Age of Criminal Responsibility Bill [HL]

Lord Ahmad of Wimbledon Excerpts

Friday 8th November 2013 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

My Lords, I thank my noble friend Lord Dholakia for introducing the Bill and for giving us a further opportunity to debate this important issue. I align myself with the sentiments expressed by the noble Baroness, Lady Thornton, who said that this is a serious matter and a serious debate, and it is right that we in this House, with our clear expertise, discuss this from both sides of the argument. I pay tribute to my noble friend’s work in this area and his continuing interest in it.

Let me say at the outset—and the right reverend Prelate mentioned this—the Government currently have no plans to raise the age of criminal responsibility from 10 to 12. We believe that children aged 10 and above are able to differentiate between bad behaviour and serious wrongdoing and should therefore be held accountable for their actions. When a young person has committed an offence, it is important that they understand that it is a serious matter and will be dealt with as such. The public must also have confidence in the youth justice system and know that offending will be dealt with effectively.

As several noble Lords have said, serious crimes committed by children are mercifully rare and we do not want to see all 10 and 11 year-olds prosecuted for minor offences. However, it is important to ensure that serious offences can, where appropriate, be prosecuted and the public protected. We are aware that offences committed by young people may have a devastating effect on both victims and the wider community, and it would be wrong to ignore this. The tragic case of the murder of Jamie Bulger—which we all know so well and which my noble friend mentioned—immediately comes to mind in this context.

It is of key importance that the youth justice system retains its ability to respond flexibly and effectively to offences committed by young people, and this must include the ability to make use of robust sanctions in the event of serious offending. This includes the use of custody as punishment and to protect the public where appropriate. Indeed, between 2002 and 2012, 13 10 and 11 year-olds received a custodial sentence. However, setting the minimum age of criminal responsibility at 10 does not lead to the prosecution of a large number of 10 and 11 year-olds. For example, in 2012 only 262 10 and 11 year-olds were proceeded against at court, compared with 859 12 year-olds. Of those 10 and 11 year-olds, 147 were given community sentences, and the others were found not guilty, fined or given an unconditional or conditional discharge.

Not all crimes committed by those aged 10 or over will result in prosecution. We are keen to ensure that, whenever possible, children are not prosecuted. The principal aim of the youth justice system is to prevent young people offending. The noble Earl, Lord Listowel, referred to the importance of early intervention. I reflect back to my maiden speech in your Lordships’ House, which was on this very issue. I join the noble Earl in paying tribute to the important work that people such as Graham Allen are doing in this respect. The Government take note of it and consider it at all times. I also align myself with the noble Earl’s comments about the work of both the previous Children’s Minister, Tim Loughton, and the current Children’s Minister, Edward Timpson, and I will certainly convey his remarks to them. I thank the noble Earl for his kind remarks in this regard.

My noble friend Lord Dholakia asked an important question about welfare. Legislation requires courts to have regard to the welfare of all under-18 year-olds. Section 44 of the Children and Young Persons Act 1933 provides that every court, in dealing with a child or young person brought before it, shall have regard to their welfare. This is reinforced by detailed guidance contained in the sentencing guideline Overarching Principles—Sentencing Youths, which sets out for the courts the principles to be followed when sentencing under-18s. This places a strong emphasis on the need to take into consideration welfare issues and to use interventions that are most likely to prevent reoffending.

The right reverend Prelate the Bishop of Derby, in his most thoughtful contribution, raised the concept of the science of social formation. He talked about the importance of the three pillars of family, school and rehabilitation. As a person of faith, I associate myself with the sentiments that he expressed on the concept of forgiveness. He also referred to his family and talked of his daughter’s child being an “economic unit”, becoming a more active economic unit when Christmas comes. I say to the right reverend Prelate that I have two economic units at home, and they persist as such throughout 12 months of the year and not just at Christmas. However, that is perhaps a discussion that we can have outside this debate.

My noble friend Lord Dholakia talked about mental capacity. The sentencing guideline Overarching principles —Sentencing Youths, to which I referred, ensures that proper regard is had to the mental health and capability of the young person, and to the learning disability, learning difficulty, speech and language difficulty or any other disorder, any of which is likely to affect the sentence. The guideline must be followed by the courts.

Maintaining the age of criminal responsibility at 10 years of age also enables offenders to be identified at an early stage. This allows multi-agency youth offending teams, which include representatives from health, housing, children’s services and education, to become involved with the aim of putting interventions in place to address the child’s behaviour. These interventions can include addressing their attendance at, and attitude to, school, referral to a speech and language therapist if there is an identified issue with communication, and, finally, youth crime prevention programmes, which work to keep young people away from crime.

If an out-of-court disposal is considered to be appropriate, as is usually the case for a first-time offence, the police, in consultation with the youth offending team—and, for indictable-only offences, the CPS—may offer a youth caution or a youth conditional caution for a young person aged 10 to 17. We also introduced this new out-of-court framework for under-18s in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which came into effect for offences committed from 8 April 2013. This new framework simplified and rationalised the previous framework to provide a flexible approach which allows for professional discretion to apply the most appropriate disposal. That did away with the escalator in the previous reprimand and warning scheme, which forced further offending up the criminal justice system regardless of the seriousness of the offence.

The youth caution may be given for any offence where the young offender admits an offence or there is sufficient evidence for a realistic prospect of conviction but it is not in the public interest to prosecute. Youth cautions aim to provide 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, a sentiment with which I know all noble Lords who have participated agree.

Where a youth caution is given, the police have a statutory duty to refer the young offender to the youth offending team. For a second or subsequent youth caution or where a young person has previously received a youth conditional caution, the youth offending team has a statutory duty to carry out an assessment of the young offender and to consider putting in place an intervention programme aimed at preventing reoffending. The youth offending team may carry out an assessment and offer a rehabilitation programme for a young person who has never received a youth caution or youth conditional caution at their discretion.

Youth conditional cautions require young people to take responsibility for their actions, including agreeing to conditions that require them to put things right or seeking help for their behaviour. They provide an opportunity in appropriate cases to achieve an early positive response for those young people who are willing to admit their offending and to comply with certain conditions. Like youth cautions, they aim to support the principal aim of the youth justice system, which, again, I reiterate, is to prevent offending by children and young people. For example, they allow for a proportionate response in appropriate cases, for offenders to make swift reparation to victims and communities, and for offenders to be diverted at an early opportunity into rehabilitative services, reducing the likelihood of reoffending. The conditions that can be attached to a youth conditional caution must include one or more of the objectives of rehabilitation, reparation and punishment.

Rehabilitative conditions may include attending one or more of a range of interventions available to the youth offending team for addressing offending behaviour. Reparative conditions may include apologising, repairing or otherwise making good any damage caused, provided of course that that is acceptable to the victim. Punitive conditions may include attendance at a specific place to undertake an agreed activity. However, I stress that in any case where the police or CPS are considering offering a youth conditional caution or a second or subsequent youth caution, the case must be referred to the local youth offending team to provide a check on the appropriateness of the disposal and the interventions that should go alongside.

Where a person aged between 10 and 17 pleads guilty and is convicted for the first time of an imprisonable offence, the court must pass in most cases a referral order. A referral order is based on the 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 two specifically trained community volunteers and a member of the youth offending team. The panel agrees a contract with the young person, which may include reparation and interventions to address any risk of reoffending. By holding the young offender to account for their actions, the young person can find the process very challenging. In addition, parents are also required to attend this panel, which means that they are directly engaged in the sentence and take responsibility for their child.

Restorative justice, which has been shown to be effective for young people, is increasingly used as part of a referral order and funding has been provided to youth offending teams to allow panel members to be trained as restorative justice conference facilitators. That allows the panel to include a structured restorative justice group conference involving a facilitator, the offender, the victim where they indicate that they wish to participate, professionals such as social workers and, possibly, representatives of the wider community.

Custody is available for 10 to 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 of this age who is sent to custody would only be placed in a secure children’s home with a strong focus on addressing their particular behaviour and their family’s needs as well as their offending behaviour. There are also restrictions on custody for 12 to 14 year-olds who become eligible for a detention and training order only if the court considers the offending to be not only serious but that custody is necessary and that they are persistent offenders. Otherwise, custody becomes an option only where the offence is grave or a serious crime, as for 10 to 11 year-olds.

Legislation introduced in November 2009 alongside the youth rehabilitation order—the main community sentence for under-18s—requires courts to consider a youth rehabilitation order with a high intensity requirement before they can make a custodial sentence. This clearly signals our compliance with the UNCRC principle that custody is the option of last resort for an under-18, which I know the noble Lord, Lord Ramsbotham, also referred to. As noble Lords will also be aware, my right honourable friend the Secretary of State and Lord Chancellor in the other place has announced his intention to introduce a new form of youth detention accommodation—secure colleges—which are focused on delivering education in detention. We maintain that education is the best means of preventing reoffending.

I now come to a few of the additional questions that I have not yet covered. The noble Lord, Lord Ramsbotham, referred to the Anti-social Behaviour, Crime and Policing Bill, which I am sure many noble Lords are looking forward to discussing in the coming weeks, and IPNAs. IPNAs may now be coined as the boiled-egg syndrome. But it is a matter for him whether he takes out an IPNA on such an occasion. But the Bill that we will be discussing next week is a serious one. It is designed to allow police to intercede where a person's behaviour is having an unacceptable impact on another person. Guidance will be provided for police and practitioners. As I said, I am sure that we will be having many discussions in this area.

The noble Earl, Lord Listowel, also raised rules of engagement, which were raised by my right honourable friend Iain Duncan Smith. I am not able to clarify whether a formal response was provided, but I shall write to the noble Earl in this respect. The noble Earl raised the issue of the ACPO guidelines and the 2010 report, which I know the Ministry of Justice is currently working on with colleagues at the Home Office. We will of course share the outcomes of that review with noble Lords as he requested.

The noble Earl, Lord Listowel, and the right reverend Prelate the Bishop of Derby raised the issue of mentoring. Mentors are used frequently in our criminal justice system and there is a great emphasis in the current process of offender rehabilitation to look at mentoring across the board. It is something that works. It has been shown to produce the results that we require and, most importantly, it ensures that people become productive citizens at the end of that mentoring. It is something that we are seeking to do within the rehabilitation programme. If someone is given a custodial sentence, a needs analysis is conducted and mentoring continues not just during that sentence but, most importantly, when they come to the end of their custodial sentence.

I pay particular tribute to the work that the noble Earl does across several APPGs relating to children. The Government look with great interest and take note of the findings and reports that they make. He referred to Police Constable Storey. I did not meet the particular officer concerned, but from what the noble Earl said, it appears that it was a very moving occasion, which demonstrates the importance of mentoring.

We have seen a significant fall in the number of under-18s being dealt with in the criminal justice system in recent years. A clear contributory factor to that fall was the doing away in 2008 with the police target introduced under the previous Government for offenders brought to justice. Since 2008-09, 54% fewer younger people have been coming into the youth justice system, 32% fewer in custody and 14% fewer reoffenders.

In conclusion, the Government firmly believe that the current age of criminal responsibility allows the necessary flexibility to deal effectively with young people who commit offences and accurately reflects what is required of our justice system. Reference has been made by several noble Lords to the raising of the minimum age in Scotland and the reviews in Northern Ireland. As the noble Baroness, Lady Thornton, said, the Government are continuing to look at those areas. We have no plans to raise the age from 10, but we continue to watch with interest the developments in Scotland and Northern Ireland.

We believe that the argument which has been put forward by successive Governments to keep the age of criminal responsibility at the age of 10 holds. It allows us to intervene early and prevent robustly further offending. Most importantly, it helps young people to develop a sense of personal responsibility for their behaviour. In closing, I would like to say that while taking on board and listening carefully to the contributions of my noble friend Lord Dholakia, as I always do, for the reasons I have outlined, the Government do not support the Bill.