Criminal Justice and Immigration Bill

My Lords, like other noble Lords, I congratulate the noble Baroness, Lady Falkner, on returning to what is undoubtedly an important matter. In a sense, it is a practical expansion of the overriding debate about youth justice, its purposes and the place of custody within it. Again, this has been an extremely interesting debate, in which there is very little difference between noble Lords on intent, the purposes of custody, the fact that custody should be the last resort and the rehabilitation provisions that we wish to see within any custodial setting. The Government share some of the practical concerns about the amendment. I will write to noble Lords on the figures, because I know that they are of great interest. Overall, my understanding is that the number of under-18s in custody has remained relatively stable over the past seven years. The proportion of under-18s given custody as a proportion of all under-18 disposals has actually fallen from about 4 per cent to 3 per cent. It is an indication—I do not say any more than that—that there has been a greater use of out-of-court disposals. We seek to increase the availability of out-of-court disposals in the future, and the Bill contains such provisions. The problem that we have with the amendment is that it would set a much higher custody threshold for under-18s than at present. The noble Baroness wants to do that, so this is really a question of judgment rather than the technicality of the amendment, although there are some technical issues. I understand why she wants to set a high custody threshold; she thinks that the actions of the courts and the provisions in custody do not sufficiently meet the needs of those young people. I understand that, but we are concerned about the practical implications. As the House will be aware, and indeed as the noble Baroness said, in most cases a court may impose custody under Section 152(2) of the Criminal Justice Act 2003 only if it considers that the offence and any associated offences are so serious that neither a fine alone nor a community sentence can be justified. The amendments that I moved last week, which your Lordships spoke on, will mean that the courts will have to consider specifically whether a youth rehabilitation order with intensive supervision and surveillance or intensive fostering could be used. If the court considers that they are not sufficient, it will have to say why. Our amendment reflected our previous discussion. The Government have recognised that and have moved considerably on it. The first limb of the noble Baroness’s amendment relates to the seriousness of the offences. The second goes on to provide that, even where serious physical harm has been caused, the court cannot impose custody unless it is necessary to protect the public from a demonstrable and imminent risk of serious physical or psychological harm. The problem that we have is that we think that that would place severe restrictions on the court and undermine our obligation to protect the public. It could mean that a person could commit an offence involving the deliberate infliction of serious bodily injury but the courts would have no power to impose custody unless the prosecution could prove beyond reasonable doubt that custody was necessary to avoid the future risk of serious physical or psychological harm. We heard from the noble Lord, Lord Monson, among others, of some of the problems in meeting that requirement. We have debated at great length and with enthusiasm the question of judicial discretion and we will be doing so again later today—we tend to pray it in aid of whatever argument we seek to put forward—but I would be very cautious about accepting this amendment, as it would unnecessarily fetter the discretion of the judiciary. The noble and learned Baroness, Lady Butler-Sloss, and then the noble Lord, Lord Elystan-Morgan, spoke about mental health problems suffered by young people in custody. I think that they were making two points: there could be some young people in custody because there is no provision in the health service and there are other young people in custody who ought to be under the care of appropriate health service provision. During the passage of the Metal Health Bill through your Lordships’ House in the previous Session, we debated many of these points as they applied to adults. There is clear evidence in the prison system of people with severe mental health problems who ought to be in secure NHS facilities. That is recognised. I pay tribute to the Prison Service and the health service for the substantive improvements that have taken place, but more needs to be done. The report of my noble friend Lord Bradley, which we eagerly await, will cover those matters, as it will in relation to young people. I am not at all complacent on this point. It is a well recognised matter. Last week, I think, we discussed the development of child and adolescent mental health services, which have been expanded by the National Health Service. That is a great comfort. In addition, the provision of NHS secure forensic mental health units has been expanded. In 2002 there were only two units, with a total of 28 beds, in Manchester and Newcastle. The NHS National Commissioning Group—which I think I once had responsibility for—has ensured greater capacity and better geographical distribution, with units opening in Birmingham, south London and west London over the past three years. Another unit opening in Southampton in 2008 will bring the total number of units to six. I also understand that from April 2007 a further 10 secure mental health beds specifically for young people with a learning disability have been commissioned from St Andrew’s Hospital in Northampton, with seven more planned in Newcastle from April 2008. That does not wholly answer the challenge, but it shows that we are moving in the right direction. Let me be clear: in all our activities, we are seeking to reduce the number of young offenders coming into court and to provide the courts with robust alternatives to custody. We share the analysis of so many noble Lords as to why that should be necessary, but in certain circumstances custody will be necessary. In those circumstances the judiciary should retain the discretion that it now has. The noble Baroness’s amendment, which is very well intended, would fetter that discretion too much.