§ 3.55 p.m.
§ House again in Committee.
VISCOUNT COLVILLE OF CULROSS
I wonder whether I may ask the noble Lord, Lord Stonham, about this matter of appeal, to see whether I have understood it properly? It seems to me that there are two subsections with which we are involved. If I may take the simple one first, it is Clause 3(8) where you have the finding of guilt by the court of an offence which the child or young person has not admitted. Then if an order is not made, there is an appeal to quarter sessions at which, if the court of quarter sessions thinks fit, the finding of guilt can be discharged. It is a perfectly straightforward appeal against a finding of guilt which was not admitted.
Under Clause 2(9) there is the general appeal where an order is made, except where the order is one for the parents to enter into recognisances. I understand the situation to be that if the care order had been made on the grounds in paragraph (e) (that the child was guilty of an offence, and also, as the Bill now stands, that he is in need of care and control) there would be two things before quarter sessions, because it would be a rehearing. First of all, ex hypothesi,, the offence found and forming part of the basis of the care order could not have been admitted by the child. That would be essential for an appeal against that part of it. But the court of quarter sessions would then start again, as it always does. It would go into the question of the alleged offence and go through it in the same way as the juvenile court had previously done, subject to the same rules as appear in Clause 3 of the Bill. As the Bill now stands, it would then further consider the question whether or not the child is in need of care and control, even if it found again that the child was guilty of the offence alleged.
791 If it does not find the child guilty of the offence alleged, and no other ground in the list set out in Clause 1(2) has been brought, then, presumably, the care order fails. But if it does find the child is guilty of the offence, the quarter sessions court must again consider whether the child is in need of care and control as well; and only if it does will it confirm the order made by the court below. That, as I understand it, is the situation about appeals. Therefore both when the court does decide to make an order and when it does not there is an appeal against the finding of guilt.
§ LORD STONHAM
I am grateful to the noble Viscount. My understanding of this matter is exactly the same as his, with one final reservation which I will come to in a moment. I think that part of the difficulty arises from the fact that there has been some confusion between the procedure with adults and the procedure under this Bill with children. With an adult, or a person over 14, there can be an appeal against conviction and an appeal against sentence, or both. With a child the order can be challenged by challenging the findings on which it is based. Under Clause 2(9) you could have an appeal on the grounds, "I did not do it", or you could have an appeal that the court had made the wrong order; and both of those would come under Clause 2(9). With regard to challenging the finding of guilt—and I must insist on using "finding of guilt" as a term of art: it is totally different in essence from the ordinary finding of guilt in the case of people over 14—the court would decide that no order would be made and this would come under Clause 3(8).
I must point out that if this Amendment were accepted and the offence condition went, we should not have any Clause 3, because it would fall. This would mean that the safeguards of appeal, about which I have been talking and about which noble Lords have been so concerned, would disappear and we would merely have the same procedure as in civil proceedings, which rests on the balance of probability. I hope that I have made these reasons clear and that my noble friend will not persist in the Amendment.
§ LORD CONESFORD
I apologise to the noble Baroness, Lady Wootton of Abinger, because I missed the beginning of her speech on this Amendment. It is a subject on which she speaks with great experience and authority. I confess that the same points which trouble her have troubled me. I want to make certain whether I correctly understood the Minister in part of his reply to the noble Baroness's Amendment. As I understand it, the words at the beginning of subsection (2) of the clause, that:… the court … is of opinion that any of the following conditions is satisfied …in general mean satisfied on the balance of probability and that this standard of proof fully applies to paragraphs (a), (b), (c) and (d). But when we come to (e), with which the noble Baroness is so much concerned, the Minister is saying that an entirely different standard of proof applies by reason of Clause 3(3). I think that I have correctly understood him.
If his reply does not mean that, I still share the noble Baroness's fears. If, however, that is the meaning, then I find the drafting of what immediately follows paragraph (e) a little curious. It is perfectly true that we there find:… subject to the following provisions of this section and sections 2 and 3 of this Act",but I should have thought that the draftsman should look into this. If a different standard of proof applies to (e), then surely it should be made subject to Clause 3(3) earlier in the paragraph which the noble Baroness is seeking to strike out. Perhaps it should be immediately after (e), as: "subject to section 3(3) he is guilty of an offence", because as the clause stands it does not look prima facie as though a totally different standard of proof were being applied to paragraph (e) from that applicable to paragraphs (a), (b), (c) and (d).
§ BARONESS WOOTTON OF ABINGER
I hope that this is crystal clear, so that all noble Lords who are not practically involved in this issue will understand what is at stake. I must say that this is a serious commentary on the Bill. We have a procedure at present which is simple and intelligible. If a child is under 10, he cannot be charged with an offence. If his conduct gives rise to the supposition that he is in need of care and attention and control, he can be brought 793 before a court. If on the standard of civil proof it can be established that he is in need of care on certain grounds, of which an offence is not one, his parents have a right of appeal.
If he is over 10, he can be brought before the juvenile court and charged by criminal procedure. He must be given an opportunity to plead, he must be cautioned, and the standard of proof is the standard of "beyond reasonable doubt". Now we are making a hybrid procedure, which seems to me to be neither fish, nor flesh nor fowl, nor good red herring, which is extremely confusing, and if those noble Lords who are not practically involved in this question do not understand it, I am inclined to say that they are very much in the same case as I am myself.
My noble friend said that the age of criminal responsibility can be raised only gradually. He would perhaps like to see it raised further now, but we must proceed gradually. We do proceed gradually. It took 27 years to get it up from 7 to 8; it took 30 years to get it up from 8 to 10, and I suppose that it would be extremely rash to put it up any further after an interval of only six years, which is what would happen if my Amendment were accepted and nothing else were done. I am not hoping to use this as a means of getting the age of criminal responsibility put up further, much as I should like it. I take exception to the fact that paragraph (e) brings a child to court for a specific act and makes it possible for his future to be wholly altered by his being made the subject of a care order because of a specific act—for example, because he "pinched" a couple of pounds out of a church collection box when no one was looking.
I know that there are subsequent provisos in this clause which say that he will not be made subject of a care order if he is likely to get the necessary care and control at home or in some other way. The noble Earl, Lord Jellicoe, is going to move to delete those provisos, and I will say this about them now. I think that there are great objections to those provisos standing. What we have to look at the moment is a possibility that under paragraph (e) the child would be brought before a court for a specific act. I object to this. I wonder which of your Lordships would 794 not have been liable to be brought before a court between the ages of 10 and 14 for a specific act which would have been a crime in an adult? I think there is a fortuitous element in this which is quite wrong in a clause dealing with children in their home setting and in relation to their whole characters.
I am not going to press my Amendment at this stage because I hope that the Government will give further thought to this point and instead of having the offence condition they will think of rather more general terms, which may mean that the child's misbehaviour is antisocial but not related to a specific act. I am not going to draft it, but I would suggest some phrase such as, "a child whose conduct gives rise to social concern." If the Government do not think that paragraphs (a), (b), (c) and (d) are sufficient; perhaps they could have (e) as something of a more general character.
The difficulty is that if this paragraph stands, we are introducing something quite new in law. We are introducing a case in which children between 10 and 14 may be found guilty of offences with which they have not been charged. We are introducing the ultimate absurdity, as my noble friend has said, that we cannot any longer use the expression "finding of guilt" because that has a technical meaning relating to criminal findings of guilt. In fact, there is no language to meet this situation. We can only use it as "a term of art," whatever that may mean. A court might be satisfied that a child is guilty, though he cannot in technical language be found guilty and charged. Really, can legal muddles go any further than this? I am very disappointed that my noble friend has not made any suggestion as to what the procedure will be.
I am satisfied, thanks to the cooperation of my noble friend and of the noble Viscount on the Benches opposite, that there is an appeal against the—I must not say "finding of guilt", because that is not the right expression; I must not say "conviction", because that is already forbidden, but against the satisfaction of the court that he is guilty—that seems to be the only correct description. This is ridiculous. But I am satisfied on that score that there is going to be a right of appeal. However, I am not satisfied about procedure.
795 The great thing about being charged is that you know what you are supposed to have done. Who is going to tell the child what he is supposed to have done? How will it be introduced? When you are charged in court and the charge is read over to you, you are able to say, "I did it", or "I did not do it"; you plead guilty or not guilty. There is no similar procedure laid down. We have not been told whether this finding of guilt which is not a finding of guilt will be quoted, should the person who has been so found guilty and not found guilty be subsequently convicted of charges as an adult. We have not been told that this is something that is going on to the record.
What I am saying, in substance, is this. If this paragraph remains in it will have the effect of making children between 10 and 14 liable to be, in common parlance, found guilty of offences under a procedure for which there is no parallel, which is without the safeguards that follow from charging, cautioning and pleading—although I agree that the court must be satisfied that the proof is as good as it would have been if both safeguards had been present. Where are we? This is introducing a new procedure without the existing safeguards under the criminal procedure, and subjecting children between the ages of 10 and 14 to it. If children of 10 are still to be, in ordinary parlance, found guilty of offences, then I submit that they ought to have the same safeguards as they have at present when they are charged under the normal criminal procedure.
That is the essence of my Amendment. I am not going to press it, because, as I have said, I hope that the Government will think again. I hope that they will see the legal tangles that we are getting into, and substitute for what is known as the "offence condition" something of a much more general character fitting in with the general climate of this clause, which is about children who are in all sorts of difficulties of a general character—some such phrase as "children whose conduct is the subject of special concern"—and not tie it to a specific offence. Subject to that, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.796
§ 4.14 p.m.
EARL JELLICOE moved Amendment No. 3:
Page 2, line 2, leave out from beginning to ("then") in line 4.
§ The noble Earl said: I think that, with the permission of your Lordships, it would be convenient if we were to take Amendments Nos. 3 and 4 together. Amendment No. 3 is the substantive Amendment, and No. 4 is purely consequential upon it. I hope that I made it perfectly clear on Second Reading—indeed, I made it clear in answer to the opening remarks of the noble Baroness in moving her Amendment—that we on these Benches are in sympathy with a lot of what is to be found in this Bill, although we feel (and I think this is clear from the Amendments which have been put down) that there are ways in which it can be substantially improved. Equally, I made it clear on Second Reading—and I propose to make it clear again now—that we part company with the Bill and with the Government on the issue covered by these two Amendments.
Our doubt arises from the fact that in this Bill the Government are seeking, as I understand it, to establish a double test for bringing the child or young person to court. Not only should one be satisfied that he is guilty of an offence (the point that we have just been discussing), but also, to take the language of the Bill, that
he is in need of care or control which he is unlikely to receive unless the court makes an order under this section in respect of him …
The language of the White Paper, Children in Trouble, enunciated this test in rather different language, using the formula that
he is not receiving such care and protection and guidance as a good parent may reasonably be expected to give.
§ Our objections to this clause are rather deep, and, as I see it, are threefold.
In the first place, we take the view that this double test implies a double standard, and carries with it a real danger of unfair discrimination. To find out whether the child or young person concerned is in need of care and control an inquiry into the child's background—his home, his parents and so on—will obviously be necessary. It is true, as the noble Lord, Lord Stonham, said during
our Second Reading debate, that not a single word appears in Clause 1 of the Bill about "good homes" or "bad homes", "good parents" or "bad parents"—although, parenthetically, I would again remind your Lordships that the phrase "good parent" did appear in the parent of this Bill, the White Paper, Children in Trouble. It is also true that the noble Lord said:
I would never lend my name to a Bill which had
§ the effect that children from bad homes appear in court and those from good homes get off. That is what the noble Lord, Lord Stonham, said; and, knowing him as I do, I know that he was absolutely sincere in what he said. But I confess that I fear that the consequence of enacting this Bill, as at present drafted, will be precisely that: that children from bad homes will go to court, and those from good homes will have a far better chance of being let off without going to court.
§ Why is this so? We all know from personal experience (and again I quote the noble Lord, Lord Stonham) how closely the delinquency is related to unsatisfactory and deprived backgrounds. Therefore when the child's background is investigated the investigation is surely bound to turn on whether the home background of the child in question is satisfactory or unsatisfactory: in short, whether the child or young person comes from what is called a good home or from a bad home; from a satisfactory home or from an unsatisfactory home. We all know that there are innumerable factors which go to make up a bad home, but one of the factors can be economic circumstances. In an unequal world, discrimination is always latent in the social and economic circumstances of a child, and it is something which, whether we like it or not, we have to live with. But my objection to this clause of the Bill, as drafted, is that it will rub in that discrimination, because it will mean that a child who comes from an unsatisfactory home, be it a middle-class home or a working-class home, is more likely to be "had up" than a child who comes from a good home. I think it is wrong, if I may say so, to shirk the sad fact that poverty can be a real barrier to satisfactory parenthood.798
§ That is our basic objection to this part of the Bill as at present drafted. Of course this latent discrimination in the clause is made worse by the sort of example to which I referred on Second Reading. I then instanced the very different treatment which would be handed out to two children committing a joint offence. Suppose that one child, the leader of this particular juvenile folly (let us call him Victor) comes from a good home and that the child who has merely tagged behind Victor in the offence (let us call him George) comes from a bad home. Victor will get off scot-free—at least, he will not be hauled up before the court. Poor George, who has merely succumbed to Victor's leadership and willpower, will be "had up" before the court. I cannot believe that this is just. I cannot believe that it will strike George's parents as just. I even doubt whether it would strike Victor's parents as just.
§ LORD STONHAM
May I interrupt there? Would it strike the parents as being any more just if the same discrimination, because of the same background, had happened in court?
This is an important point. I shall like to come to that. What I think will strike everybody as unjust is that this first hurdle is not in those circumstances taken together. I should have thought it would even strike young Victor as unjust if George is had up for committing the same offence and Victor, who knows he has been the ring-leader in this particular escapade, gets off. I need not remind any of your Lordships that children have a very acute sense of justice, and with them, as with others, justice has not only to be done but to be seen to be done. Something which, on the face of it, seems so unjust may well cause lasting resentment, a festering dangerous resentment, in the young child who has been on its receiving end. At Second Reading the noble Lord, Lord Stonham, told us we need not worry about this apparent injustice, at least: so far as young persons between 14 and 17 were concerned—I suppose that means between 12 and 17, because of the assurance given at Second Reading; their position is catered for.
799 The noble Lord referred to the criteria set out in Appendix A, paragraph (g) of the White Paper, and pointed out that the statutory regulations which follow will include a provision making it possible for criminal proceedings to be taken for an alleged offence, if the offence was committed in company with some other person, whether over or under the age of 17, who is to be prosecuted. There is nothing gospel about Appendix A, the Appendix which the noble Lord, Lord Stonham, quoted, because it merely says that such regulations will possibly include the sort of provision to which he attached so great importance.
If such regulations are thought necessary for the 12-year-olds, or the 14, 15 or 16-year-olds, why should the 10-year-olds and the 11-year-olds be excluded from their benefit? I know very well, without the noble Lord or anybody else reminding me, that there is a division of opinion on this subject, but without witnessing all the bodies which take the view, broadly speaking, that I have enunciated, I would merely remind the noble Lord, Lord Stonham, that there is no Party point at all here. I think at least two of his noble friends at Second Reading, in greater or lesser degree—the noble Lord, Lord Donaldson, and the noble Baroness, Lady Wootton—expressed their disquiet at this discrimination, especially when it applied to a joint offence.
I said that the objections to this clause, as drafted, were threefold. I have instanced—I fear at rather undue length—our objection on the ground of discrimination. There are two other objections. Secondly, the Bill as I see it, as it stands, will not make for speed. In fact, it will be very much the reverse. The preliminary investigations of the child's background may well be lengthy. If that is the case, we are putting into our legislation something which I believe goes against a very important principle in dealing with young people, the principle to which the Ingleby Report attached so much importance, and which I quoted on Second Reading; namely, that justice for the young should always be swift.
My third objection to Clause 1, as it stands, is also a serious one. It would be necessary, because of this dual test, for both legs of the test to stand up.
800 Not only will the offence have to be substantiated, it will have to be substantiated whether or not the child is unlikely to receive the care and control which he needs without an order. That could very well lead to lengthy discussion before the child himself, in court, about the adequacy of his or her parents, because there is nothing in the Bill that I can find, and nothing so far as I know in our juvenile court procedure which would make it obligatory for the young person concerned to leave the court when this point was being argued. I cannot believe it is sensible for us to build something into our juvenile legislation which could lead to this public discussion before the child in the court about the adequacy of the parents. Those are the three main grounds on which I base my argument for this Amendment and on which I criticise Clause 1 as it stands; namely, that it involves a dangerous degree of discrimination; that it militates against speed, and that it can lead to the parents of a child being stigmatised before the child itself in court.
May I make two further points quite clear in conclusion? I am not arguing that all children accused of similar offences should receive precisely the same treatment—that is the point which the noble Lord, Lord Stonham, took me up on. Clearly, the different backgrounds and different circumstances must be taken into account by those who are dealing with them, whether they be the court or whether they be the local authority. All I am arguing is that if child A is to undergo the stigma—and it is a stigma—of a court appearance, the same should apply to child B. I am not arguing that thereafter the treatment laid down by the court should be similar. I do not think that the point which the noble Lord put to me really meets that aspect.
The first essential is that what would be thought really unfair is if one child avoids being had up at all before the court, and the other is had up. Secondly, I hope your Lordships will not feel I am one of those who think that as many children as possible should be hauled before the court. That is not my view, and it is clear that the law as it is applied at present shows that it is not the view of our police authorities who, in very many cases, prefer to proceed by way of caution rather than court appearances.
801 The noble Lord, Lord Stonham, suggested at Second Reading that if this Amendment, or something similar to it, were carried, it would strike at the heart of the Bill. I am inclined to believe that in the ardour of his eloquence he may have somewhat exaggerated the situation. If he did not exaggerate, I should only wish to add that if the heart of the Bill is in fact involved here it must be altered, because it would be clearly wrong for us to proceed with a Bill whose heart contains the seeds of obvious discrimination and, I should have thought, patent injustice. I beg to move.
§ 4.28 p.m.
VISCOUNT ST. DAVIDS
I believe the noble Earl, Lord Jellicoe, is under a misapprehension in this connection. As I see it, in his imaginary case of Victor and George, neither of them would in fact be punished by the court. Victor would be taken back to his parents, who would deal with him and presumably compensate anybody who required compensation. The same thing would probably happen—because even in what may be called "bad" families it usually does happen—George would be dealt with in the same way. That would be the punishment of the children. If George's family was able to look after George in a proper manner, that would be all that was necessary.
Unfortunately, in this imaginary case more would be necessary, and it would be the business of the local authority and court to deal with the further matter that required dealing with. This would not be a matter of punishing George, but of helping George's family, and helping George and his family to get themselves right. That is nothing to do with punishing George. It is for that reason that I accept that, as the noble Earl said, there may well be a further delay. This may well be a longer procedure, but it will not be a procedure which will involve the children in waiting to suffer the consequences of their act. If it were, I should not accept it.
I believe that anything that can be done in the way of punishment to put the children right can be done only by the family, and more or less on the spot. If a child has to wait even a few weeks, as our present juvenile courts so often require, then anything that is then done is too late to do any good. I accept 802 what is proposed in the Bill because, so far as I understand it, what the children get and accept as punishment for the offence is done by the family. If George's family is so inadequate that it cannot do even that much, that is unfortunate. I do not believe anybody else can in fact replace the family in taking action in that matter. What must follow in the case of poor George is further action, not to punish George, but either to build up his family so that it is capable of supporting him, or to take him right out of the picture of his family. That is nothing to do with punishing George at all. And in my experience of children I do not believe that either Victor or George will see it in that light.
§ BARONESS WOOTTON OF ABINGER
My noble friend, I think, said at Second Reading that if these words were taken out it would cut out the heart of the Bill. I should like to put the opposite view: if these words are left in it will cut out the heart of the Bill. I think this Bill is intended to be one which will deal without discrimination with all children who are problems or who have problems. One of the criticisms I have constantly had to make of our juvenile courts is that juvenile courts are for other people's children. This is in fact true of the present situation. Everything is going to turn upon the definition which is given in practice to the question whether the child is going to receive the care or control which he needs without court action.
It is already true (and I say this with sorrow) that juvenile court justice is class justice. The great majority of middle-class children and children at public schools who steal or who are social problems are not brought before juvenile courts. The matter is arranged between the parents and the school. One of the reasons why I said at Second Reading that I regretted this Bill was not more radical was that it did not generalise this procedure but still kept a formal court procedure for certain children. I should like to see this procedure the normal procedure for all children, because I think that children under school-leaving age are educational problems and should not be dealt with as criminals.
However, that is neither here nor there. What happens in practice at present—and let us be frank about it—is that the 803 children who come from middle-class homes, or the children who are at public schools, are not brought to court, save in very exceptional cases. They are dealt with informally. And it is absolutely inevitable that if these words remain in the Bill this will relate the sanction of the law to discrimination, because the decision as to whether a child is likely to receive at home the care or control of which he is in need is bound to be made, in the main, on what are really class criteria. There will perhaps be some occasions in the case of a highly disorganised middle-class home where an exception will be made; but, in general, if a child comes from a good home, a good home will be taken to mean a middle-class home, with professional parents and the child in public school. This will really mean that we shall put the sanction of the law on the present very deplorable practice that juvenile courts are for other people's children.
§ 4.35 p.m.
§ BARONESS BIRK
I should like to speak against the Amendment. It seems to me that if the Bill means anything—and I must agree with what my noble friend Lady Wootton said, that it is an extremely complicated and complex Bill—then most of all, surely, we are trying to keep, as I think we all agree, as many children as possible out of the courts. But in the present circumstances—and since we are in a situation where unfortunately we do not know how far or to what extent the Seebohm Committee's recommendations will be implemented, one is assuming that behind this Bill there will be the social services which can deal with these problems—surely first of all, if the Bill works properly, the number of children who are brought before the courts should gradually diminish, compared with the proportion who come before the courts to-day.
The noble Earl, in dealing with his three objections—discrimination, speed and what should take place in front of the child—said himself that the point would apply whether the home was a poor home or a middle-class home. It seemed to me that he then made a trap into which he fell, because he then removed the emphasis from the need of the child, from whichever kind of home the child came. If it is argued that it is extremely 804 unfair that some children, whether they come from poor homes or middle-class homes or any other kind of homes, should be in the situation where they are not receiving at home the kind of necessary care and upbringing which is right for them, then of course I agree that it is unfair. But this is the situation. It has nothing to do with this Bill. It is what is happening at the present time; it is what is going on. In that case, it does not seem to me that one can call this a discrimination in those terms, unless one is going to take a very, if I may say so, conventional and rather superficial interpretation of the word "discrimination". Obviously there is discrimination, but if it is in the child's interest, then what we must do is to try to approach the matter in such a way that the child who is brought before the court is brought there because there is no other way of dealing with him.
Frankly, I know that matters have to be spelt out in this way, but I would rather see it the reverse way round: not to have all these other paragraphs spelt out, but a provision referring to a child who is in need of care and control which he is unlikely to receive unless the court makes an order. That seems to me to be the only criterion. On this point I would agree with my noble friend who withdrew her previous Amendment: the Government should find a way of rephrasing this provision so that it is more in keeping with the spirit of the Bill. As it is, it rather sticks out like a sore thumb.
So far as speed is concerned, I doubt whether this is going to make much difference compared with cases which are adjourned in order that further inquiries may be made. As to the third objection (and perhaps my noble friend, Lord Stonham, would deal with this matter when he replies), about how much should be discussed about a child's home and his parents in front of a child, I think that this is a valid point. It is something which the noble Lord should reply to and which should be covered. So far as the point about inequality as between two children is concerned, if one is brought before the court and the other is not, that surely involves still staying attached to the old idea of this being a punitive procedure. The fact that people may still think it is does not mean that we should not try to move them away from 805 that attitude to one which, again, is more in the spirit of what I believe is behind this Bill. To involve two children when the need is for only one to be brought before the court seems to me in any case to take away the rights of the other child. It also reinforces this whole cast-iron attitude that the court, which should in the future be an investigating body into the child's needs, is in fact an old instrument of punishment.
§ VISCOUNT MASSEREENE AND FERRARD
May I support my noble friend on the Front Bench very warmly on this Amendment? I do not agree with the noble Baroness who has just sat down. My whole sympathy is with the noble Baroness, Lady Wootton, however one looks at this Bill. I have listened to all the arguments and, whatever is said, if this Bill becomes law as it is drafted we shall in fact be setting double standards. We shall be discriminating in favour of the child who comes from a rich family, and discriminating against the child who comes from a poor family. The fact that he comes from a poor family has nothing whatever to do with the fact that he might perhaps do something anti-social. As the noble Baroness, Lady Wootton, has so expertly pointed out, if he comes from a poor family with an unfortunate background, he is then at a disadvantage as compared with the child who comes from a rich family and has done something anti-social. The fact that he comes from a rich family, even if he has unpleasant parents, means that presumably they can provide the finances to ensure that the child has proper care and attention. Therefore I heartily agree with my noble friend Lord Jellicoe.
§ LORD DONALDSON OF KINGS-BRIDGE
My noble friend Lady Wootton applies her logic to trees, and is a logical thinker; my noble friend Lord Stonham applies his logic to the woods, and is an equally logical thinker. On the whole I prefer Lord Stonham's application of logic. The logic of this situation is really quite simple. Below a certain age we treat them, and after a certain age we try them and punish them. We have set the age for trial and punishment at 14 and the age for treatment at 10, and there is a "grey" area in between which is open to either approach.
The noble Earl, Lord Jellicoe, referred to paragraph 2(1)(g) of Appendix A of the 806 White Paper. This removes all question of discrimination between two boys brought up on a criminal charge between the ages of 10 and 14. The noble Earl paid me the compliment of suggesting that I would support him. I think he knew very well that I would not. It was a legitimate parliamentary tactic of no great force. What I said was that the logic of not bringing children before the court who did not need to be brought before the court was impeccable, but as there was such strong feeling on the other side and this was liable to be misunderstood, I thought there was a case—and I hope the Government will look at the case—for extending the provisions of paragraph 2(1)(g) of Appendix A all the way down, so that if two children are guilty of the same thing they are treated in the same way from the beginning.
The real point of this is given away by everybody who is in favour of the Amendment, because everybody agrees that the magistrate in court must not treat all children the same. No responsible magistrate would think for one moment of treating all children in the same way. One treats them according to their background and the facilities available. Therefore, what the Amendment is really doing is to make sure that this little bit of injustice, which might be misunderstood to exist—that is, setting one child before a court in order to get a care order while another child is not being taken before a court because he does not need a care order and can be dealt with at home—is put right. This tiny injustice is really all that the Amendment is about, and I think a good deal more has been made of it than should have been made. In my view the Government are right.
§ LORD STONHAM
In moving his Amendment, the noble Earl, Lord Jellicoe, made it clear, as he did on Second Reading, that he attaches great importance to this point, and it may well be that nothing I can say can possibly persuade noble Lords opposite not to support this Amendment. However, I am going to attempt to do so because never in my eleven years in this House have I listened to speeches which more zealously endeavoured to portray black as white.
I want to set out as clearly as I can (and give the facts and quotations) just what this Amendment means and what it 807 would do if it was accepted. The Amendment would delete the "care or control" text from subsection (2). The effect would be that any one of the conditions set out in paragraphs (a) to (e) of subsection (2) would of itself be sufficient for the police or the local authority or an authorised person to bring care proceedings, and it would be a sufficient basis, by itself, for the court to make an order. No double test—just one, and one only of any of those five.
So the Amendment would make it possible to bring care proceedings in court against a child even though he could be given the care or control which he needed without the necessity for going to court at all. So a crucial point on the Amendment—and I hope the noble Earl will address his mind to it—is that if the proper object of court proceedings in respect of a trial and a court order under Clause (1) of this Bill is not the care and control of the child, then what is it? Is it punishment? Is it to vindicate society against the child in a spirit of retribution? Is it, as Mr. Watson, the well-known magistrate made clear in an article in last week's newspapers, that the only way is to bring all children before the court? I am quite certain that the noble Earl, Lord Jellicoe, will indignantly and quite properly reject any suggestion that his objective is to vindicate society against the child, but I declare that that is the effect of his Amendment. Whatever the objective of the Amendment it is wholly contrary to the principles of the Bill. Despite what the noble Earl said, and despite what my noble friend Lady Wootton said, it would tear the heart out of the Bill.
Like other noble Lords, I have made a careful study of the Second Reading debate. I noted that every speaker, including the noble Earl, Lord Jellicoe, declared that he or she supported the object of the Bill, of dealing with children outside the courts if possible. This, I think, is the heart of the Bill. If the Amendment were passed—and this is incontrovertible, whether the objections come from behind or in front of me—I defy anyone to say that it would not be just as easy as it is now to take an offender under 14 to court; and it would be easier than it is now, if the noble Earl's Amendment were accepted, to take a non-offender to court because sub- 808 section (2) of the Bill would be much wider than the present definition of "in need of care, protection or control" in the 1963 Act. This Amendment would affect the whole slant of the Bill, and the purpose of subsection (2) would be altered. The impression would be given that Parliament thought it right for young children to be taken to court in any circumstances set out in paragraphs (a) to (e), irrespective of whether this was the only way to ensure the necessary care or control. The noble Earl has said again to-day what he said on Second Reading, though in different words, that it was certainly not his view that as many children as possible should go to court. If this Amendment were carried he would not be able to continue to say that, because the direct effect of the Amendment would he that many more children—and I will endeavour to prove this—thousands of them, would go to court than would be the case under the Bill as it now stands.
A good many of my noble friends, and I believe some noble Lords opposite, have stressed that our aim should be to meet the needs of the child. This Amendment would leave out the very words which were put in to make sure that those responsible for taking proceedings, and the courts, meet the needs of the child. Supporters of the Amendment may say that the courts should take account of the needs of the child after reaching a finding, but if we believe that only courts can do this we should have to take every case to court. Belief in keeping as many children as possible out of court means that many decisions about the treatment of children in trouble must be taken by people other than the courts; it means that some children will go to court and others will not. Those who regard this as unjust, and who also say that they support the aim of keeping children out of court, must tell us which they really believe. They cannot have it both ways; they cannot have both these propositions, because they are contradictory.
The noble Earl made amusing references to the case of "Victor" and "George". In the case he cited, Victor does not get off; he is not taken to court, simply because the police and social workers, and other people, are satisfied that his parents, his school and background will deal with him without the need for any court order. My noble 809 friend Lady Wootton said that juvenile courts deal with other people's children. This happens to-day, as of now. The discrimination is there; that is what we are dealing with. Let me revert to the noble Earl's case of Victor and George. George went to a public school; his father was a very great and gallant gentleman, an Admiral of the Fleet; he belonged to the community which then and now eats its own smoke, if there are delinquents, to a large extent. Victor did not. In the old days, probably, Victor would have been unfortunate. He was obviously a late developer. Nobody ever thought when he was a young delinquent that he would ever end up at the Treasury Box in the House of Lords; people could not have been so long-sighted. But under this Bill social workers would have discovered that Victor's mother was a saint (I always thought my mother was), and that his father was a generous kind man. The boy might have been a bit of a junior "stinker", but his home background was all right. The social workers would not have been very much impressed under the new arrangement with the fact of the difference in the two social levels.
I dealt in my Second Reading speech with the notion of justice which results in taking many children to court unnecessarily, and which consists in accepting, ignoring, or condoning—or even approving—discrimination between child-rent according to their needs. If discrimination is practised by the courts, everybody thinks it is fine; but if it is practised by anyone else—by the social worker who has spent her whole life devoted to children; by the probation officer or by somebody employed by the local authority: people of that kind—it is all wrong.
I have studied the remarks made by noble Lords on this point during our Second Reading debate, and they serve only to confirm my belief that Clause 1 will bring about a greater degree of true justice than we have under the present system and than we should have if this Amendment were carried. May I refer to the words of the noble Lord, Lord Byers? He said:If you are really going to deal sensibly with each child you must resist the case for putting two children in the same position in the juvenile court when you are not in fact dealing with the exact needs of each".—[OFFICIAL REPORT, 19/6/69, col. 1149.]810 My noble friend Lord Donaldson of Kingsbridge (and it is curious that the noble Earl should have quoted my noble friend) said that we must deal with the actual condition of each child, this beingthe only reason for treating one child differently from another". (col. 1161)My noble friend Lady Birk said that the child who does not need to be taken to court has rights too, and that havingtwo or more children in court rather than one when it is not necessary … seems compounding an injustice rather than lighting one" (col. 1167),and has no more than a superficial appearance of justice.
It is true that my noble friend Lord Donaldson urged on the Government a concession that would please those who were worried about Clause 1(2) without doing real damage to the principles of the Bill. I am afraid that I must disillusion my noble friend, because an exception relating to joint offenders would be inconsistent with the basic principles of Clause 1, and I do not believe that it is good legislative practice to justify a departure from principle on the ground that "it is only a little one". The brutal fact about this case is that it would not be a little one. We do not have a precise calculation, but the figures show that over halt the children who are now prosecuted are joint offenders. So if we made some difference such as that we should be saying that half the children would not have this cherished object that we want for them. Whether the offence is joint or not, the test in each individual case must be whether the child needs care or control which only a court order can secure.
This Amendment is totally unacceptable to any of us. at least on this side of the House, and I hope also to noble Lords opposite, because its sole effect would be to bring children before the court for purposes other than that of securing the necessary care and control of the individual child. It would be perfectly consistent with this clause, if so amended, to bring before the court every single child thought to have committed an offence. I concede at once that it is unlikely that the police and local authorities would go so far as that in practice. But how would they decide, how would they discriminate, if they were deprived by this Amendment of the guidance we have put in the Bill to guide them in 811 discriminating? I can give your Lordships the answer to that one: they would discriminate without guidance, as they do now. Different policies would be adopted in different areas; the proportion of child offenders taken to court would vary enormously from place to place, as it does now.
I did not give your Lordships many figures. You may think it is an infliction, but I think the cause of truth and justice demands that I should. The noble Baroness, Lady Emmet of Amberley, who has great experience in these matters, said on Second Reading that if a child is "nabbed" by the police—these are not her exact words but she will remember her expression of this kind—he knows he is going to court. But of course he does not. The police now consult local authorities in many cases before taking a child to court. Everybody seems to overlook or ignore, wilfully I think in some cases, not in this House but elsewhere, the enormous extent of discrimination now arising from cautioning. Let me give the figures. In Devon and Cornwall, for all offences under the age of 14, 64.5 per cent. of children are cautioned and not taken to court. In other words, if you are in Devon and Cornwall and you are a delinquent under 14, it is two to one on that you will not go to court.
§ BARONESS WOOTTON OF ABINGER
Will not the noble Lord make the correction, for all "alleged" offences? No offence has been proved against a child who is cautioned.
§ LORD STONHAM
What I have here is the percentage of caution procedure by certain police forces in England and Wales. I have it for all offences, for indictable offences only, for children under 14, for children of 14 to 17, and for both. If the noble Baroness will allow me, I will give the figures.
§ BARONESS WOOTTON OF ABINGER
The noble Lord will accept the fact that this is a shorthand, and perhaps a slightly misleading shorthand, in the statistics. They are not proved offences; they are offences alleged against children of those ages.
§ BARONESS EMMET of AMBERLEY
Would the Minister also agree that this 812 is very often a matter of different policy of the chief constables? That is not necessarily a good reason for altering the law.
§ LORD STONHAM
Perhaps I should leave it to the noble Baroness to make my point, she makes it much better than I do. I was talking about discrimination, and I was just going to answer the intervention of my noble friend. Under the first few lines of subsection (1), when a child is thought by an authorised person to have committed an offence, or there are some other circumstances which prompt that person to think that a child should be brought before a court, the offence is still an alleged offence, so really I think I can use these figures.
If your Lordships are talking about discrimination, please listen to these figures. In Devon and Cornwall only one child out of three is taken to court; two out of three are cautioned. In Lancashire—there are parts of Lancashire at least which have pretty "fruity" records so far as juveniles are concerned—50.3 per cent. of children under 14 are cautioned and are not taken to court; so your chance is better than "evens" in Lancashire. When you come down to the Metropolitan Police District, only 1.1 per cent. of children under 14 years are cautioned. These figures were for 1967. So in Devon and Cornwall, in 1967, it was 2 to 1 on that you would not be taken to court, but in London it was 90 to 1 on that you would.
In between there are other figures. In relation to offences of children under 14 years, in Bristol 24 per cent. were cautioned. As to Kent, parts of which are very near London, 42.4 per cent. were cautioned. So there could be children almost next door to each other and they might even be joint offenders; and one is now cautioned by the police and the other is taken to court. Do not let anybody, after this, say that as soon as a child is taken by the arm by the police he knows that he is going to court; he does not. He might have thought so until recently if he lived in Metropolitan London. What I am saying is that this discrimination is going on now, and it will be substantially lessened, because the police and others who have this job to do will have the guidance that is in this Bill. The noble Earl, Lord Jellicoe, wishes to take that out.
§ LORD POPPLEWELL
My noble friend has quoted those figures. Is he able to say from the figures that he has quoted in how many cases which have not been brought to court it is known that an individual has committed the alleged offence or that there has been more than one child involved?
§ LORD STONHAM
That was a refinement that I had not thought of before I got these figures. But as my noble friend will be aware, I told him earlier that more than half of all cases of children brought to court are cases of joint offenders—that is, two or more; so it may well be that a substantial proportion of those involved in the figures I have given come into that category.
I do not wish to weary your Lordships with all the figures, but I have the figures for indictable offences. In regard to those under fourteen years, 64.7 per cent. were cautioned in Devon and Cornwall, and 1.2 per cent. were cautioned in Metropolitan London; and again in Lancashire, the halfway house, 50.6 per cent. were cautioned. If you have committed an indictable offence and you live in that area you have a good chance of getting a caution.
So I come back to the point that there would be the greatest discrimination and the gravest injustice and many thousands of child offenders would be taken to court unnecessarily—I am talking about children who should not be taken to court. Having found such children guilty, what would the courts do? They are not stupid. Clearly, they would not want to waste valuable resources by making unnecessary care or supervision orders. I am talking about cases where no order is necessary at all. The effective choice before the court would lie between making no order at all or binding over the child's parents unnecessarily, so as not to make it too obvious that the whole proceedings had been pointless and unnecessary from the start; and if the parents, quite justifiably, refused to be bound over, then the whole sorry charade would be exposed anyway.
So may I sum up what I believe by just listing the effects of this Amendment? It is a short, but formidable list, and it speaks for itself. First, this Amendment would breach, if not destroy, the principle of keeping children out of 814 court by permitting court proceedings which are not required to ensure the care or control of the child. Second, it would breach and virtually destroy the principle of dealing with each child according to his own needs and circumstances, by permitting court proceedings for other, extraneous, but unspecified reasons. Third, it would mean that many children, with their parents, would be taken to court for no adequate reason, causing unnecessary injustice and resentment, giving the children unnecessary and potentially damaging court records. I remember my noble friend Lady Wootton saying on Second Reading something to the effect that more criminals were made in court waiting rooms than could ever be cured in the courts. On the noble Earl's point about talking in front of the children, I may say that juvenile magistrates courts are sensible enough to send the child out if they do not want to discuss anything in front of him.
Fourth, this Amendment would involve substantial expenditure of time and effort by the police, local authority officers, magistrates, head teachers, children and parents, solicitors and others, in preparing for, attending and dealing with court cases which need never have been brought in the first place and would not be brought under the Bill as it now stands. Fifth, it would involve many cases resulting in no order at all; or in a sham binding over of parents who do not need to be bound over; or even, possibly, in an unnecessary supervision order which would waste further valuable resources of manpower.
The noble Earl, Lord Jellicoe, told me on Second Reading that it was not necessary to be a Socialist to believe in social justice. I accept that; he was quite right. But I express my belief when I claim that what is in this Bill provides social justice and what is in the Amendment does not. This is not a Party matter, as he also said. I sincerely hope that the noble Earl will not carry out his intention of voting on this Amendment—at least not now—but that he will think again about what has been said in this debate. But if the noble Earl persists with his Amendment and takes the Committee into a Division, then I hope that at least noble Lords who have heard this debate and heard these facts will join with me in 815 resisting the Amendment. There is great discrimination between children now. Every one of us deplores it. I think, and I have tried to prove, that this Bill will quite substantially lessen it; and I further believe that acceptance of this Amendment must mean a continuation of the present system and thousands more children being taken unnecessarily to court.
§ 5.9 p.m.
§ LORD BYERS
May I add my plea to the noble Earl, Lord Jellicoe, who I sense is going to press this Amendment to a Division, not to do so. As I said on Second Reading, the need of the child is surely paramount, and it seems to me absolutely clear that if a child does not need a care order made in his particular case it is quite wrong to put him into the courts. Similarly, I believe that what this Amendment says is that one child who does not need care and protection must go to court because another child does. That is not the right way to deal with the needs of a particular child, and I believe that if this Amendment were carried its effect would be tremendously hard on different children in different parts of the country. I believe, as the noble Lord, Lord Stonham, has said, that it would be quite wrong through this Amendment to remove the test of whether a child is in need of care or control. I do not believe that that is what we want. I am sorry to be on the wrong side from the noble Baroness, Lady Wootton, for whom I have very great admiration, but I cannot help feeling that this is a vital Amendment. If it were carried it would strike at the principle of the Bill.
§ BARONESS WOOTTON OF ABINGER
Before the noble Earl decides what he is going to do, I should like to make two points. First, if this Amendment is not carried, the Bill, as it now stands, will mean a new form of interference with individuals. Some of us feel some uneasiness about pre-trial inquiries. Somebody is charged with an offence, and in the period between the charge and the trial social investigations are made by a probation officer. We recognise that this is inevitable in many parts of the country, but I think many of us would much prefer that social investigations were made only in the case of people who have been 816 found guilty. We recognise that it is inevitable, for reasons of time and so forth, that we should have pre-trial inquiries. But this is not a pre-trial inquiry, it is a pre-pre-trial inquiry. This is an inquiry by a police officer or a social worker who goes to a house and says, "I think your child has been involved in an offence; I should like to see what sort of home this is". What happens if the outraged parent says, "My child has not been involved in any offence. There is no evidence that he has been involved in any offence. Mind your own business. Good afternoon"? I think that is a possibility. I do not like this extension of investigation into fields that are really quite outside any previous legal sanction. A charge is, in a sense, a previous legal sanction, and a finding of guilt is a very much more solid one.
The other thing I should like to point out is that we are really only talking about one of the five conditions under which a child may be brought to court under Clause 1. Paragraph (a) is if his proper development or health is being neglected or impaired; (b) is if he is exposed to moral danger; (c) is if he is beyond the control of his parent or guardian, and (d) is if he is not going to school. In all those cases it is perfectly clear that he cannot be getting the care or control he needs, and therefore these words are not applicable. We are really only talking about whether, in the case of this offence condition, this discrimination should be exercised and that we should pick out the children who are thought likely to receive adequate care and control without court proceedings. Because it is the offence condition, I think it is particularly liable to what the noble Earl mentioned in his opening remarks, and what I tried to endorse, that is, that it will be a social discrimination. My noble friend admitted that there is a social discrimination at present, and this, I repeat, puts the sanction of the law upon it.
§ BARONESS EMMET OF AMBERLEY
I should like to add to what the noble Baroness has just said. Let us return to very simple principles. Three or four boys have been guilty of an offence. They come before the court, they are convicted of the offence, and they are then dealt with separately by the magistrates in the way that seems best for 817 each child. That is the present position. It may be said that in that case there is discrimination, but the discrimination only starts after all the children have been dealt with equally in front of the law and either convicted or let off. If this procedure is altered—and this is a simple procedure which children understand, and I think they do not in the least mind being dealt with separately afterwards; at least that is my experience—you will have to delay procedures until investigations have been made into the homes.
I am not very happy about who are going to make these investigations, or about what is called a good home or a bad home. I remember a child coming up before me (I think it was for mostly truancy from school), and he came from what anybody would have called a very good home. He was a truant because his mother was so house-proud that he had to take off his shoes before going into the house, and he was not allowed to put his hand on the bannisters. Yet that was in other ways a good home. So who is to decide what is a good home and what is a bad home? Moreover, if this goes through you will not be able to deal with these children until all these investigations have been made. It seems to me far simpler to go on as we have been doing up to the present, bringing the children before the courts, deciding whether they were guilty or not and then, having decided that, deal with each child in his best interests according to what the magistrates have been able to discover.
We have listened to a long and serious debate on what is clearly a serious and important Amendment. I do not wish unduly to prolong the discussion, but I must say straight away that the noble Lord, Lord Stonham, although I am grateful to him for his long and careful explanation of why he is not able to accept this Amendment, has not removed my very real doubt about Clause 1 as it stands at the moment. As the noble Baroness, Lady
§ Wootton of Abinger, has said, as it is drafted at the moment everything will turn on the interpretation by the court of the second test: whether the boy concerned is in need of care or control which he is unlikely to receive unless the court makes an order. Nothing the noble Lord has said in seeking to rebut the arguments which I adduced in support of this Amendment lead me to believe that in practice this will not lead to more discrimination than exists at the present time, and that very much worries me.
§ If the noble Lord had been able to satisfy me on the question to which the noble Baroness, Lady Emmet of Amberley, has just referred, where a number of children in a gang are accused of a similar offence, I should feel very differently. If he had been able to satisfy me adequately on the question of the children hearing their parents stigmatised in front of them in court, that would have helped me.
The noble Lord says he did, but I must disagree, because so far as I understand it there is nothing in the Bill or in juvenile court practice at the present time that would lead to the result for which the noble Lord was hoping. If the noble Lord had shown any readiness to accept that there was a very real danger of discrimination here—if, for example, he had gone so far as to say he would look at what I would call the "Donaldson Amendment" as to whether the provisions of paragraph (g) of Appendix A could not be extended downwards, I should have felt very differently. But he has not attempted to do any of these things, and in the circumstances I fear that I must press the Amendment.
§ 5.23 p.m.
§ On Question, Whether the said Amendment (No. 3) shall be agreed to?
§ Their Lordships divided: Contents, 68; Not-Contents, 48.819
|Ailwyn, L.||Bridgeman, V.||Craigmyle, L.|
|Amulree, L.||Brooke of Ystradfellte, Bs.||Daventry, V.|
|Archibald, L.||Buckinghamshire, E.||Denham, L. [Teller.]|
|Ashbourne, L.||Carrington, L.||Derwent, L.|
|Barrington, V.||Conesford, L.||Drumalbyn, L.|
|Berkeley, Bs.||Cork and Orrery, E.||Dudley, L.|
|Bessborough, E.||Craigavon, V.||Dundonald, E.|
|Effingham, E.||Lambert, V.||St. Helens, L.|
|Emmet of Amberley, Bs.||Latymer, L.||St. Oswald, L.|
|Faringdon, L.||Lauderdale, E.||Sandford, L.|
|Fortescue, E.||Lindsey and Abingdon, E.||Selkirk, E.|
|Fraser of Lonsdale, L.||Luke, L.||Sempill, Ly.|
|Goschen, V. [Teller.]||MacAndrew, L.||Somers, L.|
|Grantchester, L.||Massereene and Ferrard, V.||Strang, L.|
|Gray, L.||Merrivale, L.||Strange of Knokin, Bs.|
|Grenfell, L.||Mersey, V.||Teynham, L.|
|Grimston of Westbury, L.||Molson, L.||Thurlow, L.|
|Harris, L.||Mowbray and Stourton, L.||Tweedsmuir, L.|
|Hawke, L.||Moyne, L.||Vivian, L.|
|Horsbrugh, Bs.||Nugent of Guildford, L.||Wakefield of Kendal, L.|
|Ilford, L.||Popplewell, L.||Wootton of Abinger, Bs.|
|Jackson of Burnley, L.||Raglan, L.||Wrottesley, L.|
|Jellicoe, E.||Ruthven of Freeland, Ly.|
|Addison, V.||Gladwyn, L.||Plummer, Bs.|
|Beswick, L.||Hamilton of Dalzell, L.||Royle, L.|
|Birk, Bs.||Hayter, L.||St. Davids, V.|
|Blyton, L.||Henderson, L.||Samuel, V.|
|Bowles, L. [Teller.]||Heycock, L.||Segal, L.|
|Burton of Coventry, Bs.||Hill of Wivenhoe, L.||Serota, Bs.|
|Byers, L.||Hilton of Upton, L.||Shackleton, L. (L. Privy Seal.)|
|Champion, L.||Leatherland, L.||Shepherd, L.|
|Crook, L.||Lindgren, L.||Silkin, L.|
|Delacourt-Smith, L.||Listowel, E.||Sorensen, L.|
|Donaldson of Kingsbridge, L.||Llewelyn-Davies of Hastoe, Bs.||Stonham, L.|
|Douglass of Cleveland, L.||McLeavy, L.||Stow Hill, L.|
|Eccles, V.||Maelor, L.||Summerskill, Bs.|
|Gaitskell, Bs.||Moyle, L.||Taylor of Mansfield, L.|
|Gardiner, L. (L. Chancellor.)||Nunburnholme, L.||Wade, L.|
|Geddes of Epsom, L.||Phillips, Bs. [Teller.]||Wilson of Langside, L.|
On Question, Amendment agreed to.
§ Resolved in the affirmative, and Amendment agreed to accordingly.
Page 2, line 6, leave out ("such an order") and insert ("an order under this section.").—(Earl Jellicoe.)
§ 5.28 p.m.
VISCOUNT COLVILLE OF CULROSS moved Amendment No. 5:
Page 2, line 28, leave out paragraph (a).
§ The noble Viscount said: This Amendment, I think, concerns a less contentious matter, although it is fairly complicated. It has already been discussed twice in another place. On the first occasion, the Government said that they would have a look at it; on the second occasion the Amendment was withdrawn, because it was technically faulty. It will not surprise me if the noble Baroness, Lady Serota, tells me that this Amendment also is faulty—I appreciate that it probably is, for reasons which I shall tell the Committee in a 820 moment. Nevertheless, there is a principle here which needs explanation and which it is worth discussing, at any rate briefly.
One of the orders that can be made under subsection (3) of Clause 1 is one requiring the child's
parent or guardian to enter into a recognisance to take proper care of him and exercise proper control over him
and subsection (5)(a) says that that sort of order cannot be made,
unless the parent or guardian in question consents".
§ The existing law, under the 1933 Act, is that the courts have a very similar power. They can order that the parent or guardian shall enter into a recognisance for the child's good behaviour; and this is supported by the penalties laid down in the Summary Jurisdiction Acts for those who do not obey such orders. I think the present position is that a person who does not obey the order forfeits the amount of the recognisance, either in whole or in part, because of a special provision in the 1933 Act. If he goes on being in breach of the recognisance, the only other penalty that can be imposed is a sentence of 821 imprisonment by the magistrates' court, or in this case, I suppose, the juvenile court. In practice, as I understand it, an order that the parent or guardian should enter into a recognisance requires that person to be agreeable to that order, because what he usually has to do is to sign a recognisance; and he will do so, of course, only if he is willing to enter into it.
§ That is the existing position under the 1933 Act. That section will of course be repealed by this Bill but will be replaced by this provision. There cannot therefore be any technical reason why one should need paragraph (a) of subsection (5). There is already a penalty (which appears in Clause 2(10)) for those who do not live up to the assurance they gave when they entered into recognisances. If they forfeit them then the provisions in Section 96 of the Magistrates' Courts Act, which give the court a wide variety of powers to take some or all of the £25 (as it now stands, the maximum amount of the recognisance), will apply. I shall be told that the defect of my Amendment is that, apart from that, it does not provide for any sanction on the part of the court if the person who is the subject of the order requiring him to enter into a recognisance for proper control and care of the child refuses to do so. It is perfectly right that the Amendment does not contain any such sanction. Nor does the 1933 Act; and for the reasons I have already explained, I do not think it is necessary.
§ What worries me—and I think this is a slightly different point from that which was made in another place—is the effect that the drafting of the Bill as it now stands may have upon the parent or guardian. The noble Baroness will tell me if I am wrong, but as I understand it we have this position. We have to imagine that the person who has brought the proceedings in the court has decided that the child is in need of care or control which he is unlikely to receive unless the court makes an order. That is the position as the Bill is drafted. Of course, the last Amendment has changed this, but I should not be altogether surprised if, at the end of the day, when this Bill becomes law, some words of this sort had been reinserted. Therefore I think I must take account of the words in the Bill as they now are; and let me assume 822 for the moment that they are back in it when the Bill becomes law.
§ If the parents are not taking enough trouble, and if, therefore, the person bringing the proceedings thinks that the child is in need of care and control, and if the court then makes only an order under subsection 3(a)—in other words, an order to tighten up the parents and to bring home to them their responsibility—it is going to be a very marginal case. It seems to me that it will be the sort of case where, very probably, it was highly doubtful whether the proceedings should have been brought at all, because it must be a case where, on the face of it, the parents are sufficiently responsible to respond to a recognisances order if that is all the court thinks is necessary for them and for the child. It seems to me that in a case of this sort such an order is highly desirable. It will be an opportunity to emphasise to the parents what their duties are; and, of course, if the case is dealt with in this way there will be no expenditure of public funds and none of the time of those highly trained officers, skilled in this work, will be taken up under a supervision order or a care order. The case will be given back to the family, for them to deal with it.
§ But here is the frank statement in the Act, as it will then be, that the parent or guardian can of course refuse to agree to this order, and if they see that they may well think that it will be better for them to do so. They are parents of a marginal ability to cope with the situation anyway, and I suspect that if one draws attention to the fact that they can get out of their responsibilities they may very well do so. Why, therefore, do we have to change the wording and draw specific attention to this matter? As I understand it, it is only to make plain what has in fact been the practice under the 1933 Act, and has worked perfectly smoothly all these years ever since. Might it not be a good thing for the Bill to say that the court can order a parent or guardian to enter into a recognisance, thus giving the court that amount of extra authority, even if it is to some extent a bluff? Then when it comes to signing the form, the parent or guardian will find that after all they have the option. Is it not better to try, if anything, to add to the authority of the court in this way, rather than to detract 823 from it, if in practical terms, as was said in another place, it does not make the slightest difference whether paragraph 5(a) is in or not?
§ That is the extent of the argument as I see it on this Amendment. Amendment No. 5A is, of course, consequential, and need not be discussed separately. I would therefore be very grateful if the noble Baroness would explain a little more about this. I do not think the full range of the argument was explored in another place, and this is an aspect of it which has not been touched on at all. I therefore beg to move.
§ THE MINISTER OF STATE, DEPARTMENT OF HEALTH AND SOCIAL SECURITY (BARONESS SEROTA)
The noble Viscount, with his usual skill and expertise in these matters, has argued the case both for and against the Amendment so very effectively that I feel it somewhat presumptuous for me to come in at all at this stage. But he has asked me certain specific questions which are in his mind and I shall do my best to answer them. He mentioned at the outset that he fully understands that the Amendment he has just moved will have no teeth apart from forfeiture unless it attracts Section 91 of the Magistrates' Courts Act 1952. In the case of the parents' failing to meet the conditions of the bind over, the court would have no sanction whatsoever. I think the points that he really put to me—and I think one can deal with them fairly briefly—were, first, in what conditions a court would wish to bind over parents in circumstances of this kind; and, secondly, why should we not leave the situation as it is. Why do we need to spell it out? Does this not in fact undermine the authority of the court?
On the first point, this is, of course, a matter of judgment for the magistrates sitting in court. I would remind the Committee that binding over is not a punishment. It would seem to me that, in the setting of a juvenile court, with the background of the legislation which we are considering to-day, the court would be likely to exercise its powers to bind over parents in a situation where they felt that this would bring to the parents' attention the need to exercise proper care and control over the child. If their assessment of the situation was correct, 824 then the parents would be likely to agree to be bound over. If the parents did not wish to agree to be bound over, then I think it would be for the court to judge whether in fact something rather more serious was at stake here, and whether they would not have to consider making a different kind of order, possibly even a supervision order. So here is a matter which is very much in the discretion and the judgment of the court in assessing the situation and in deciding the kind of action that it would need to take to make parents more aware of their parental responsibilities. This is a point which many noble Lords touched on in the Second Reading debate; and I think this section dealing with parental consent underlines one of the principles of the Bill; namely, that there should be cooperation between parents and the agencies in the interests of the child.
The second point the noble Viscount made was on this question of why one should put what is at present ostensibly a voluntary act into writing. This, I think, is a matter of personal judgment. For my part, and I think for the part of the Government, it is felt that if binding over is in effect to be voluntary, we should recognise this openly. This should be a co-operative act between juvenile court magistrates and parents in the interests of the child. I should not think that a change of this kind would in any way undermine the authority of the court. In my personal view, I think it would strengthen them in their dealings with parents. If they were to feel as a result of discussions with the parents that cooperation was not there, then the court would have to think again in terms of making a different kind of order. I do not know whether those comments help the noble Viscount in his thinking. This is a very complex matter—and I am afraid that all of us are going to use that phrase throughout the discussions this evening. I have tried to put it in the realistic terms of a court situation where the bench is trying to assist parents to take proper responsibilities for their children. In this kind of situation we see the consent procedures as necessary.
VISCOUNT COLVILLE OF CULROSS
I am grateful to the noble Baroness for what she has said. I think, nevertheless, that I am right in my view that paragraph (a) is technically redundant in that 825 it is implicit in the procedure as it now is that there should be consent at the end of the time when the court has discussed this and the recognisance form comes to be signed. I was not, therefore, worried about the absence of any reference to Section 91, because it seems to me that the Government themselves have decided that they will have no such sanction where there is a voluntary order, as there must be if there is to be an order of this sort at all. Therefore, the technical defect, although it has been mentioned before, does not seem to be a great matter of substance. I understand what the noble Baroness has said. It is plain that there are two sides to this argument. If she thinks that the occasion of appearing in court will be sufficient, together with a discussion of the child's case, for the parent and the guardian to undertake this responsibility rather more seriously than they had previously, and that this is a matter where co-operation rather than authority is a matter upon which the Government would like to place reliance, then I am sure that this is the right method of drafting. This is a matter on which I should have liked to hear the experience of those who have taken part in these cases particularly to make itself felt. It is a small matter. I am not sure that it would be right to hold up the Committee further. Perhaps I may have discussions with those experts who are familiar with this field to a greater extent than I am. Meanwhile, in order to consider that, and in view of what the noble Baroness has said, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ BARONESS BROOKE OF YSTRADFELLTE
I quite understand why a boy or girl of sixteen or seventeen who is married should not be liable to be put in the care of a local authority, but I cannot see the point of including the words which this Amendment proposes to leave out. If the marriage has come to an end and the girl of sixteen or seventeen is quite alone in the world she may be genuinely in need of care and protection. I do not see why we should legislate so as to put an absolute stop to a care order being made in any circumstances whatsoever. Would it not be better to leave this door ajar and not to slam it shut? I beg to move.
Page 2, line 37, leave out ("or has been").—(Baroness Brooke of Ystradfellte.)
§ BARONESS SEROTA
This clause, the subject of the noble Baroness's Amendment, repeats the existing law which was inserted in the 1933 Act by the Children and Young Persons Act 1963. I do not like to be rubbing salt in the wounds at this point, but I would remind the noble Baroness that it was inserted at a time when the noble Lord, Lord Brooke of Cumnor, was Home Secretary and the noble Earl, Lord Jellicoe, I believe, was responsible for introducing the Bill in this House.
The effect of the Amendment, as the noble Baroness has said, would be that if the girl married at the age of sixteen it would cease to be possible to bring care proceedings in respect of her. But if, in the unusual—and, I would submit, very unusual—case that before she was seventeen she was widowed or divorced, care and protection proceedings would again become possible. I think it was in the mind of the noble Baroness when she moved this Amendment to provide cover for a situation where a girl of sixteen is divorced or widowed before she is seventeen and is in need of care and control. For example, she may be in moral danger. I hope I am right in my understanding of the noble Baroness's Amendment. I should have thought that such circumstances would be very rare; they would certainly be very tragic, particularly since a petition for a divorce can only he presented within three years of a marriage with the leave of the court and then only in exceptional circumstances. Even then one would have thought that the time necessary for evidence to accumulate and to get the divorce petition on its feet would be such that it would be unlikely that the girl could or would be divorced before she was seventeen.
Presumably the noble Baroness had in mind the tragic situation of an early widowhood in the first year of marriage. This is in our view a very unlikely possibility. The situation is that parental rights over a child come to an end on marriage, and 16 is the age for marriage with parental consent. Parental rights are not revived either by divorce or by the death of a husband or a wife. The question here is: Who would give the care or 827 control needed? If it is accepted—and I think most noble Lords would accept it—that marriage releases a girl from the responsibility of her parents and from the right of the State to regulate her social behaviour (this was the 1963 Children and Young Persons Act) it seems odd to revive the power in circumstances of this kind.
I think that what is really worrying the noble Baroness is that it could happen (and we all agree it would be rare) that a young girl by the age of 16 or 17 was suddenly widowed. I think this must be the case she has in mind. I should like to assure her that there is no need to amend the law in the way she suggests, as the absence of compulsory powers does not mean that in a rare situation of this kind nothing can be done. Indeed, the local authorities have the powers (as, I believe, she well knows) to give a girl advice, assistance and guidance, and to arrange accommodation for her under Section 1 of the very Act that her noble kinsman introduced; namely, the Children and Young Persons Act 1963. We should have thought—and I hope the Committee will agree—that within the framework of that situation it would not be right to provide for compulsory powers to lapse on marriage and subsequently to be revived. I hope that I have answered the points in the noble Baroness's mind and that she will withdraw her Amendment.
§ BARONESS BROOKE OF YSTRADFELLTE
I am grateful to the noble Baroness for that reply; and for the care and humanity with which she introduced the arguments in answer to the case I was making. I am delighted that she has taken the opportunity to point out to the Committee that people on this side of the House are capable of changing their minds occasionally and advancing with the times just as much, no doubt, as she thinks that people on her side of the House can do. I am grateful to her for the trouble she has taken. I am very happy to leave the situation as she has suggested. She has quite satisfied me that sufficient cover is available for this kind of rare case. I was anxious to draw the attention of the Committee to this possibility; and because of her assurances I beg leave to withdraw my Amendment.
§ Amendment, by leave withdrawn.828
§ Clause 1, as amended, agreed to.
§ Clause 2 [Provisions supplementary to s. 1.]:
§ LORD STONHAM moved Amendment No. 7:
Page 3, line 24, at end insert—
("( ) Without prejudice to any power to issue a summons or warrant apart from this subsection, a justice may issue summons or warrant for the purpose of securing the attendance of the relevant infant before the court in which care proceedings are brought or proposed to be brought in respect of him but subsections (3) and (4) of section 47 of the Magistrates' Courts Act 1952 (which among other things restrict the circumstances in which a warrant may be issued) shall apply with the necessary modifications to a warrant under this subsection as they apply to a warrant under that section and as if in subsection (3) after the word "summons" there were inserted the words "cannot be served or".
( ) Where the relevant infant is arrested in pursuance of a warrant issued by virtue of the preceding subsection and cannot be brought immediately before the court aforesaid, the person in whose custody he is shall bring him forthwith before a justice, and the justice shall either make an interim order in respect of him or direct that he be released forthwith.")
§ The noble Lord said: The first new subsection in this Amendment empowers a justice to issue a summons or warrant for the purpose of securing the attendance of a child or young person before the court in care proceedings. It applies, subject to appropriate modifications, subsections (3) and (4) of Section 47 of the Magistrates' Courts Act 1952 to such a warrant. The effect is that a warrant may be issued only if the court is satisfied, by a statement on oath, that a summons cannot be served—for example, because the whereabouts of the supervised person are not known—or, in a case where the supervised person fails to attend the hearing, that a summons was served a reasonable time before the hearing. The second new subsection deals with the situation where the child or young person is arrested in pursuance of such a warrant and cannot be brought immediately before the court. It requires him to be brought forthwith before a justice who has power to make an interim order or to direct that he be released. I beg to move.
VISCOUNT COLVILLE OF CULROSS
It seems entirely sensible that the noble Lord should propose this Amendment. At the moment the situation under the 829 Bill is that once there is a supervision order, and it is required that the matter should be thought out again by the court under Clause 16 and the person supervised does not turn up, the summons can be issued and he or she can be brought compulsorily before the court. But where it is the first occasion when the matter is to be considered, before any order has been made, I understand that, unless this Amendment is made, there will be no power to bring the child or young person compulsorily before the court. There is a strange inconsistency which I should have thought it quite right to cure. The Amendment is in common form with Clause 16 and another proposal which is to be put into one of the later clauses. It makes the Bill consistent all the way through, and therefore I welcome it from this side of the Committee.
§ 5.52 p.m.
BARONESS BROOKE OF YSTRADFELLTE moved Amendment No. 9:
Page 5, line 11, leave out ("twenty-five") and insert ("fifty").
§ The noble Baroness said: This Amendment concerns the amount of recognisance that a parent or guardian may be required to enter into to take proper care of a child and exercise proper control over him. I am not a lawyer, but to the best of my belief it is unusual for an Act of Parliament to set any monetary limit to the amount of recognisance. Normally it is left to the discretion of the court, which seems a perfectly sensible way of proceeding. But here the Bill not only sets a limit but sets one which, to me and to a great many other people, seems much too low. Why should there be a limit at all; why not trust the court? That is my first question.
§ If there must be a limit, why set it in Clause 2 at the same low figure for the parent as Clause 3 sets it for the boy or girl? Even with present-day high earnings, £25 means a lot to a boy or girl; it may mean very little to a well-off parent. I would have suggested £100 for the parent, except for the fact that an Amendment to that effect was rejected in another place. But I urge the Government to distinguish between parent and child and to fix the maximum recognisance for the parent at £50, at least. I beg to move.830
§ BARONESS SEROTA
The issues raised by this Amendment are, in a sense, rather similar to those raised by the previous Amendment, in that, as with all maxima on questions of fines, penalties and binding over periods, there is clearly room for argument about the upper limit. If one sets the figure too high, one may achieve the opposite to the result intended; if one sets it too low, clearly there are those who will feel that it is not an effective weapon—if I may put it that way—in the hands of the court.
I think that the issue here is one on which I touched a moment ago, in reference to the Amendment moved by the noble Viscount; namely, that the purpose of binding over is to remind parents of their responsibilities. We have agreed that they must agree to it. It is the view of the Government that £25 is a reminder to parents of their responsibility, and that the figure of £25 is sufficiently high for this purpose. When we are discussing the power of the court to bind over parents we must remember that it will do so in an attempt to bring home to parents the need to exercise responsibility over their children. But any court, let alone any parent, knows that parents cannot be with their children all the time. For example, if a child were to commit an offence on the way to or from school, the court could not properly consider that a parent had failed to exercise due care and control to an extent that would require him to forfeit the recognisance into which he had entered at the request of the court, and with consent.
If the sum is fixed too high, clearly one may run into a dangerous situation where a parent might be too strict with a child for fear of losing what, to him, could be a large sum of money. A parent could threaten punishment or be unduly harsh or unduly restrictive, which I think all of us will agree would worsen his relationship with the child rather than improve it. In the view of the Government the right balance has been achieved in relation to the amount. We do not agree with the Amendment moved by the noble Baroness, but she has put the question whether there should not be a difference in respect of the amount for parents and children. I must confess that when reading the Bill I did not fully take note of that point. I will go into it and let her know the Government's 831 views. We think that there should be a limit, and that we have the right limit. It is a matter of judgment, but a great deal of thought has been given to this matter, and we should like the figure to stay as it is.
§ BARONESS BROOKE OF YSTRADFELLTE
The noble Baroness has made her case with conviction. I do not agree with her philosophy. I think that it would be a good thing if parents were made to be slightly stricter with their children—we might then not have so many cases of juvenile delinquency. But here the noble Baroness and I part company: she thinks that if you are "soft" you have a better family than if you are slightly firmer, and with that view I honestly cannot agree.
§ BARONESS BROOKE OF YSTRADFELLTE
The noble Baroness gave an assurance that she would look again at the point I made, and I should be most grateful if she would do so. Because of that assurance, while still maintaining my disagreement with her particular philosophy, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 2, as amended, shall stand part of the Bill?
VISCOUNT ST. DAVIDS
I should like to point out that there is now a brand-new duty resting on the local authority to cause inquiry to be made into a case if they receive information suggesting that there are grounds for bringing care proceedings. I want to hark back to a few days ago when I moved an Amendment to the Bill, which I later withdrew, though I think this a matter which needs a little more investigation. In my Amendment I asked that there should be powers by which a policeman would be enabled to ask the name of a child committing a non-arrestable offence. In an arrestable offence, the matter is easy, and we need not bother with this; but in a non-arrestable offence it should be possible for a constable to ask a child's name. My noble friend Lord Stonham replied that it is not possible for a constable to ask for an adult's name, and he asked why we 832 should make a difference between an adult and a child. I said that this Bill is the difference between an adult and a child: in this Bill, we are giving a child different treatment from that which we give an adult.
In the case of the murder of one Abel, the Lord asked his brother where he was, and Cain replied, "Am I my brother's keeper?" Let us face it: the answer was, "No". He owed certain duties to his brother, as indeed he did to any other person but he was not his keeper. The brother was an individual with rights of his own. But if Cain had asked the Lord whether he was his son's keeper, the answer would have been, "Yes, you are." That should be the difference between the treatment of an adult and that of a child.
There is no duty on the general public to look after each other, other than the duty we all owe, of not doing each other damage. But we have a duty towards our children, a most definite duty, and it is this special duty that is incorporated in this Bill. Clause 2 starts by saying:If a local authority receive information suggesting that there are grounds for bringing care proceedings … it shall be the duty of the authority …The parents' duty is extended by this Bill to the local authority, and if the parents have not carried out their duty the local authority should know this and take the necessary steps under the Bill. From long experience of these matters we know that if a child has not been properly attended to by his parents the sooner we find out about it the better. The older a child is when any kind of care proceedings are started, the more difficult it is to put the matter right. The longer trouble goes on, the more deep-seated it becomes, as with anything else in the world. If you leave a cancer too long, it is fatal. If you can cut it out to start with, that is ideal and you may get a permanent cure. If you can cut it out in the early stages, you can prevent it from coming back; but if you leave it to a later stage, it may be too late.
It is exactly the same with children. Therefore, for the sake of the child, in regard to this new duty placed upon the authorities to cause inquiries to be made, it is our duty to find out as soon as we can just what is going wrong 833 with the child and with the home. So I am determined, so far as I can do anything, that we shall not tie the reporting of this matter to the authorities to the question of arrestable offence. That is a legal fiction. There is a boundary between offences which are arrestable and those which are not, but the child does not know this. To the child, these are all offences. Therefore, I should be much happier if something were done, either in this clause or in the previous one, to put in a power for the constable, not to arrest a child but to take a child's name. It would only turn into anything looking like arrest if the constable believed that the child was giving a false name, which would be a reason for making still more inquiries, even if it were only a matter of the constable's taking the child home.
I think that such a power would make the Bill much more valuable, because it would start much earlier the whole working of the Bill. If we can start these inquiries at an early stage, I believe that we can double the value of the Bill. We must apply the Nelson principle, the simple principle that if anything needs to be done, the sooner the better. At the next stage of the Bill I should like to return to the charge, and then I hope for the support of your Lordships, so that the authorities can find out as soon as possible when a child is doing wrong and bring the provisions of the Bill into operation.
§ LORD STONHAM
I must congratulate my noble friend on his ingenuity in citing his case again. When he spoke to his Amendment on Thursday night I gave an answer in which I felt that most of the case had been covered. I do not know what I can do now, because he has said that he is going to have a third "go" at some future stage, but there are one or two points which perhaps I could make. I spoke about arrestable and non-arrestable offences only to indicate that in arrestable offences no difficulty arose and in non-arrestable offences that there was really no difficulty because the police would do exactly what they do now. I was not aware—and in neither of his speeches has my noble friend given evidence—that there is any real difficulty about police getting names.
Obviously, if a boy is successful in running away, the police will not get his 834 name immediately, but they may be able from inquiries to trace the lad afterwards. I have no reason for thinking that the position is not fairly satisfactory. I make this point because I must tell my noble friend that the very subsections which he cited, subsections (1) and (2) of Clause 2, restate the existing law, which is in subsection 2(a) of Section 62 of the 1933 Act. The existing law requires the local authority, if it appears to them that there are grounds for bringing a child or young person before a juvenile court as being in need of care, protection and control, to exercise their power to do so unless they are satisfied that it is not in his—that is, in the child's—interest to do so, or that some other person is about to do so.
As a result of adding the offence conditions in this Bill, the reference to proceedings being not in the child's interest has been replaced by a reference to their being neither in his interest nor in the public interest. The last seven words of subsection (2) are merely there to relieve the local authority of a duty to bring care proceedings if they are satisfied that a young person is to be charged with an offence. My noble friend read part of subsection (1) and said that this was a new duty.
§ LORD STONHAM
What I am saying is that the position in respect of the particular incidents and the particular need to which he referred is exactly the same as it is now. My noble friend will remember that when he moved his Amendment on Thursday night he asked me whether I would look at this point, and I said that I would, without commitment. I will try between now and the Report stage to pen a few lines to my noble friend which may perhaps clear up any existing doubts which my two bites at this cherry have failed to clear up.
§ Clause 2, as amended, agreed to.
§ Clause 3 [Further supplementary provisions relating to s. 1(2)(e)]:
LORD STONHAM moved Amendment No. 10:
Page 6, line 29, after ("1952") insert (",including an offence falling within section
14(1)(b) of the Criminal Justice Administration Act 1914 (which relates to malicious damage amounting to five pounds or less),").
§ The noble Lord said: This Amendment deals with a point raised in another place by an honourable Member on the Opposition side, and therefore I trust that it will find some favour with noble Lords opposite. Malicious damage is an indictable offence, but the Criminal Justice (Administration) Act 1914 provides that a magistrates' court shall not commit for trial unless the court is of the opinion that the damage exceeds £5. Section 14 of that Act enables a magistrates' court to award compensation on a summary conviction of malicious damage.
§ It can be argued that malicious damage under £5 is covered by Clause 3 as it stands; though magistrates cannot commit for such an offence, it can, theoretically at least, be dealt with on indictment if a bill of indictment is preferred. But this is a somewhat involved argument, and the Government have accepted the view that it seems desirable to make clear, as the Amendment does, that the court may order compensation in care proceedings where the offence is malicious damage of an amount less than £5. I beg to move.
VISCOUNT COLVILLE OF CULROSS
I am sure that the draftsman and the Government never make a mistake, but this Amendment is something that I find totally and utterly incomprehensible. The noble Lord said that the 1914 Act dealt in a certain way with malicious damage and gave the magistrates' court an option to deal summarily with cases where the damage was under £5. With the greatest respect, it did not do anything of the kind. What it did was to create two new summary offences.
Section 14 of the 1914 Act now appears in the Schedule to the Malicious Damage Act 1964—because it was amended in that year—and the 1964 Act created two new amended offences, going back to the 1914 Act. The two offences are both summary. The first, by paragraph (a), is that, if the amount of the damage in the opinion of the court exceeds £5, the person concerned is liable to imprisonment for a term not exceeding three months or a fine not exceeding £100. That is not applied by this Amendment, although it is a summary offence and com- 836 pensation is payable under it. Paragraph (b), which is applied by this Amendment, provides, where the damage is less than £5, for a term of imprisonment not exceeding two months or a fine not exceeding £5. Then, to make confusion worse confounded, in either case the amount of compensation which the court is allowed to award is:such amount as appears to the court reasonable compensation for the damage so committed which last mentioned amount shall be paid to the party aggrieved".In the case of Section 14(1)(a), where the amount of the damage exceeds £5, we have presumably a case where the provisions of this Bill, allowing for the £100 compensation, could be applicable; but in the case of Section 14(1)(b), where the damage must, ex hvpothesi, be less than £5, it seems to me ludicrous to suppose that the court can then award up to £100 compensation, as the Amendment says they can.
When this matter was raised in another place it was said, I think on two occasions, that it was very difficult; and that I can appreciate. But I should have thought, with great respect, that, while accepting this as being better than nothing, we ought to differentiate between the power to award compensation for indictable offences, which already appears in the Amendment (and this will come in the next Amendment), and the power to award compensation for the much smaller summary offences, which I think cannot be indictable under Section 14 of the 1914 Act; and we ought to give the magistrates a commensurate power to deal with the matter in the way that the 1914 Act does. With great respect, I do not believe that the noble Lord's view on this matter is right. I am not happy about this Amendment, although I will certainly accept it, and attempt to improve upon it at a subsequent stage.
§ LORD STONHAM
I am grateful to the noble Viscount for that generous offer. I am always intrigued when he raises these points, because they recall many exchanges late at night when almost no one else has been here and we have had a good time. He has the great advantage of having the Act in front of him, and I have not, but I am advised (perhaps the noble Viscount will confirm whether this is so or not) that the Act 837 of 1914 did, as he said, create two summary offences, but that it also did what I said in my first speech about damage under £5. I will repeat what I then said. Malicious damage is an indictable offence, but the Criminal Justice (Administration) Act 1914 provides that a magistrates' court shall not commit for trial unless the court is of the opinion that the damage exceeds £5. Section 14 of the Act enables a magistrates' court to award compensation on a summary conviction of malicious damage.
I added that, by a very complicated process, this could be dealt with under Clause 3 of the Bill as it now stands. I think the noble Viscount will agree that if we can, by this Amendment, or even by a subsequent Amendment of it, provide a much easier method of dealing with these cases of malicious damage for small amounts, it is better to do so. Since I have just sprung this point on the noble Viscount, and he may not have had time to look it up, perhaps the best thing is to accept the Amendment as it stands, and both of us can look at what each has said and see if any further Amendment is necessary.
VISCOUNT COLVILLE OF CULROSS
Before doing that, may I add this? I entirely take the point about Section 14(2) of the 1914 Act making what was previously an indictable offence triable summarily if the amount was small, but that was a prosecution under the Malicious Damage Act 1861. What has happened—and I understand this is a widely used power—is that there are two different sorts of new offences, nothing to do with the Malicious Damage Act, but themselves being newly-created by subsection (1) of Section 14 of the 1914 Act. One of them is dealt with in the Amendment the other is not.
I quite appreciate that where the damage is larger it can be an indictable offence. If it is a summary offence under this Bill, I do not know whether the police are going to specify what they would have brought by way of a charge if they had been dealing with an adult. I have no idea whether they are going to say to the court: "This is a case where we would have charged under Section 14(1), of the 1914 Act", in which case there will be no power to grant compensation. Perhaps they will say: 838 "This is a case of malicious damage. We have a number of different Statutes under which we could have charged if it had been an adult. Since one of them creates an indictable offence, then that is good enough for you to award compensation." I do not know what is going to happen. It seems to me there is a situation here which may be explored further. I agree with the noble Lord that we ought to consider what each other has said and deal with the subject later, if necessary.
§ 6.22 p.m.
VISCOUNT COLVILLE OF CULROSS moved Amendment No. 11:
Page 6, line 35, leave out ("one") and insert ("four").
§ The noble Lord said: This is a cognate matter, and I hope to deal with it very quickly. What the noble Lord has just dealt with in Amendment No. 10 is the small amount of damage. I think the noble Lord will himself recognise that the generous power which the clause, as amended, now contains, to award compensation up to £100, is not suitable for the £5 damage cases under Section 14(1) (b). As the damage cannot be more than £5, then obviously the magistrates would never want or be able to award more than £5, even though their power is now expressed in terms of £100. I would therefore suggest that if we are dealing with a wide range of cases, from the very serious to the very trivial, we ought to give the magistrates the widest possible power.
§ By the Criminal Law Act 1967, the old limit of £100, under the Forfeiture Act 1870 for compensation on indictable offences was increased to £400, because it was perfectly plain that the value of money required this increase to take place. It also took account of the fact that this was an interim situation. I remember the situation being discussed when the Bill was before this House, and we were told at that time by the Government that the Home Office were looking into the whole question of compensation. Therefore, it is not a final result at all, and anything may turn up when the Committee, who are looking into this, finally report and the Government decide what to do about it.839
§ When one is dealing with offenders, even though they are young offenders, one has to recognise the fact that their parents will sometimes pay the amount of compensation that is involved in a court order, just as, where a matter never gets to court, the parents will pay compensation to the person who is wronged. I think this is very much in the minds of the Government; this is the sort of thing that would normally happen. Why should the court, in a proper case, where it is a young child or young person who has done the damage, be precluded from awarding the loser what would be his right to receive, if the court so thought fit, had the damage been done by an adult? It is an adult who is going to pay in many cases; it will he the parents who will pay up. Yet under the Bill if the damage happened to have been done by the child, only £100, instead of the £400 recently thought suitable by Parliament for a wide range of offences, can be awarded as compensation.
§ I should have thought, whatever may have been said in another place about this, that the moment we get into a position where we recognise that Section 14(1)(b) of the 1914 Act properly comes into this—as I am sure it does—where a very small amount is involved, we should also recognise that very large amounts can be involved, and we should not make an artificial distinction between cases where the damage has been done by somebody young, as opposed to cases where it has been done by somebody over 17. I would ask that in the general process of looking at the point I have just raised, the noble Lord should consider this once more and see whether we ought not to have £400 for indictable offences, and something very much less for the cases under the 1914 Act. I beg to move.
§ LORD STONHAM
I will look at this matter in relation to the debate we have just had on the other Amendment. I shall certainly look twice at any Amendments which have arisen in another place, without making concessions to the Opposition. It is true that under the 1967 Act £400 is the maximum amount which can be ordered in a magistrates' court for criminal proceedings.
§ LORD STONHAM
Yes. The Amendment which was accepted in another place suggested this maximum of £100. The argument on which that amount is based is that we are dealing here with damage done by children although—the noble Viscount is quite right—in most cases it will have to be paid for by their parents. But we are also considering the damage which may, and probably will, have been committed in circumstances where the parents had no opportunity to prevent the damage being done by their children. The noble Viscount could immediately argue that that does not affect the unfortunate person who has suffered the damage; and I immediately concede that. It was thought (and this is why the Government agreed to this level of £100 maximum in such cases) that there should be this difference between the maximum amount of compensation payable by parents for some damage done by a child and the maximum amount which the courts can fine a person for an indictable offence which they themselves have committed, and for which they have been entirely responsible. Obviously, there is always argument about the amount of the maximum in cases of this kind. The Government took the view that what had been proposed in another place was about right. Without making any commitment, I will accept the noble Viscount's offer to look at this in relation to the 1914 Act as well, as he mentioned.
VISCOUNT COLVILLE OF CULROSS
I am grateful to the noble Lord. I did not wish to drive a wedge in, because he had accepted the Opposition's proposition in another place. This matter was raised there, too, and it was discussed. I should like to say this to the noble Lord. I quite understand that the parents are probably not present when the child does the damage, and it may be that there was no immediate way that they could have prevented his doing it. The essence of this matter is that an order under Clause 1 is being imposed. Supposing my noble friend Lord Jellicoe's Amendment, the one we have just divided on, is finally reversed, then the situation will be that before a court can make an order—and, indeed, for the matter to have been brought before the court at all—it must have decided that the child was not within the proper control of his parents. If the child is not within the proper control of his parents, then the fact that he has 841 caused some damage to somebody else is part of the result of the parents' own failure to control the child. In these circumstances I do not see necessarily why their penalty should be mitigated for what is in fact their own fault.
I would put this further point to the noble Lord. It is always possible for somebody to say to the court, in mitigation: "Look, this was a very unusual circumstance. The child suddenly went off. We had no previous warning about it. I quite agree that he is now out of control. We had no indication that this was going to happen, and in these circumstances I ask that, even though £400 is the maximum, you do not make us pay all this amount in compensation". This sort of statement is, very properly, frequently made in mitigation in court, and the courts pay attention to it. If the courts have a maximum of £400 it does not mean that that is the penalty which must be imposed every time. All I am suggesting is that the courts should not have a different level inevitably imposed upon them in what they can do under this particular provision as distinct from what they can do in the case of adults. I am not saying that they should always use the power for the £400 penalty. The proposal is made in order to increase the flexibility, which is the keynote of all this legislation, not only for children and young persons but for sentencing as a whole. I press this matter upon the noble Lord, in view of his kind offer to think about the matter again. In view of his assurance, I beg leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
VISCOUNT ST. DAVIDS
had given Notice of his intention to move Amendment No. 11A, to leave out subsection (7). The noble Viscount said: I am not intending to move Amendment No. 11A. It was more a probing Amendment in the first place, and it largely resulted from my lack of education in the ways of this Bill. My education is proceeding apace, and indeed if others are becoming educated as fast as I am, I am very pleased. I do not move the Amendment.
§ On Question, Whether Clause 3, as amended, shall stand part of the Bill?
§ LORD LEATHERLAND
I will not trouble your Lordships for more than a moment, but I want to repeat a com- 842 plaint I made a year or two ago regarding the phraseology in which some of our legislation is drafted. I do not wish to criticise the Parliamentary draftsmen, who are faced with an arduous task, but I want to draw attention to Clause 3(3). I seem to remember that a few years ago a former noble Peer of this House said that when he was considering matters connected with economics he had to do so with the aid of a box of matches. I find that some of the clauses which we are asked to adopt require, not a box of matches, but a jigsaw puzzle in order to try to ascertain what they really mean.
Subsection (3)—and I will take a long breath and try to recite it—reads as follows:If in any care proceedings the relevant infant is alleged to have committed an offence in consequence of which the offence condition is satisfied with respect to him, the court shall not find the offence condition satisfied in consequence of the offence unless, disregarding section 4 of this Act, it would have found him guilty of the offence if the proceedings had been in pursuance of an information duly charging him with the offence and the court had had jurisdiction to try the information …".I think I know what that means, but I would plead with my noble friend to have some sympathy with those of us who preside over benches as lay magistrates and have to try to decipher legislation in connection with which people are brought before us. As I say, I think I know what this provision means but I feel that it could have been expressed in more simple language.
§ LORD STONHAM
I am very grateful to my noble friend for his forbearance. I am tinged with just a shade of regret because, by an extraordinary chance, in dealing with an Amendment earlier to-day I read out this subsection in its entirety. I admit that my noble friend read it much better than I did. I did not read it out as a shining example of draftsmanship; I read it out in support of the case I was then making. But I am bound to say that its meaning was very clear to me. I agree that sometimes what these provisions state is not altogether clear to me but, frankly, I think that subsection (3) of this clause indicates pretty clearly that an offence must be established in care proceedings according to the same laws of evidence and the same burden of proof as in criminal proceedings. In general, of 843 course, I support what my noble friend says about the necessity for clarity. I would only say that the example he picked on was not outstandingly obscure.
§ Clause 3, as amended, agreed to.
§ Clause 4 [Prohibition of criminal proceedings for offences by children]:
§ 6.35 p.m.
VISCOUNT COLVILLE OF CULROSS moved Amendment No. 12:
Page 7, line 44, at the beginning insert ("Save with the consent of the Attorney-General or the Director of Public Prosecutions,")
The noble Viscount said: I regret to inform the Committee that this is another legal Amendment, but it is one which raises a matter of fairly wide principle. Clause 4 as it stands is a very simple clause. It says:
A person shall not be charged with an offence, except homicide, by reason of anything done or omitted while he was a child.
§ There is immediately apparent in this clause an exception, in that homicide is taken out of the range of criminal offences for which a child cannot be tried. It is plain to see that there is at any rate some sort of reason for this in the general abhorrence with which the public treats all offences involving the death of a person.
§ However, if one looks at this matter a little more closely—and this provision was examined fairly carefully on two occasions, I think, in another place—the inconsistency of this single exception becomes more and more plain. A number of points were made, of which I will pick out only those which seem to me to be the most important. It was said that it was a strange thing to draw the line, at any rate in relation to public abhorrence of the crime, between a wounding which in fact killed a person and a wounding which did not. The action of the child concerned was just as deplorable in either case. The fact that the person survived may have been good luck, it may have been good medicine, or it may have been a combination of the two, but it was certainly no merit on the part of the child.
§ It was then said, I think by the Under-Secretary at the Home Office, "Ah well, in cases of homicide it may be that the courts will require to put the child in 844 detention for a very long period, and they have power to do this in the case of homicide." That is quite true. But so they have in the case of wounding with intent to commit grievous bodily harm, because that is given them by Section 53(2) of the Children and Young Persons Act 1933, which provision it is not proposed to repeal. So that argument would lead one to suppose that there are offences other than homicide for which the power to put in detention for a long period is available to the courts; and I am sure that this is so. Those were the two chief arguments that I saw put up for this single exception, and no wider exception, to be put in.
§ What was discussed in another place was that there should be a power to try a child for any offence which carried a term of imprisonment of 14 years or more. It was pointed out, in opposition to this, that that included every minor case of theft and robbery and all sorts of other matters which in the individual case concerned would be quite inappropriate for trial, and therefore that it was the wrong test.
§ Where there have been difficulties about cases where it is considered dubious in the public interest that people should be tried, it has become a fairly substantial tradition now that the decision in the individual case is left to the Law Officers. Therefore the Amendment suggests that the Attorney General or the Director of Public Prosecutions should be the person to choose. Simply to give an instance which the noble Lord, Lord Stonham, will well remember, the question of husbands and wives bringing prosecutions against each other for theft of matrimonial property, and other offences in connection with matrimonial property, was made subject to the consent of the Director of Public Prosecutions, I think under the Theft Act 1967. There are many other similar instances where there are dubious borderlines to be drawn between one case which might be suitable for trial and another case which might not.
§ Since I suggest to the Committee that it is quite clear that the demarcation lines which have been drawn by the Government in Clause 4 cannot be supported, nor do the reasons, when examined, bear out the limitation which has been put upon the matter by the sole 845 reference to homicide, I suggest that it would be wise, sensible and in accordance with precedent to leave those two pillars of the legal establishment, who are used to deciding this sort of thing, to bring a criminal charge in a severe case of a child under 14—or under 12—for offences other than homicide, if they thought fit. With that protection people have been satisfied in the past and Parliament has been satisfied in the past, and I cannot believe that Parliament would be less satisfied in this instance. I beg to move.
§ BARONESS WOOTTON OF ABINGER
I hope the Government will give consideration to this Amendment. The same thought occurred to me: that the accident of whether homicide actually results from an attack is, after all, something which is not related to the culpability of the child who made the attack. There are cases of very grave crimes which I think all of us would feel, even if committed by a child, ought to be dealt with by a charge and by a criminal prosecution. Certainly I should be well satisfied with the safeguard proposed in this Amendment, and I hope the Government will feel that the single exception of homicide puts it into a special category in which it does not really, in practice, belong.
§ LORD STONHAM
I understand the noble Viscount is only asking the Committee at the moment to consider his Amendment No. 12 and not No. 13, which I thought might be considered with it.
§ LORD STONHAM
Clause 4 of the Bill as it stands would abolish the prosecution of all children under the age of 14, and if the next Amendment, which no doubt the noble Viscount will move, to allow the prosecution of children aged 12 or 13, were carried, it would even allow the criminal prosecution of children aged 10 or 11 if the Attorney General or the Director of Public Prosecutions consented. One comment I would make is that it is notable that the noble Viscount's Amendment gives no indication of the principles which would guide the Attorney General or the Director of Public Prosecutions in deciding to give or refuse consent. It would be wholly impractic- 846 able for us to consider all the thousands of cases of offences by children under 14 which arise every year. I have no doubt the noble Viscount thinks that the police should ask for consent only in particularly serious cases, and no doubt that is so, but we feel fundamentally opposed to the view that criminal prosecutions could be allowed, with consent, of children aged 10 and 11, because that would mean that we were making no advance whatever.
The noble Viscount particularly mentioned homicide and suggested that this should not be the only exception. In our view, the fact that Clause 4 allows children under 14 to be prosecuted for homicide is no reason for allowing any other exception. We are all agreed that homicide is a special case. It is the only offence under the present law for which a child under the age of 14 may be tried before a jury in a higher court. It is the only offence for which an order for detention under Section 53 of the Act of 1933 may be made in respect of a child, and such detention may be for an undefined period. In law, of course, it could be for life.
Homicides by children are fortunately very rare. On average there is scarcely one a year—at least in recent years—but occasionally a child who commits homicide may have to be detained for a long period, extending beyond the 19th birthday, which is the latest possible expiry date for a care order under the Bill. If a child is found to have killed someone and is liable to be detained for a very long period, in our view this is not a matter to be decided in a magistrates' court it is appropriate for a trial at Assizes before a judge and jury. Homicide is treated as a special case, and in our view that principle does not and should not apply to other offences. Despite what the noble Viscount said, and indeed what my noble friend Lady Wootton said, I cannot advise the Committee to support this Amendment.
VISCOUNT COLVILLE OF CULROSS
There are a number of points on that reply with which I might deal quickly. In the first place, the noble Lord complained that the Amendment offered no criterion for the Director of Public Prosecutions; but no provision in any Act that I have even seen, does. I have 847 never seen one that lays down specific criteria on which the Director of Public Prosecutions can decide whether or not to bring a case. So far as the thousands of cases are concerned, I think the same thing applies. If the police, who are capable of recognising a particularly serious offence, feel that it is one which should not be dealt with by the ordinary provisions of this Bill—by an application for an order under Clause 1—they may conclude that it is a case in which it is suitable to seek the advice of the Attorney General or the Director of Public Prosecutions. But that does not mean to say that those two gentlemen have to consider every offence committed by a child throughout England and Wales in the course of every year.
I should like to consider again what the noble Lord has said about the special position of homicide in the existing law. There may have been Amendments which I have not seen and which created a position which I did not believe existed. I still think the Committee would be unwise wholly to disregard what the noble Baroness, Lady Wootton, said about the fortuitousness of this offence and the fact that in her view there are other offences committed by children which are exceptional but serious enough to be the foundation of a criminal charge. I should like to do a little more research on this subject and I will return to it at a subsequent stage, but for the moment I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.49 p.m.
EARL JELLICOE moved Amendment No. 13:
Page 7, line 46, at end insert ("under the age of 12 years.").
§ The noble Earl said: The purpose of this Amendment is quite simple. If your Lordships will turn to Clause 67 of the Bill you will find that a child is defined-as a person under the age of 14. However, under Clause 32(1)(a) the Home Secretary has power, by order, to provide that a lower age shall obtain so long as the order applies, and thereafter, as I understand it, he may increase it to the age written into the definition of the Bill. During the passage of this Bill through another place the responsible Minister said it was not the intention of the 848 Government, by invoking Clause 32, initially to raise the age limit beyond 12. The simple issue which I should like to put to your Lordships is whether this age of criminal responsibility should in fact be capable of being raised from 12 to 13, or 14, by order, or whether a new Bill is required to make this change. We feel—and this is the narrow issue involved—that this is a matter which Parliament should determine, by a Bill, rather than by the Negative or indeed the Affirmative Order procedure.
§ Your Lordships will recall—indeed, we were reminded by the noble Baroness earlier this afternoon—that Ingleby recommended that the age of criminal responsibility should be raised from 8 to 12. The Government of the day, rightly or wrongly, felt that it should remain at 8. In a narrow vote in your Lordships' House their opinion was overturned, largely as a result of the persuasiveness of the noble Baroness. The age of 12 was inserted, but in another place it was changed to 10. As the noble Baroness said, this was only six years ago, and the Government are now proposing to raise the age to 14—or, rather, in view of the assurance they gave in another place, to 12. We believe that it would be wise to wait until we gain more experience of the new age limit of 12 that is temporarily proposed before moving it to 14. That is the main reason why I am moving this Amendment.
I must say that I found some of the statements made in another place by the Under-Secretary concerned a little confusing. He said that it was the Government's intention not to raise the limit beyond 12 until the necessary resources for treatment were available and until experience had justified it. I would ask the noble Lord what sort of time span the Government have in mind. At one moment the Under-Secretary said:
The intention in the first instance is for an order to be made bringing Clause 4 into operation up to the twelfth birthday.
And then almost in the same breath he said:
The Government at the moment do not see that there are any obstacles in bringing the age up towards 14.
§ I find those two statements confusing and apparently contradictory.
§ I know from our debates on this subject six years ago that this is a matter 849 on which strong and diverse opinions are entertained; and I know, too, that those who have very considerable experience of juvenile courts, and of the problems of juvenile deliquency, may well take different views on this matter. For example, the noble Lord does not need to tell me that Seebohm has recommended raising the age to 16 and, that being so, I would not wish to dogmatise on this precise age limit. But what I do feel quite strongly is that in a matter of this substance, on which public opinion is quite concerned, if there is going to be a change it is more appropriate that it should be one written into a Bill and not one that can be brought about by way of Statutory Instrument. I beg to move.
§ BARONESS WOOTTON OF ABINGER
I am very much in a cleft stick about this Amendment. If I could feel confident that the Government were going to make some alteration in Clause 1 on the lines I suggested when I withdrew the Amendment to delete paragraph (e), I should be against the noble Earl's Amendment, because I should like the age of criminal responsibility to be as high as possible. But if the Government are going to go on with what I can only call the nonsense of children between 10 and 14 being found guilty of offences with which they have not been charged or prosecuted, I should like the protection of the criminal prosecution and in that case to keep the age as low as possible. I find it difficult to know what line to take on this. I am still pinning my hopes on the Government's thinking again and that they will seriously consider using some words of wider import, which will not tie the possibility of making a care order to a specific offence. In that event, I think that we are all for keeping the age of responsibility as high as possible.
§ LORD STONHAM
With reference to what my noble friend Lady Wootton has just said, I must remind her that if her point is going to be met in some way it will have to be met in a way which does not involve the loss of Clause 3, because they are the criminal safeguards; they are there in the Bill. If Clause 3 goes, then it certainly would not help to have a lower age for criminal prosecution. It certainly would not achieve what I, and I believe she, too, want.
The noble Earl referred to the views of a number of bodies, and I think it can 850 be said that there are three points of view which have been put forward by different bodies of some distinction. One is that the prosecution of children of compulsory school age is inappropriate and should be abolished. That would put the age at 15 or 16. Another is that we should continue to prosecute children from the tenth or twelfth birthday. That is the view put forward in the one Amendment we have considered and in the Amendment we are considering now. The third view is that represented by Clause 4, which is that the abolition of prosecution under 14 presents a sensible middle ground, and that this is the age which fits in best with the idea of introducing responsibility before the law gradually and not suddenly.
I would point out that in paragraph 266 of their Report the Seebohm Committee said they recognised that the age of responsibility must to some extent be arbitrary. They said they were clear that the right course was not to prosecute young people under the age of 16. The Ingleby Committee, as the noble Earl mentioned, recommended that prosecution should cease under 12, but they also said that they saw the possibility of abolishing it, in due course, up to the thirteenth or fourteenth birthday. So I can quote Seebohm in aid—more than in aid, because they want to go well beyond what we now suggest; and certainly I can quote Ingleby in aid.
One other point, I think, militating in favour of the Bill against this Amendment, is the peak age of juvenile delinquency. It has been pointed out that 14 is the peak age of juvenile delinquency; it used to be 13 when the school-leaving age was 14, and it has gone up to 14 now that the school-leaving age is 15. It is not unreasonable to suppose that the peak age of delinquency may go up a further year when the school-leaving age becomes 16. This peak appears to be associated with special factors which are present during a child's last year at school. I ask the noble Earl to consider that point.
I think, therefore, the real point about these Amendments is not the speed at which we should abolish criminal prosecution of children. The issue raised by the noble Earl's Amendment is really whether we should abolish it at all, between the ages of 10 and 12. He wants 851 to reduce the age right back to 10. Although we recognise that the prosecution of children of these ages cannot be ended overnight, we certainly do not want to create the position such as is proposed in the Amendment where we are going to make virtually no progress at all. It seems to us that what the noble Earl is saying in his Amendment, is that it would not be right in the foreseeable future to end the criminal prosecution of children aged 12 and 13. That is the effect of this Amendment. He might argue, "Perhaps some future Parliament or future Government will bring in fresh legislation." As my noble friend Lady Wootton said, the last change was made six years ago. We are arguing that we should make this change up to 14 now in so far as criminal prosecution is concerned. I know that my noble friend does not accept that, because it is not criminal responsibility, but this is a difference of opinion. The noble Earl is going further down, almost back to the 19th century.
I would ask the noble Earl to consider this point: that with his Amendment many more children will go to court and suffer criminal prosecution than without his Amendment. He has already said both to-day and on Second Reading that that is not what he wants; that he wants if at all possible to keep children out of court. Of course, cases where a court order was necessary for this purpose could, and would, be taken to court under Clause 1 of the Bill without any need for a criminal prosecution; you do not have to have a criminal prosecution.
If it is to be a strong difference of view, then let that difference be established, but we think that there are no legitimate grounds for taking a young child to court other than the need to secure that he receives the necessary care and control. We do not believe that children under 14 should be prosecuted as criminals. The noble Earl is quite right to say, "All right, but when? In your Bill you say 14; but there has also been an announcement that the first step will be 12, and that thereafter it will be raised first of all to 13 and finally to 14". I would remind the noble Earl that in both cases any increase of that kind would 852 have to be debated in Parliament and be subject to an Affirmative Resolution of both Houses. As to the question when it would be safe finally to go to 14, which means when the resources will be available, here we have to guess. I think it will probably be in the mid-seventies. I cannot go any nearer than that. Certainly it will be some years from now before the resources are available. But what I can say is that before any move of that kind is made at all, we shall review the consequences of going to the age of 12, as is proposed at present.
I do not think there is need to go any further with this. I do not believe that the noble Earl wants definitely to fix the age for criminal prosecutions at 12 years. Let us have it as it is in the Bill now, at 14; in practical terms to raise it first to 12, then, subject to Resolutions of Parliament, and when the resources are available and in the light of experience of up to 12 years, let us increase it finally up to 14.
§ 7.3 p.m.
The noble Lord has made an interesting speech. In large part it was an answer to a speech which was not made by me, because I was confining myself to a fairly narrow point. But I am grateful to him for such inkling as he has given us as regards the Government's intentions on timing. The noble Lord was really half putting words into my mouth which I had not spoken. He credited me with the desire never to see the age of criminal responsibility raised for perhaps the indefinite future, and he was at one time suggesting that I was advocating that it should be drawn back to 10. I was doing nothing of the sort. I was at pains to point out that this Amendment was addressed to a fairly narrow point, that point being that in a matter of this importance I think it is right that if the age is to be raised, that change should be incorporated in a Bill rather than in an Affirmative Resolution. He has, of course, quite properly said that that can be debated, but nevertheless it is a different matter to its being in a Bill.
However, it is not a matter over which I wish to dogmatise. I made that clear in my opening remarks, when I said that to a large extent this Amendment was exploratory. I still feel that it would be best that the age should be at 12 now.
853 I think that that should be written into the Bill and if, in the light of experience, it is thought right to raise it to 14 then that should be done in another Bill. The noble Lord has said that that can be done quite well by Resolution. I still adhere to my opinion, but in view of what he has said I have no wish to press the Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 4 shall stand part of the Bill?
§ 7.6 p.m.
§ BARONESS WOOTTON OF ABINGER
I am of course necessarily in some difficulty about whether Clause 4 should stand part of the Bill until I know what the Government's intentions are in regard to Clause 1(2)(e). But I want to make one point about Clause 4 that I hope will be in the forefront of the Government's mind. A great deal of weight is being laid upon the distinction between criminal prosecution of children and young persons and the procedure proposed under Clause 1(2)(e), that is to say, finding of guilt without criminal prosecution in the course of care proceedings.
The point that I want to make is that we really cannot take any credit for this distinction. No child or its parents will have the faintest idea that there is any difference whatsoever whether the finding of guilt is by criminal procedure or by civil procedure, and we really cannot give ourselves a large bouquet of credit that we are restricting criminal procedure to the age of 14 so long as we make findings of guilt from the age of 10 upwards. No child or parent coming before the court will have the faintest idea of what this is all about. That is why I regret that this Bill is so much a legalistic Bill. The conceptions which it tries to embody, particularly as between Clause 1 and Clause 4, have to be understood with a good deal of legal sophistication which is not present in the clients in the juvenile courts.
§ LORD STONHAM
I listened with great interest to what my noble friend said, and she may well be right in saying that when they are convicted, no child or parent will bother whether it is by criminal prosecution or not. I do not know whether that is the case. What I 854 do know is that it will be a matter of importance if we retain Clause 3, and all those safeguards which are involved in a criminal prosecution are there, and they will be important to the child and of importance to the child's parents whereas if they are not there, as I have pointed out before, it will become a civil procedure and will be settled on the balance of probability without any of the other safeguards. Therefore I believe there will be a distinction which will matter to both children and parents.
§ BARONESS WOOTTON OF ABINGER
I refrained from commenting on this when my noble friend brought in Clause 3 before, but I do not think I can let it go once again. Clause 3 is a rider upon Clause 1(2)(e). If Clause 1(2)(e) goes, Clause 3 becomes quite unnecessary—that is to say, if we do not have finding of guilt done by this non-prosecuting procedure we shall not have to have a special clause putting in the safeguards. If all that procedure goes, then the safeguards are no longer necessary, and Clause 3 in this context is really a red herring.
§ Clause 4 agreed to.
BARONESS WOOTTON OF ABINGER moved Amendment No. 14:
After Clause 4 insert the following clause:
§ Child charged with homicide.
§ ". Any child charged with homicide shall be brought before a juvenile court which shall, if it is of opinion that there is sufficient evidence to put him on trial, commit him for trial."
§ The noble Baroness said: I am fully prepared to be told that this Amendment is unnecessary. I have only put it in for clarification purposes. I was uneasy when I read Clause 6 because I saw that Clause 6 found it necessary to say that in the case of joint charges a child or young person must be brought before the magistrates' court, and that the court would, if it was of the opinion that there was sufficient evidence to put the accused on trial, commit him for trial. I could not find anything in the Bill to say what was to happen to a child who was charged with homicide, and therefore I tabled this clause in order to get the Government's assurance that a child who was charged with homicide would be brought before the 855 juvenile court and not any other magistrates' court, and that committal proceedings would take place there before he is committed to a higher court for trial. I beg to move.
§ LORD STONHAM
I think I can give my noble friend the assurance she wants. I can certainly assure her that it is not the case that committal proceedings against a child charged with homicide will normally be held in the adult court. That is not the case, and committal proceedings will take place in the juvenile court except in the rare case of a joint homicide charge against a child under 14 and a person over 17. If my noble friend would like me to pursue the reasons for that exception I will do so, but if she wanted just a general assurance, then I can give it subject to that single qualification.
§ BARONESS WOOTTON OF ABINGER
I am entirely satisfied with that assurance and very glad to have it. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn. Clause 5 agreed to.
§ Clause 6 [Summary trial of young persons]:
§ 7.12 p.m.
BARONESS WOOTTON OF ABINGER moved Amendment No. 15:
Page 10, line 19, leave out from ("subsection") to ("the") in line 25, and insert ("In the case of a young person charged with an offence mentioned in the aforesaid section 53(2),")
§ The noble Baroness said: In Clause 6 the Government have gone half way to what seems to me to be a very desirable end: that is to say, they have made it impossible for a child to be charged, otherwise than on a charge of homicide, jointly with an adult in a higher court. Since a child cannot be charged anywhere under Clause 4, I understand from the letter that my noble friend wrote me that a child cannot be charged under Clause 6 jointly with an older person in any other circumstances. The object of my Amendment is to extend to the young person what is, under this clause, already to be the right of the child; that is to say, that neither child nor young person who is on a joint charge shall appear in a higher court.856
§ My reason for this is that I am very sceptical about the value of joint charges except as a method of saving the time and trouble of the court, and I am inclined to think that this is much more the reason why they are retained than any consideration of doing justice to the persons accused. If it is possible for justice to be served where a child and an adult have offended together by their being separately dealt with, then it seems to me it must be possible for the same justice to be served by an adult and a young person being dealt with separately. I want the young person to be put in the same category as the child and never, in any circumstances—other than on a joint charge of homicide—to appear jointly in a higher court. There is one matter which is the subject of a great deal of criticism from our various friends overseas; it is the exceptional custom that we retain that young persons and children can be charged in the higher courts—often on quite unimportant charges—along with adults. In the opinion of many, and particularly of competent critics from other countries, that is a nullification of the purpose of our juvenile courts. The purpose of our juvenile courts is that young persons and children shall be tried there, but if they happen to get mixed up with somebody older that goes by the board and they appear in adult courts just as though they were themselves adults.
§ I know there is some restriction in this regard, in that this joint appearance will, under this clause, occur only if it is in the interests of justice that it should. I am very sceptical about the interest of justice justifying this, and if that interest can be waived in the case of a child I should very much hope that it can be waived also in the case of a young person. After all, guilt, in the end, is individual. Each person has his own part of an offence; each person either did or did not commit it. I should like to see young people retain their right to be tried in all circumstances in the juvenile court except on the grave charges which are provided for in the first subsection of this clause, and, of course, in cases of homicide. I beg to move.
§ BARONESS SEROTA
The noble Baroness, Lady Wootton of Abinger, has explained to us with great clarity the 857 object of her Amendment to delete paragraph (b) of subsection (1), which empowers a magistrates' court to commit a person under l7 for trial if he is jointly charged with a person who has attained the age of 17 and the court considers it necessary, in the interests of justice, to commit them both for trial. The noble Baroness expressed her concern for this particular aspect of the Bill on Second Reading. I wrote to the noble Baroness about it and tried to explain the view of the Government but it is clear from what she has said that I have failed to convince her in writing. However, I will try to do so verbally to-night.
The noble Baroness expressed her anxiety that the Bill should provide the identical provision for the 14 to 17 group that we have for children under the age of 14. I think that is what she is anxious to achieve by her Amendment. The Committee will be aware that children under 14 will be subject only to care proceedings except in the very exceptional cases of homicide, and it is for this reason that there is no provision for a joint charge if they are alleged to have committed an offence in the company of an older person. I am afraid that has not satisfied the noble Baroness; she wants to know why it is necessary to provide for the joint trial of young persons and adults, who are jointly charged with offences because this is in the interests of justice, while it is not thought necessary to provide for the joint trial of those under 14 who are jointly charged with older persons.
I think the Committee as a whole have accepted the principle of the Bill, that children under 14 should be removed from the criminal courts altogether and that it is not possible to bring them back because of the accident of a joint charge. However, it is felt—and I still feel, in spite of the very strong case the noble Baroness has made—that there can well be situations where the provision in the Bill would be essential. I would point out to the Committee that the paragraph which the Amendment seeks to delete does not require the court to commit both for trial; it is required to commit only if the court considers it to be necessary in the interests of justice. I think it is this definition that the noble Baroness is really quarrelling with. It is only if the court thinks that a separate trial of a juvenile 858 can take place without injustice to either of the accused that it has the discretion so to proceed, and I would submit that that is the proper way to leave the Bill. That is certainly the view of the Government. The noble Baroness takes the view that the desirability of keeping a juvenile out of the superior court is more important than what others would regard to be the interests of justice. The Government take the view that, where these two considerations conflict, or appear in the view of the court hearing the case to conflict, the interests of justice should prevail.
I hope that I have convinced the noble Baroness. She has raised an issue which she sees as an issue of principle and of practice, and she has also pointed out that this is a matter which is commented on by visitors from overseas. I hope she will feel able, having made the point of principle at this stage of our deliberations, and in the light of the explanation which I have given., to withdraw the Amendment.
§ BARONESS WOOTTON OF ABINGER
I am very grateful to the noble Baroness, who is as persuasive in speech as she is on paper. But I think that her first argument was irrelevant. Her first argument was that the child gets out of being charged on a joint charge in a higher court, because it cannot be charged at all. It gets out as a sort of by-product of not being chargeable at all. The young person does not get the benefit of that, and therefore the young person remains liable to be tried in the higher court, along with an adult, if he is involved in an offence with an adult.
I recognise that we make some progress, in that this clause does not require that they should be charged together; and that is an improvement on the present practice where they are normally, if not always, charged together. But if am not satisfied, and I shall fight on, although not at this stage. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn. Clause 6 agreed to.
§ Clause 7 [Alterations in treatment of young offenders etc.]:
§ 7.22 p.m.
VISCOUNT COLVILLE OF CULROSS moved Amendment No. 16:
Page 11, line 1, leave out subsection (2).
§ The noble Viscount said: This Amendment raises a question of principle. The Bill raises from the present 14 to 17 the age at which a young person can be put on probation. This means that in future, in the case of a young person, the juvenile courts will have no choice between making a supervision order, or any of the other orders under this Bill, and a probation order. Despite the discussions in another place, we on this side still need to be persuaded that it is right for us so to limit the options open to the court.
§ I have already said that I understand that behind the principles of this Bill, and of all criminal legislation nowadays, is a belief in having as flexible as possible a range of treatment available for anybody who offends, and particularly young people; but here the Government appear to be going against those principles. I think it would be easy to understand this if there were something drastically wrong with probation orders or with the Probation Service. But, on the contrary, the little that I see of them—at any rate in Devon, in Cornwall, in Somerset and in places like that—does not lead me to suppose that there is anything wrong with probation orders in relation either to young people or to anybody else; or anything wrong with the probation officers and their powers to guide and counsel those who are given into their charge. So I find it surprising that it should now be proposed to abolish this power of the courts.
§ It would, perhaps be understandable if there were plenty of spare capacity in the child care departments of the local authorities, or if the officers there were underworked, or if there were a superabundance of them. It might then be right to hand over to them some of the jobs now done by the Probation Service. But I do not believe that this is so, and I think the Government have made it quite clear that this is not so. In those circumstances, I find it very easy to understand the fears which at any rate some members of the Probation Service and others have raised, that they are to be squeezed out of a whole area of work with young people to which many of them have given such devoted service in the past. I shall listen with interest to what the Government say about the justification for this subsection in the Bill, but I 860 cannot understand exactly how it is supposed to be justified.
§ It was said in another place that there was nothing to prevent the court from using the probation officer as a supervisor. But if one looks at Clause 13(2), which is the subject of another Amendment in the name of my noble friend Lord Jellicoe, one finds that there is a stricter limit upon the number of cases in which the court can do that. Therefore, if I am right in saying that there is a severe curtailment under a later clause of the Bill of the number of occasions when the Probation Service can be used as supervisors, then both the answer in another place and the whole principle of subsection (2) of Clause 7 are made more puzzling. I should be very grateful if the noble Lord could explain why the Government propose to take this step. I beg to move.
§ LORD STONHAM
The noble Viscount said that we wanted a system which was as flexible as possible, with which I agree. He also said that he hoped we had no complaint against the probation officers or the Probation Service, and I can assure him, if such assurance is necessary, that we have no complaint. The noble Viscount's Amendment would permit the courts to make probation orders in criminal proceedings against persons under 17. His Amendment does not remove the power in subsection (7) to make a supervision order. The effect, which he no doubt intends, would be to give the courts a choice, in criminal proceedings, between making a probation order and making a supervision order. The Amendment would not give the courts any extra powers to make use of the Probation Service than they have under the Bill as it stands. Under Clause 11, a court making a supervision order in respect of a young person will be able to choose either a probation officer or the local authority as supervisor. The only possible justification for the Amendment, therefore, would be if it could be shown that there was some important and valuable feature of a probation order which a supervision order lacked; and in our view the position is the other way round. Under this Bill, a supervision order will have features and possibilities about it which the probation order will not have.
I do not say that the essential differences between the two forms of order are great, 861 apart from the important new powers on intermediate treatment in Clauses 12 to 19, which form part of the supervision code. These new powers have been widely welcomed, but they would not be available in the case of a young person placed on probation. I do not know whether the noble Viscount accepts that, but I should have thought that that would be very regrettable.
I think it was the noble Earl, Lord Jellicoe, who said on Second Reading that the change would add to the burden of local authorities, and added:… it has the quite serious legal consequence that when a second offence is committed by a young offender, his first offence, which may be quite a serious one, will not be taken into account."—[OFFICIAL REPORT, 19/6/69, col. 1146.]I know that the noble Viscount has not made that point; but, obviously, it has not been answered. The powers of the court, when a supervised person is brought before it under Clause 15(1), are for the most part exactly the same as those which it would have if it were dealing with the supervised person for the original offence. Therefore I believe that this Amendment, in so far as it is not merely probing or seeking assurances or a statement, is misconceived or based on a misunderstanding.
As for the bodies who have criticised or supported this provision, one would have thought that, if there was anything of substance in the Amendment and it was wanted, the probation officers themselves would have asked for it. But the National Association of Probation Officers, in their memoranda on the Bill, express clear acceptance of the subsection, and most other bodies who have an interest, as it were, have also accepted it. In fact the only major criticism comes from the Central Council of Probation and After-Care Committees, which as the noble Viscount is aware, is composed mainly of magistrates. They suggested, in a letter to the Home Secretary, that a probation order should remain possible from the age of 14 upwards, just as the noble Viscount proposes. Three of the reasons which they gave for this were that a probation order would bring the young person face to face with his responsibilities for his actions; that the more formal obligations and sanctions of the probation order would make the young 862 person understand clearly what the court was doing; and that other powers open to the court were "generalised decisions which hardly lent themselves even to an explanation". Each of those three reasons clearly rests on the assumption that a probation order is markedly different from a supervision order, and, as I have said, it is not.
The fourth reason given by the Central Council is that children's officers and probation officers would be able to work more harmoniously together if the function of each was clearly defined. Frankly, that is nonsense. Whether or not young persons could still be placed on probation, the court would retain the choice of the probation officer or the local authority in the case of supervision orders.
We have been over this ground, not only in another place but here, very thoroughly. I think that we have struck the right balance, and I think it is fair to say that if the National Association of Probation Officers thinks so too there is some substance in our belief. I do not think that if the Amendment were accepted the position would be as good, as flexible, as it will be if the Bill stays as it is.
VISCOUNT COLVILLE OF CULROSS
I shall certainly come back to this question of flexibility when we deal with the Amendment to Clause 13, because there are these clear limits on the number of occasions on which the Probation Service can be used for supervision orders. I also suspect—and I am not certain we have yet been told what exactly the procedure will be—that there is a certain amount in what the letter from the Central Council of Probation and After-Care Committee said about the formality with which the probation order is put to the person who is being asked whether or not he will accept it. I do not know whether the same thing is going to be done in the case of a supervision order or not; but, as the noble Lord says, we have been over this point before here and it has been considered in another place. I felt that it certainly ought to be raised again in view of the experience of the magistrates who make tip the Committee which wrote that letter, quite apart from what the Probation Service say—and, of course, I accept that they have welcomed this. Nevertheless, the noble Lord has explained the matter again 863 and I certainly would not want to press it this evening. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
BARONESS SEROTA moved Amendment No. 17:
Page 11, line 29, leave out ("where") and insert ("and to section 53(1) of the Act of 1933 (which provides for detention for certain grave crimes), where a child is found guilty of homicide or").
§ The noble Baroness said: On behalf of my noble friend Lord Stonham I beg to move this Amendment, and it might be for the convenience of the Committee if we considered the next one, Amendment No. 18, at the same time, as it is consequential. At present, Section 53(1) of the Children and Young Persons Act 1933 provides that a person under the age of 18 who is convicted of murder shall (in lieu of being sentenced to life imprisonment) be sentenced to be detained during Her Majesty's pleasure in such place and in such conditions as the Secretary of State may direct. This provision is expressed to have effect notwithstanding anything in the 1933 Act or any other Act; that is, in cases of murder it displaces the provisions of the 1933 Act corresponding to those of Clause 7(7), which the Bill repeals. The first half of Amendment No. 17 preserves the existing position; that is in a case of murder, the court's sentence must be that provided in Section 53(1) and the Clause 7(7) orders will be precluded. Since children will still be liable to prosecution for homicide under this Bill, it is necessary to provide what orders may be made in such cases. As it stands, Clause 7(7) relates only to young persons. Where the homicide of which a child is found guilty is murder, Section 53(1) of the 1933 Act covers the case.
§ But there are homicides, of course, which are other than murder, such as manslaughter, and the second half of Amendment No. 17 provides that where a child is found guilty of such a lesser homicide the orders mentioned in Clause 7(7) shall be available to the court. This is without prejudice to the provisions of Section 53(2) of the 1933 Act, under which a child or young person convicted on indictment of an offence punishable in the case of an adult with 14 years' imprisonment may be sentenced to be 864 detained during Her Majesty's pleasure in such place and in such conditions as the Secretary of State may direct. The provisions of Section 53(2) are permissive and not mandatory, as are those of Section 53(1). These two Amendments, as I said at the outset, hang together. I hope your Lordships will find them acceptable. I beg to move Amendment No. 17.
Page 11, line 41, after ("the") insert ("child or").—(Baroness Serota.)
§ Clause 7, as amended, agreed to.
§ Clauses 8 and 9 agree to.
§ Clause 10 [Further limitations on publication of particulars of children and young persons]:
§ 7.38 p.m.
BARONESS WOOTTON OF ABINGER: moved Amendment No. 19:
Page 13, line 26, leave out from ("so") to the end of line 28.
The noble Baroness said: This is a very small Amendment, but I hope it is one that may commend itself to the Government. The sole intention of it is slightly to widen the power of the Secretary of State or the court to dispense with restrictions on publication in certain circumstances. The Bill proposes that this power shall be enjoyed by the court or the Secretary of State if satisfied that it is appropriate to do so—that is to say, to publish the name—
for the purpose of avoiding injustice to a child or young person".
§ I should like to stop after the phrase "appropriate to do so", because I think there might be circumstances in which it is desirable to publish a name but in which the injustice is not necessarily to the child or young person. It might be to somebody quite different. In any case, I think there ought to be a slightly wider discretion, although I of course deprecate the publication of names except in quite exceptional circumstances. But I do not want it to be tied to the interests of the child or young person. I beg to move.
§ LORD STONHAM
I was sure when I read this Amendment that my noble 865 friend deprecated as much as I do the publication of names of children involved in court cases, and I am very sorry that, as I see it, her Amendment does not really help the situation. The existing law on the publication of the names of children and young persons who appear in the juvenile courts is contained in Section 49 of the 1933 Act, which clearly says that no names or other identifying particulars may be published unless the court or the Secretary of State are satisfied that "it is in the interests of justice" to allow publication. Subsection (i) of Clause 10 of this Bill proposes a small but significant change in Section 49. This proposal is that publication should be possible only if the court or the Secretary of State are satisfied that this is appropriatefor the purpose of avoiding injustice to a child or young person".My noble friend's Amendment proposes to leave out the reference to "avoiding injustice" and it would therefore enable the court or the Secretary of State to permit publication whenever they thought it "appropriate". If this were accepted, the amended clause would give no indication at all about how the exceedingly wide adjective "appropriate" should be interpreted.
So far as I know, juvenile courts do not often exercise their power to authorise publication of a child's or young person's name. Certainly there is no record of the Secretary of State having done so recently. When a court authorises publication it is normally for reasons which would still be covered by the law under the provisions proposed in the Bill. For instance, publication could be authorised so as to make it known that a young person who was known to be attending the hearing of a case in the court was doing so as a witness and not as the defendant. Or publication might be authorised so as to allow publicity to an acquittal so as to be sure that people in the neighbourhood who would know that the young person or child had gone to court would know also that he had been found not guilty. I think we would all agree that it should be possible to permit the publication of the name in such circumstances where it is in the child's or young person's own interest.
Unfortunately, occasional cases are known to arise under the present law 866 where a juvenile court authorises publication as a form of punishment. There are magistrates who do that to make an example of the child or young person. This possibility was never in the minds of those who framed what is now Section 49 of the 1933 Act. They never contemplated a punitive use of the power to authorise publication. The Government are firmly of the opinion that this power should not be used punitively; but the words in the present law, "in the interests of justice" are very broad. Their meaning in this particular context is not very clear. This is why it occasionally happens that these words are interpreted as permitting publication as a means of punishment.
The whole object of Clause 10(1) of the Bill is to remove this unnecessary and undesirable uncertainty as to the scope of the present law and to make it absolutely clear that Parliament does not intend the power to authorise publication to be used as a punishment. We feel that my noble friend's Amendment would frustrate the achievement of this objective and that it would make the law even broader and more uncertain in its application than it is now. Clause 10(1) defines the circumstances in which publication may properly be authorised in more precise and more restrictive terms than the present law. The Amendment would define these circumstances in terms which are less precise and a good deal wider, in our view, even than the present law. I therefore think that would take us in the wrong direction, a direction in which my noble friend certainly would not wish to travel. We have no evidence of any need to extend the law. On the contrary, there is evidence of a need to confine it and make it more precise. Instead of removing a small imperfection in the present law, as the Bill proposes, the Amendment would enlarge it. For that reason, I believe our proper course is to leave subsection (1) as it is. I hope that my noble friend will agree with me.
VISCOUNT COLVILLE or CULROSS
I wonder whether the noble Baroness will allow me to say a few words before she decides what to do about her Amendment? When I read Clause 10(1) it had not occurred to me that the injustice that was being avoided by the publication could be an injustice to a child or young person who was not an offender before 867 the court. This is a new concept to me. As I understand the situation that the noble Lord, Lord Stonham, had in mind, young person "A" (who is unnamed) is being charged with an offence, and young person or child "B" is a witness. It is in order to prevent the neighbours thinking that it is "B" who is in the dock that the name of young person "A" is allowed to be published if the court thinks suitable.
This is simply a suggestion, but I wonder whether it might be better to draw attention to this by the use of the word "any" child or young person rather than "a" child or young person. It seems to me that it is easy to miss the proposed extension that the noble Lord has in mind and to read it in the way in which I at first read it. I do not believe that there will be any difference in the meaning if you put in "any", but it might draw attention to the exact point that this subsection is intended to meet.
§ LORD STONHAM
I am grateful to the noble Viscount. If my noble friend will allow me, I should like to deal with this point. As I understand it, power is available in relation to "a" child or "a" young person—which I believe covers "any". It is not simply the child before the court. I will look at this point again, but it seems to me that the Bill is right as it is and that it covers what the noble Viscount wants to cover.
VISCOUNT COLVILLE OF CULROSS
I am not saying that the Bill is wrong. I am saying that as a matter of emphasis if one is reading a Bill one nicks up the word "any" as being slightly more meaningful than the word "a". It means only the addition of two letters. I do not believe the printing costs will be very high.
§ BARONESS WOOTTON OF ABINGER
My noble friend will appreciate that the very last thing that I want to do is to allow names to be disclosed for punitive purposes. What I am concerned about is that names should be disclosable for purposes which are in the interests of the child and not for purposes narrowly confined to conceptions of justice. Where a name is disclosed at present I know that it must be in the interests of justice; but I think that the interests of justice usually play a small part in this. In his 868 reply my noble friend used the expression "in the interests of the child". If he likes to add the words "appropriate to do so in the interests of the child or young person" I should be pleased. I merely wish slightly to widen it so that there is not a formal restriction to some rather abstract notion of justice. I am thinking of the welfare of the child or young person. If my noble friend will be good enough to think about this again I shall gladly withdraw my Amendment.
§ LORD STONHAM
I think I started by saying that I thought my noble friend and I wanted to do the same thing; that we had the same objective. Certainly I shall look at what she has said.
§ Amendment, by leave, withdrawn.
§ 7.47 p.m.
§ BARONESS WOOTTON OF ABINGER moved Amendment No. 20:
Page 13, line 37, at end insert
("( ) Subsection (1) of section 49 of the Act of 1933 shall apply to trials on indictment as it applies in relation to proceedings in a juvenile court.")
§ The noble Baroness said: This is a slightly more substantial matter. The effect of this Amendment is to extend to young persons in the higher courts the protection from disclosure of names which is already given in the juvenile courts. The number of young persons who appear before the higher courts is quite considerable. In 1967, 880 young persons were tried at assizes and quarter sessions for offences, ranging from murder and blackmail to unlawful sexual intercourse. Actually, 28 children were tried also in the higher courts, although this practice will come to an end if this Bill becomes law. I think I am right in saying that there is no restriction on the publication of the names of these young persons. My Amendment would have the effect of applying to young persons charged in the higher courts the restrictions that already apply in the juvenile courts.
§ We have had some examples recently of very undesirable publicity which followed from the publication of the names of young persons or children charged and found guilty in the higher courts. There was the very highly publicised case of the girl, Mary Bell, who 869 was convicted of homicide—of murder. This led to local reactions even in the neighbourhood of an approved school to which it was proposed to transfer her. I should have thought that the arguments in favour of withholding names, except in special circumstances, were just as powerful in the case of the higher courts as in the case of the juvenile courts, the Secretary of State and the court still having the power to dispense which is contained in the previous section. I beg to move.
§ LORD STONHAM
The effect of the present law is that in the juvenile court Section 49 imposes an absolute bar on the publication of particulars calculated to lead to the identification of the child or young person unless the court gives its dispensation. In other courts, publicity is prohibited only if the court so directs. The only exception to that is an appeal from the decision of a juvenile court, when the absolute bar still applies. My noble friend's Amendment would apply the absolute bar in Section 49 of the 1933 Act to trial on indictment, and this could have surprising consequences, because Section 49 does not apply only to children and young persons appearing before the court: it applies to any child or young person concerned in proceedings, including victims and witnesses.
Nor does Section 49 prohibit simply the publication of names. It prohibits the publication ofany particulars calculated to lead to the identification, of any child or young person concerned in those proceedings …In the case of juvenile court proceedings, to refer to "the 12-year-old daughter of Mr. Smith, of 17, Main Street, Black-town", would be to break the law. If this provision were extended to trials on indictment, as proposed in the Amendment, and if, for example, a father was charged with battering his baby, a newspaper would commit an offence if it published any particulars of the father which were calculated to identify the child. The effect would be that in some cases newspapers could not publish the names of adults appearing before the higher courts, and that is one reason why Section 49 applies only to juvenile courts. In other courts, Section 39 of the 1933 Act allows the court to give a direction that no identifying particulars, or only 870 certain identifying particulars, may be published.
Another reason why Section 49 is confined to juvenile courts is that a reporter in a juvenile court knows that he cannot publish names without the permission of the court, because there is an absolute bar; so therefore there is no difficulty. But in other courts reporters are accustomed to report names unless the court tells them not to. An absolute bar is practicable only on the assumption that the newspaper is able to distinguish between those cases in which it may report names and those cases in which it may not. Since the ages of persons concerned in the proceedings are not necessarily announced at the outset, it would be difficult for a newspaper to comply with an absolute prohibition on publication of identifying particulars.
The Government feel that publication of the names of children and young persons is undesirable whatever the court in which they appear, but, for the reasons I have given, there are practical difficulties about extending the provisions of Section 49 to the higher courts. Experience of a case tried at assizes earlier this year suggested that publication might prejudice the subsequent treatment of a child because there might be difficulty in finding suitable accommodation willing to accept the child whose case had received wide-spread publicity. This possibility of prejudiced treatment may not always be appreciated by the court, and my right honourable friend the Home Secretary has discussed this aspect of the question with the noble and learned Lord the Lord Chief Justice. The noble and learned Lord, who has told me that he regrets he is unable to be present in the Chamber this evening, fully accepts the importance of protecting the child and his family from publicity, so as to avoid prejudicing the subsequent treatment, as well as causing unnecessary pain and distress at the time, by exercising the power to prohibit the publication of identifying particulars except in cases where there is some positive reason for their publication. I am sure that this view will be shared by other Members of the Judiciary.
In the view of the Government it is better to rely on the existing power of the higher courts to direct that identifying particulars shall not be published, rather 871 than to impose a mandatory restriction on publication, which in some cases would leave newspapers in considerable doubt about what they could publish and what they could not. I know and sympathise with my noble friend's intention in tabling and moving this Amendment, but I hope she will feel, with me, that we have looked at it very carefully and that it would have results which I am sure she would not wish.
§ BARONESS WOOTTON OF ABINGER
The law is really very odd. The last thing that occurred to me, when carrying out my amateur drafting, was that I might be preventing the name of a father who had battered his baby from being disclosed at assizes. Obviously, my noble friend knows that nothing of that kind was in my mind. What was in my mind was that, except in special circumstances with the approval of the court or the Secretary of State, I do not wish the names of young persons to be disclosed when they are charged before a quarter session court or an assize court.
I think that my noble friend's argument that my Amendment would make it very difficult for newspapers to know what they might report and what they might not is too flimsy to be advanced. It is perfectly possible for the court to say, "In the next case there can be no reporting of the names". That would be a conclusive statement that the person appearing before the court was of an age which precluded his name from being disclosed. I do not see why the Government are so anxious to leave it to the discretion of the court, rather than to make a presumption that the name should not be disclosed except in special circumstances, following the pattern of the juvenile court. In point of fact, names of young persons who appear before the higher courts are widely disclosed; and children also, although the names of children will no longer so appear. I think that great damage is done by this practice.
Obviously, my Amendment is misconceived if it is going to affect witnesses, victims and everybody else, but it would be perfectly possible for the Government to provide an alternative Amendment which would have the effect of causing the names of young persons charged be- 872 fore a higher court to be withheld, under a bar, unless the Secretary of State or the court thought it appropriate in the interest of the young persons themselves to disclose it.
I hope that the Government will think again about this matter. It seems to me a perfectly simple thing to do, and it would make our procedure in relation to young people on charges in any court consistent. But for the time being, pending the Government's having an opportunity to think again about that, I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clauses 10 and 11 agreed to.
§ Clause 12 [Power to include requirements in supervision orders]:
§ 7.59 p.m.
VISCOUNT COLVILLE OF CULROSS moved Amendment No. 21:
Page 14, line 28, leave out from ("decide") to ("and") in line 31, and insert ("the form of any directions and to decide whether at any time circumstances make it necessary to apply to the court for any requirement imposed by the preceding provisions of this subsection to be varied").
§ The noble Viscount said: In Clause 12 we come to another rather complicated point, and I should be grateful for some enlightenment on it. I am sorry that the noble Lord, Lord Wells-Pestell, is not present because I think that his Amendment No. 22 raises something of the same issue, and it might well have been possible to discuss them together. Nevertheless, I shall continue with Amendment No. 21 and it may be that it will be of assistance to the noble Lord, if he wishes to return to the matter later to read what is said.
Clause 12 has a heading:
Power to include requirements in supervision orders.
§ The provision, in subsection (2), is a sort of double-barrelled empowered enactment. First of all, the court can make a supervision order in which it may require the supervised person to comply with directions. That is a perfectly standard provision and occurs in probation orders now. One of the ordinary things one hears in court, when probation is being put to the person for whom an order is intended, is that a condition shall be that he shall live in the place where the probation officer tells him and 873 shall not change his address without notifying the probation officer. So far I find the clause entirely unexceptional.
§ But the court can also specify the sort of directions which the supervisor can impose under subsection (2). The matters to which directions shall relate are those in either paragraph (a) or (b), or both. Paragraph (a) refers to directions requiring a supervised person to live for a single period specified in the directions made by the supervisor at a place specified, and paragraph (b) lists a number of matters on which directions may be given from time to time. Therefore there is wide power in the court to require a supervised person to comply with a number of directions.
Then we come to the difficulty to which this Amendment relates. The subsection goes on to say:
… it shall be for the supervisor to decide whether and to what extent he exercises any power to give directions conferred on him by virtue of the preceding provisions of this subsection and to decide the form of any directions; …
§ This is a point which has caused a certain amount of difficulty. I am sure it is right that there should be flexibility in the way in which a supervisor carries out the basic requirement of the court as to the type of directions he is allowed to give. Obviously, it is better for him to be able to tailor the specific directions to the requirements of the person he is looking after, on the basis of the acquaintance he forms with that person, rather than for the court to do so after a short appearance only. I entirely agree with that, and there is plenty of room for marnæuvre here. One can think of all sorts of possibilities if the court were, for example, to impose too much of a delineation upon the type of condition under which the supervision was to be carried out. Such conditions might be found to he inappropriate in practice after a short time, and I see nothing wrong with what is proposed so far.
§ But the fact is that in any event the supervisor, if the supervision order is found to be wrong, can go back to the court, under Clause 15, and ask it to vary the supervision order, and the court can cancel any requirement in it or insert any new direction which it could have made in the first place had it wanted to do so. So there is a wide provision for the supervisor to go back to the court and make 874 any changes that would enable him to carry out any further directions or give the advice. and guidance he thinks suitable in the case. It is then that the situation to which this Amendment relates becomes critical. It was made clear in another place that under the wording of the Bill as it stands the supervisor could, if he liked, disregard altogether matters which the court had by direction told him to deal with. The supervised person is told in the order itself only those matters on which direction might be given by the supervisor. It is possible for the supervisor to decide whether lie will make any direction of that sort, and he may decide that he will not.
§ Another difficulty about this matter is that the clause was amended in another place, but I do not think the Amendment was entirely right. On Report stage the clause was put back into its present form by the Government, but I do not think that form is right either. Therefore I hope that we can advance a little further. If the court is going to put into an order specific matters on which directions may be given by the supervisor, it is not going to do so for some lighthearted and foolish reason, or from some extraordinary chance that comes into its head. It is going to have regard to the type of treatment or guidance which it thinks the supervised person is likely to need. I do not think it right, after the court in its wisdom has laid down the areas of direction for the supervisor, for the supervisor then to be able, without going back to the court, simply to disregard what the court has said. I do not object to the supervisor being able to work out the form of the directions within the general framework of what the court has laid down, but I very much object to a supervisor being able to disregard the directions altogether.
§ In my view—and I put this to the Committee as a sensible thing to do in accordance with the Bill—a supervisor should go back to the court under Clause 15, as he can do at any time, and ask the court to remove any requirement as to direction or to make some new direction. Merely to leave the clause as it is, and to allow the supervisor to ignore or pay no attention to the court, and to make directions as he thinks fit, is to overdo the flexibility and to give the supervisor more flexibility and latitude than the Bill requires. That is the point 875 with which my Amendment seeks to deal. The drafting may not be altogether right, but perhaps it approaches more nearly a solution of the problem we have to meet than the wording put down in another place or the wording that stands in the Bill at the present moment. In the hope that the noble Baroness may indicate that this principle is something she is prepared to look at again, and that she will do her best to meet us, I beg to move the Amendment.
§ BARONESS SEROTA
I understand from the way in which the noble Viscount moved this Amendment that there is no major difference of principle between us. We want to see the powers under this clause of the Bill as broad and as flexible as possible. We also want to see a situation where the supervisor can decide, in accordance with the needs of a child he is supervising, what is the best course of action that should be taken in the circumstances. The difficulty I have with this Amendment is that it leaves out the very words which would make it crystal clear that it is for the supervisor to decide whether, when and in what way he exercises his power to give directions under a supervision order.
The Amendment does not remove the discretion, and I think the noble Viscount made it clear that he did not want to do so. We take the view that, by putting down the Amendment in the way he has, it creates undesirable ambiguity in what should be a situation of the greatest clarity. It is still for the supervisor to decide the form of any direction, but there might well be argument as to what else he may decide. I think that when considering this matter, it is important for the Committee to bear in mind the whole time that the probation officers and local authority staff who would be involved in orders of this kind are responsible persons, whose judgment I believe all of us trust. The arguments that some have made in certain quarters about the possibility of the supervisor disregarding the wishes of the court, and deciding without exploring any possibilities that he will not give directions, can only be based on the assumption that the supervisor will be acting irresponsibly. The Government—and I believe the noble Viscount shares this view—do not believe that the members of staff of local auth- 876 orities or the probation service involved would act in this way. But there could be situations where, the supervisor having considered the various possibilities, and in the light of the knowledge that he has gained of the child and the family, comes to the opinion that a direction should be given, for example, for a lesser period than authorised by the court, or even that no direction should be given at all.
I should like to assure the noble Viscount that there is nothing in this Bill which prevents the supervisor from going back to the court and asking for an order varying the supervision order by removing or reducing the requirement. I am not sure whether that answers the whole of the noble Viscount's point. He is shaking his head, and I have the feeling that he would wish to go further than this from the terms in which he put down the Amendment.
VISCOUNT COLVILLE OF CULROSS
Perhaps I may explain to the noble Baroness what it is that troubles me about this. She has said that there should be clarity in this matter, and I entirely agree with her about that. The clarity at the present moment consists of this fact: that the supervisor has carte blanche. That is all there is to it. He is empowered or the order from the court allows him, to make certain directions which will be specified as either being directions under paragraph (a) or paragraph (b), or both, and he is then given complete carte blanche whether or not he will make those directions. That is the clarity that we have at the moment.
My point is this—and I think I shall have to go back a little in the consideration of the hypothetical case in order to explain it. My experience of any quasi criminal court is that before any sentence of this sort is passed and a supervision order made, there is a social inquiry report. The noble Baroness, Lady Wootton, was talking about this earlier on. I have no doubt whatever that the juvenile court will be guided by the social inquiry report produced by the probation officer, or one of the children's officers from the county council, or somebody like that. It is in the light of having heard the circumstances of the case, what it is that the child or young person has done, and maybe the medical history, if that is 877 relevant, and anything else that may have turned up while the child may have been on remand—there may have been some interim order during which information has been collected—that the court empower the supervisor to make directions. They do not do it lightly. They do it specifically, because they think that is what is necessary.
I am not saying that the supervisor ought to be precluded from going back to the court and asking for the directions to be changed. I understand that he can do this, and that is clear from Clause 15. I say that the supervisor ought not to be able so to act that he wholly disregards the directions which the court have thought fit to empower him to make. If he wants to make directions which bear out none of the directions contained in the order, then instead of doing it on his own authority or initiative, however much responsibility ha may have, he ought to go back to the court and ask them, for reasons which he will state, to take out of the order the power to make those directions and to relieve him of the need to exercise those directions.
It will not be a very difficult matter. He and the child, presumably, are in fairly close contact. He will know what is necessary, and will probably he able to convince the court. But I am convinced that he ought not to be able flatly to disregard these matters that have been laid down by the court, on the basis of a considerable amount of experience and a considerable amount of information given in relation to this specific case: and he can disregard them under the Bill as drafted.
§ BARONESS SEROTA
While thanking the noble Viscount for that further explanation of this difficult and complex matter, I think we are agreed here that the supervisor ought to be able to go back to the court.
§ BARONESS SEROTA
The difficulty the Government see in the Amendment 878 is that it does not follow through the situation where the supervisor would go back to the court, and the court would then, having heard the supervisor's report and account, decide to continue the order and refuse to amend it. I agree with the noble Viscount that it is a great pity that the noble Lord, Lord Wells-Pestell, is not here to-night to move his Amendment, because in his Amendment he has attempted to make a suggestion bearing on this matter. I should say straight away that it is not a suggestion which we on this side find practical, but nevertheless it is one way in which the point that arises from the Amendment which the noble Viscount has moved could have been met.
I should like to suggest to the Committee—especially in the absence of the noble Lord, Lord Wells-Pestell, who unfortunately cannot be with us to-night—that we need to have further thoughts on this. Maybe at a later stage the noble Lord, Lord Wells-Pestell, will wish to move his Amendment in its present form or in some other form, and we could discuss the matter as a whole. As I said earlier, the noble Viscount's Amendment, in our view, creates an ambiguous situation in that it takes something out of the Bill and does not replace it with the clarity that we feel would be necessary. If the Committee will agree to leave it in that way to-night, having had this discussion and having aired the points of difference and difficulty, we could come back to it at a later stage.
VISCOUNT COLVILLE OF CULROSS
Could the noble Baroness help me in this way? Supposing that the supervisor went back to the court and said: "Please will you take out the power to make a direction under paragraph (a) that this child shall live in a hostel, or whatever is suitable, for 12 months so that he can receive treatment. I do not think this is suitable. I do not want to act in this way. I do not want to give such a direction. I have had considerable experience of this child. I have not made such a direction, and I am not going to. Please take it out of the order". If the court said: "No; we do not think we should take this out of the order. We have heard what you have had to say, but we still think that this is the best form of treatment for this particular child or young person", under the clause, 879 as drafted, the supervisor could still go away and wholly ignore the fact that the court had refused to deal with the matter in the way he suggested. He can continue not to give any directions that the child shall continue to live in the hostel or home as specified. If the supervisor can go back to the court and ask them to take it off, and they refuse, he cannot be allowed to go on flouting what the court has said simply because he has been given a discretion and carte blanche to do what he likes.
This may be a rare occurrence, but curious things do happen. It is to that sort of state of affairs to which my argument is directed. If the noble Baroness will go so far as to say that she recognises that there is a matter of principle and something curious in that state of affairs, it may be possible for us to devise an Amendment which will not have the defects apparent in my Amendment and in that of the noble Lord, Lord Wells-Pestell; and we can then discuss it on the next stage of the Bill. Until I know where the noble Baroness stands on this matter, since she has agreed on the wider matters of principle, but not on the details, I think that it will be difficult to devise an Amendment to do this.
§ BARONESS SEROTA
Unfortunately, I have not the noble Viscount's advantage of being a lawyer, and on occasions of this kind it is a matter that I deeply regret. I do have the advantage of having been a magistrate, however, and I confess that I find the greatest difficulty in envisaging the kind of situation that lie has just described, although he admitted that it was both hypothetical and rare. I can only say again that the Amendment, as at present drafted, is not acceptable, and I think the noble Viscount has understood and accepted the reasons for that. I think I have taken the point that he was trying to make, and I have already offered to look at it. I would also suggest, in making that offer, it will give an opportunity for the noble Lord, Lord Wells-Pestell, who cannot be with us to-night to join in the discussion. He clearly has given a very great deal of thought to this subject. We shall need to discuss it again at a later stage, and I hope that, with that assurance and undertaking, the noble Viscount will agree that we can leave it at that for to-night.
VISCOUNT COLVILLE OF CULROSS
I would never turn down an undertaking from the noble Baroness in those terms, and I think what she proposes is most reasonable. I do not think there is any legal mystique about this matter. The noble Baroness has been good enough to say she will look at it again, and when she says that, I know that it will be done. I am sure we shall not progress any further this evening, particularly as Lord Wells-Pestell is not here. Therefore for the moment I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 12 shall stand part of the Bill?
§ 8.21 p.m.
§ BARONESS WOOTTON OF ABINGER
I have tried very hard to draft Amendments to Clause 12, but I confess that they defeated me. I therefore had to fall back on the perhaps inferior alternative of calling attention to a few things on the Motion, That the clause stand part. I feel very uneasy about the width of the powers given to the supervisors. Once they have their powers, it is for them to decide whether and to what extent they exercise any power to give directions conferred upon them by virtue of the provisions in this subsection.
As I read the clause—and very possibly I read it incorrectly—it seems to me that the supervisor can say to the supervised person, "You must go and live with your Aunt Mary for 90 days. You must present yourself at a place specified." I want to know whether the place specified might be an attendance centre. The supervisor might say, "You must participate in the activities specified." Specification about activities is to some extent restricted by Clause 19, because the activities apparently must not involve the use of facilities which are not included in a regional scheme. This seems to me to be not a very close restriction, and I have been wondering what the supervisor could direct the person supervised to do. Could he direct him to go to church every day, if some kind of religious celebrations were included in the regional schemes? Could he direct him to go to some sports centre regularly, or to a club regularly? The supervisor seems to me to have complete independence, complete autonomy in what he tells the supervised person to do.
881 Could he, in particular, direct the supervised person to an attendance centre, and could he send him to a detention centre? I am uneasy about this matter because of all these provisions about 90 days. They raise in my mind the thoughts that there must be inherent in these provisions something about an attendance centre, or a detention centre.
I am in a difficulty because I do not quite know how the powers of the supervisor should best be restrained; I am not particularly anxious for him to have to go back to the court, because I think that the court will know very little about the supervised person and the supervisor will not get much guidance if he has to go back to the court on any of the directions. I feel that there should be further consideration as to whether the supervisor ought perhaps to have to consult with somebody before he gives directions which, if I am right, will certainly be interpreted as punitive in some cases. Certainly some of the residential directions are liable to be interpreted as punitive. We are giving to the supervisors, and they are individuals—an absolute power which I think is quite without parallel under the present system. The clause is so appallingly complicated that I knew that an attempt on my part to restrict the power would be a failure. At this stage, therefore, I am only going to ask the Government if they will please think again whether some restriction could not be put upon this absolute power.
§ LORD STONHAM
My noble friend concluded her remarks by asking whether we would consider if some restriction could be put upon what she called the "absolute power" in the hands of the supervisor. I do not accept that it is "absolute power". Mainly my noble friend is concerned with the supervisor's power to order a particular kind of intermediate treatment. As she rightly said, a good deal of what she had in mind comes under Clause 19, which settles these schemes. The position is that the Secretary of State, while having a general power to approve these schemes, would leave the local initiative free play in devising different types of intermediate treatment. Certainly the supervisor would not have power to send the young person to a detention centre. I suppose he could tell the person to go to church. Cer- 882 tainly he could tell him to go to a youth club run by the church, or something of that kind. The supervisor would. of course, be a person of knowledge and discretion, and he would exercise that discretion reasonably. If he exercised it unreasonably, then there would be the power to go to the court about it.
Subsection (5) of Clause 19 provides that the facilities of a scheme shall be of a kind approved by the Home Secretary. The object of that is to make sure, if anyone were to think that planning permission was putting into schemes facilities which ought not to be included, that it would be possible to raise the matter with the Minister who is answerable to Parliament. But our intention is to approve a wide variety of appropriate kinds of facilities.
I will certainly have a look at my noble friend's concept of "absolute power" in the hands of the supervisor. I do not think it works out in that way. There has been talk earlier of flexibility in this matter, and certainly we want there to be flexibility; we want a wide choice of treatment. My noble friend asked whether the supervisor could order attendance at an attendance centre. If that is one of the facilities, I should have thought the answer would be "Yes", if that facility is in the neighbourhood. I do not see the difficulty my noble friend puts forward about the 90 days. I think that Clause 12 is quite clear on this point. It is possible, under paragraph (a), for a maximum of 90 days, with one person, to be ordered. Under paragraph (b) we get periods of 30 days in different years. That is the total—the maximum of 30 days. These 30-day periods in a year would give great scope for inventiveness or variety in the kinds of treatment: farm camps. holidays camps, attendances of that kind, and new initiatives on the part of local authorities. Frankly, I myself do not think much is wrong with either Clause 12 or Clause 19. It never occurred to me to regard the supervisors' powers as absolute, but that is an aspect I will look at.
§ BARONESS WOOTTON OF ABINGER
Before the noble Lord sits down, can he make it quite plain to me what it is that prevents the supervisor from saying, "You will go for 90 days and reside at so-and-so detention centre"? I cannot 883 find what it is that prevents that from being said. If he can say, "You must go to an attendance centre", to which at present young persons can be sent only by order of the court, what is there in this Bill that prevents him from saying, "You must go and live at a detention centre for 90 days", or 30 days or some other period?
§ LORD STONHAM
My understanding of the case is that such an order can be made only under the Act of 1962 and cannot be made under this legislation.
§ LORD STONHAM
That is my understanding on that last point, but I will check up and write to my noble friend.
§ Clause 12 agreed to.
§ Clause 13 [Selection of supervisor]:
§ 8.32 p.m.
VISCOUNT COLVILLE OF CULROSS moved Amendment No. 23:
Page 16, line 20, leave out subsection (2).
The noble Viscount said: This is another argument about flexibility which I will try to make a brief one. Subsection (2) puts a limitation on the power of the court to make a probation officer the supervisor of a child under 14. The circumstances in which he could do so are set out. I am bound to say that I do not altogether understand the limitations that are so imposed. In particular, it is not on the face of it easy to see why the insistence is placed upon the fact that the probation officer must be already exercising or must have exercised,
in relation to another member of the household to which the child belongs, duties imposed by the Criminal Justice Act".
§ Why the household? Why is it that that particular connection, and no other, is insisted upon in this context?
§ The other specification which is set out in the subsection is that the court cannot make the probation officer the supervisor unless the local authority so requests. Why should the local authority be in this position? I know that it provides the Child Care Service, and I suppose it may be that it is therefore in a position to know whether or not it can provide a child care officer instead of the 884 probation officer. But in some of these cases one can envisage that the court might not necessarily do well to take only the advice of the local authority on this matter.
§ At the present moment, the Probation Service is not a local authority service, and in some of these problem homes, as I understand it, there may already have been considerable contact between the local authority and the problem family concerned. They may be council tenants; they may have had everlasting rows about the rent: there may already have been contact between the family and the child and the Child Care Services run by the local authority under Section 1 of the 1963 Act, and they may have come to a considerable degree of disagreement with the local authority. In those circumstances, one might think that the court would do well to appoint as a supervisor somebody who was not directly connected with the local authority—for instance, the probation officer. He would be independent and it might he that he would be able, the local authority having failed through its officers to do so, to get at the root of the problem and to give some guidance which could no longer be done through the local authority Child Care Service.
§ It is precisely in these circumstances that the local authority might not ask for the probation officer to be made the supervisor. It might think that for some reason its Child Care Service officers had been slighted, or that it would be an insult to them not to continue from where they have got so far. There might be any number of reasons, and the court would be unable to overrule them without the specific Amendment to this subsection. So there are at least two points of inflexibility here, the object of which I do not fully understand, and I should be very glad if the noble Lord could make them rather more clear and justify them to the Committee before we allow this subsection to remain in the Bill as it is. I beg to move.
§ LORD STONHAM
The effect of Clauses 11 and 13(2), taken together, is that the court has a complete discretion to appoint either the local authority or a probation officer to supervise a young person aged 14 to 17. Therefore there is no kind of argument about that provision. In the case of a child under 14, the local 885 authority must be appointed, unless the probation officer is exercising or has exercised statutory functions with another member of the household and the local authority request his appointment. I can see at once that if the local authority do not request that, then under those circumstances, even when the probation officer has been dealing with the family, the court cannot appoint him. I would only say on that score that if the probation officer has been dealing with the family, or with the particular child, then it would be in the highest degree unlikely that the local authority would be so foolish as to ignore the experience which the probation officer has gained, both with the family and, possibly, with the child.
But I would point out that if we were to delete subsection (2) of Clause 13, which in the Government's view is one of the most important provisions in the Bill, it would be giving the court complete discretion to appoint either the local authority or a probation officer as supervisor at all ages from 0 to 16 inclusive. The noble Viscount will agree, I think, that when we come down to the lower ages of children, from 0 up to 14, in the lower echelons of that group the children's officers and the local authority are already in most cases dealing with the family, and it is they who have the experience.
The object of subsection (2) of Clause 13 is to establish a sensible relationship between the fast-growing preventive and supervisory work of the Children's Service and the work of the Probation Service at the point where they meet. I think I said in my Second Reading speech that this subsection (2) recognises the primary responsibility of the Children's Service for work with children aged from 0 to 14; but it enables advantage to be taken of an established relationship in cases where the Probation Service is already working, or has worked, with another member of the child's family. Of course, between the ages of 14 and 17, the Bill provides an overlap so that either service may be used as the court thinks appropriate. But the juvenile court jurisdiction ends in general at the 17th birthday, and from that age upwards the courts will continue to make probation orders.
This is a carefully worked out scheme which takes full account of the views of 886 all the interests concerned. Indeed, it has attracted more general acceptance than any other solution to this problem which has been advanced. I wonder whether the noble Viscount will bear with me while I mention some of the authorities—
§ LORD STONHAM
Yes; or who did not mention that they objected. Let me just read them out. The Association of Municipal Corporations and the County Councils Association—not unimportant bodies—agree with the Bill. The National Association of Probation Officers, in their memorandum on the Bill dated March 7, recognise:the force of the argument that young delinquents, say those under 14, should be dealt with by the service which has responsibility of helping other children",and accept the principle of Clause 13(2). I think that is fairly convincing. The Magistrates' Association, in commenting on The Child, the Family and the Young Offender, suggested a dividing line at the fourteenth birthday, as in the Bill, and their memorandum to the Home Secretary on Children in Trouble suggested that the Probation Service should operate from the tenth birthday upwards. This, of course, is more in line with what the noble Viscount suggested. The Financial Memorandum on the Bill does not mention subsection (2) of Clause 13 at all.
The Association of Children's Officers go much further than the Bill. They suggest that supervision should be a local authority responsibility up to school-leaving age. The Seebohm Committee were against divided responsibilities towards children, and recommended that the local authority social service department should be responsible for providing a social work service for the courts for all those under 17. That appears in paragraph 265 of their Report. Again, it goes much further than the Bill. Then the Central Council of Probation and After-Care Committees do not question the basis of the proposals in the Bill in relation to children under 14, and they do not criticise Clause 13(2).
VISCOUNT COLVILLE OF CULROSS
May I interrupt the noble Lord? Did they not mention it, or did they specifically say that they did not criticise it?
§ LORD STONHAM
I do not think they mentioned it at all; but certainly they did not criticise it. The Principal Probation Officers' Conference considered that the choice of supervisor should rest with the court for children below the age of 14 as well as above. So that is about the one winner that the noble Viscount has.
§ LORD STONHAM
All right, two; but one was a qualified winner and all the others—immensely powerful bodies—are against this Amendment. I submit to the noble Viscount that the Amendment would omit the whole scheme that I have described and would put nothing in its place. It would provide for complete duplication of functions, but only in cases, right down to the age of nought, which I am sure neither the noble Viscount nor anybody else wants.
In the Second Reading debate the noble Lord, Lord Hamilton of Dalzell, speaking of the views of the majority of the probation service, said this:In general they agree that it is right and inevitable that the same service that looks after the interests of children who are not delinquents should look after the delinquent ones too, at any rate as soon as there are enough trained people to take the job over".—[OFFICIAL REPORT, 19/6/69, col. 1192.]We do not expect them to take the job over in full until there are enough trained people.
I do not think that the noble Viscount will want me to give any further examples, but I will say just one thing that is perhaps of supreme importance. In considering the division of responsibility between the two services, only a small and diminishing proportion of the work of supervising and helping children and their families is done under a court order. For the year ending March 31, 1967, 65,000 families, involving 160,000 children, were helped by local authorities under Section 1 of the 1963 Act. The noble Viscount asked me why the local authorities are concerned. I think this is the answer. They are doing it on a massive scale under the provisions of the 1963 Act, which are very similar to the provisions contained in this Bill. All those children were helped by the child care officers.
888 In addition, on March 31 last year nearly 18,000 children were under the supervision of local authorities under the Children Act 1958 and the Adoption Act 1958. On the other hand, 10,000 children under the age of 14 were placed under supervision in care proceedings or were put on probation in 1967. This is the relative scale of what has been going on to an increasing extent. Of course the nature of the work does not differ fundamentally whether or not there is a court order, and under the Bill more and more cases—especially of children under 14—will be dealt with informally, outside the courts, by the local authority, using their powers under Section 1 of the Act of 1963. It is unrealistic to draw a sharp dividing line between the relatively small number of cases where a supervision order is made by the court and all the other cases dealt with by the local authority. It does not seem sensible that the large and growing proportion of the work not done under court order should be recognised as the job of one service, and then to use another service for a small minority of cases where court action followed by supervision is required.
I hope the noble Viscount will agree with me that the argument against his Amendment, and the authorities against it, are almost overwhelming, and I trust that, now that they have been deployed. he will feel able to withdraw the Amendment.
VISCOUNT COLVILLE OF CULROSS
The difficulty about putting down an Amendment to leave out a subsection is that the Amendment itself does not pinpoint the area of argument that one wishes to cover. On the other hand, it has the advantage that it gives your Lordships an opportunity to hear a full explanation from the noble Lord, for which I am sure we are all grateful.
Not for one moment am I suggesting that probation officers ought normally to be the people who supervise babies in arms; nor do I quarrel with the division that has been broadly agreed, that up to the age of 14 it should be the local authorities who have the primary task of looking after the children, whether they are supervising formally under a court order or acting under Section 1 of the 1963 Act. I do not disagree with that principle any more than those who 889 wrote most of the letters disagreed with it. I am not attacking that point at all. I am suggesting that cases can be envisaged in which the local authority may not request the court that the probation service should take over. There may be all sorts of reasons why they do it, which one can think of only rather hazily at the moment, but as the Bill stands at the moment unless they so request the court has no option. It has to give the supervision to the local authority's children's department. I can see that as a matter of general principle it is quite right to set this out in Clause 13(2), but what I cannot understand, and what the noble Lord has not really explained, is why we give the local authorities this power of veto which prevents the courts from using the probation officer as the supervisor even where the courts—bearing in mind and accepting that it will be the unusual case—think it is right, simply because, for some reason, the local authority has not made the request. In this case, I think the thing to do is to put in some exception, and I am sure that a small drafting Amendment can be made which will detract in no way from the principle which the noble Lord has described, and which I support and see the sense of, but which will prevent there being a complete obstacle to flexibility in this case.
I cannot see why there should be any objection to this. Things may go wrong—the message may not arrive, the court may not be told that the local authority consents; I can envisage adjournments and delays. It is just this sort of inflexibility which causes trouble in practice. That is all I am asking in this case. I have listened carefully to what the noble Lord has said and I should like to read his remarks in full. I know the noble Lord always goes through the Committee stage debates and looks for points, and I believe there is a point here. It is probably a very small one, but nevertheless if it saves one case getting into difficulty, if it saves one case from having to be adjourned or there being some mix-up, or the right person not being appointed, then we shall have done a good job in trying to get it right, and I do not believe that it will do any harm at all if we do something of the sort I have been suggesting. Therefore I will leave it like that, for a little 890 further consideration on both sides, and for the moment I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 13 agreed to.
§ Clauses 14 and 15 agreed to.
§ Clause 16 [Provisions supplementary to s. 15]:
§ 8.50 p.m.
§ LORD STONHAM: moved Amendment No. 26A:
Page 19, line 28, at end insert—
("( ) Where the supervised person is arrested in pursuance of a warrant issued by virtue of the preceding subsection and cannot be brought immediately before the court referred to in that subsection, the person in whose custody he is shall bring him forthwith before a justice and the justice shall either direct that he be released forthwith or—
- (a) if he has not attained the age of eighteen, make an interim order in respect of him;
- (b) if he has attained that age, remand him.")
§ The noble Lord said: I hope it will suit your Lordships' convenience, and that I shall get just one small cheer tonight, if I suggest that with this Amendment we discuss also Amendments Nos. 29B, 36A and 36B.
VISCOUNT COLVILLE OF CULROSS
So long as the noble Lord is not suggesting that we are going to reach those Amendments this evening, I entirely agree that they should be discussed.
§ LORD STONHAM
Subsection (2) of Clause 16 empowers a justice to issue a summons or warrant for the purpose of securing the attendance of a supervised person before the court. In the ordinary way the supervisor merely brings the person before the court, and it is seldom necessary to use any compulsory powers. In the few cases where it is necessary to issue a warrant it may not always be possible to execute the warrant on the day on which the juvenile court sits. The new subsection contained in Amendment No. 26A therefore provides that if the supervised person cannot be brought immediately to court he is to be brought before a justice who may either direct his release or make an interim order (and of course interim orders cannot be for longer than 28 days) or, if he is over the age of 18, remand him.
891 The other three Amendments are consequential on this first Amendment. Amendment No. 29B, to Clause 22(5), provides that a "young person" (this is the expression used) who would otherwise be subject to an interim order may, if he is of an unruly character, be committed to a remand centre. Since the first Amendment contemplates the making of an interim order up to the age of 18 the expression "young person" is inappropriate and the second Amendment substitutes a reference to a person over the age of 14. The third and fourth Amendments contain drafting adjustments to Clause 32. I beg to move Amendment No. 26A.
Page 19, line 28, at end insert the said new subsection.—(Lord Stonham.)
§ Amendment moved
Page 19, line 23, at end insert—
("( ) If on an application or reference to a court under subsection (1) of the preceding section
- (a) the supervised person is brought before the court under a warrant issued on an interim order made by virtue of the foregoing provisions of this section; or
- (b) the court considers that it is likely to exercise its powers under that subsection to make an order in respect of the supervised person but, before deciding whether to do so, seeks information with respect to him which it considers is unlikely to be obtained unless the court makes an interim order in respect of him,
the court may make an interim order in respect of the supervised person").—(Lord Stonham.)
§ Clause 16, as amended, agreed to.
§ Clauses 17 to 19 agreed to.
§ LORD STONHAM
With the special co-operation of the noble Viscount, Lord Colville, we have made unexpectedly rapid progress in the last hour, and I think it will be for the general convenience of the Committee if we adjourn at this stage, on the understanding that when we resume the Committee stage on Wednesday we shall conclude it that evening.
VISCOUNT COLVILLE OF CULROSS
I entirely agree with what the noble Lord has said. I understand the understanding, and so far as I can deal with it I will stick to the matter. My noble friend Lord Jellicoe will certainly be informed of what has been said and I have never found him the least obdurate in these matters.
§ House resumed.