Offender Management Bill

I understand the concern that a custodial sentence should be distinguishable from other types of sentence, and that it should be used only for young people who need to be removed from the community. I understand what the noble Baroness, Lady Anelay, says and the approach of the noble Baroness, Lady Linklater, on that. The Government’s position is, I hope, clear: for young people under 18, custody should be used only in the last resort, but for a very small minority of offenders in that age group the possibility of a custodial sentence should continue to be available. I know what she is saying about numbers but she will appreciate that, regrettably, a cadre of young people have now committed some extraordinarily dangerous offences and wehave to respond to those offences robustly and appropriately—we have no choice. Custody is necessary, therefore, to protect the public from those offenders, and there is clearly no point in a custodial sentence that does not do that. The Magistrates’ Association believes quite rightly that it is for the court to decide whether an offender needs to go into custody. If the court decides that he or she should do so, it is not for the Government or the Youth Justice Board to second-guess that decision. That is the position and it is one with which we and the Magistrates’ Association are in complete agreement. However, two key points need to be taken into account. The first is that the essential purpose of a custodial sentence is to remove the offender from the community. The degree of security needed to prevent him or her from returning to the community prematurely is a secondary matter which the Government have customarily been responsible for deciding. In the case of adults, the Prison Service previously decided and now the National Offender Management Service decides whether an offender should be placed in a closed or open prison, and NOMS manages their transition from one to the other. In the case of under-18s sentenced to detention and training orders, the Youth Justice Board has a concurrent placement power and in practice all placements are decided by the board. Most of those sentenced to a DTO are placed in secure conditions but they can be, and some are, placed in the open young offender institution at Thorn Cross near Warrington. Whether open or closed conditions are more appropriate is therefore already a question that has to be addressed, and the board has to decide which of the three quite different types of establishment—a young offender institution, a secure training centre, or the secure children’s homes referred to by the noble Baroness, Lady Linklater—a detainee should be placed in. There is concern that accommodation primarily intended for children who are not offenders is to be added to the list of youth detention accommodation. But secure children’s homes fit that description and they have been accommodating offenders for a number of years, so the proposed change is not breaking new ground, either in allowing the YJB to place detainees in open conditions or in allowing it to place them in establishments that are primarily for non-offenders. It should also be remembered that it is quite common for a young person in the care of a local authority to serve the community part of a DTO in a local authority home, where he or she will be living with other young people who have not offended. What we are proposing is not a radical departure but, I humbly suggest, a minor modification of the existing arrangements. Nevertheless, we appreciate that the decision to place a young person outside the existing secure estate is important. Where that might be done immediately from court, sentencers will wish to be involved. We will therefore issue guidance to ensure that the court is aware of any such cases and has the opportunity to give a view. Clearly, any view expressed by the court in such cases would be a key factor in the eventual placement decision. I am very grateful for the indication of the noble Baroness, Lady Linklater. She is saying that this may be case-specific and appropriate for us to do in relation to a child who may need to be dealt with robustly but may not need to be incarcerated for various specific reasons. We have a handful of these cases, which we are dealing with already. I hope that on that basis, the noble Baronesses, Lady Anelay and Lady Linklater, will feel content.