My Lords, these amendments concern youth justice matters. I will address each of them in turn.
Amendment 219B, tabled by the noble and learned Lord, Lord Falconer of Thoroton, would require the centralised monitoring of youth remand decisions made by the court and the laying of a report of findings before Parliament on an annual basis. I understand that the amendment’s purpose is to improve the scrutiny and monitoring of youth remand trends. However, that is precisely what our measures seek to achieve, as I will explain, while leaving the detail of operational processes to the various operational bodies. We think that this is the better way to do it.
The new measures will require the court to be explicit that they have considered not only the two sets of conditions but the interests and welfare of the child. Furthermore, while at the moment the court only has to explain the reason for remand in open court and specify it in the warrant and in the register, our new subsection (5)(za) requires that the court also gives the reasons in writing to the child, their legal representative and the youth offending team, which will enhance the ability of those justice partners to monitor the reasons for custodial remand.
Turning to the specific question put to me by the noble and learned Lord, Lord Falconer, on what arrangements are in place for monitoring courts’ decisions and whether statistics are readily available, as I have said, courts already state in open court their reasons for remanding the child to youth detention accommodation. That information is included on the warrant of commitment and the court register. Pronouncement cards from the Sentencing Council provide guidance to the judiciary on how to do that.
As for statistics, my department already publishes annual statistics on court outcomes on youth remand. The population on remand in the youth custody estate is published monthly. We have new IT systems being developed and, in light of those new systems, we will reconsider the best way to collect, analyse and, so far as is appropriate, publish the information that courts will now be required to provide in writing. However, it is best to leave that granular level of operational process to the entities doing the work on the ground, rather than to prescribe it in statute. Our intentions are certainly aligned. I am sure that the noble and learned Lord will appreciate the need for pragmatism in how best to achieve that.
Amendments 220, 221 and 221ZA seek to raise the age of criminal responsibility from 10 to 12 and to require the Secretary of State to complete a review of the age of criminal responsibility including, as my noble friend Lord Sandhurst explained, an assessment of the protected characteristics of children in detention, under the Equality Act. I listened very carefully to my noble friend and, I think it is fair to say, I set out the position on that in some detail on Monday. With respect, I am not going over that again. I hope I made the Government’s position clear on Monday.
I am grateful to the noble and learned Baroness, Lady Butler-Sloss for raising Amendment 220. I am aware, as she said, that she has brought this to the attention of the House on a number of previous occasions. As far as open ears are concerned, I assure the noble and learned Baroness that my ears are always open. I listened carefully to her speech and the speeches of the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Thomas of Cwmgiedd. I join other noble Lords in wishing the noble Lord, Lord Dholakia, who is absent, a speedy and full recovery.
I will set out the Government’s position on this issue. We believe that setting the age of criminal responsibility at 10 provides flexibility in dealing with children, allowing early intervention with the aim of preventing subsequent offending. Our primary objective when it comes to children, as I have made clear on previous groups, is to prevent children offending in the first place. Where there is offending, we need to provide the police and courts with effective tools to tackle it. Critically, having the age of criminal responsibility at 10 does not preclude other types of intervention—for example, diversion from the criminal justice system—where it would be a more suitable and proportionate response. To that extent, I agree with the noble Lord, Lord German, that diversion from the criminal justice system should be at the heart of how we approach children in the vast majority of cases.
When considering the most appropriate and proportionate response to offending by a young person, the maturity and needs of a child, as well as their age—to make the obvious point, a 12 year-old is not a 17 year-old—are always considered. We also consider protected characteristics in our work, as per the public sector equalities duty. This is borne out in practice. Most children aged 10 to 14 are diverted from the formal criminal justice system or receive an out of court disposal. The number of children aged between 10 and 12 years in the youth justice system has fallen dramatically since 2009, and we are keen for that downward trend to continue. Since 2010, which is more than a decade ago, no 10 or 11 year-olds have received a custodial sentence.
It is, however, important—to this extent, I adopt the remarks of the noble and learned Lord, Lord Falconer of Thoroton—to ensure that, when appropriate, serious offences can be prosecuted and the public protected. The horrific Bulger case has been mentioned by a number of noble Lords and I remember it clearly. I grew up in Liverpool and it shocked my native city to the core. Whether we are talking about the Bulger case or any case involving children, even the most serious, there is a distinct and separate sentencing framework for children aged 10 to 17, which recognises that they have their own specific needs that require a different and more tailored approach. That looks at age, so someone aged 13 is treated differently from someone aged 17 and a half. As noted by the noble Lord, Lord Carlile of Berriew, that pervades the approach of the criminal justice system to children. It is not a matter just of clothing, words or wigs; there is a fundamentally different approach tailored to dealing with children.
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The Government therefore believe that the current age of criminal responsibility is appropriate and there is no need to either change or review it. Although I am always happy to discuss anything with anyone, I have to set out the Government’s policy clearly to the Committee and that there are no plans to change it. I heard the noble Lord, Lord Marks, on how we may or will approach this matter on Report, but I hope he accepts that I have set out the Government’s position with clarity.
Amendment 221A would place a statutory duty on youth offending teams to develop a pre-charge diversion scheme for children in their local area. As I have said, we agree that, wherever possible, children should be diverted from the criminal justice system into services that provide support to address their offending behaviour. Diversion is widely practised by the majority of youth offending services across England and Wales. The Youth Justice Board and the National Probation Service initiated the prevention and diversion project to help understand more clearly the effectiveness of prevention and diversion schemes. The Youth Endowment Fund is investing in diversionary activity. My department is supporting work such as the deferred prosecution pilot, called Chance 2 Change, where children complete a programme of intervention work as an alternative to being prosecuted. We believe that youth offending teams, on the ground and in partnership with local agencies, are best placed to decide the most appropriate way to divert children out of the youth justice system.
However, the decision to divert has to remain the role of the police, in consultation with the CPS and youth offending teams. Therefore, I suggest that the proposed change to the statutory obligations of youth offending teams is not necessary, given what is already happening on the ground. I urge that that amendment is also not pressed.
I come finally to Amendment 221B, in the name of my noble friend Lady Sater, which calls for an overall review of sentencing for children. I understand the amendment’s intent to ensure that youth sentencing is effective and meets the principal aim of the youth justice system to prevent offending. I will make a broad point, then turn to the specific point she raised about people who turn 18 during the process.
As I have said, the current sentencing framework provides flexibility to address the different needs and profiles of children who commit crimes. I have already explained how the current system has a range of sentences and approaches and have spoken about the youth offending teams. The genesis of the youth justice measures in this Bill is the White Paper entitled A Smarter Approach to Sentencing, where we set out our assessment of the key areas of the youth sentencing framework that could be improved. As I have said on other groups, there is evidence that community sentences can be more effective than custody at reducing reoffending. We want to give the courts more effective tools to divert children from custody, while keeping the public safe. Although there may be children who have committed serious offences for whom custody is the only appropriate option, we monitor the youth justice system on an ongoing basis to make sure it is working properly in practice.
As I understood it, the specific example that my noble friend raised was of a child who committed a crime at the age of 17, but who turned 18 before appearing in court and being sentenced. The answer to that point is to bear in mind that, although the offender is now an adult and being sentenced at 18, sentencing powers are determined by their age at the time of conviction. That therefore means that some cases, when a child turns 18 after an offence is committed but before their first appearance in court, they will be tried in an adult court, as my noble friend pointed out. However, sentencing guidelines make it clear that courts should use the sentence that would have been given at the time the offence was committed, as a starting point. In addition, the guidelines emphasise that sentencers should take an offender’s maturity and all other relevant factors into account, even after they turn 18. I invite my noble friend and other noble Lords who have put down these amendments not to press them, for the reasons I have set out.