Criminal Justice and Immigration Bill

moved Amendment No. 65: 65: Clause 9, page 7, line 5, leave out subsection (1) and insert— ““(1) After section 142 of the Criminal Justice Act 2003 (c. 44) (purposes of sentencing) there is inserted— ““142 Purposes etc. of sentencing: offenders aged under 18 (1) This section applies where a court is dealing with an offender aged under 18 in respect of an offence. (2) The court must ensure a proportionate response to offending behaviour. (3) The court must have regard primarily to the welfare and well-being of the offender, in accordance with its duties under section 44 of the Children and Young Persons Act 1933 as amended. (4) The court shall have regard in particular to— (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in his circumstances; (d) his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) the range of powers available to the court under this Act in the proceedings in question. (5) The court must also— (a) have regard to the purposes of sentencing mentioned in subsection (6), in so far as it is not required to do so by subsection (2), and (b) in accordance with section 37 of the Crime and Disorder Act 1998, have regard to the principal aim of the youth justice system, namely to prevent offending (including re-offending) by children and young persons. (6) The purposes of sentencing are— (a) the reform and rehabilitation of offenders, (b) the protection of the public, and (c) the making of reparation by offenders to persons affected by their offences. (7) This section does not apply— (a) to an offence the sentence for which is fixed by law, (b) in relation to the making of a hospital order (with or without a restriction order), an interim hospital order, a hospital direction or a limitation direction under Part 3 of the Mental Health Act 1983. (8) In respect of a proportionate response, as stated in subsection (3), this shall be considered to mean a variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care, in a manner proportionate both to their circumstances and the offence.”””” The noble Lord said: We move now to Part 2 and we enter into another phase of the Bill dealing with the general sentencing provisions. Clause 9 seeks to amend the Criminal Justice Act 2003 by inserting purposes of sentencing of offenders under the age of 18. In particular, the court has to have regard to the purposes of sentencing mentioned in subsection (4). Those purposes set out in paragraphs (a), (b), (c) and (d) are what the Government have in mind. The primary purpose of sentencing is said here to be ““the punishment of offenders””. Our amendment is directed to that aspect of the clause. The amendment seeks to ensure that in the sentencing of children, the child’s welfare is a primary concern. We argue that sentencing authorities should have the same duties as family courts in having regard to the welfare of the child as defined in Section 1 of the Children Act 1989. No one with experience of the criminal courts as I have can view, without something approaching despair, the problems that defendants have faced during their lives, particularly defendants under the age of 18. There are certain estates in London, in other large conurbations, not to mention in county towns, where it is extremely difficult for a child to break out of a cycle of crime and offending that exists within a family. If we are to be constructive in this Bill, we have to look for ways of breaking that cycle. One of the ways of breaking it is to take away the primary purpose as punishment and to look at other ways of dealing with young offenders. That is why this amendment sets out different priorities. In this amendment, which also seeks to amend Section 142 of the Criminal Justice Act, we suggest in subsection (2) that the court must ensure a proportionate response to offending behaviour. It is not so long ago since the Lord Chancellor sent out an edict that children who are convicted of stealing mobile phones should be dealt with in a particularly harsh way. I have experience of a young man who, at the age of 14, was sent to detention for three and a half years as a result of a series of robberies involving mobile phones within a two or three-week period; 42 months is hardly a proportionate way of dealing with that offence. They were serious offences but three and a half years at the age of 14 is quite an extraordinary punishment. In subsection (3) we have put forward a direction to the court that it, "““must have regard primarily to the welfare and well-being of the offender””." In subsection (4) we suggest that there should be a checklist that the court has to address when sentencing. It includes, "““(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);""““(b) his physical, emotional and educational needs;""““(c) the likely effect on him of any change in his circumstances;""““(d) his age, sex, background and any characteristics of his which the court considers relevant;""““(e) any harm which he has suffered …""““(f) how capable each of his parents … is …""““(g) the range of powers available to the court””." We feel that that is a suitable checklist that any sentencer should have before him when sentencing someone. We have amended the purposes of sentencing in order to remove punishment as the primary purpose and to put, for youngsters under the age of 18, "““(a) the reform and rehabilitation of offenders;""““(b) the protection of the public, and""““(c) the making of reparation””." We think this is a much more constructive way of breaking that cycle that exists, to which I have already referred. We argue that that conforms with children’s rights standards; first, the United Nations standards for juvenile justice—the so-called Beijing rules. Rule 5.1 states: "““The juvenile justice system shall emphasise the well-being of the juvenile””." Article 3 of the United Nations Convention on the Rights of the Child, which I am sure has been quoted already in Committee, requires that: "““In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law””—" and so on— "““the best interests of the child shall be a primary consideration””." Under Article 40.4 of the convention, there is a requirement that, "““a variety of dispositions, such as care, guidance and supervision orders; counselling””—" and so on— "““shall be available … to ensure that children are dealt with in a manner appropriate””." The Government have moved considerably in many ways in improving what used to be the provision for youngsters under 18. Putting punishment first is going against the conventions to which we are a party. They are instruments requiring that the promotion of welfare and well-being should be the primary consideration in proceedings for children. Sentencers will listen if this positive agenda is put before them. They will, we hopes, follow our check list, which may mean that some of the youth orders, such as the youth reparation order that we have been discussing, will be used in circumstances when otherwise prison would be the only alternative. This is a way of ameliorating some of the defects in the criminal justice system affecting young children. It is in accordance with the conventions to which we are a party. I beg to move.