My Lords, our amendments in this group on Clause 27 regarding compulsory custodial sentences for second offences of possession of a knife would have three effects. The first, and by far the most important, would be to exclude 16 and 17 year-olds from the ambit of the compulsory custodial sentences proposed in the clause. The second would be to ensure that the circumstances the court might take into account in deciding not to impose a custodial sentence would include the likely impact of the sentence on the offender. The third would be to ensure that those circumstances would include not only the circumstances of the offence for which the offender was being sentenced at the time he came before the court, but also the circumstances of the previous conviction that brought him or her within ambit of the clause in the first place.
I turn first to the amendments excluding 16 and 17 year-olds from the operation of the compulsory sentence regime. Your Lordships will no doubt remember that in Committee this House declined to remove the whole of this clause under my stand part debate, but by a fairly narrow margin, considering that the Conservative and Labour parties whipped their Back-Benchers in favour of the retention of the clause, notwithstanding that the Government Front Bench abstained. It was nevertheless abundantly clear from the debate that there was a very strong feeling in this House that compulsory sentences for children were undesirable and damaging to the children concerned.
I should remind your Lordships that this clause was not and is not government policy. It was introduced in the House of Commons by the Conservative Back-Bencher my honourable friend Mr Nick de Bois, and carried in that House. That is how it came to be included in this Bill, notwithstanding the opposition of the Liberal Democrat Benches.
On Report, the House has before it in the next group amendments in the names of the noble Baronesses, Lady Browning and Lady Berridge, which would oblige courts to have regard to their duty under Section 44 of the Children and Young Persons Act 1933 when implementing this clause. That would mean that a court would have to have regard in every case to,
“the welfare of the child or young person”,
and would be required “in a proper case” to,
“take steps for removing him from undesirable surroundings and for securing that proper provision is made for his education and training”.
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All the professional evidence is that the welfare of children and young people is not served by passing short custodial sentences upon them. There may be many cases where such custodial sentences are unavoidable
in view of the gravity of the offence and the need for the protection of the public, but they should be a last resort. The contention that any purpose would be served by making such sentences compulsory and removing judicial discretion in relation to sentences for 16 and 17 year-olds is both entirely unfounded and, I suggest, in direct contradiction with the statutory requirement, which I just read, that the sentencing court must have regard to the young person’s welfare.
To summarise the evidence, which was well rehearsed on the previous occasion, custodial sentences are particularly damaging for children, particularly short custodial sentences. They tend to entrench children in a life of crime. They disrupt children’s education and family lives. There is no evidence that they deter children from further offending. The reoffending rates for custodial sentences are extremely high; 69% of children released from custody in the past year who were counted reoffended within 12 months.
To impose compulsory custodial sentences for children would be a severely retrograde step. One of the great achievements of this Government within the criminal justice system has been to reduce the number of children and young offenders within the secure estate to below 1,100. The prediction is that without this clause the number of children in custody will continue to fall, and it is expected to be below 1,000 by Christmas. A relatively simple calculation of those convictions that currently are not met with custodial sentences, but that would be so met if this clause as it stands were enacted, shows that the clause would be likely to lead to an additional 200 children being sentenced to custody every year if it is not amended as I suggest. At a stroke, the achievement of this Government that I have just mentioned would be reversed, and we would see more and more children in custody every year.
Furthermore, this is a very expensive proposal. The annual cost of children in custody varies between £100,000 and £200,000, depending on the institution where they serve their sentences. However, that is not the only cost. If I am right in maintaining that child reoffending will increase as a result of this clause, and there is a great deal of evidence to support that, the cost to the criminal justice system and the penal system will be substantially greater than the cost of implementing these compulsory sentences alone.
I made the point in Committee that compulsory custodial sentences for children and young people for the possession of knives would discriminate against black people, particularly black young men. This is because ethnic-minority young people are disproportionately subjected to the use of stop-and-search powers. I mentioned the evidence that black men were six times more likely to be subjected to stop and search than white men. The vast majority of prosecutions for the possession of knives arise out of the use of stop-and-search powers, and those powers are extensively used against young men. So it is that the sense of alienation and injustice that fuels so much resentment within the black communities of our cities could be dangerously aggravated by the effects of this clause.
Convictions for knife possession have fallen, faster for children than for adults. Courts have the power to pass custodial sentences for the possession of knives
where such sentences are appropriate, and would continue to have that power even if this amendment were passed. However, the amendment is designed to ensure that in those cases where a court would not otherwise pass a custodial sentence on a young offender, the judge would not be required by Parliament to do so against his or her better judgment.
I turn to the second purpose of our amendments. As the clause stands, the court can form the opinion that there are particular circumstances that relate to the offence or to the offender, and refrain from imposing a custodial sentence if those circumstances would make it just to do so. However, with the clause as drafted, the court would not be permitted to take into account the likely impact of the offence on the offender, and that is plainly wrong. I say that it runs contrary to the principles set out in the section of the Children and Young Persons Act that I mentioned earlier, and it ignores one of the cardinal principles of criminal justice for young people.
The third and last purpose of our amendments is to ensure that the courts can consider not only the circumstances of the offence for which the offender is before the court, but the circumstances of the previous conviction that would render the defendant at risk of custody by reason of this clause. It is obvious that where a second offence is committed so that the clause bites, it would be relevant that the first offence was trivial or explicable in a way that would militate against the compulsory imposition of a custodial sentence.
This House has traditionally taken an enlightened view of youth justice but this is not an enlightened clause. The inclusion of 16 and 17 year-olds within its application is entirely unenlightened; it is populist and counter to all the evidence. I beg to move.