where people carrying a knife or an offensive weapon use it to threaten and cause,

“immediate risk of serious physical harm to that other person”.

We believe that we are sending a clear message to those who behave in that way that they cannot expect leniency.

I understand, and very much respect, where my noble friend Lady Linklater is coming from. I want to make two points, one of which I have made before to the noble Lord—I am always tempted to say “my noble friend”—Lord Judd, who I am glad to see in his place. I make them to the noble Baroness as well. I understand that these under 18 year-olds, these children, may have various and complex difficulties in their personal lives. I did not. I was brought up on an ICI estate, where there were children who had difficult and complex lives but they did not adopt crime or violence. My simple point is that even children have choices and many do not adopt a path of violence.

I speak as the parent of three young children who have just come through their late teens. I know the fear in the hearts of parents of teenagers who go out on a Friday or Saturday night. The fear is always there that one piece of bad luck, one act of disrespect, will end up in their child being severely injured or perhaps even killed by someone carrying a knife. We are addressing that fear. All speakers have acknowledged that knife crime is a serious problem. I am as pleased as anyone that there has been some decrease in knife crime, but I do not think that it does any harm, particularly in the 16 to 17 year-old age group, to do a little bit of public relations and to send out a message that it is not fashionable—it might even be plain stupid—to carry a knife, to brandish it and to threaten people with it. I do not belittle any of the examples that have been given of people who deal with the problems of violence in our society but, in putting forward this law, we are addressing a real issue and making it clear that knife crime is unacceptable. It is not the first example of a minimum sentence. Nor is it the first example of a minimum sentence for 16 and 17 year-olds. There is a minimum sentence of three years for certain firearms offences committed by 16 and 17 year-olds. That measure was brought in by the previous Labour Government in the Criminal Justice Act 2003.

The Government believe that it is right to have minimum sentences specified in law where a certain offence warrants a strong and clear message that a certain type of behaviour will not be tolerated in a decent and law-abiding society. That is why we are legislating for the courts to be able to apply a minimum custodial sentence of four months' detention and training for 16 and 17 year-olds. However, as was pointed out, the legislation builds in discretion concerning the welfare of the offender, which is sensible. The amendments tabled by my noble friends would remove the minimum sentence not only for 16 and 17 year-olds but for adults. The Government cannot accept them. They would undermine our firm intention to stamp out these crimes. Therefore, I hope that the noble Baroness will withdraw her amendment and the noble and learned Lord will not oppose the Question that the clause should stand part of the Bill.

[Baroness Linklater of Butterstone]

My Lords, I listened with interest and not a great deal of surprise to what my noble friend said. We talked about fear and fashion, and I will reiterate that anybody who works with young people knows that the predominant cause is fear. We need to address why these things happen. It is not at all likely that having such a new sentence on the statute book will do anything to deter young people. As the noble and learned Lord, Lord Lloyd, said, what we do and say in this House will not percolate down, or mean very much, to a 16 or 17 year- old. However, taking account of the hour—I am about to catch my sleeper to Scotland—I will certainly not pursue the matter. I beg leave to withdraw the amendment.

Amendment 186 withdrawn.