I am happy to deal with that amendment; in the interests of economy, that seems a sensible suggestion. The amendment raises a concern about how the enhanced and tailored provision offered by a secure college might influence the behaviour of the courts when making sentencing decisions in respect of children and young people—so-called up-tariffing, as it has been referred to in other contexts.
We have seen a fall in the number of children and young people sentenced to custody in recent years. I hope noble Lords will be reassured that statute and international convention already provides that a custodial sentence must be imposed only as a measure of last resort. Statute provides that such a sentence may be imposed only where the offence is,
“so serious that neither a community sentence nor a fine alone can be justified”.
That is referenced in the Sentencing Guidelines Council’s current guideline, Overarching Principles—Sentencing Youths, which goes on to explain that even when a threshold for a custodial sentence is crossed, a court is not required to impose it. Before deciding whether to impose a custodial sentence on a young offender, the court must ensure that all statutory tests are satisfied, taking into account the circumstances, age and maturity of the young offender. Those tests are that the offender cannot properly be dealt with by a fine alone or by a youth rehabilitation order; that a youth rehabilitation order with intensive supervision and surveillance, or
with fostering, cannot be justified; and that custody is a last resort. To demonstrate that the statutory tests have been followed, the court must, in addition, state its reasons for being satisfied that the offences are so serious that no other sanction is appropriate other than the custodial sentence.
As regards the length of the sentence, the court, again by statute, is required to set the shortest term commensurate with the seriousness of the offence, and those overarching principles I referred to earlier set out guidance on how the judiciary should approach deciding the length of the sentence for children and young people. Furthermore, courts will no doubt be aware that due to the variation in needs and vulnerabilities among children in custody, there is a range of provision. They certainly should be aware. As my noble friend Lady Linklater will know, there are secure children’s homes, secure training centres and young offender institutions, as well as, in future, we hope, secure colleges.
When sentencing children and young people, the court can determine only the type of sentence to be imposed and its length. The decision on which type of establishment a child or young person is placed in is taken by the Youth Justice Board for England and Wales, rather than by the court. Its experienced placement service considers factors specific to the young offender—for example, their age and needs.
Finally, the noble Baroness noted that the amendment would have the wider effect of fettering the discretion of the independent Sentencing Council by stipulating precisely what its guidelines should say. That is a road which I am sure noble Lords would not wish us to go down.
I hope, therefore, that I have assuaged noble Lords’ concerns sufficiently for them not to press this amendment also.