Criminal Justice and Immigration Bill

In supporting the noble Earl, Lord Onslow—I am also a colleague of his on the Joint Committee on Human Rights—I want to continue the discussion that we have been having this afternoon about discretion. How much discretion should the courts have, and would it be desirable to give them some discretion back? Amendments Nos. 35 and 40 relate to sentencing by magistrates and Crown Courts and the limitations on their discretion. The JCHR was concerned that the youth rehabilitation order framework might lead to a disproportionate use of custody for children and young people. The Bill requires sentencing to be proportionate to the offence—we are coming to that—but our international human rights obligations require courts’ actions to be proportionate to the child’s age and emotional and intellectual maturity. The committee’s view was that the consequences of breach, as set out in the Bill, could lead quickly to custody, even when it could not have been considered for the original offence. The committee wrote to the Government asking why there could not be more judicial discretion, and they said—I imagine that the Minister will tell us this in a few moments—that sentencers may wish to use their discretion but they cannot permit this because the Government want enforcement to be robust. That word has obviously found its way into the Minister’s brief. The Government’s reply makes it clear that the need for robustness overrides the need to do the right thing for the child and the community. Those of us who follow the system sometimes see odd decisions reported and ask ourselves, ““How could that happen? What were the magistrates thinking?””. I mentioned two cases yesterday. Two children were sent to custody for breach, and one child killed himself. How did a vulnerable child find himself in prison for not turning up for his appointments? Presumably the answer is robustness. The Prison Reform Trust has done an excellent project, supported, I think, by the noble Baroness, Lady Quin, about the large number of people in prison with learning difficulties, including children under 18. They are highly vulnerable. The magistrates or Crown Court must have thought, ““This is a very sad situation we are in””. Presumably, it was robustness that meant that these people ended up in custody. Obviously, robustness is a concept with some merit, but I am not sure how appropriate it is for children with severe learning difficulties, for a child who may be 14 but looks about 10 or the sort of people we see in institutions who make us ask, ““How on earth did they get here?””. Our amendment suggests that the courts must look at the child before them, get reports and use their judgment and humanity. The Government make a big mistake with their idea of robustness and the link to public confidence. The public are not interested in that sort of complexity; they are interested in an effective outcome. They are interested in seeing a young person stop doing whatever it is they have been doing that is causing misery and mayhem. In my view, the key is not robustness of enforcement but solving the problem that the child presents. It might need special placement in a school, drug treatment or more social workers’ time, but I doubt that it needs robustness. The robustness that the Minister has been suggesting we should adopt, not only today but yesterday, leads to outcomes that cost a lot of money and do not deliver what the Government want to see, which is confidence and a system of justice that works. I wholeheartedly support the noble Earl’s amendment.