RESEARCH PAPER The Crime and Disorder · The Crime and Disorder Bill is due to be debated on Second Reading on Wednesday, April 8th. This paper considers the provisions of the Bill

RESEARCH PAPER 98/43

6 APRIL 1998The Crime and DisorderBill [HL][Bill 167 of 1997-98]:Youth Justice,Criminal Procedures andSentencing

The Crime and Disorder Bill is due to be debated onSecond Reading on Wednesday, April 8th. This paperconsiders the provisions of the Bill relating to childrenand young people and the youth justice system, as wellas more general provisions concerning criminalprocedure, sentencing guidelines and the use ofelectronic monitoring to enforce curfews imposed onshort term prisoners released early. The provisions ofthe Bill relating to anti-social behaviour, racialviolence, sex offenders and drug-dependent offendersare discussed in Research Paper 98/44The Crime andDisorder Bill: Anti-social neighbours, sex offenders,racially motivated offences and sentencing drug-dependent offenders. The abolition of the death penaltyfor treason and piracy will be discussed in a revisedissue of Research Paper 94/25 Capital Punishment

Mary Baber

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Summary

The Crime and Disorder Bill is designed to implement the Government's manifestocommitments concerning law and order and a number of other proposals set out in variousHome Office consultation papers published since the May 1997 General Election and theFebruary 1997 report of the Review of Delay in the Criminal Justice System (The NareyReport)

This paper is concerned with provisions in the Bill relating to the prevention of youth crimeand the treatment of young offenders in England and Wales, including provisions imposingnew duties on local authorities, the police and others to co-operate in developing strategiesand taking steps to reduce crime by young people. This part of the paper also discusses theBill's provisions concerning sentencing guidelines and advisory bodies.

The paper goes on to discuss provisions for parenting orders. A section discussing theprovision concerning child safety orders and local child curfews is provided by Jo Roll fromthe Library's Social Policy Section. The paper then moves on to deal with changes to criminalproceedings involving young offenders, including the abolition of doli incapax

The next section of the paper is concerned with those provisions of the Bill which aim toreduce delay in the criminal court system by imposing time limits and other measures. This isfollowed by discussion of the new statutory arrangements for reprimands and warnings,which will replace the current non-statutory cautioning system, and the introduction ofreparation orders, action plan orders and the replacement of the current custodial sentencesfor young offenders with a detention and training order.

The final part of this paper discusses electronic monitoring or "tagging" of offenders and theGovernment's proposals for home detention curfews for certain short term prisoners

CONTENTS

Page

I Duties, aims, responsibilities and strategies for dealing with crime in England and Wales 7

A. The duties of local authorities and the police in relationto crime and disorder prevention 7

B. The aims of the youth justice system and the duties of people working within it 10

C. Sentencing Guidelines and the Sentencing Advisory Panel 15

1. Current Sentencing Guidance 152. New Procedures for Sentencing Guidelines and a Sentencing 17

Advisory Panel

D. A Standing Advisory Council on Criminal Justice and the Penal System?22

II Young Offenders and Child Safety 27

A. Parental responsibility for their children's criminal activities 27

1. The Crime and Disorder Bill: Parenting Orders 322. Preventing youth crime: children below the age of 10: child 37

safety orders and local child curfews[Jo Roll, Social Policy Section]

B. Age of criminal responsibility: the presumption of doli incapax 47

C. Abolition of the "right to silence" at trial for offenders aged 10-13 56

III Court Procedures 59

A. Time Limits 59B. Reducing Delays 62C. The Crime and Disorder Bill 64

1. General time limits and additional time limits in cases involvingpeople under 18 64

2. Powers of youth courts 68

contents continued overleaf…Page

3. Powers of single justices in magistrates' courts 704. Ending of committal proceedings for indictable-only offences 775. Powers of non-legal staff in the Crown Prosecution Service 806. Bail 817. Use of live television links at preliminary hearings 85

IV New Measures for Dealing with Young Offenders 86

A. Reprimands and warnings 86

B. Young offenders: Non-custodial penalties and orders 89

C. Young Offenders: Custodial Sentences 92

D. Young Offenders: Remands to local authority secure accommodation,remand centres and prisons 95

V Electronic monitoring of offenders 98

1. General provisions for the electronic monitoring, or "tagging" 98of offenders

2. The Crime and Disorder Bill: home detention curfews 100

VI Appendix: Payment of fines and compensation orders by parents 104

Research Paper 98/43

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I Duties, aims, responsibilities and strategies for dealing withcrime in England and Wales

A. The duties of local authorities and the police in relation to crime anddisorder prevention

Clauses 6-8 and 17 of the Crime and Disorder Bill are intended to create specific duties forlocal authorities and the police in relation to the prevention of crime and disorder. They arebased on proposals set out in the consultation document Getting to Grips with Crime: A NewFramework for Local Action, published by the Home Office in September 1997. Theconsultation paper considered the impact on the police service and local authorities of the"Morgan Report", the report of an independent working group entitled Safer Communities:The Local Delivery of Crime Prevention through the Partnership Approach, which waspublished by the Home Office in September 1991. The report has not been implemented,although its advocacy of a broadly based partnership approach to crime prevention as ameans of enhancing "community safety" has been widely accepted by the police and localauthorities. In the consultation document Getting to Grips with Crime1 the Government said:

9. The years which have elapsed since Morgan have seen a complete acceptance of thepartnership concept at all levels of the police service. The service now explicitly recognisesthat it cannot cope with crime and disorder issues on its own, and has enthusiasticallyembraced the idea of working closely with other agencies. This flexible outlook does itmuch credit. And the extent of existing local authority activity in the crime reduction fieldwas vividly illustrated by the "Survey of Community Safety Activities in LocalGovernment in England and Wales" published in July 1996 by the then local authorityassociations. The fact that nearly three quarters of all local authorities participated in thesurvey in itself says something about the increasingly high profile of the subject in the listof local government priorities, and some very encouraging statistics emerged. Forexample:

•around 90% of authorities recognised community safety as an area of work relevant tothem, and 84% had reported on it to the relevant committee within the two precedingyears; •62% of authorities were engaged in independent multi-agency partnerships, with32% also involved in other types of partnership; •62% undertook local crime patternanalysis, and over a third did crime audits; •51% had a separate budget for communitysafety; •37% have appointed their own community safety of officer; and •67% rundiversionary holiday schemes for young people.

There were also some less encouraging findings, however. Various factors restrictingfurther development of the work were identified, including the attitude of centralgovernment, the internal priority attached to the subject and the effects of local governmentre-organisation. One of the biggest barriers to progress was seen as the lack of a statutoryrole for local authorities.

1 Getting to Grips with Crime: A New Framework for Local Action - Home Office September 1997


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10. The change of attitude does not just encompass local government and the policeservice. There is a much wider recognition that more can be achieved working togetherthan in isolation. Voluntary collaboration is happening in far more places, and in far morevaried and innovative ways, than when Morgan reviewed matters in 1991, and a vast fieldof experience has built up around the country. The Government intends to nurture thisprocess and tap into this pool of know-how by providing a sympathetic and helpful newframework within which partnerships to reduce crime and insecurity can develop.

Details of how this framework was to be established were set out in chapter 2 of theconsultation document.

Clause 7 of the Crime and Disorder Bill sets out part of the Government's plan forimplementing these proposals for local crime prevention partnerships. It seeks to require localauthorities and the police for a local government area2 (together known as the "responsibleauthorities") to draw up and implement a strategy for reducing crime and disorder in theirarea. The bodies who are to be responsible for formulating these strategies within each localgovernment area are defined in Clause 6(1) as, in the case of local authorities, the unitaryauthority for the area or, if the council is not a unitary authority, the district council and thecounty council in which the district falls; and in the case of the police, every chief officer ofpolice, part of whose police area lies within the area.

Clause 6(2) is intended to require local authorities and the police, in exercising their functionsin relation to the formulation and implementation of the strategy, to act in co-operation withtheir local police authorities, probation committees or health authorities and any otherpersons or bodies prescribed by order of the Home Secretary. These authorities, persons andbodies will in turn be under an obligation to co-operate with the police and local authorities inthe exercise by them of their responsibilities for developing and implementing the strategy.

Before formulating a strategy, the responsible authorities will be required to carry out areview of the levels and patterns of crime and disorder in the area and analyse the results,publish a report of that analysis and obtain local views on that report in various ways,including the use of public meetings. Clause 7(3) seeks to require the responsible authoritiesto base their strategy on the analysis of the results of its review and the public consultationprocess. The strategy will have to contain objectives with short and long term performancetargets and details of the organisations responsible for their achievement. It is intended thatthere should be scope for organisations other than the police and local authorities to takeresponsibility for certain objectives. The local authorities and police responsible for thestrategy will have to publish a document in their area detailing all the bodies involved indeveloping the strategy, the review process and the analysis of its findings and the details ofthe strategy itself, including the objectives and performance targets.

2 In relation to England and Wales, "local government area" means each district or London Borough, the City ofLondon, the Isle of Wight and the Isles of Scilly, while in relation to Wales it means each county or countyborough.


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Clause 7(6) seeks to require the local authorities and police to keep the strategy under reviewduring its lifetime to ensure that it remains effective and relevant to local needs. A strategywill be expected to run for three years from the implementation of Clause 7 and for everysubsequent period of three years.

Referring to Clause 6 the Notes on Clauses say:

The clause will ensure that the vital work of tackling crime locally is takenforward in every district, borough and unitary authority area in England and Walesand that the same key partners are involved, and on the same basis, everywhere.

Of Clause 7 the Notes on Clauses state that:

The Clause aims to ensure that the strategies are developed on a broadly consistentbasis across the whole of England and Wales (without being prescriptive as to thedetail) and in particular that they take full account of the concerns of the localcommunity, rather than relying solely on participating agencies' perceptions oflocal problems. The obligation to publish details of every stage of the process willenable local people to judge the effectiveness of their outcomes.

Clause 8 is designed to give the Home Secretary powers to call for reports from the localauthorities and the police in any area on the discharge of their duties under Clauses 6 and 7and to have the reports published. The Notes on Clauses state that:

The aim in taking these powers is not to enable the Home Secretary to interfere inthe day to day development or delivery of the local strategies, or in any way toprescribe the detail of how individual local authorities or chief constables shouldgo about discharging their duties under Clauses [6 and 7]. It is simply to provide aclear legal power for him to become involved if there is evidence that a particularstrategy is failing. The need for such a power was signalled in chapter 2 of theconsultation paper Getting to Grips with Crime: a New Framework for LocalAction

Chapter 2 of the consultation paper Getting to Grips with Crime also describes theGovernment intentions in relation to Clauses 6 and 7 in more detail.

Clause 17(1) of the Bill is designed to require local authorities to consider crime and disorderreduction while exercising all their many functions. It states that:

Without prejudice to any other obligation imposed on it, it shall be the duty ofeach authority to which this section applies to exercise its various functions withdue regard to the likely effect of the exercise of those functions on, and the need todo all that it reasonably can to prevent, crime and disorder in its area.


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The section applies to a local authority3, a joint authority4, a police authority, a National Parkauthority5 and the Broads Authority.The Notes on Clauses state that:

The aim is to reflect the reality that there are crime and/or disorder implications indecisions made across the full range of local authority services, and to correct thecurrent situation under which these implications are often not recognised at thetime decisions are taken, with highly expensive consequences.

B. The aims of the youth justice system and the duties of people workingwithin it

Section 17(1) of the Children Act 1989 provides that:

It shall be the general duty of every local authority (in addition to the other dutiesimposed on them by this part)-

a) to safeguard and promote the welfare of children within their area who are inneed; and

b) so far as is consistent with that duty, to promote the upbringing of suchchildren by their families,

by providing a range and level of services appropriate to those children's needs.

Local authorities are given specific duties and powers under Schedule 2 to the Children Act1989 for the purpose principally of facilitating the discharge of their general duty undersection 17.The current responsibilities of local authorities in relation to the prevention ofyouth crime are set out in paragraph 7 of Schedule 2 to the 1989 Act, which provides thatevery local authority shall take reasonable steps designed:

a) to reduce the need to bring criminal proceedings against children within its area; andb) to encourage children within its area not to commit criminal offences

In a discussion paper entitled Tackling Youth Crime: Reforming Youth Justice, published bythe labour Party in May 1996, the then shadow Home Secretary Jack Straw and then shadowHome Affairs Minister Alun Michael suggested that a key problem within the youth justicesystem aid was confusion over welfare and punishment:6

At the heart of the crisis in youth justice is confusion and conflict between welfareand punishment. Too many people involved with the system are unclear whetherthe purpose is to punish and signify society's disapproval of offending or whetherthe welfare of young offenders is paramount because their personal development is

3 As defined by section 270(1) of the Local Government Act 19724 As defined by the Local Government Act 19855 i.e.an authority established under section 63 of the Environment Act 19956 Tackling Youth Crime: Reforming Youth Justice - Labour Party May 1996 p.9


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incomplete. The confusion is illustrated by the issue of remanding to localauthority secure accommodation. A court considers whether a young offendermeets the criteria for secure accommodation. But its decision amounts only to arecommendation to the local authority who in turn may decide under the ChildrenAct 1989 that it is not in the young person's interest to place them in suchaccommodation. The government has declined to resolve this conflict betweendifferent pieces of legislation.

This confusion cannot continue. A new balance has to be struck between thesometimes conflicting interests of welfare and punishment. First and foremostyouth crime represents acts against other members of the community. Youngoffenders need to be held to account for their actions. The younger an offender,the less developed may be their sense of responsibility. Nevertheless a youngperson caught committing a crime must be challenged and a sanction must beapplied to develop their sense of right and wrong, and of the consequences whichfollow from offending. Punishment should be proportionate to the offence butprogressive if young people continue to offend. This is likely to require changesin the way information on previous offences are handled in the criminal justicesystem.

All this is common sense. It is how most people deal with unacceptable behaviourby children in a family setting or at school and on the sports field where badbehaviour is dealt with quickly rather than long after the event. Ultimately thewelfare needs of the individual young offender cannot outweigh the needs of thecommunity to be protected from the adverse consequences of his or her offendingbehaviour. The government seems to have lost sight of this guiding principle. Weintend to restore it, changing the law as necessary.

If carrying on cautioning creates an impression of no sanctions, offendingbehaviour is likely to continue and worsen. However, if the sanctions themselveshave insufficient rehabilitative elements to them and are simply punishment, theywill fall also. That is why more attention must be given to changing the behaviourof young offenders in the sanctions used.

The White Paper No More Excuses7, published by the Home Office in November 1997,reiterated this view:

2.1 In the past, the youth justice system has suffered from changing policypriorities and a lack of consistent direction. The Government believes that therehas been confusion about the purpose of the youth justice system and theprinciples that should govern the way in which young people are dealt with byyouth justice agencies. Concerns about the welfare of the young person have toooften been seen as in conflict with the aims of protecting the public, punishingoffences and preventing offending. This confusion creates real practical difficultiesfor practitioners and has contributed to the loss of public confidence in the youthjustice system.

7 CM 3809


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2.2 Children need protection as appropriate from the full rigour of criminal law.Under the UN Convention on the Rights of the Child and the EuropeanConvention on Human Rights, the United Kingdom is committed to protecting thewelfare of children and young people who come into contact with the criminaljustice process. The Government does not accept that there is any conflict betweenprotecting the welfare of a young offender and preventing that individual fromoffending again. Preventing offending promotes the welfare of the individualyoung offender and protects the public.

2.3 The different youth justice agencies have different roles and in some casesdifferent professional and statutory responsibilities to uphold. But all agenciesdealing with young offenders also have a responsibility to deliver the aims of theyouth justice system of which they are part. Preventing offending by young peopleis a key aim: it is in the best interests of the young person and the public.

The White Paper added that:

2.4 Accordingly, the Crime and Disorder Bill will make clear that the aim of theyouth justice system is to prevent offending by young people. The Bill will place aduty on all people working in the youth justice system to have regard to that aim.

2.5 The new duty will cover all youth justice agencies across England andWales—i.e. the police, the probation service, social services, others working inYouth Offending Teams (see chapter 8), the Crown Prosecution Service, defencesolicitors, the Prison Service and courts—in their dealings with young people. Itwill help to provide unity of purpose and coherence of effort. The new duty will becomplemented by the Government’s proposals for a new Youth Justice Board forEngland and Wales to advise on setting standards and monitor performance (seechapter 8).

2.6 The new duty to have regard to the aim of the youth justice system will notsupersede practitioners’ existing functions but will encourage them to considerhow their actions and decisions when dealing with young people can help preventoffending. Avoiding unnecessary delays, for example, can reduce the chances ofoffending while awaiting sentence, and encouraging young people to face up to theconsequences of their offending behaviour can help change patterns of behaviour,as can community and custodial penalties which focus clearly on the causes ofoffending and which are properly enforced.

2.7 This clear focus on preventing offending by young people will reinforcemeasures in the Crime and Disorder Bill to place new duties on local authoritiesand the police in partnership to prepare strategies for reducing local crime anddisorder.

Clause 34 of the Crime and Disorder Bill is intended to implement he proposal that the youthjustice system should have the statutory aim of preventing offending by young people. Itprovides that:


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1) It shall be the principal aim of the youth justice system to prevent offending bychildren and young persons.

2) In addition to any other duty to which they are subject, it shall be the duty ofall persons and bodies carrying out functions in relation to the youth justicesystem to have regard to that aim

The "youth justice system" is defined in Clause 39 of the Bill as "the systemof criminal justice in so far as it relates to children and young persons". TheNotes on Clauses state that the system the system therefore comprises thepolice; the probation service; social services (and others working in YouthOffending Teams, once these are established); the Crown ProsecutionService; the courts; defence solicitors; and the prison service, in theirdealings with children and young people within a criminal justice context.The Notes on Clauses add that:

For example, work with families in connection with a parenting order imposedwhere the child concerned has been convicted of a criminal offence would comewithin the youth justice system. Conversely, work in connection with a childsafety order - which is imposed on a child below the age of criminal responsibilityby the family proceedings court - would not come within the scope of the youthjustice system.

Clause 35 of the Bill is designed to place a duty on local authorities to ensure that, to the suchextent as is appropriate for their area, all youth justice services are available there. It alsoseeks to require police authorities, probation committees and health authorities to co-operatewith the local authority in ensuring that such services are available. It is intended to ensurethat a basic infrastructure of youth justice services is available in each local authority area.

"Youth justice services" are defined in Clause 35(3). They include the provision of persons toact as appropriate adults during police interviews with children and young persons;assessment and rehabilitation work associated with a warning given under clause 61; bailsupport; the provision of reports or other information required by courts in criminalproceedings; the provision of persons to act as responsible officers in relation to parentingorders, child safety orders, reparation orders and action plan orders; the supervision of youngpersons given community sentences and children and young persons sentenced to detentionand training orders or supervision orders; and the post-release supervision of children andyoung persons. Clause 35(4) seeks to enable the Secretary of State to extend, restrict orotherwise alter the definition of "youth justice services" by order. Orders made under thispower will have to be approved by both Houses of Parliament under the affirmativeprocedure8.

Clause 36 aims to require local authorities, in co-operation with police authorities, probationcommittees and health authorities, to establish one or more "youth offending teams" for theirarea. These are intended to be local inter-agency teams, consisting of at least one probation

8 Clause 101(3)


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officer, local authority social worker and police officer, a person nominated by a local healthauthority, a person nominated by the local chief education officer nominee and such otherpersons as the local authority thinks appropriate after consulting with the police authority,probation committee and health authority. Under Clause 36(6) the youth offending team orteams established by a particular local authority will be required to co-ordinate the provisionof local youth justice services to the courts and the local community and carry out anyadditional functions assigned to it under the youth justice plan drawn up and implemented bythe local authority under Clause 37.

Under Clause 37 it is intended that local authorities, probation committees and healthauthorities, should be required to draw up and implement an annual youth justice plan,following consultation with police authorities. The plan would be intended to set out howyouth justice services in their areas are to be provided and funded and the composition,funding and functions of youth offending teams. Clause 37(3) provides that the functionsassigned to a youth offending team may include functions under paragraph 7(b) of Schedule 2to the Children Act 1989, which, as has already been mentioned, requires a local authority totake reasonable steps to encourage children within its area not to commit criminal offences.

Clause 38 and Schedule 2 of the Bill are designed to enable the establishment of a YouthJustice Board. Clause 38(5) sets out the Board's functions as being:

(a) to monitor the operation of the youth justice system and the provision of youthjustice services;

(b) to advise the Secretary of State on the following matters, namely-(i) the operation of that system and the provision of such services;(ii) how the principal aim of that system might most effectively be pursued;(iii) the content of any national standards he may see fit to set with respect to theprovision of such services, or the accommodation in which children and youngpersons are kept in custody; and[(iv) the steps that might be taken to prevent offending by children and youngpersons;]9

(c) to monitor the extent to which that aim is being achieved and any suchstandards met;

(d) for the purposes of paragraphs (a), (b) and (c) above, to obtain informationfrom relevant authorities;

(e) to publish information so obtained;

(f) to identify, to make known and to promote good practicein the followingmatters, namely-

9 added by Government amendment during the report stage in the House of Lords HL Deb vol 587 c.895-6,19.3.1998


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(i) the operation of the youth justice system and the provision of youth justiceservices;[(ii) the prevention of offending by children and young persons; and(iii) working with children and young persons who are or are at risk of becomingoffenders]10;

(g) to make grants, with the approval of the Secretary of State, to local authoritiesor other bodies for them to develop such practice, or to commission research inconnection with such practice; and

(h) themselves to commission research in connection with such practice.

The establishment of such a Board, as a Non-Departmental Public Body sponsored by theHome Office, was proposed in the White Paper No More Excuses, which stated that theBoard would monitor the delivery of youth justice services and help to raise standards as partof a new national framework for youth justice11. The Board is to consist of between 10 and 12members appointed by the Secretary of State and including people who appear to him to haveextensive recent experience of the youth justice system.

Clause 38(6) seeks to give the Home Secretary the power to make orders, altering thefunctions of the Board or providing that any function he exercises in relation to the youthjustice system be assigned to the Board. Any such order will be made by statutory instrumentand will be subject to the approval of both Houses of Parliament under the affirmativeprocedure.

The Home Secretary is to have powers under Clause 38(7) to give direction and guidance tothe Board. Clause 39(3) also seeks to require local authorities, police authorities, probationcommittees and health authorities to act in accordance with any guidance given by the HomeSecretary in carrying out their duties under the Bill.

C. Sentencing Guidelines and the Sentencing Advisory Panel

1. Current Sentencing Guidance

Under the current sentencing framework the sentence imposed on an offender in a particularcase is entirely a matter for the judge, although he or she must keep within such maximumsentences as may be set out in the statute for the particular offence concerned. Maximumpenalties are designed to cater for the worst possible offence and have had little effect on thequestion of what should be the appropriate period of imprisonment for the majority of caseswhich come before the courts. Instead a "tariff" has been established by the Court of Appeal,guiding judges on the range of penalties imposed for offences for which the statutory maximumpenalties are high. This tariff is not to be found in any official publication, although D A

10 added by Government amendment during the debate on Third Reading in the House of Lords HL Deb Vol588 c.223-224, 31.3.1998

11 CM 3809 p.26


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Thomas' loose-leaf compendium Current Sentencing Practice can be regarded as virtuallyauthoritative. The range of sentences set out in the tariff tends to be well below the statutorymaximum for a particular offence.

Simple increases in statutory maximum penalties do not automatically lead to stiffer sentencesbeing imposed in individual cases. This could only be done by the imposition of statutoryminimum or mandatory sentences. A conviction for murder carries a mandatory life sentenceand the implementation of Section 2 of the Crime (Sentences) Act 1997 means that there are nowmandatory life sentences under section 2 of the 1997 Act for people convicted more than once ofany of a number of serious violent and sexual offences set out in that provision. A minimum ofseven years' imprisonment must also now be imposed on any person convicted for the third timeof a class A drug trafficking offence.

The formal channels of influence over sentencing decisions such as the Judicial Studies Board,which organises training seminars for judges, and the Court of Appeal, have in recent years beenattempting to encourage greater consistency in sentencing generally, on the grounds that it isinconsistencies in sentencing which have often contributed to public dissatisfaction with theoperation of the criminal law in this area. The Court of Appeal has issued decisions from timeto time which are specifically referred to a "guidelines" for future use. (The guidelines onsentencing for rape in R v Billam (1986) 1 WLR 349 resulted in marked increases in sentencinglevels for rape). However, even these "guidelines" do not deprive the judge of his discretionover the sentence which is ultimately imposed. The Court of Appeal has always been wary ofgiving the impression that its decisions are to be regarded as absolutely authoritative and hasoften stressed that each case depends on its own facts.

Lay magistrates receive guidance about sentencing and other matters from the justices' clerkswho serve their courts. The Magistrate's Association has produced Sentencing Guidelines forthose criminal offences which frequently come before magistrates' courts. The introductorychapter points out, however, that the guidelines are only starting points for discussion ofindividual sentences, not finishing points. The chapter goes on to say that the responsibility forthe sentence is that of the justices and it is they who must assess each case judicially havingregard to the circumstances of the particular offence and the circumstances of the particularoffender.

Sections 35 and 36 of the Criminal Justice Act 1988 enable the Attorney-General in certaincircumstances, to refer a sentencing decision by a judge at the Crown Court to the Court ofAppeal, with the leave of that Court, if it appears to the Attorney-General that the sentenceimposed is unduly lenient. The Court of Appeal may then quash the original sentence andsubstitute another, which may be more severe than the original, but must be within the range ofsentencing options which would have been available to the original court. The cases which maybe referred to the Court of Appeal are those involving

a) offences triable only on indictment (that is, triable only by a judge and jury atthe Crown Court.)


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b) offences of indecent assault on a woman or a man, threats to kill, cruelty topersons under 16, or attempts or incitements to commit any of theseoffences,

c) cases of fraud which have been tried on indictment following a transfer to theCrown Court under Section 4 of the Criminal Justice Act 1987, or followingthe preferment of a voluntary bill of indictment after the dismissal of acharge under Section 6 of the 1987 Act.

In the majority of cases it has dealt with under this procedure the Court of Appeal has increasedthe sentence handed down by the Crown Court. The Court of Appeal has, however, noted that itwill not intervene unless it is shown that there is some error in principle in the judge's sentencewith the result that public confidence will be damaged if the sentence is not altered.12

2. New Procedures for Sentencing Guidelines and a Sentencing Advisory Panel

In a paper prepared for the Parliamentary Labour Party Home Affairs Committee in March1996 entitled Honesty, Consistency and Progression in Sentencing the then shadow HomeSecretary, Jack Straw, noted that the current sentencing guidelines covered only a limitednumber of offences. He said:

What is required is a system of guideline judgments across the range of offencescoming before the courts in a properly integrated structure. Such guidelines shouldgive particular attention to the sentencing of repeat offenders to ensure that properaccount is taken of progression in sentencing.

Mr Straw went on:

We propose, therefore, that the Court of Appeal Criminal Division should be givena formal, proactive role to consult and deliver a system of sentencing guidelinesfor all offences. It should consult both expert opinion and the public in a structuredway. An enhanced role could be given to the Judicial Studies Board in helping toprovide such considered advice. The Court would not be dependent on the casesthat happened to be appealed to it, but would develop guidelines for all the maincategories of offence. These guidelines would, we suggest, be reviewed every 5years or earlier if the court felt it necessary.

It is also important that the public is provided with a comprehensible guide tocurrent sentencing practice. Recent research has shown that the public tend to bemisinformed about sentencing, underestimating the extent to which sentencersactually use prison sentences. This increases cynicism about the sentencingprocess.

12 Att-Gen's Reference (No. 5 of 1989) (R v Hill - Trevor) 90 Cr App R. 358. See also Att-Gen's Reference (No.4 of1989) 90 Cr App. R.366


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The Court of Appeal should be responsible for generating a better publicappreciation of sentencing decisions and ensuring that useful information on thegoing rates of sentence for particular crimes is available to the public.

Our proposals would not involve any constitutional impropriety or interferencewith the judicial process. But they would require an extension and formalisation ofthe current role of the Court of Appeal.

They would provide consistency with flexibility and clarity with justice. Thereshould be clear expectations on the starting point for sentences for offences such asburglary and drug dealing, with detailed comments on aggravating and mitigatingfactors to be taken into account.

There would be guidance on dealing with repeat offenders to ensure that there wasprogression in sentencing

The proposal to give the Court of Appeal a duty to lay down sentencing guidelines for all themajor offences was set out in the Labour Party Manifesto for the 1997 General Election,along with a proposal to extend the Attorney-General's power to appeal against undulylenient sentences.

In an Answer to an Oral Question from Debra Shipley on November 24th 1997 the HomeSecretary, Jack Straw said13

The Government are committed to implementing an effective sentencing systemand consistency in sentencing. I therefore intend to include provisions in the crimeand disorder Bill to require the Court of Appeal to consider producing sentencingguidelines when appropriate cases come before it and to review existingguidelines. The provisions will establish a sentencing advisory panel which willoffer advice to the Court of Appeal. There will be a statutory duty on the panel toconsult with those who represent interested bodies, such as victims and the police.

Further details of the proposals were set out in a note deposited in the Library14.

Clause 75 of the Bill seeks to provide that where a person who has been convicted appeals tothe Court of Appeal, or the Court of Appeal receives from the Sentencing Advisory Panel(which to be established under Clause 76) a proposal that sentencing guidelines for aparticular category of offence be drawn up or revised, the Court should consider whether ornot to produce sentencing guidelines for the particular category of offence concerned, or ifsuch guidelines already exist, whether or not they should be reviewed.

If the Court decides to produce or review guidelines it will have to have regard to:

(a) the need to promote consistency in sentencing;

13 HC Deb Vol 301 c.617(OA), 24.11.199714 DEP/3 5587


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(b) the sentences imposed by courts in England and Wales for offences of therelevant category;(c) the cost of different sentences and their relative effectiveness in preventing re-offending;(d) the need to promote public confidence in the criminal justice system; and(e) the views communicated to the Court by the Sentencing Advisory Panel, underClause section 76(4)(b)

Clause 75(4) provides that:

Guidelines framed or revised under this section shall include criteria fordetermining the seriousness of offences, including (where appropriate) criteria fordetermining the weight to be given to any previous convictions of offenders or anyfailures of theirs to respond to previous sentences.

Where guidelines are drawn up or revised following an appeal it is intended that the Court ofAppeal should, if practicable, include them in its judgment in the appeal. In other cases, it isintended that the guidelines should be included in a judgment by the Court at the nextappropriate opportunity.

Clause 67 is designed to provide for the establishment of a new body called a SentencingAdvisory Panel, to be constituted by the Lord Chancellor after consultations with the HomeSecretary and the Lord Chief Justice. The Clause seeks to provide the Panel withdiscretionary powers to propose to the Court of Appeal that sentencing guidelines be framedor revised for a particular offence, and a duty to make such a proposal if directed to do so bythe Home Secretary. The Notes on Clauses state that this will provide the opportunity to alertthe Court of Appeal to areas that may be of particular concern to the public.

Where a person appeals to the Court of Appeal against the sentence imposed on him for aparticular offence and the Court decides to produce or revise guidelines for that offence theCourt will be required to notify the Sentencing Advisory Panel.

Where the Panel receives a notification from the Court or makes a proposal to the Court forthe production or revision of guidelines Clause 76(4) seeks to require the Panel to:

• obtain and consider the views on the matters in issue of certain personsand bodies determined by the Lord Chancellor, after consultation withthe Lord Chief Justice and the Home Secretary;

• formulate its own views on these matters and communicate them to theCourt; and

• provide the Court with information on the sentences imposed by courtsin England and Wales for offences of that category and the cost ofdifferent sentences and their effectiveness in preventing offending

Clause 76 does not say what kind of person should be appointed to the Sentencing Advisorypanel. In response to a probing amendment from the Conservative peer Lord Henley during


20

the Bill's committee stage in the House of Lords the Solicitor General, Lord Falconer ofThoroton, said no final decisions had been taken on the composition of the panel, althoughthe matter was under discussion between the Home Secretary, the Lord Chancellor and theLord Chief Justice. He added15:

It may assist if I set out in outline the role of the panel and how we see it workingas this will inform any decision on the membership. The panel has been set up toprovide informed, well researched and objective advice to the Court of Appeal. Itneeds to be independent yet capable of reflecting the view of a wide range ofinterested parties and acting as a conduit for those views to the Court of Appeal. Itmust not however be seen to be dominated by any particular sectional interests.The panel has been set up to promote consistency in sentencing by providing theCourt of Appeal with some additional but very important tools which will assist inthe framing or revision of guidelines. It will be important for it to have the rightmix of "coal face" experience and broad-based knowledge of the criminal justicesystem. At the same time however it should not be too big and unwieldy if it is toact quickly and in a corporate fashion as we want it to. This means that we areprobably looking at about 12 members. Clearly, that limits to some extent therange of people and groups that can be represented on the panel. The panelhowever will consult widely so those whose interests are not directly representedon it will still have every opportunity to feed in their views.

The kind of people we expect to be on the panel may include for exampleacademic lawyers, researchers, sentencers and sentence providers and one or twopeople completely independent of the criminal justice system. The Government arevery interested to hear suggestions made by noble Lords tonight about possiblemembership. I am sure that the noble and learned Lord the Lord Chancellor willtake those into account, along with the views of the noble and learned Lord, LordBingham, and the Home Secretary with whom he is in discussion. Similarly, onthe question of who will be consulted, it is important that we do not seek to be tooprescriptive at this stage about membership of the panel. Appointments to thepanel will not be made until the Bill receives Royal Assent. It would beunfortunate if at some stage in the future we were prevented from appointing aneminently suitable candidate simply because he or she did not fit into some pre-determined category.

Lord Henley later sought to introduce an amendment designed to enable the SentencingAdvisory Panel to propose guidelines that guidelines be framed for the sentencing ofoffenders by magistrates' courts. He commented that there was a great deal of inconsistencyin sentencing between one magistrates' court and another and said his amendment sought tointroduce greater consistency in magistrates' courts. In rejecting the amendment the SolicitorGeneral Lord Falconer of Thoroton said16:

15 HL Deb Vol 586 c.1147-1148, 3.3.199816 ibid. c. 1150,


21

When we developed our proposals, we specifically considered the position of themagistrates' court and consulted the noble and learned Lord the Lord Chief Justice.His view was that it would be inappropriate for the Court of Appeal to take on thisrole and disrupt the current arrangements, given that summary-only offencesalmost never came before that court. We agreed with that view and concluded thatit would be better to retain the existing position whereby the Magistrates'Association, which has great experience in this area, draws up such guidelines. Itis worth underlining that, as the Bill is drafted, the Sentencing Advisory Paneladvises the Court of Appeal and no other body, and it is not clear from theamendment--although I do not take this as a major point--who is supposed toproduce the guidelines envisaged by the amendment.

Noble Lords might say that we should provide for the Sentencing Advisory Panelto have a role in advising the Magistrates' Association in these matters, but theMagistrates' Association is a non-statutory body and it would therefore be difficultto frame statutory responsibilities around it. In practice, the Magistrates'Association may wish, when considering guidelines for magistrates' courts, to haveregard to the advice produced by the panel and the guidelines produced by theCourt of Appeal. I am sure that fruitful discussions could take place between thetwo bodies: indeed, the Magistrates' Association is likely to be one of the bodieswhich the panel must consult when consultees are identified.

I fear that it is right to leave matters on that basis. These provisions are notintended to undermine the position of the Magistrates' Association in this regard,and it is very difficult to incorporate the Sentencing Advisory Panel by statute inrelation to the Magistrates' Association.

Pressed further by Lord Henley on whether or not it might be possible to introduce aprovision into Clause 76 to extend the Panel's work to include magistrates' courts LordFalconer said17:

I am saying that I regret that there is very little that can be done through themechanism that is being proposed or any other mechanism that one can think of inrelation to the clause. The reason for that is that the Sentencing Advisory Panel isthere to advise the Court of Appeal. We consulted the Lord Chief Justice and hehas said that it is inappropriate to expand the panel's role or to give an increasedrole to the Court of Appeal.

We have thought carefully about how we can help the magistrates' courts throughthis mechanism and we have concluded effectively that it cannot be done. I regretit, but I am afraid I cannot give any comfort at all in respect of the amendment.

17 ibid. c.1151


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D. A Standing Advisory Council on Criminal Justice and the PenalSystem?

During the debate on the Bill's Third Reading in the House of Lords the former law lord LordAckner successfully moved an amendment designed to provide for the establishment of aStanding Advisory Council on Criminal Justice and the Penal System18. This amendment,which was opposed by the Government but agreed to on division, is now set out as Clause 1of the Bill. It is designed to provide for a Council of up to eighteen members appointed by theHome Secretary, and a chairman appointed from among the members by the Home Secretaryafter consultation with the Lord Chancellor and the Lord Chief Justice. At least two-thirds ofthe members would have to be people with knowledge or experience of any aspect of thecriminal justice system or the penal system including, in particular, the prosecution ofoffenders and their care and treatment in prison and the community. The Council is intendedto have the functions of advising the Secretary of State on the adequacy and effectiveness ofthe criminal law and criminal procedure and on aspects of the penal system referred to it bythe Home Secretary and providing advice and assistance on request to the SentencingAdvisory Panel provided for by Clause 76 of the Bill. The Council would have to reportannually to the Home Secretary, with the reports being laid before Parliament. It would alsoreport to the Home Secretary on any matter referred to it by him and the Home Secretarywould be required to publish any such reports.

In moving his amendment Lord Ackner noted19 that the arguments for and against theestablishment of a Standing Advisory Council on the Criminal Justice System had beendiscussed when he had previously moved a similar amendment during the Bill's committeestage on March 3rd20. That amendment was withdrawn. In moving it Lord Ackner wassupported by a number of other peers, including the Lord Chief Justice, Lord Bingham ofCornhill, the law lord Lord Lloyd of Berwick, the Conservative former Home Secretary LordHurd of Westwell and the Conservative former Home Office Minister Lord Carlisle ofBucklow and the Liberal Democrat peers Lord Thomas of Gresford and Lord Goodhart. Insupporting the amendment Lord Carlisle of Bucklow said21;

I remind Members of the Committee that there is nothing new in this proposal. Anadvisory council on the penal system was set up by the noble Lord, Lord Jenkins,in, I think, 1966 and existed until 1980. I had the honour to be a member of it in itsearly days. Other than myself, it had a highly distinguished membership. Thenoble Baroness, Lady David, was a member. I thought she was, but I see sheshakes her head. The late Lady Wootton was its first chairman; the then Bishop ofExeter, Dr. Mortimer, was the vice-chairman. Professor Radzinowich, Dr. Walker,Sir Louis Blom-Cooper and various other people involved in the penal field weremembers.

18 HL Deb Vol 588 c.154-172, 31.3.199819 HL Deb Vol 588 c.155, 31.3.199820 HL Deb Vol 586 c.1126-1146, 3.3.199821 ibid. c.1132-1133


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The purpose of that council was to attempt to take matters of penal policy out ofthe ambit of party political debate. I believe that its reports were of value. Reportsintroduced the proposals for suspended sentences. The council looked at the wholequestion of non-custodial sentences. There was a report on prison policy, dealingwith the question of a policy of dispersement as against a policy of concentrationfor serious offenders. There was a report on the regime of detention centres. Inotice that in a recent article Sir Louis Blom-Cooper described some of the reportsas being indifferent and some outstanding. In hindsight, one only remembers theones that were outstanding. But I do know that we were greatly fortified by theexistence of that advisory council when, in 1970, under the late Mr. ReginaldMaudling, I became a junior Minister in the Home Office and we were faced witha paper from the noble Lord, Lord Allen of Abbeydale, pointing out the vast likelyincrease in the prison population unless action was taken, which led to theintroduction of community service and suspended sentences and the extension ofparole. I believe that the establishment of an advisory council would assist intaking these matters out of the political arena.

The noble Lord, Lord Judd, said in an earlier intervention that we must rememberthat the purpose of sentencing is not only punishment and deterrence but also therehabilitation of the individual. There is a need to remember always theimportance of punishment and deterrence, but I believe that a degree of humanityis also needed. I believe that had that council, which regrettably was done awaywith in 1980, existed during the past decade, we should have avoided the widefluctuations in penal policies which we have seen and which the noble Lord, LordThomas, mentioned. I believe we should have avoided the absurdity of mandatoryminimum sentences and the extension of the mandatory life sentence.

Over that period we have seen policies recommended at one stage being stood ontheir head by the same government a few years later. We have seen parties changecompletely their approach to individual proposals, largely affected by what theybelieved was the public opinion of the moment. I believe that a standing advisorycouncil would assist in avoiding those pressures and would allow issues of penalpolicy to become matters of common consent and agreement in this House.

Lord Hurd of Westwell, who is now Chairman of the Prison Reform Trust, said22:

I think a very strong case has been made for a body of this kind with a rather widerremit, as is now proposed, than the old ACPS, for two reasons, one of which hasbeen given and one of which has not. It is desirable to move criminal justice policyto some extent from the sudden flash floods of emotion which follow a particulardisaster or tragedy. It is silly to decry such emotion because we all share it and it isperfectly natural and human that there should be such very strong high feelings inthe aftermath of a disaster. But it does not necessarily follow that these highfeelings should dictate the future substance of the law.

22 ibid. c.1135-1136


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There is an overwhelming case, it seems to me, for a pause for reflection andexperienced advice. I speak as someone who was an actor in one debate, aspectator in another, the two debates following the firearms tragedies atHungerford and Dunblane. That is the first point.

The second point is that I believe a body like this would be a good precaution andsafeguard against the wear and tear which is imposed on a criminal justice systemby too much adversarial argument. I join others who have made this point.Adversarial argument in this sphere can, like an acid, corrode the merits of adebate and the substance of a policy. We should not seek to inhibit the HomeSecretary's freedom of action on consideration. Certainly, we should not seek toinhibit parliamentary discussion. I believe that there should be more parliamentarydiscussion on these matters. I feel that prisoners in particular are a neglectedcorner of our public life. I do not believe that a Prime Minister of this country hasever visited a prison. This is the first time that I have made this assertion in thehearing of a Minister of the Crown. I hope that perhaps on some occasion thenoble Minister will either refute me, and I shall be delighted, or suggest that someremedy is at hand.

Of course, Parliament has a duty to society, a duty to protect society, and a duty tothe victims of crime. So those of us who are interested in this subject shouldencourage and not stifle discussion. The question is not whether there should bediscussion but whether it is sensible that it should be divided on mainly orprincipally party lines. I do not believe that the contest as to which party istoughest on crime is essentially a meaningful contest. I believe that those whostrive for that prize are likely to find that its laurels fade quite fast.

I believe that there is now a chance for a reasoned truce because the heat, to someextent, has died out of this debate. In some political matters the line of debateseems to me to fall naturally between the parties: the role of the state, the balancebetween spending and taxation. These are, in a way, left/right issues and it isnatural enough that they should be debated between parties as armies, asregiments, organised, divided on a left/right basis. But for foreign affairs anddefence, as your Lordships know, as practised also in the other place, there is adifferent convention, for excellent reasons. These are not usually matters where thelines of debate are the same as the lines between parties. I believe that that shouldbe true of debate on the criminal justice system.

Speaking for the Conservative Party Lord Henley opposed the amendment, saying23:

I am filled with alarm by the very idea that party politics should be taken out ofcriminal justice and that it should merely be left to the consideration of the greatand the good----which is, in effect, what the amendment seeks to do. We are toldthat the amendment's purpose is to establish a standing advisory council to informthe public. It looks much more like an attempt to imprison and impose constraintson the Home Secretary when he comes to make policy. The idea that such matters

23 HL Deb Vol 586 c.1141-1142, 3.3.1998


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are best addressed by a council, not by democratic processes, is fundamentallywrong. They should be a matter for the Home Secretary, who is answerable toParliament and responsible to the electorate. It ought to be for him to addresspolicy and for that policy to be argued out in Parliament.

No one can argue that such matters do not receive sufficient time to be argued inParliament. We have debated this Bill alone over some five days in Committee,and I believe that the Minister and others of your Lordships agree that it has notbeen debated in a party political manner.

In setting out the Government's view of the earlier version of Lord Ackner's amendment theHome Office minister Lord Williams of Mostyn made the following comments about sourcesof advice on criminal justice policy24:

This area of crime and punishment and how to deal with it is central to mostpeople's conscious existence. Whatever we do, we must take public opinion withus and we must earn and maintain confidence and trust in the judiciary, criminaljustice system and penal system.

It is right that the Government should have available to them well-informed adviceto inform and underpin their policies. There is nothing between us on that. Theprevious organisation, which lasted from 1966 to 1980, did good work. As thenoble Lord, Lord Carlisle of Bucklow, may have hinted, it was not always themost speedy of mechanisms because sometimes it took three or four years toprepare its reports--but it did good work.

The real question on which the noble and learned Lord's amendment requires us tofocus is how best to ensure that the Government are provided with useful andappropriate advice. He believes that the re-establishment of something like theformer standing advisory council--although, I agree, with a different remit--is theanswer. That is one possibility and one that needs to be thought through carefully.

Quite a lot has changed since 1980. The Government have a lot of post-1980sources of advice. The Criminal Justice Consultative Council has representativesof the criminal justice system and is usefully underpinned by local areacommittees made up of local practitioners. The Trial Issues Group deals withimproving the way in which the criminal justice process works and gives practicaladvice to the Government. The Law Commission, to which I willingly pay tribute,does masterly work on law reform.

We also have reports--we have dealt with one in a little detail this afternoon--fromthe Chief Inspector of Prisons and from the Chief Inspector of Probation. As hasbeen said, under this Bill we want to establish a youth justice board (Clause 32)which will advise the Home Secretary on the operation of the youth justice system,and in Clause 67 we propose a sentencing advisory panel. We also have reportsfrom the Institute of Criminology; research papers from universities; international

24 ibid. c.1143-1144


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research material; and collation and co-ordination of research and statistical workin the Home Office itself.

There are, therefore, various mechanisms from which we can draw useful benefit.The real question is: would an advisory council of the sort proposed give furthervalue? If it would, it is clearly worth considering, but not on the basis of simplylooking to the past for solutions without being sure that they take proper accountof more recent developments.

Lord Williams of Mostyn added that there were a number of issues which were worthy offurther consideration and would benefit from further discussion, although he would not makeany promises25. Lord Ackner subsequently withdrew his amendment. When he re-introducedthe amendment during the third reading debate on the Bill Lord Williams opposed it, sayingthe Government felt that the range of advice on criminal justice matters which was alreadyavailable to it was sufficient. He argued that little could be gained by setting up another bodywhen there were already so many bodies providing the Government with advice on criminaljustice issues. Speaking for the Conservative Party in opposing the amendment Lord Henleyre-iterated his argument that proposed council could be a constraint on the Home Secretary,who was properly answerable to parliament for criminal justice policy26. As has already beenmentioned, the amendment designed to provide for the establishment of the Council wasagreed on division in spite of the Government's reservations27

25 ibid.26 HL Deb Vol 588 c.163, 31.3.199827 ibid. c.170-172


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II Young Offenders and Child Safety

The provisions in the Crime and Disorder Bill concerning young offenders, children under 10and their parents are largely based on proposals contained in the Labour Party's May 1996consultation paper Tackling Youth Crime: Reforming Youth Justice written by the then shadowhome Secretary Jack Straw and the then shadow Home Affairs Minister Alun Michael, asubsequent Labour Party discussion paper on Parenting, published in November 1996, a HomeOffice consultation paper Tackling Youth Crime, published in September 1997 and the WhitePaper No More Excuses: A New Approach to Tackling Youth crime in England and Wales28,published in November 1997. They do not extend to Scotland, where children under sixteen whohave committed offences or are considered to be in need of care and protection are rarelybrought before the courts and tend instead to be brought before children's panels under thechildren's hearings system. The Government considers that these arrangements provideappropriate remedies in Scotland29

A. Parental responsibility for their children's criminal activities

Measures intended to make parents responsible for the criminal acts of their children were firstproposed in the 1847 report of a House of Lords Select Committee chaired by Lord Brougham.The Committee recommended that, wherever possible, part of the cost of convicting andpunishing offenders should be legally chargeable to their parents. In their book The Emergenceof Penal Policy in Victorian and Edwardian England, first published in 1986, LeonRadzinowicz and Roger Hood note that the proposal was a novelty in 1847 but was endorsed inthe Acts which followed Lord Brougham's report and strengthened in subsequent legislation. Asfar as the operation of the various measures which were in place from then on was concernedenforcement tended to be difficult, as most of the children came from broken homes and almostall of them from the poorest sections of society. The high cost of enforcement was out of allproportion to the arrears claimed. As a proportion of the total costs the parental contributionremained insignificant. They comment that it was less a matter of economics than of insistenceon the principles of deterrence and family obligation30. Legislation designed to endorse theseprinciples has been on the statute book in one form or another since the nineteenth century.

The current rules governing the extent to which parents may be held liable for their children'scrimes are set out in the Criminal Justice Act 1991. Parents may be held to be liable in that theymay be required to pay fines, compensation orders or orders to pay prosecution costs imposedon "juveniles" (young people aged 17 or under) unless this is unreasonable in the circumstances,or the parent or guardian cannot be found. These penalties may only be imposed, however,where a juvenile has been convicted. Similarly, where a juvenile is found guilty of an offence,and the parent consents, he or she may be bound over to take proper care of and exercise proper

28 CM 380929 HL Deb Vol 585 c.1106-1107, 10.2.199830 Leon Radzinowicz and Roger Hood, The Emergence of Penal Policy in Victorian and Edwardian England

(Volume 5 of their History of English Criminal Law and its Administration from 1750) p.210-211


28

control over him. The provisions in the Criminal Justice Act 1991 were intended to encouragethe courts to make greater use of their powers in relation to the parents of young offenders,which were rarely used.

Section 57 of the 1991 Act provides for the payment of financial penalties imposed on offendersunder the age of 18, making a distinction between those offenders who are aged 16 and over,and those who have not attained the age of 16. Where the offender is aged 16 or over the courtshave a power, rather than a duty to require his parents to pay financial penalties imposed on him.If a court decides to impose a financial penalty of an offender who is under 16 years of age it isobliged to order the offender's parents or guardians to pay the money, unless this would beunreasonable in the circumstances or they cannot be found. For all offenders under the age of 18Section 57 requires the parents' rather than the children's means to be taken into account in caseswhere the parents are ordered to pay. The Section also extends the law on parental payment tolocal authorities who have parental responsibility for offenders under the age of 18 in their care.

Section 58 of the 1991 Act sets out the courts' power to bind over the parents of offenders underthe age of 18 to take proper care of and exercise proper control over their children. The court isobliged to exercise these powers over the parent or guardian of an offender under the age of 16 ifit is satisfied "that their exercise would be desirable in the interests of preventing thecommission by him of further offences". A court which chooses not to exercise these powersmust state in open court that it is not satisfied that their use would be desirable, and why it hastaken this view. The courts are only able to bind over parents or guardians who consent to thisprocedure, but if the parent or guardian refuses consent, and the court considers this refusalunreasonable it may fine the parent or guardian up to £1,000.

Paragraph 50 of Schedule 9 of the Criminal Justice and Public Order Act 1994 added aparagraph to Section 58(2) of the Criminal Justice Act 1991 enabling courts to bind over theparents or guardians of a convicted minor to ensure that the minor complies with therequirements of a community sentence passed under Section 6 of the 1991 Act.

Section 56 of the 1991 Act obliges a court to require the attendance of parents or guardians atproceedings involving their children where their children are under the age of 16, unless thiswould be unreasonable in the circumstances. The courts also have a discretionary power torequire the attendance at court of the parents or guardians of young people aged 16 and over.Where a local authority has parental responsibility for a child or young person who is in the careof their social services department, or is provided with accommodation by that department, thelocal authority is required to attend court if the young person is under the age of 16, and may berequired by the court to attend if he is aged 16 or over.

In all the circumstances set out in the Criminal Justice Act 1991 the courts either have adiscretionary power to impose various requirements on the parents of convicted juveniles or aduty to impose them which may, however, be overridden if the measure concerned would be"unreasonable in the circumstances". What is "unreasonable" will obviously depend on the factsof the particular case. It might, for example, be "unreasonable" for a parent or guardian withlimited financial means to be required to pay financial penalties imposed on a child, or for a


29

parent or guardian who had made strenuous but ultimately unsuccessful efforts to control a childto be penalised for that child's criminal acts.

Home Office circular 3/1983 gave some guidance on matters which courts might wish to bear inmind in considering whether or not to require parents to pay financial penalties. The guidancerefers to debates in Parliament during the passage of what became the Criminal Justice Act1982, which contained the earlier versions of the statutory provisions concerning parentalresponsibility:

"During the passage of the Bill, considerations which might be relevant to the question ofwhether it would be unreasonable to order payment by the parent or guardian were discussed.It was suggested, for example, that regard should be had to factors such as whether the parentshad neglected to exercise due care and control of the child or young person or whether anysuch neglect had caused or contributed, whether directly or indirectly, to the commission ofthe offence; whether it was desirable that the child or young person himself should assumeresponsibility for the payment of the fine, compensation or costs, or for part of it; therelationship between the child or young person and the parent or guardian and the likely effecton that relationship of ordering that the parent or guardian pay the sum adjudged; and therespective means of the child or young person and the parent or guardian. The Act leaves theassessment of what was reasonable or unreasonable in the circumstances to the discretion ofthe court; but the Government believes that considerations such as those mentioned above,may well be among those to which courts will wish to have regard in coming to their decisionas to what constitutes unreasonableness in a particular case.'"

A report on practitioners' views of the Criminal Justice Act 1991 published by the Home OfficeResearch and Planning Unit in 1995 found a widespread view that the Act's provisions regardingparental responsibility were working badly or not at all. Of the practitioners surveyed in thereport (CPS staff, defence solicitors, clerks, magistrates, staff in probation and social servicesand prison staff) youth court magistrates were most likely to consider that the provisions wereworking well, but it was still only a minority who were prepared to say this31. The report notedthat32:

Those who thought the parental provisions were working badly or not at all said thatit was due to the irresponsibility of some parents, that the provisions were difficult toimplement, and that they were inappropriate for some parents whose children wereout of control. In the case of the few who thought that the provisions were workingwell the overwhelming reason for saying so was that they had led to an increase inparental responsibility.

Statistics on the use of the power to order parents to pay fines and compensation orders imposedon their children are set out in an Appendix to this paper.

As far as civil claims for compensation are concerned parents or guardians are not in generalliable for the torts (civil wrongs) of their children unless either the children are employed by

31 George Mair and Chris May, Practitioners' views of the Criminal Justice Act: a survey of criminal justiceagencies - Home Office Research and Planning Unit Paper 91 (1995) p.33

32 ibid. p.34


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them and commit a tort in the course of their employment, or the torts are due to the parents'negligent control of the child in respect of the act that caused the injury, or if the parentexpressly authorised the commission of the tort, or possibly if he ratified the child's act33.

Family influences on delinquency have been identified by a number of studies conducted indifferent countries over a considerable period of time34. Of these influences, parentalsupervision has been identified as being particularly important. A Home Office ResearchStudy on Young People and Crime, published in 1995, concluded that35:

Taking both family and school factors together, parental supervision and truancyfrom school emerged as the two strongest correlates of starting to offend.Furthermore, parental supervision was also found to be a strong predictor oftruancy.

In its report Misspent Youth….Young People and Crime, published in November 1996, theAudit Commission noted that36:

Research has shown that children who are brought up in families with lax parentalsupervision and in poor neighbourhoods have a higher risk of becoming offenders.A growing proportion of children are experiencing these factors.

The Commission added that37:

Inadequate parenting is strongly associated with later offending. Neglect byparents, poor maternal and domestic care before the age of five years, insecureattachment, family conflict and the absence of a good relationship with eitherparent have all been shown to increase the risk of behaviour problems andsubsequent offending. Young people who say that their attachment to their familyis weak are more likely to report that they have committed offences, as are thosewho have experienced cruelty and abuse at the hands of parents. The nature ofparental supervision is also important. Parents who rely heavily on harshpunishment, or who are erratic in their discipline, are twice as likely to havechildren who offend. Harsh punishment is also associated with more violent andmore frequent offending.

In their November 1996 discussion paper on Parenting the then shadow Home Secretary JackStraw and the then shadow minister for women Janet Anderson proposed that a new "parentalresponsibility order" be made available to the courts for those cases where it was clear that

33 W.V.H. Rogers Winfield and Jolowicz on Tort , Fourteenth Edition (1994) p.71434 see eg. D.J West, Delinquency: Its Roots, Careers and Prospects (Heinemann 1982); David Riley & Margaret

Shaw, Parental Supervision and Juvenile Delinquency - Home Office Research Study No.83 (1985); D.Utting, J.Bright & C Henricson Crime and the Family - Family Policy Studies Centre (1993); David P.Farrington Understanding and preventing youth crime (Joseph Rowntree Foundation 1996)

35 John Graham & Benjamin Bowling, Young People and Crime - Home Office Research Study No.145 (1995)36 Audit Commission Misspent Youth…..Young People and Crime (1996) p.60 para.8337 ibid. p.62 para.86


31

parental attitudes and behaviour were a key factor in a child's offending but the parents hadnot been prepared to accept guidance and counselling to help them cope with that behaviour.The order would impose a requirement on parents to attend counselling and guidancesessions where they would receive help in dealing with their children, such as instruction inhow to set and enforce consistent standards of behaviour and how to respond more effectivelyto challenging adolescent demands38.

In a Home Office consultation document entitled Preventing Children Offending, publishedin March 1997, the previous Conservative Government also set out proposals for courts tomake "parental control orders" in respect of parents of delinquent children. Parents would berequired to comply with particular conditions attached to the order, such as an obligation toattend a particular programme or ensure their child was at home during certain hours orattending school, or a requirement to make reparations39.

In September 1997 the new Government published a consultation paper entitled TacklingYouth Crime, setting out its proposal for encouraging parental responsibility through thecreation of a new "parenting order". The consultation paper also set out proposals for a new"child safety order" and for local child curfews on children under 10. The proposal for localchild curfews had first been announced by the then shadow Home Secretary Jack Straw inJune 199640. They were included in discussion of new "child protection orders" in the LabourParty's discussion paper on Parenting published in November 199641.

The consultation paper said that initially parenting orders would only be brought into force incertain areas and on a pilot basis. The paper added that while the Government intended toretain for the time being the courts' powers under section 58 of the Criminal Justice Act 1991to bind over parents, it would reconsider the case for maintaining these powers, which werenot greatly used, in the light of experience of piloting the parenting order.

The White Paper No More Excuses confirmed the Government's intention to introduce newpowers for the courts to make parenting orders, stating that42:

4.6 Parents of young offenders may not directly be to blame for the crimes of theirchildren, but parents have to be responsible for providing their children withproper care and control. The courts need powers to help and support parents moreeffectively to keep their children out of trouble.

4.7 Research has shown that inadequate parental supervision is strongly associatedwith offending - in a Home Office study, 42% of juveniles who had low ormedium levels of parental supervision offended, but only 20% of juveniles with

38 Parenting: A discussion paper - Labour Party (November 1996) p.1939 Preventing Children Offending: A Consultation Document - Home Office March 1997 p.23-2640 "Teenage curfew threat by Labour" - Observer 2.6.1996; "Restrictions to aid parenting" - Independent

3.6.199641 Parenting: a discussion document - Labour Party November 1996 p.1842 CM 3809


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high level of supervision. The same research showed that the quality of relationship between parent and child is crucial and that poor relationships withfathers were more prevalent among offenders than poor relationships withmothers. We know that parents who are harsh or erratic in disciplining theirchildren are twice as likely to have children who offend.

The White Paper went on to say that:

4.11 The Crime and Disorder Bill will establish a new parenting order designed tohelp and support parents to control the behaviour of their children. Proposals wereset out in the consultation paper Tackling Youth Crime. The order will beavailable for parents of convicted young offenders, for parents of children whohave been made the subject of an anti-social behaviour order, sex offender order orchild safety order and for parents who have been convicted of failing to send theirchildren to school.

4.12 The parenting order will require the parent to attend counselling or guidancesessions no more than once a week and for no longer than three months. If courtsthink this necessary, they may also impose additional requirements on parents - forexample, seeing that their child gets to school every day, or ensuring that he or sheis home by a certain time at night - which may apply for up to a year.

1. The Crime and Disorder Bill: Parenting Orders

The arrangements for the imposition of "parenting orders", set out in Clauses 9-11 of theCrime and Disorder Bill, are based on the proposals set out in the Home Office consultationpaper Tackling Youth Crime43 and confirmed in the White Paper No More Excuses44.

Clause 9 of the Bill is designed to enable the courts to make parenting orders in courtproceedings where:

a) a child safety order is made in respect of a child under the age of 10 by a magistrates'court under Clause 12 of the Bill; or

b) a child or young person (that is, someone aged between 10 and 17 years) is convicted ofan offence; or

c) an anti-social behaviour order or sex offender order is made in respect of a child or youngperson (once again, a person aged between 10 and 17) under Clauses 2 or 3 respectivelyof the Bill; or

d) a parent is convicted under sections 443 or 444 of the Education Act 1996 of failing tocomply with a school attendance order in respect of their child or of failing to secure theregular attendance at school of a child of theirs who is a registered pupil.

43 Tackling Youth Crime - Home Office September 1997 p.9-1144 No More Excuses: A New Approach to Tackling Youth Crime in England and Wales - CM 3809 November

1997


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Parenting orders will be orders requiring the parents or guardians in respect of whom they aremade to attend such counselling or guidance sessions as may be specified (in directions givenby a probation officer, local authority social worker or member of a youth offending teamdesignated as the "responsible officer") for up to three months, although not more than once aweek. The order may also require the parents or guardians to comply, for a period of up to 12months, with specified requirements which the court considers desirable in the interests ofpreventing the repetition or, as the case may be, commission of any further offence. TheWhite Paper explained that the additional requirement might be that the parents ensure theirchild's attendance at school, or that one of them or another responsible adult be at home atnight to supervise the child45. Where an order is made against a parent who has already hadsuch an order made against them in the past, the requirement to attend counselling orguidance sessions may, however, be omitted. Clause 10(4) seeks to ensure that, as far aspracticable, the requirements and directions given under the order are such as to avoid anyconflict with the parent's religious beliefs and any interference with the times, if any, at whichhe normally works or attends and educational establishment.

A court will only be able to make a parenting order where it has been notified by theSecretary of State that arrangements for implementing the orders are available and the noticehas not been withdrawn.

Clause 10(1) seeks to require a court which convicts a person under the age of 16 of acriminal offence and is satisfied that a parenting order would be desirable in the interests ofpreventing the commission of any further offence by that person, to impose a parenting order.Where the court is not satisfied that a parenting order would be desirable it will be required tosay so in open court and give reasons. Where child safety orders, anti-social behaviour orders orsex offender orders are made against children and young people without their having beenconvicted by the court of any offence, or where a parent is convicted of an offence undersections 443 and 444 of the Education Act 1996, the power to make parenting orders is intendedto be discretionary. In these circumstances it is intended that courts should be able to makeparenting orders if they consider that this would be desirable in the interests of preventing anyrepetition of the behaviour which led to the child safety order, anti-social behaviour order or sexoffender order being made, or preventing the commission of any further offence under theEducation Act 1996.

A Government amendment to Clause 10(2) moved by the Home Office minister LordWilliams of Mostyn during the Bill's report stage in the House of Lords46 seeks to ensure thatwhere:

a) a child safety order has been made; orb) a child or young person under the age of 16 has been convicted or been made subject to

an anti-social behaviour order or sex offender order; or

45 CM 3809 p.1446 HL Deb Vol 587 c.625-626, 17.3.1998


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c) a parent under the age of 16 has been convicted of an offence under section 443 or section444 of the Education Act 1996,

a court obtains and considers information about a person's family circumstances and thelikely effect of a parenting order on these circumstances before making a parenting order.

Clause 10(5) is designed to enable a court to vary or discharge a parenting order which is stillin force on the application of the parent or the "responsible officer". Where an application isdismissed no further application for the order to be discharged will be permitted unless thecourt which made the order consents.

Clause 10(3) seeks to ensure that before making a parenting order, a court explains to theparents in ordinary language the effects and requirements of the order, the consequenceswhich may follow a failure to comply with any of the requirements and the courts' powers toreview the order on the application of the parent or the responsible officer.

Clause 10(7) is designed to make it an offence punishable by a fine of up to £1,000 (level 3on the standard scale) for a parent to fail without reasonable excuse to comply with anyrequirements included in a parenting order or specified in directions given by the responsibleofficer.

Clause 11 aims to provide procedures for appeals against parenting orders. An appeal againstthe making of a parenting order in proceedings where a child safety order is made will be tothe High Court. Where a parenting order is made in proceedings where an anti-socialbehaviour order or sex offender order is made the appeal will be to the Crown Court. Where aparenting order is made in proceedings in which a child or young person is convicted of anoffence the person in respect of whom it is made will have the same right of appeal againstthe making of the order as if the offence had been committed by him and the order were asentence passed on him for the offence. Thus where the child or young person is convicted bya magistrates' court it is intended that there should be a right of appeal to the Crown Courtagainst any parenting order imposed by the magistrates and where the young offender isconvicted by the Crown Court there will be a right of appeal against the parenting order to theCourt of Appeal. A person against whom a parenting order is made following a convictionunder section 443 and 444 of the Education Act 1996 will have the same right of appealagainst the making of the order as if the order were a sentence passed on him for the offenceunder the 1996 Act.

Clause 11 also seeks to enable the Lord Chancellor to make orders setting out thecircumstances in which appeals may be made against decisions taken by courts on questionsarising in connection with the transfer, or proposed transfer, of proceedings by virtue of anyorder under paragraph 2 of Schedule 11 of the Children Act 1989. The Notes on Clauses statethat this is intended to put appeals against parenting orders made in proceedings in whichchild safety orders have been made on a similar footing to other related appeals procedures,such as appeals against care and supervision orders under section 31 of the Children Act1989.


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In a Written Answer to a Question from Mr Clappison on January 21st 1998 the Home OfficeMinister Alun Michael made the following comments about the costs of parenting orders andchild safety orders and the extent to which they were likely to be used47:

Pilot trials will enable an accurate estimate to be made of the costs and savings thatwill result when these measures are fully implemented. The financialmemorandum of the Crime and Disorder Bill estimated that, depending on how theparenting order and the child safety order are used, additional costs will not exceed£4 million. This is broken down as follows:

Parenting orders: £3.75 million

Child safety orders: £0.25 million

We expect the parenting order to be used more widely than the child safety orderbecause the former will be available in a wider range of circumstances. Theparenting order will be available for parents of convicted young offenders, forparents of children who have been made the subject of an anti-social behaviourorder, sex offender order or child safety order and for parents who have beenconvicted of failing to send their children to school.

A number of organisations have expressed concern about the proposals for parenting orders,as they have about the proposals for child safety orders and child curfews. In its response tothe consultation paper Tackling Youth Crime the children's charity Barnardo's said that whileit supported the view that young people and parents had responsibilities they should notprejudice the state's duty to care for the welfare and development of the child as enshrinedwithin the Children Act 1989. Barnardo's added that48:

Whilst we share the concerns regarding the involvement of children under the ageof 10 years in offending, we believe it is essential that any intervention isspecifically focused on the individual child and avoids a situation where increasingnumbers of young children are brought into the youth justice and care systems. Wewould expect the Government to reconsider whether the proposals for theParenting Order, Child Safety Order and Child Curfews do introduce new andappropriate powers beyond those already available to the Police and SocialServices under the Children Act to investigate situations where there is concernregarding the welfare of young children.

On the specific subject of parenting orders Barnardo's said it disagreed with both theassumptions and the detail of the process proposed, saying49:

Our experience is that situations become beyond parents' capacity to deal with andnot the case that parents wilfully neglect their responsibilities. Barnardo's believes

47 HC Deb Vol 304 c.584WA 21.1.199848 Tackling Youth Crime - Barnardo's response p.249 ibid. p.4


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that parental education should be available to all parents, with the emphasis on itbeing the norm, rather than just a solution or threat when things go wrong. Parentaleducation should be part of a continuum of support which occurs prior to andduring the early years of a family or child's life.

Concerns about the parenting order expressed by Barnardo's and a number of other children'scharities and penal reform groups were summarised in a briefing paper on The Crime andDisorder Bill and the Family published by the Family Policy Studies Centre in February 1998as follows:

• It should be voluntary not compulsory.• It is least likely to work with unco-operative parents.• It is unjust to punish a parent for a child's actions.• It is often difficult to apportion blame solely to parents for their children's

wrongdoing.• It will impact disproportionately on poor parents, lone parents and, probably,

black parents.• It appears to offer no positive encouragement to parents and runs counter to

the spirit of partnership promoted by the Children Act• It is likely to exacerbate tensions in families already under stress and may

precipitate family breakdown, resulting in more children being excluded fromthe family and additional admissions to care.

• It is likely to have little effect on the parents whose attitudes give most causefor concern.

• It may lead to abusive treatment of the child.• It is likely to be costly and counterproductive if it leads to parents who default

on fines being imprisoned.• It will require new resources to be genuinely available

Many of these concerns were raised during the debate on the Bill in the House of Lords, witha number of peers, including the Labour peer Baroness David, the Labour peer BaronessKennedy of the Shaws, the Liberal Democrat peer Lord Goodhart, the Lord Bishop of Bathand Wells, who is Chairman of the Children's Society, and the cross-bencher LordNorthbourne expressing particular concern about issues such as the efficacy of compulsorycourt orders rather than voluntary arrangements, the use of criminal rather than civil courts todeal with family matters, and the possibility that orders might be imposed in a heavy-handedway50. Responding to some of these criticisms during the Bills' committee stage in the Houseof Lords the Home Office minister Lord Williams of Mostyn said51:

At the centre of the parenting order is the need to try to restore, perhaps even toconstruct for the first time, a proper relationship between a child and its parents.That is a fundamental step to help prevent offending or antisocial behaviour. Thatis why we have framed the legislation as we have. There is no doubt at all, as wesee it, that there is a significant gap at present. Not all parents have the inner

50 sees HL Deb Vol 585 c.1068-1090, 10.2.1998 and HL Deb Vol 587 c.618-626, 17.3.199851 HL Deb Vol 585 c.1074, 10.2.1998


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resources to bring up their children well. The noble Earl, Lord Mar and Kellie,rightly pointed out that a large number of parents would welcome support andassistance. It may well be that a degree of sanction will assist them.

He added that52:

I have to stress that these are not intended to be draconian or Dickensian remedies.They are intended to slot in with the philosophy of the Bill, which is: to try tothink what causes children to fall into harm. That is what it is. They are often veryyoung, they have little benefit from what most of us had: namely, a loving home.What we are trying to provide is a regime which will assist parents, not dragoonthem unmercifully, but offer assistance to parents where at the moment they havelittle help at all.

He went on to say that53:

In a nutshell, the real basis of the whole strategy behind parenting orders isthis: no one wants to see a child fall into crime. Many children fall intocrime because they do not have adequate parents. Some inadequate parentscan be assisted. They can sometimes--as the right reverend Prelate said--beassisted on a voluntary basis. Sometimes a sanction may be effective, whichmay be gentle, tempered to the appropriate circumstances. We would prefervoluntary counselling and parenting guidance, but for those who do notwish it, who are perhaps afraid of it, in some cases a sanction may be ofassistance. We believe that we have got the scheme about right. It is notperfect, but about right.

2. Preventing youth crime: children below the age of 10: child safety orders andlocal child curfews

i. Introduction

Children below the age of 10 are below the age of criminal responsibility and are notpunishable by criminal proceedings. At the moment, measures for dealing with theirpotentially criminal or anti-social behaviour are contained in the Children Act 1989, which isprimarily concerned with promoting the child's welfare rather than controlling the child'sbehaviour. Child safety orders and local child curfews, the two new measures in the Billdealing specifically with children under the age of 10, are examples of the Government'sview that the balance of policy needs to change to take more account of "the needs of thecommunity to be protected from the adverse consequences of ... offending behaviour."54

52 ibid. c.107653 ibid. c.107754 Tackling Youth Crime: Reforming Youth Justice, Labour Party in May 1996 (see extract reproduced at the

beginning of Part 1 of this paper).


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The child safety order would apply to a named child. It would place the child under thesupervision of a responsible officer and could make certain requirements such as that thechild to be at home at specified times or stay away from certain people or places. The localchild curfew would be imposed by administrative means and would be designed to preventchildren under 10 in general (or of a specified age under 10) from being in a public place in aparticular locality unless supervised by a responsible adult during certain times between 9pmand 6am. Both of these would apply to England and Wales and there is provision for pilotingbefore they are fully introduced.

Statements by and documents from the Government over time suggest these measures areintended to have a dual aspect. One is to protect the child and the other is to protect thecommunity. Sometimes one aspect is emphasised more than another but the overall intentionappears to be to shift the balance of policy towards the later and away from the emphasisgiven to the former in the provisions of the Children Act 1989.

Together with the parenting order, these proposals also reflect a growing body of opinion thatthe causes of criminal behaviour can be traced to a person's early years although the literaturedoes not necessarily focus on these particular solutions.55 For example, the AuditCommission examined risk factors for young people offending and suggested a range ofservices, including structured nursery provision and programmes to deal with schoolexclusions, as part of a co-ordinated strategy to cut youth crime.56 Press coverage of thereport even suggested that low birth weight might be the first of many signs of a potentialyoung offender.57 The previous, Conservative, Government had also published a consultationdocument just before the 1997 General Election, which contained a chapter on earlyintervention with children at risk of offending.58

The present Government's proposals were described in a consultation document published inSeptember 199759 although there had been indications before that the Government mightpropose something along these lines. For example, in June 1996, Jack Straw, then shadowHome Secretary, attracted press coverage, not all of it favourable, for suggesting night timecurfew powers over children under age 10.60 The Labour Party's 1997 General ElectionManifesto said: "child protection orders will deal with young children suffering neglect byparents because they are left on their own far too late at night," and the Queen's Speech on

55 Publications include: Reducing Criminality Among Young People: a sample of relevant programmes in theUK, Home Office Research Study 161, 1997; Misspent Youth: Young People and Crime, Audit Commission1996; Young People and Crime, Home Office Research Study No 145, Home, Office 1995; Crime and theFamily: improving child reasons and preventing delinquency by David Utting, Jon Bright and ClemHenricson, Family Policy Studies Centre, 1993

56 Misspent Youth: Young People and Crime, Audit Commission, 199657 Milestones on road to life of crime, Times Educational Supplement, 22 November 199658 Preventing Children Offending: a consultation document, Home Office, March 199759 Preventing Children Offending: a consultation document, Home Office, March 199760 See, for example: Labour under-10s curfew plan ignites row, Guardian 3 June 1996; A time and a place for

curfews on children, The Independent 3 June 1996; Letter to the Editor, Guardian 5 and 6 June 1996; Theirbedtime, our business, Independent on Sunday, 9 June 1996


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14 May 1997 said that the Government would introduce "a child protection order to helpchildren aged 10 and under who are neglected by their parents."

Details of the proposals were contained in the consultation document published in September1997, in which the proposal for a child protection order was renamed a child safety order anda local child curfew was also proposed.61 The proposals contained in the White Paper,published in November,62 were much the same, except that the child safety order was to beavailable to local authorities in the family proceedings court (which deals with civil matters)only whereas the consultation paper had suggested either the family proceedings court or theyouth court (which deals with criminal matters).

The child safety order and local child curfew proposals remained almost unchanged duringthe passage of the Bill through the House of Lords. There was one division, that is at theReport Stage, on the principle of child curfews. The Government won by 86 votes to 20.63

The main change of substance was an amendment introduced by the Government on ThirdReading to include someone under the age of 18 who is him/herself the parent of the childconcerned within the definition of a responsible person for the purposes of a child curfew.64

The Government also made clear its intentions and gave undertakings in relation to certainpoints, which are outlined below. In particular, it undertook to reconsider whether the childcurfew provisions breach Article 5 or Article 8 of the European Convention on HumanRights.65

ii. The measures in detail

The Child Safety Order is designed to prevent specific children under age 10 slipping intothe crime habit. It "will enable a court to make requirements to ensure a child's care andprotection and prevent further disorderly or would-be criminal behaviour." It will be madeon a named child and will place him or her under the supervision of a responsible officerfrom the local authority social services department or the local Youth Offender Team. It mayinclude certain requirements such as that the child to be at home at specified times or stayaway from certain people or places. The Government has said that in the majority of cases,the most appropriate responsible officer is likely to be a member of the social servicesdepartment, but that there might be occasions where the youth offending team would have arole.66 The order will normally last for three months but legislation would give the courtdiscretion to impose a shorter order or to make a longer one in exceptional cases.

61 Tackling Youth Crime, Home Office, September 199762 No More Excuses - A New Approach to Tackling Youth Crime in England and Wales, Cm 3809, Home

Office, November 199763 HL Deb 17.3.98 c63964 HL Deb 31.3.98 c 176, This change was in response to an earlier amendment by Lady Anelay at Report Stage.65 HL Deb 17.3.98 c 631 and 63866 HL Deb 10.2.98 c1100


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A child safety order will be available on the application of a local authority to the familyproceedings court in the magistrates court. The local authority will be required to show thatthe order is necessary because:

• the child has done something that would constitute an offence if he or she were over 10;• the child's behaviour was such as to suggest he or she was at risk of offending;• the child's behaviour was disruptive and harassing to local residents; or• the child has breached a local curfew.

The standard of proof required will be the civil standard: a balance of probabilities. The courtwill need to specify the length of the order and its requirements. The court will be required toensure that the requirements do not interfere with the child's or the parents' commitments toattend school or work and do not interfere with religious beliefs. The order will be supervisedby the social worker or a member of a Youth Offender Team. The consent of the parent orchild will not be required, but before imposing a child safety order the court will be requiredto obtain and consider information about the child's family circumstances and the likely effectof an order on the family. A parent will be able to appeal against the order and it could bevaried or discharged on the application of the responsible officer, or the parent or guardian ofthe child, if circumstances change.

Failure of a child to comply with the order will be an additional ground for the local authorityto apply for a care order under section 31 (1) (a) of the Children Act 1989.

The Local Child Curfew: Local councils, after consultation with local communities, will beable to impose local child curfews on children under 10. The curfew notice will ban childrenunder 10 from being in a public place in a particular locality, unless supervised by aresponsible adult, between certain times. The police will be able to escort any child or youngperson in breach of the curfew to his or her home. The legislation will define the maximumrange of hours within which a curfew can apply and specify a 90 day maximum duration for acurfew order, with provision for a further 90 days. It will also require the local authority topublicise notice of the curfew.

The Government has said that the reason for introducing the curfews in relation to childrenunder age 10 is that sanctions are available for other age groups but that it believed that nosuitable powers were available to deal with this age group. In addition, it was introducing inthe Bill antisocial behaviour orders, which would apply to those aged 10 or over. In certaincases, local authorities might be able to impose antisocial behaviour orders and a local curfeworder and thus deal with the problem of trying to identify who was under and who was over10 years old.67

Local authorities will have to draw up schemes for curfews which will need the HomeSecretary's agreement before the council can issue a curfew notice. However, once the

67 HL Deb 10.2.98 c 1113-4


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scheme is agreed, the local authority will be able to issue curfew notices as necessary inaccordance with that scheme.

If a child under 10 is found unsupervised when and where the curfew applies, the police willbe expected to return that child to his or her home and to the care of a responsible adult. Ifthere is no responsible adult to take charge of the child, then under existing powers containedin section 46 of the Children Act 1989, the police will be able to remove the child to suitableaccommodation if the child would otherwise be likely to suffer significant harm

In all cases where the curfew is breached, the local authority will be required to visit thefamily within 48 hours to assess the need for intervention or support. Their statutory optionswill be to apply to the family proceedings court for one of the new child safety orders orbegin welfare proceedings under the Children Act 1989.

Child care order: new conditions Given that a child safety order is the main sanctionproposed for breach of a local child curfew and that a care order under section 31 of theChildren Act is the main sanction proposed for breach of a child safety order, taking a childinto the care of a local authority is in effect the sanction which underlies both the newmeasures. However, as proposed in the Bill, it would be a different route into care from thecurrent one. Under the Children Act, a court can only make a care (or supervision) order if itis satisfied that:

(a) the child concerned is suffering, or is likely to suffer, significant harm; and(b) that the harm, or likelihood of harm, is attributable to –

(i) the care given to the child, or likely to be given to him if the order were not made, notbeing what it would be reasonable to expect a parent to give to him; or

(ii) the child's being beyond parental control

In the case of a child who has breached a child safety order, the Crime and Disorder Billwould dispense with these grounds. This could be seen as a partial return, for children underthe age of 10, to the criminal route into care that was abolished by the Children Act.

Under the Children Act, once a court is satisfied that the above grounds have been met, itwould also have to be satisfied that the principles relating to the welfare of the child laiddown in Section 1 of the Act are satisfied, in particular that "the child's welfare shall be thecourt's paramount consideration." The court is also to have regard to a list of factors: thechild's wishes, his physical, emotional and education needs, the likely effect on him of anychange in his circumstances; his age, sex background and any characteristics of his which thecourt considers relevant; any harm which he has suffered or is at risk of suffering; howcapable each of his parents, and any other person in relation to whom the court considers thequestion to be relevant, is of meeting his needs; the range and powers available to the courtunder the Children Act in the proceedings in question. The court must also have regard to theprinciple that delay is prejudicial to the welfare of the child and it must not make any orderunless it considers that doing so would be better for the child than making no order at all.


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The Bill does not directly refer to these principles which, according to Section 1 of theChildren Act, apply whenever a court determines any question with respect to "theupbringing of a child" (or the administration of a child's property or the application of anyincome arising from it). However, Government policy is that the welfare- of the child-is-paramount principle should not apply in these cases. It is therefore possible that breach of achild safety order, which is designed to protect the community as well as the child, would notbe considered to be a question relating to a child's upbringing. In that case, the weakerwelfare principle contained in Section 44 of the Children and Young persons Act 1933, islikely to apply. This is that:

"Every court in dealing with a child or young person who is brought before it,either as an offender or otherwise, shall have regard to the welfare of the child oryoung person and shall in a proper case take steps for removing him fromundesirable surroundings, and for securing that proper provision is made for hiseducation and training."

iii. The Children Act 1989

One of the arguments of those who are opposed to the new measures is that there areadequate powers within the Children Act to deal with the problems with which the newmeasures are intended to deal. This is not an argument that the new measures preciselyreplicate provisions in the Children Act as they are clearly not formulated in precisely thesame terms. Sometimes it simply means that the new measures are considered undesirable butit is also used to mean that the Children Act would need little or no amending in order toachieve much the same effect in practice.68

The Children Act 1989 is a major piece of legislation relating to children, with manyprovisions that could be relevant to the current debate. The provisions outlined belowrepresent some of those that seem most directly to bear on current discussions. Given thegeneral terms in which much of the Act is worded, it is not always possible to say how theboundaries of particular provisions might be determined in practice.

There is no specific power for local authorities to impose a curfew in the Children Act. Thereare some specific police powers in section 46 (see below) which are primarily designed toenable a child to be taken temporarily into police protection rather than to return the childdirectly home. Much of the literature seems to assume that in practice, this would often be incircumstances where it would be necessary to protect the child from his/her parents althoughthe wording of the legislation could be interpreted more broadly than this. The SupervisionOrder, which can be made under the Children Act (see below), seems to resemble the ChildSafety Order in some ways but there do also seem to be differences. In particular, directionsthat a supervisor may give to a child do not seem to include not going to a specified place.

68 See, for example, the analysis by the Home Office of the responses to the consultation document, TacklingYouth Crime, deposited in the Library 15.12.98.


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In more detail, Section 46 of the Children Act enables a constable to take a child into policeprotection for a short period without obtaining a court order. Section 46 (1) says:

"Where a constable has reasonable cause to believe that a child would otherwisebe likely to suffer significant harm, he may

(a) remove the child to suitable accommodation and keephim there; or

(b) take such steps as are reasonable to ensure that the child'sremoval from any hospital, or other place, in which heis being accommodated is prevented".

This power might be used to take children off the streets and is, indeed, referred to in theconsultation paper as a step that might be taken after the police have brought a home a childin breach of a curfew but found the parents absent (see above). However, unlike the newproposals, as currently worded, it is designed for situations where the child rather than theneighbourhood would be likely to suffer significant harm. There are various conditionsattached to this power, which in summary are the constable must:

• inform the local authority in which the child was found what steps have been, and areproposed to be, taken, together with the reasons

• give details of where the child is accommodated to the authority within whose area thechild is ordinarily resident

• inform the child (if s/he appears capable of understanding) of the steps that have beentaken and the reasons for them and what further steps may be taken

• take such steps as are reasonably practicably to discover the wishes of the child• secure that the case is inquired into by an officer designated for section 46 purposes• secure that where the child is not initially placed in accommodation provided by the local

authority or in a refuge that s/he be moved to such accommodation.

The constable must also take such steps as are reasonably practicable to inform the child'sparents; everyone who has parental responsibility for the child and anyone else with whomthe child was living immediately before being taken into police protection. The child maynot be taken into police protection for more than 72 hours (although there is provision for thedesignated officer to apply for an emergency protection order). While in police protection thedesignated officer has a duty to do what is reasonable to safeguard and promote the child'swelfare. There are also provisions requiring the designated officer to allow the child's parentsand certain others to have contact with the child.

There are several court orders which a local authority can apply for under the Act. Thesupervision order (section 31 & 35 & schedule 3) seems the most relevant the presentquestion. (This is not the same as a criminal supervision order under separate legislation,amendments to which are also proposed in the Crime and Disorder Bill.) This places a childunder the supervision of a designated local authority or of a probation officer. The supervisorhas the duty to advise, assist and befriend the child. A court may not make a supervision


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order unless satisfied that the child concerned is suffering significant harm, or is likely tosuffer significant harm; and the harm or likelihood of harm is attributable to (i) the care givento the child, or likely to be given to him if the order were not made, not being what it wouldbe reasonable to expect a pa rent to give him; or (ii) the child is beyond parental control.

Even if the grounds for a supervision order are met, the court is not obliged to make theorder. It must apply to child-centred principles of section 1 of the Children Act, the mostcentral of which is that the welfare of the child must be the paramount consideration. There isalso a "welfare checklist" that must be applied; the court must be satisfied that the order willpositively contribute to the child's welfare (ie that an order will be better than no order -known as the non-intervention principle); and delay in court proceedings is considered likelyto prejudice the welfare of the child.

A supervision order may (but need not) contain a requirement for the supervised child tocomply with the directions of the supervisor on certain specific matters. These do not appearto include directions not to go to a particular place . They are:

• to live at a place or places specified in the directions for a period or periods so specified• to present him/herself to a person or persons specified in the directions at a place or

places and on a day or days so specified• to participate in activities specified in the directions on a day or days so specified• to keep the supervisor informed of any change in his/her address• to allow the supervisor to visit him/her at the place where s/he is living

Commentary on the Act suggests that any condition or direction attached to a supervisionorder cannot be specifically enforced by the court. Breaches may, however, be relied on asevidence in any further proceedings. If the supervisor is prevented from being allowed to visitthe child, in breach of a requirement, then a warrant may be issued giving authority for aconstable to assist the supervisor in the exercise of his powers, using reasonable force wherenecessary (section 102 of the Children Act).

It appears that the police would have powers under other legislation to return children to theirhomes but this is a separate point. For example, the Encyclopedia of Social Services andChild Care Law69 says that section 28 of the Children and Young Persons Act 1969 wouldenable the police to return children home if they find them in unsuitable places. It gives theexample of hitch hiking on the motorway as an unsuitable place. It says that police standingorders tell them to return young people under the age of 18 to their parents (per Lord ElwynJones HL Deb 503 c 444). However, it also says that there is no requirement for a constableto inform the local authority where s/he is merely returning a missing child home.

Other relevant provisions of the Children Act include the duty of local authorities underSchedule 2 paragraph 7 to take reasonable steps to reduce the need to bring proceedings for

69 published by Sweet and Maxwell


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care or supervisions orders, criminal proceedings against children and to encourage childrenwithin their area not to commit criminal offence. They also have a to avoid the need forchildren within their area to be placed in secure accommodation. Under Schedule 2 localauthorities also have a duty (among others) to take reasonable steps, through the provision ofservices under Part III of the Act, to prevent children within their area suffering ill-treatmentor neglect.

Another general provision is Section 17 of the Children Act, under which local authoritieshave a duty to: (a) to safeguard and promote the welfare of children within their area who arein need; and (b) so far as is consistent with that duty, to promote the upbringing of suchchildren by their families, by providing a range and level of services appropriate to thosechildren's needs. A child is in need if: (a) he is unlikely to achieve or maintain, or to have theopportunity of achieving or maintain, a reasonable standard of health or development withoutthe provision for him of services by a local authority under this Part (Part III of the Act); (b)his health or development is likely to be significantly impaired, or further impaired, withoutthe provision for him of such services; or (c) he is disabled.

Finally, as described at the end of the previous subsection, the main sanction underlying thenew proposals for children under age 10 is to take them into care under section 31 of theChildren Act 1989. However, the conditions for entering care will be different and the aim ofpolicy is that the protection of the community should be a more important factor that it hasbeen in the past.

iv. Reaction to the measures

As already mentioned, two objections to the proposals are that:

• powers already exist, or that minor amendment only, is needed to the Children Act, toachieve the desired results (see section iii) ; and that

• the curfew proposals breach Articles of the European Convention on Human Rights (seethe debate in the Lords at the Report Stage on 17 March when two speakers said that theyhad obtained legal advice to this effect)

In response to the consultation paper issued in September70 , the Government receivedresponses to the child safety order proposal from 188 organisations. Its analysis of the resultssaid that 68 of these organisations supported the introduction of the new order and 39 didnot.71 In addition:

• All but one of the organisations that responded favoured such applications being heard inthe family proceedings court and that the burden of proof should be at the civil standard.(As noted above, the Bill in fact makes provision for applications to be made in the

70 Tackling Youth Crime, Home Office, September 199771 Deposited Paper No 5705, 15.12.97


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family proceedings court although debate in the House of Lords seem to have beenconfused on this point).

• Eleven respondents commented on the proposed sanctions for breach of a child safetyorder. Almost all felt that they were inappropriate and might lead to more children beingtaken into local authority care.

• All but 1 of the 29 of those who responded to the proposal that the Youth OffendingTeams should be involved were opposed to the idea. (The government has not changedthis proposal but as noted above has said that normally it will be a social worker who willbe involved).

• Of the 8 who commented on the length of the order, most felt that 3 months was too short,and some suggested that 6 months was more appropriate.

In the case of the child curfew order, 196 organisations responded, 60 of which were infavour while 50 were not; the remainder commenting only on the detail . On specific points:

• 21 felt that the scheme should not be limited to children aged below 10 years• 43 thought that the scheme was impractical and some felt that a better alternative would

be to devote more resources to child and youth activity facilities.• 13 referred to the resource implications.

Given the number of organisations that responded, it is not possible to summarise all viewsalthough the Library has received briefings from a number of organisations and could makethese available to members. A briefing paper by the Family Policy Studies Centresummarised issues that have been raised. Although may have been at least partially answeredin debates in the Lords others remain as live issues and their relative importance obviouslydepends on one's point of view. These are listed below without comment. In relation to achild safety order:

• It blurs the age of criminal responsibility• It is not clear what harassment, alarm or distress means. For example, will it apply to a

child playing noisily in a garden?• A child who has committed no offence will see him or herself as an offender.• It duplicates powers already available under the Children Act to obtain supervision

orders.• It may lead to an escalating number of children coming into the court and care system for

failure to comply with court orders.• It is not clear whose responsibility it is to ensure that the child complies with the

requirements -supervisor or parents - and where the balance of responsibility lies betweenthe supervisor and the parent

In relation child curfews:

• There is likely to be considerable regional and local variation in the implementation ofschemes

• Additional resources will need to be made available to local authorities for enforcement


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• Emergency powers under the Children Act already provide the police and others with theoption of removing young children at risk from the streets

• There is no need for such a draconian step. The Government has only produced anecdotalevidence that the under-10s are regularly terrorising communities.

• Children on the streets may be escaping situations of abuse, violence, alcohol and drugmisuse.

• State agencies, such as the police and social services, have a duty to consider the needsand wrong-doings of children as individuals, not as a group.

• It may breach article 5 of the European Convention on Human Rights which provides thatno-one, including children, can be deprived of their liberty without proper orders onspecified grounds.72

B. Age of criminal responsibility: the presumption of doli incapax

In England and Wales, children under the age of 10 are under "the age of discretion" and are notpunishable by any criminal proceedings. If they are behaving in a way which would meritcriminal proceedings and penalties if they were older, they may, however, be referred to socialservices, who are empowered to take steps to promote a child's welfare. Children who arebetween the ages of 10 and 14 at the time the offences are committed are presumed to be doliincapax, that is, they are presumed not to know the difference between right and wrong andtherefore to be incapable of committing a crime because they lack the necessary mental element(mens rea). For this presumption to be rebutted the prosecution must establish beyondreasonable doubt that the child knew at the relevant time that what he was doing was seriouslywrong and not merely naughty or mischievous. In B v.R73 the then Lord Chief Justice LordParker said that "the lower the child in the scale between 10 and 14, the stronger the evidencenecessary to rebut the presumption". Children who are 14 or over at the time the offences arecommitted are not subject to this presumption.

In a Written Answer to a Question from Mr Clappison on January 12th 1998 the Home Officeminister, Alan Michael, said that in 1996, the post recent year for which statistics are available,7,125 children under 14 were proceeded against in the magistrates' court74.

The age of criminal responsibility in Scotland is 8, although few young offenders appear beforethe criminal courts in Scotland as most are dealt with through the system of children's hearings.A table derived from information provided by the Council of Europe setting out the ages ofcriminal responsibility in a number of different European countries was provided, along withinformation on ages of criminal responsibility, in a number of American states, in the followingWritten Answer from the then Foreign Office minister Baroness Chalker of Wallasey onFebruary 27th 199575:

72 The Crime and Disorder Bill and the Family. Family briefing paper 3. Family Policy Studies Centre. 1998.73 (1958) 44 Cr App R 174 HC Deb Vol 304 c.67WA 12.1.199875 HL Deb Vol 561 WA81-82, 27.2.1995


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Council of Europe______________________________________________

Age of criminalCountry responsibility______________________________________________Andorra 16Austria 14Belgium 18Bulgaria 14Cyprus 7Czech Republic 15Denmark 15Estonia 15Finland 15France 13Germany 14Greece 12Hungary 14Iceland 15Ireland 7Italy 14Latvia 14Liechtenstein 7Lithuania 14Luxembourg 18Malta 9Netherlands 12Norway 15Poland 16Portugal 16Romania 14San Marino 12Slovakia 15Slovenia 14Spain 16Sweden 15Switzerland 7Turkey 12United Kingdom:England 10Wales 10Scotland 8Northern Ireland 8______________________________________________

It should be noted that in many of the countries listed there is a differencebetween the age of criminal responsibility and the age at which a child may bedetained for the commission of a serious offence. In France, for example, there isan irrebuttable presumption that a child under 13 cannot be held criminallyresponsible, but there is provision for children aged 10 and above to be brought


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before a civil court in respect of certain offences and for the court to orderdetention in a young offenders institution.

United States

In most of the United States of America the age of criminal responsibility is 18.In eight states the age is 16; these are Georgia, Illinois, Louisiana, Massachusetts,Michigan, Missouri, South Carolina and Texas. In Connecticut, New York andSouth Carolina the age of criminal responsibility is 15.

All US states have provision for juveniles to be tried as adults in a criminal court.Certain serious offences, such as murder, are statutorily excluded from thejurisdiction of the juvenile courts. In all states except Nebraska and New York, ajuvenile court may waive jurisdiction over a case and transfer it to a criminal court.

The presumption of doli incapax is said to date from the reign of Edward III76. In more recenttimes it has been the subject of criticism. In an article published in the Criminal Law Review in1954 Glanville Williams commented that in the present day the "knowledge of wrong" test stoodin the way not of punishment, but of treatment. He added:

It saves the child not from prison, transportation or the gallows, but from theprobation officer, the foster-parent or the approved school. The paradoxical result isthat, the more warped the child's moral standards, the safer he is from the correctionaltreatment of the criminal law. It is perhaps even possible to argue that the test shouldnow be regarded as even legally obsolete. The test was designed to restrict thepunishment of children and should not now be used where no question of punishmentarises. This argument has to face the difficulty that the test traditionally protects thechild from conviction, whereas the choice between punishment and other treatment isonly made after conviction.

In a 1985 a group of distinguished academic lawyers chaired by Professor J.C.Smith, C.B.E.,Q.C. presented a report to the Law Commission on the Codification of the Criminal Law whichincluded the following comments about doli incapax77:

The presumption, it has been said, "reflects an outworn mode of thought" and "issteeped in absurdity" and it has long been recognised as operating capriciously. Itsabolition was proposed in 1960 by the Ingoldby Committee on Children and YoungPersons78. We believe that there is no case for its survival in the Code.

In a 1990 White Paper Crime, Justice and Protecting the Public the previous Governmentexpressed support for the presumption, stating that79:

76 Paul Cavadino, "Goodbye doli, must we leave you?" - Child and Family Law Quarterly Vol.9, No.2, 199777 Law Com. No.143 paras. 11.21-11.2378 (1960) Cmnd. 1911, para.94 . The Ingoldby Committee's recommended removing the presumption and raising

the age of criminal responsibility to 12, with the possibility of its being raised further to 13 or 14; instead ofbeing involved in criminal proceedings, children under the age would have been brought before a court as beingin need of care, protection, discipline or control.

79 Cm 965


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8.4 The criminal law is based on the principle that people understand the differencebetween right and wrong. Very young children cannot easily tell this difference, andthe law takes account of this. The age of criminal responsibility, below which notchild may be prosecuted, is 10 years; and between the ages of 10 and 13 a child mayonly be convicted of a criminal offence if the prosecution can show that he knew thatwhat he did was seriously wrong. The Government does not intend to change thesearrangements which make proper allowance for the fact that children's understanding,knowledge and ability to reason are still developing.

8.5 For children below the age of 10, the responsibility must be placed squarely onthe parents to help their children keep out of trouble and to deal with theconsequences if they get into trouble. Some parents will need help. The Children Act1989 puts a duty on local authorities to safeguard and promote the welfare of childrenin need and to promote the upbringing of such children by their families. It requireslocal authorities to provide family centres, so children and their parents can receiveadvice, guidance and counselling. The Act also requires local authorities to takereasonable steps designed to encourage children not to commit criminal offences.When children below the age of 10 get into trouble, the law already providesremedies. Children who are found to be beyond their parents' control may be placedin the care or under the supervision of the local authority. Parents may be liable underthe civil law where they contributed to the child's action by their negligence. Olderpeople who use a child under 10 to carry out a criminal act are themselvescommitting an offence and they may be prosecuted.

In March 1994 in the case of C (A Minor) v. DPP the Divisional Court sought to abolish thepresumption of doli incapax. Giving judgment in the case the Hon Mr. John Laws described thepresumption as "a serious disservice to our law" adding that it was "unreal and contrary tocommon sense", "has no utility in the present era" and that it "ought to go". The judgment of theDivisional Court was overruled on appeal in March 1995 by the House of Lords80, which heldthat the presumption was still an effective doctrine of the criminal law. The House of Lordsadded, however, that the time had come for the doctrine to be reviewed. In his judgment LordLowry said that in his view it was quite impracticable to sweep the presumption away under "thedoubtful auspices of judicial legislation". Lord Lowry noted that abolishing the presumptioncould expose children to the full criminal process at an earlier age than in most countries ofWestern Europe and quoted the words of Harper J in R. (A Child) v. Whitty81, an Australian casedecided by the Supreme Court of Victoria82:

"'No civilised society,' says Professor Colin Howard in his book entitled CriminalLaw, 4th ed. (1982), p.343, 'regards children as accountable for their actions to thesame extent as adults'….The wisdom of protecting young children against the fullrigour of the criminal law is beyond argument. The difficulty lies in determiningwhen ands under what circumstances that protection should be removed."

80 [1995] 2 WLR 38381 (1993) 66 A.Crim.R.46282 [1995] 2 WLR 383 at p.403


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Lord Lowry added that83:

The distinction between the treatment and the punishment of child "offenders" haspopular and political overtones, a fact which shows that we have been discussing notso much a legal problem as a social problem, with a dash of politics thrown in, andemphasises that it should be within the exclusive remit of Parliament. There is need tostudy other systems, including that which holds in Scotland, a task for which thecourts are not equipped. Whatever change is made, it should only come after collatingand considering the evidence and after taking account of the effect which a changewould have on the whole law relating to children's anti-social behaviour. This is aclassic case for parliamentary investigation, deliberation and legislation.

In a Labour Party consultation paper Tackling Youth Crime: Reforming Youth Justice publishedin May 1996 the then shadow Home Secretary Jack Straw and the then shadow Home Affairsminister Alun Michael said the current legal position on the criminal responsibility of thoseoffenders between the ages of 10 and 14 was "most unsatisfactory". They took the view that 84:

The law on the extent of criminal responsibility for their actions by young peopleunder 14 years (doli incapax ie "incapable of evil") should be reformed. In our viewmost young people aged 10-13 are plainly capable of differentiating between rightand wrong, especially where the issue is one of theft or damage to the property ofothers.

The Home Office consultation paper Tackling Youth Crime, published in September 1997,reiterated the view that the presumption of doli incapax should be reformed, stating that85:

The Government believes that this presumption flies in the face of common sense andhas promised to change it.

The Government set out its view of the arguments for reform as follows86:

7. The arguments for reforming the presumption of doli incapax are based on threecontentions: that it is archaic, that it is illogical and that it is unfair in practice.

8. The doctrine is considered out of date in at least two main respects. First, it assumes notonly that a child under 14 is less morally culpable for his or her actions than an adult, butthat in general, a child under 14 cannot differentiate right from wrong. While it is true thata child’s understanding, knowledge and ability to reason are still developing, the notionthat the average 10-14 year old does not know right from wrong seems contrary tocommon sense in an age of compulsory education from the age of five, when childrenseem to develop faster both mentally and physically.

83 ibid84 p.1185 Home Office. Tackling Youth Crime: A Consultation Paper September 1997 p.686 ibid. p. 6-7


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9. Second, the doctrine assumes that children under 14 need special protection from theharshness of criminal punishment. At the time the doctrine developed the need forprotection was undoubted - the death penalty was available for children, for crimes lessserious than murder. But the criminal law is now very different and for most youngoffenders, the court’s emphasis is as much on preventing re-offending as on punishmentfor the crime.

10. The presumption is also criticised as illogical. For a child aged 10-14 to be convicted ofan offence, the prosecution must rebut the presumption by showing that the child knew thatwhat he or she was doing was seriously wrong. In practice, the presumption can berebutted if the prosecution produces evidence that the defendant is of normal mentaldevelopment for his or her age. But the doctrine itself presumes that children of that agenormally do not know right from wrong, so to rebut the presumption by proving the child’snormality is logically inconsistent.

11. The doctrine is also said to be unfair in practice. It may be impossible in some cases forthe prosecution to provide the evidence necessary to show that a child knew his or her actwas seriously wrong. To rebut the presumption, the prosecution must produce evidenceseparate from the facts of the offence - for example, of the defendant’s response to policequestioning, or reports from his or her teachers. Such evidence may simply not beavailable. Sometimes there may be previous convictions which the prosecution want to useas evidence that the defendant knows right from wrong. But this gives rise in turn to knottylegal difficulties over whether previous convictions should be admissible in court.

12. The Government believes that the difficulties with the doli incapax presumption stopsome children who ought to be prosecuted from ever appearing in court. The interests ofjustice and of the victims of crime are not served if cases which ought to come to court arediscontinued because the prosecution knows that it will not be able to rebut thepresumption of doli incapax. Nor is such a discontinuance in the young offender’s bestinterests, if it means that the opportunity is missed to take appropriate action to prevent re-offending.

13. The Government agrees that the law should not treat a child in the same way it treats anadult. But it believes that the presumption of doli incapax is wrong in principle and inpractice. It believes that justice is best served by allowing courts to take account of thechild’s age and maturity at the point of sentence, not by binding them to presume thatnormal children are incapable of the most basic moral judgements.

The consultation paper set out two options for reform:

i) abolition of the presumption, which would put a child between the ages of 10 and 13 inthe same position as one aged between 14 and 17; and

ii) reversal of the presumption, which would mean that the court would start with thepresumption that a child of 10 and over but under 14 was capable of forming a criminalintent, but the child would be acquitted if the defence could prove on the balance ofprobabilities (ie. that it was more likely than not) that he or she did not know that whatthey were doing was seriously wrong. If such a defence were made, the prosecutionwould have to show beyond reasonable doubt that the child did indeed know that theaction was seriously wrong.

As the consultation paper noted, the Government favoured abolition of the presumption:


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15. The Government favours the first of these options - abolishing the presumptionoutright. This would be the simplest course and would send a clear signal that ingeneral children of ten and over should be held accountable for their own actions.The Government believes, as a matter of principle, that it is right to hold childrenaged at least 10 but under 14 to account for their criminal actions.

16. Abolishing the presumption does not, of course, mean that children of 10-14will be treated within the criminal justice system as if they were adults. TheGovernment is proposing wider reforms of the youth justice system, the wholepurpose of which will be to strengthen the capacity of the system to deal with childoffenders in the most focused way, taking full account of their development. Thedisposals available to the courts for young offenders are graduated by age. Thesentence a court will consider appropriate for a 17 year old will, rightly, almostalways differ from that considered appropriate 6r a 10 year old. For these and otherreasons, the Government does not consider the abolition of the presumption willconflict with its international obligations under the United Nations Convention onthe Rights of the Child or the European Convention on Human Rights.

17. If the presumption were abolished, a child could not be convicted unless anynecessary criminal intent was established beyond reasonable doubt. This wouldleave it open to the defence to show that a child under 14 who suffered, forexample, from significant mental handicap did not have the capacity to form thenecessary criminal intent.

18. The Government believes that if the presumption were reversed, rather thanabolished, practical difficulties in securing prosecutions and convictions ofchildren under 14 might persist. Reversing, rather than abolishing, the rule mightsimply lead to the doli incapax defence being employed in almost every case. Tocounter this defence, the prosecution would once again be set the task of proving,beyond reasonable doubt, that the child knew the seriousness of his or her act. Thiswill involve extra argument, delay and expense. The Government believes that thisoption would thus do little to ensure that justice in such cases was made simpler,speedier and clearer.

In the White Paper No More Excuses: A New Approach to Tackling Youth Crime in Englandand Wales, published in November 1997, the Government again emphasised that it consideredthe notion of doli incapax to be contrary to common sense and reiterated its view that thepresumption of doli incapax should be abolished rather than reversed.87.

Clause 31 of the Crime and Disorder Bill is designed to implement the Government's proposalby providing that:

the rebuttable presumption of criminal law that a child aged 10 or over is incapable ofcommitting an offence is hereby abolished.

87 CM 3809 p.12 para 4.4


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In its response to the consultation paper Tackling Youth Crime the law reform group JUSTICEsaid:

The abolition of doli incapax would at present have the effect of exposing 10-14 yearolds to the full rigour of the criminal law. At 10 (in England and Wales) the age ofcriminal responsibility is already low when compared with other European countries;and arguably doli incapax has not provided sufficiently consistent or effectiveprotection for children caught up in the criminal justice system.

JUSTICE concluded that in the absence of a review of the age of criminal responsibility doliincapax was worth keeping. A number of other commentators, including Paul Cavadino,chairman of the Penal Affairs Consortium, the law reform pressure group Liberty and Barnardo'salso expressed concern that the proposal to abolish the presumption of doli incapax was notbeing accompanied by any increase in the age of criminal responsibility. They noted that the ageof criminal responsibility in England and Wales was lower than in most other Europeancountries, which tend to deal with younger offenders through civil court proceedings concernedwith the need for compulsory measures of care.

The Justices' Clerks' Society, the National Association of Head Teachers and most of the otherorganisations who responded to the consultation on this particular point (111 out of 180respondents) favoured abolition of the presumption of doli incapax88.

The Liberal Democrat peer Lord Goodhart Q.C. moved amendments during both the committeeand report stages of the BiIl's passage through the Lords which were designed to reverse thepresumption rather than abolish it. The first of these was withdrawn89, while the amendmentintroduced during the Bill's report stage was negatived on division90. In setting out theGovernment's position during the debate on Lord Goodhart's amendment during the Bill's reportstage the Home Office minister, Lord Williams of Mostyn said91:

What we have done in dealing with children over the past years is to leaveintervention and the opportunity for informed, structured rehabilitation far toolong. One needs to make a careful distinction between, as the noble Lord, LordCampbell of Alloway, said, intervention with a criminal prosecution and what onedoes if guilt is proved.

No one wants to be over-punitive of small children but one has to bear in mind thatsome small children do extraordinary harm. We have to bear in mind thelegitimate and reasonable concerns of victims. Quite often it is notoriously, thoughsadly, true that the victims of young criminals are vulnerable people such as oldpeople living alone. They are also entitled to a reasonable regard for their rightsand freedoms just as one has to have a proper and tender regard for youngchildren. We believe that we have the balance right here.

88 HL Deb Vol 585 c.1324, 12.2.199889 HL Deb Vol 585 c.1316-1324, 12.2.199890 HL Deb Vol 587 c.831-841, 19.3.199891 ibid. c.838


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I go a little further, if I may, and repeat and adopt what the noble Lord, LordNorthbourne, said. What one wants here is early intervention; not early savagepunishment but early assistance. It does a child no favours to let it drift on withoutknowing, particularly in a modern sophisticated society, that if it commits criminalacts there will be a sanction. It may well be a sanction by way of intervention andrehabilitation, not punishment, but that a sanction is required upon these occasionswe believe is beyond doubt.

He went on to describe the stages involved in bringing criminal proceedings against children92:

Before a child appears in court accused of a criminal offence there will be several stages.At each stage a decision will have to be made about whether a criminal charge isappropriate. The first is the police, who will decide whether to charge or caution the child.If they decide to charge, the case will go to the Crown Prosecution Service, which willdecide whether to prosecute. In making that decision--I take the noble Baroness's phraseand adopt it--of course the Crown Prosecution Service will continue to look rigorously atall the circumstances. It will, of course, decide whether there is a reasonable prospect ofconviction. It will also continue to bear in mind whether or not it is in the public interestfor a prosecution to be brought. The public interest, I respectfully repeat, does not limititself only to the public interest in the welfare of a prospective defendant child. In makingthose decisions the Crown Prosecution Service will consider the welfare of the childbecause the courts are required to do so under Section 44 of the Children and YoungPersons Act 1933. Those safeguards will continue, but we believe that is the proper wayforward.

C. Abolition of the "right to silence" at trial for offenders aged 10-13

Section 35 of the Criminal Justice and Public Order Act 1994 currently permits a court orjury to draw such inferences as appear proper from the failure of a defendant to give evidenceor refuse, without good cause, to answer any question during a trial, where the defendant hasattained the age of fourteen. Clause 32 of the Bill is designed to amend section 35 of the 1994Act by removing this age restriction, thus enabling inferences to be drawn where defendantsaged 10-13 fail to give evidence or refuse, without good cause to answer questions during thetrial. The Clause was introduced as a Government amendment during the Bill's ThirdReading in the House of Lords. The Home Office Minister, Lord Williams of Mostyn, whointroduced it, said93:

The purpose of the new clause is to amend Section 35 of the Criminal Justice andPublic Order Act 1994 which deals with inferences to be drawn. They remain to bedrawn at the moment when the defendant is under the age of 14, when the guilt ofthe accused is not an issue, or when the defendant's physical or mental conditionmakes it undesirable that he should give evidence. We wish to remove the age

92 ibid c.83993 HL Deb Vol 588 c.203-204, 31.3.1998


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restriction from Section 35, but the remaining restrictions in Section 35--this maybe of importance--will not be affected.

There are two principal reasons. The first is consistency with the intention toabolish the presumption of doli incapax, as indicated in Clause 29 of the Bill.Therefore a court or jury will be able to draw the inferences I mentioned. In mostcases it is reasonable to conclude that a child of this age, if the circumstances areclearly explained to him or her, will be able to understand the consequences ofrefusing to answer a question, or of refusing to speak up on his own behalf. It isnot unreasonable to expect someone who has an innocent explanation to providethat explanation. When it seems to the court or the jury that that is not the case, thechild will be protected by the provision in Section 35 which allows the court not todraw inferences if it considers that the child's mental or physical state makes thisundesirable. We would expect the magistrates, or in rarer cases a Crown Court juryproperly directed by the Crown Court judge, to bear these matters carefully inaccount.

The second reason for introducing the amendment is to achieve consistency, notwith the new legislation to which I referred a moment ago, but with existinglegislation. There are no restrictions on drawing inferences from the failure of 10to 13 year-olds to mention facts when charged or questioned. That is Section 34 ofthe 1994 Act. All children above the age of criminal responsibility are alreadytreated equally under Section 36 of that Act which is the failure or refusal toaccount for objects, substances or marks; and Section 37, the related failure orrefusal to account for presence at a particular place. What we are doing is to bringthe position of those young people in court into line with existing relatedprovisions.

We look to treat all juveniles in the same way except where individualcircumstances clearly merit different treatment.

Referring to the new Clause the Conservative peer Lord Henley said94:

We have no objection to that. We welcome the change of heart that it seems toindicate on the part of the Government. I seem to remember that in Oppositionthey firmly opposed the removal of the so-called right to silence.

The Labour peer Baroness Mallalieu asked whether the Government had consulted with theBar Council, the Law Society or the Criminal Bar Association before introducing the Clause.She added95:

When a defendant is aged between 10 and 14, in reality the decision on whether togive evidence is not taken by the child. It is the decision of the advocate. The childdoes what he is advised to do. Indeed he is usually quite incapable, no matter howcarefully it is explained, of understanding the meaning of "adverse inferences" or

94 ibid. c.20495 ibid. c.205


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what the consequences of the choices open to him are. There may be very goodreasons that fall short of those given by the noble Lord for advising the child not togive evidence. He may be inarticulate and not able to give a proper account ofhimself. He may be frankly terrified and likely to be an appalling witness. It maybe that the effects of giving evidence and being cross-examined are, in the view ofhis family although not perhaps of a psychologist, personally likely to bedamaging.

In practice I suspect that there will be few cases where a magistrate or a judgewould think it right to direct a jury or indeed to direct themselves that adverseinferences should be drawn from a child's failure to give evidence where counselhas so advised. However, I wonder whether the noble Lord could tell me where thepressure for this change comes from. I am not aware of any difficulties. Ten year-olds were expressly and for good reasons excluded from this part of the 1994 Act.Why is this change now considered to be necessary?

The Lord Bishop of Bath and Wells, who is Chairman of the Children's Society, alsoexpressed concern about the Clause, which he saw as a further example of the exposure ofchildren to the adult world, in addition to the removal of the doli incapax presumption96. Hesaid he feared that the Clause, with certain others, removed necessary boundaries ofprotection from children and asked how it was consistent with the purpose and prioritiesstated in the Bill to protect children.

Responding to these criticisms the Home Office Minister Lord Williams of Mostyn said97:

The noble Baroness, Lady Mallalieu, asked me what consultation there had been.There was no consultation on this because, as I have said, this is simply making itconsistent with what already obtains in Sections 34, 36 and 37 of the 1994 Act. Iam bound to say that I would tend to agree with her that in practice adverseinferences would be perhaps relatively rarely drawn and of course the nature of theinference might differ. Sometimes an inference may be heavily adverse andsometimes almost vestigial, if existing at all.

The right reverend Prelate asked about the boundaries of protection. We do notwish to take them away but simply to introduce a harmony and consistency withwhat presently obtains and has obtained since the passage of the 1994 Act. Irespectfully repeat, in other words, that there are no restrictions at all on drawinginferences from the failure to mention those matters which are specified inSections 34, 36 and 37.

96 ibid. c.20697 ibid. c.207


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III Court Procedures

A. Time Limits

Section 22 of the Prosecution of Offences Act 1985 gave the Secretary of State the power tomake regulations setting time limits in relation to the preliminary stages of criminal proceedings.The general power is et out in Section 22 (1), which provides that:

22.-(1) The Secretary of State may by regulations makeprovision, with respect to any specified preliminary stage ofproceedings for an offence, as to the maximum period-

(a) to be allowed to the prosecution to complete that stage;(b)during which the accused may, while awaiting completion of thatstage, be-

(i)in the custody of a magistrates' court; or(ii) in the custody of the Crown Court;

in relation to that offence.

Section 22(2) provides that the regulations may, in particular:

(a) be made so as to apply only in relation to proceedingsinstituted in specified areas;

(b) make different provision with respect to proceedings institutedin different areas;

(c) make such provision with respect to the procedure to befollowed in criminal proceedings as the Secretary of Stateconsiders appropriate in consequence of any other provision ofthe regulations;

(d) provide for the Magistrates' Courts Act 1980 and the Bail Act1976 to apply in relation to cases to which custody or overalltime limits apply subject to such modifications as may bespecified (being modifications which the Secretary of Stateconsiders necessary in consequence of any provision made bythe regulations); and

(e) make such transitional provision in relation to proceedingsinstituted before the commencement of any provision of theregulations as the Secretary of State considers appropriate.

Section 22 (3) and (4) of the 1985 Act state that:

(3) The appropriate court may, at any time before the expiry of atime limit imposed by the regulations, extend, or further extend, thatlimit if it is satisfied-

(a) that there is good and sufficient cause for doing so; and(b) that the prosecution has acted with all due expedition.


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Section 22(4) of the 1985 Act provides that:

(4)Where, in relation to any proceedings for an offence, an overalltime limit has expired before the completion of the stage of theproceedings to which the limit applies, the accused shall be treated forall purposes, as having been acquitted of that offence.

The principal sanction against a failure to comply with a time limit under section 22 is thereforethe acquittal of the defendant .

Under Section 22(7) of the Prosecution of Offences Act 1985, where a magistrates' courtdecides to extend, or further extend, a time limit the accused may appeal to the Crown Court.Where the magistrates' court refuses to extend the time limit, section 22(8) of the Act permitsthe prosecution to appeal to the Crown Court once the time limit has expired.

Regulations have been made imposing limits on the time an accused person may be kept incustody awaiting trial but no regulations have been made under section 22(1) (a) setting out themaximum period to be allowed to the prosecution to complete particular preliminary stages ofcriminal proceedings. Provisions in Rules of Court setting out time limits on the preferment ofbills of indictment98 and time limits for the beginning of trials99 have tended to be regarded bythe courts as "directory" rather than mandatory.

In some cases, delay in bringing criminal proceedings may be considered by the courts toamount to abuse of process and as a result the charges against a particular individual may bestruck out. Much will depend on the circumstances of a particular case.

The Courts Charter sets out the following guidelines for hearings in the Crown Court:100

Hearings in the Crown Court

The Crown Court deals with over 100,000 criminal cases a year. Oncea case is sent to the Crown Court the following guidelines are used:

• If a defendant is in custody the trial should start within eight weeksof the case being committed for trial to the Crown Court.

• For a defendant on bail the trial should start within 16 weeks ofcommittal for trial to the Crown Court.

98 Indictments (Procedure) Rules 1971 SI 1971/2084 r.5. See Archbold, Criminal Pleading, Evidence andPractice 1998 paras 1-223-1-225

99 Crown Court Rules 1982 SI 1982/1109 r.24. See Archbold Criminal Pleading, Evidence and Practice 1998para 4-2

100 p.7


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• It should take no longer than four weeks between a case resulting inconviction and sentence being passed.

Performance is monitored against targets which are set annually. Theresults are published each year in the Court Service Annual Report.

Reporting in the 1994-95 Session on the administration of the Crown Court following a reportby the National Audit Office in 1994101 the Public Accounts Committee was highly critical ofthe current level of delays in bringing cases to trial102. The Committee noted that, in practice, theeight-week time-limit has never been met and that in most years the waiting time betweencommittal and trial had been at least 14 weeks. It added that

7. The consistent failure of the courts to meet the waiting timelimits has led the Lord Chancellor's Department to introduce lessdemanding and more realistic targets to provide a greater incentive toimprove court performance. They have set average waiting time limitsof eight weeks for custody cases and twelve weeks for bail cases.Because of special difficulties in the South East Circuit, the custodylimits have been set at 14 weeks for London and 10 weeks elsewhere;and the bail limits are 15 and 13 weeks respectively. Even theserelaxed targets have generally not been met, however. In 1992 justtwo Circuits met the custody target and only one met the bail target;and between April and November 1994 neither target was met on anyCircuit. The performance of individual courts was also unsatisfactory.

The Committee noted that:

10. The Department told us that the eight week limit had been set in1982 when waiting times were over 14 weeks. It therefore representedan aspirational goal - a marker to be aimed at - rather than an effectiverequirement. The fact that the limit had not been achieved in any yearsince the Courts Act 1971 was passed did not mean that Parliament'swill in this matter had been flouted. The Department would like toachieve the target and were working as hard as they could to do so.The limit therefore provided a useful discipline; and it also operatedeffectively to ensure that the Court examined any cases that weredelayed.

The Public Accounts Committee went on to consider a number of measures being taken toreduce waiting times103. In concluding its observations, however, the Committee said:

101 The Administration of the Crown Court - NAO 1994 HC639 Session 1993/94

102 Administration of the Crown Court - Committee of Public Accounts Session 1994-95 HC173 p.vi-viii

103 HC 173 Session 1994-95 p.xi


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13. We consider it a matter for serious concern that so little progresshas been made over the years in reducing the time taken to bring casesto trial and that the waiting time limits embodied in statute have neverbeen achieved. We regard it as unacceptable that on nearly everyCircuit defendants must expect to wait fourteen weeks and more beforetheir cases are heard. The long delays have also contributed towards asubstantial growth in the remand population and added significantly toPrison Service costs. Against this background, we were disappointedthat the Department could offer little hope of any significantimprovements in the medium and longer term.

14. We recognise that the Lord Chancellor's Department are onlyone of several participants in the criminal justice system and that someof the causes of delay lie outside their direct control. But we believethe Department can and should do more to exercise firmer control onthis problem, both where they have an immediate responsibility and inthose areas where they are in a position to exercise a strong persuasiveinfluence.

B. Reducing Delays

In its May 1996 consultation paper Tackling Youth Crime: Reforming Youth Justice theLabour Party proposed a number of reforms of court procedures, including the time-tabling ofcases and the establishment of a "fast-track" system for dealing with persistent youngoffenders to ensure they were dealt with more speedily. This latter proposals was also set outin the Labour Party manifesto for the 1997 General Election.

In February 1997 the previous Government published the report of a Review of Delay in theCriminal Justice System carried out by a Home Office review team led by Martin Narey. InOctober 1997 the present Government set out its response to the Narey Report in an annex toa Home Office consultation paper Reducing Remand Delays. The Government accepted mostof the report's recommendations and said that where those recommendation which it acceptedrequired primary legislation the necessary provision would be made in the Crime andDisorder Bill. In October 1997 the Government also published a consultation paper onTackling Delays in the Youth Justice System, in which it set out its legislative proposals totackle delays in the criminal courts in general and in proceedings involving young offendersin particular. The proposals for the youth justice system were set out again in the White PaperNo More Excuses in which the Government said104:

7.7 Review of Delay in the Criminal Justice System - the Government will beimplementing most of the recommendations of this review, some of them throughthe Crime and Disorder Bill Many should significantly speed up juvenile justice,including measures to:

104 CM 3809


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•enable cases in which a straightforward guilty plea is expected to be heard withina few days of charge; •promote the effective management of the pre-trial preparation of cases:

The Crime and Disorder Bill will make provision for certain powers to beexercised by a single justice, and for these powers to be delegated whereappropriate to justices’ clerks. The Government is giving further consideration towhich of the powers could properly be delegated to justices’ clerks; and •to allowthe youth court, when dealing with a young person charged with a grave offencewhich is committed to the Crown Court, to commit related offences as well, so thatall can be proceeded with together.

7.8 Reversing R v Khan - this 1994 ruling has led to unwelcome delays in theyouth court. The Crime and Disorder Bill will ensure that where a youth courtcommits a case to the Crown Court it need not await the outcome of the CrownCourt trial before sentencing the same defendant on unrelated charges.

7.9 The Crime and Disorder Bill will also clarify that where the youth court isdealing with offenders who face multiple charges (including so called ‘spree’offenders), they do not have to adjourn in order to tie up all outstanding charges.

7.10 Statutory time limits - the measures in paragraphs 7.7, 7.8 and 7.9, togetherwith the adoption of best practice, will create the conditions in which delaysshould be reduced significantly. To ensure that performance measures up, theGovernment will set mandatory time limits covering all criminal proceedingsinvolving young people, using powers under the Prosecution of Offences Act1985, as modified and extended by the Crime and Disorder Bill.

7.11 Time limits for cases involving young people will be stricter than for thoseinvolving adults and tougher limits still will be set for cases involving persistentyoung offenders.˝

˝7.12 Time limits will cover most of the period from arrest to sentence. The periodof the trial itself will not be covered by a time limit, as this would riskundermining the fairness of the court proceedings (and, in the vast majority ofcases, the trial period does not contribute significantly to delay). In guilty pleacases, there would be no interval between start of trial and conviction. The timelimits would in effect run through from arrest to sentence without a gap.

7.13 The length of the time limits themselves will be set following consultationand following pilot trials. Time limits will be implemented only once the newstreamlined procedures set out in paragraphs 7.7 - 7.9 are in place.

7.14 Enforcing statutory time limits— The Government will introduce tightercriteria for granting extensions to time limits and provide for a new, more flexible,sanction when the prosecution exceeds one of the new time limits. At the moment,if the prosecution overruns a time limit, they are ‘punished’ by the defendanteffectively being acquitted. The Government proposes instead that where the


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prosecution fails to meet a time limit, the charge should automatically be ‘setaside’, allowing the prosecution to recommence at a later date if the Director ofPublic Prosecutions or a Chief Crown Prosecutor thinks it appropriate.

7.15 In addition to the sanctions outlined above, the Government is consideringwhether fixed penalty style sanctions may be practicable for defence solicitors whofail to meet a deadline set by the court. The courts will also be able to enforcestatutory time limits by making use of their existing power, to impose ‘wastedcosts orders’, which are applicable to both prosecution and defence.

7.16 Performance targets - experience with existing non-statutory time guidelines(set by the inter-Departmental Trials Issues Group) has shown that upper limitscan come to be seen as targets. That is why, in addition to statutory time limits(which are upper limits) the Government also proposes to introduce moredemanding, non-statutory, performance targets. Performance against these targetswill be monitored by the new Youth Justice Board (see chapter 8). The Board maypublish the information it obtains, so giving greater accountability and a strongincentive to improved performance. The Home Secretary will, at the request of theBoard, consult the Lord Chancellor and the Attorney General on the provision to,and publication by, the Board of information on the operation of the courts or theCrown Prosecution Service.

7.17 Fast-tracking persistent young offenders - To help deliver the key pledge tohalve the time it takes to get persistent young offenders from arrest to sentence,statutory time limits for persistent young offenders will be the most demanding. A"persistent young offender" will be defined as someone aged 10-17 who has beensentenced for one or more recordable offences on three or more separate occasionsand is arrested again (or has an information laid against him or her) within threeyears of last being sentenced. In practice, the Government would expect otherswho do not fit this exact profile - in particular ‘spree offenders’ who commitmultiple offences over a short period - to be fast-tracked so that if they are foundguilty, their offending may be addressed quickly.

Most of the provisions in Clauses 40-54 of the Crime and Disorder Bill are designed toimplement these proposals.

C. The Crime and Disorder Bill

1. General time limits and additional time limits in cases involving people under 18

Clause 40 seeks to amend the Prosecution of Offences Act 1985 to permit different timelimits to be set for different cases. Clause 40(1) is designed to replace paragraphs a) and b) ofsection 22(2) of the 1985 Act105 with two new paragraphs. The first of these, new paragrapha), seeks to allow regulations to be made for time limits to apply only in relation to

105 See ???? above


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proceedings in specified areas, or proceedings of, or against persons of, specified classes anddescriptions. The Notes on Clauses state that these provisions will allow greater flexibility inthe setting of time limits. The new paragraph b) is intended to allow the regulations to setdifferent time limits in relation to proceedings in different areas, to proceedings of differentclasses or descriptions, or to proceedings against different classes or descriptions of person.The Notes on Clauses state that:

In practice this will allow, for example, for more exacting time limits to be set forcases involving juveniles than for those involving adults, and for even stricterlimits to be set for cases involving persistent young offenders. These powers willbe used to pilot time limits on a geographical basis.

Clause 40(2) is designed to to amend section 22(3) of the Prosecution of Offences Act 1985by providing what the Notes on Clauses describe as more prescriptive criteria for the grantingof extensions to time limits in criminal proceedings. It seeks to provide courts with a powerto extend, or further extend the time limit prescribed by regulations in respect of theparticular type of case before it, but provides that the court should not exercise this powerunless it is satisfied:

a) that the need for the extension is due to-

(i) the illness or absence of the accused, a necessary witness, a judge or amagistrate;(ii) a postponement which is occasioned by the ordering by the court of separatetrials in the case of two or more accused or two or more offences106; or(iii) some other good and sufficient cause; and

(b) that the prosecution has acted with all due diligence and expedition.

Clause 40(3) is designed to amend section 22 (4) of the Prosecution of Offences Act 1985 toensure that the existing sanction for failure for failure to meet time limits, which is theacquittal of the defendant, is replaced by a new sanction of staying the proceedings.

As originally drafted, Clause 40(4) (then Clause 34(4)) provided that where a defendantescaped or failed to surrender the court should, for the purposes of the overall time limitwhich applied in the defendant's case, disregard the period during which the defendant wasunlawfully at large. During the Bill's committee stage in the House of Lords the Solicitor-General Lord Falconer of Thoroton introduced Government amendments107 set out in Clause40(4) to (7) which are designed to enable the courts to direct that such further time period asthe court considers appropriate, in view of the disruption caused to the prosecution of the caseby the defendant's escape or failure to surrender, be disregarded for the purpose of the timelimits operating in the case.

106 paragraph ii) was added by a Government amendment during the Bill's Third Reading in the House of Lords.HL Deb Vol 588 c.224-225, 31.3.1998

107 HL Deb Vol 585 c.1368-1371, 12.2.1998


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Where a court extends a time limit or gives a direction that a further period be added inrespect of a defendant who has been unlawfully at large the defendant will be able to appealagainst the extension or direction to the Crown Court under section 22(7) of the 1985 Act.Where a court refuses to extend a time limit or to give a direction in an appropriate case theprosecution will be appeal against the refusal to the Crown Court under section 22(8) of the1985 Act.

Clause 41 seeks to amend the Prosecution of Offences Act 1985 by inserting a new section22A making special provision concerning time limits in cases involving offenders under theage of 18. These are designed to allow regulations to be setting time limits, in cases involvingyoung offenders, to cover the period from arrest to the date fixed for the first courtappearance (referred to as "the initial stage"), and from conviction to sentence. The Notes onClauses state that:

These new powers will be used alongside existing powers in section 22 of the1985 Act to set time limits for young offenders from arrest to sentence, excludingthe trial period itself (Section 22, as amended by Clause 34, will allow time limitsto be set from the date fixed for the first court appearance to start of trial for youngoffender cases).

Subsection (2) of the new section 22A, which is to be inserted into the 1985 Act by Clause41, is designed to apply the provisions of section 22(2), as amended by Clause 40 of the Bill(as explained above) to the new powers to set initial stage time limits for young offenders,with certain modifications. The modifications are intended to ensure that the Magistrates'Courts Act 1980 and the Bail Act 1976 can be applied in relation to cases to which the newtime limits apply, and that the Secretary of State may make any necessary transitionalarrangements in relation to cases where an arrest or conviction has taken place before thecommencement of the new time limits regulations108. Of subsection (2) the Notes on Clausessay:

This will mean that in setting time limits for young offenders under section 22A,the Secretary of State will be able to apply them only to certain areas, or to certaincategories of offender; and will also be able to make different provision asbetween different areas or categories of offender. The Government intends to usethese powers to pilot the new time limits on a geographical basis, and to set timelimits for cases involving persistent young offenders which are stricter than timelimits in cases involving other young offenders. These tougher time limits willreflect the Government's pledge to halve the time from arrest to sentence forpersistent young offenders.

The Notes on Clauses go on to say that Government proposes to define a persistent youngoffender as:

108 Notes on Clauses


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"A young person aged 10 to 17 who has been sentenced by any criminal court inthe UK on three or more separate occasions for one or more recordable offence,and within three years of the last sentencing occasion is subsequently arrested orhas an information laid against him for a further recordable offence"

Subsection (3) of the new section 22A to be inserted into the 1985 Act by Clause 41 seeks toensure that a magistrates' court is only able to extend or further extend the time limitsprovided by regulations made under these provisions where it is satisfied:

a) that the need for the extension is due to some good and sufficient cause; andb) that the investigation has been conducted, and (where applicable) the

prosecution has acted, with all due diligence and expedition

The Notes on Clauses state that:

Taken together, these provisions should ensure that extensions are not grantedroutinely.

Where the time limit for the initial stage (whether as initially imposed or as extended underthese provisions) expires before the young person who has been arrested is charged with theoffence it is intended, by virtue of subsection (4) of the new section 22A that he should not becharged with the offence unless further evidence relating to it is obtained. The provision isdesigned to ensure that if at that time he is under arrest, he is released, and is he is on bail, hisbail is discharged. Under subsection (5), where the time limit for the initial stage (whether asoriginally imposed or extended) expires after the person arrested has been charged, but beforethe date fixed for his first court appearance, it is intended that the court should stay theproceedings. Where the young person escapes from arrest or fails to surrender after havingbeen released on bail the period during which he is unlawfully at large is to be disregardedfor the purposes of the initial stage time limit. Subsection (6) seeks to ensure that where ayoung person escapes from arrest or fails to surrender after having been released on bail, anyperiod for which he or she is at large is disregarded for the purposes of the initial stage timelimit.

Subsection (7) of new section 22A seeks to ensure that the rights of a defendants and theprosecution under section 22(7) to (9) of the 1985 Act to appeal against decisions to extend,or refusals to extend, custody time limits or overall time limits in particular cases, will also beavailable in respect of decisions concerning initial stage time limits in proceedings involvingyoung offenders.

Subsection (8) of the new section 22A seeks to ensure that, where a magistrates' courtexercises its power to extend the initial stage limit and a person is subsequently convicted inthe case, the exercise of the power to extend the time limit is not considered a relevant issuein any appeal against the conviction.


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Clause 42 of the Bill is designed to insert a new section 22B into the Prosecution of OffencesAct 1985 enabling proceedings stayed under section 22(4) of the 1985 Act, as amended byClause 40(3), and under the provisions set out in Clause 41 in relation to time limits foryoung offenders, to be re-instituted in certain circumstances. For cases conducted by theCrown Prosecution Service, only the Director of Public Prosecutions or a Chief CrownProsecutor will be able to direct that fresh proceedings be instituted. For cases conducted bythe Serious Fraud Office, the Inland Revenue or HM Customs and Excise only the relevantDirector or Commissioners will have powers to reinstitute proceedings, while in any othercases, only a person designated for that purpose by the Secretary of State will be able to doso.

Subsection (2) of new section 22B of the 1985 Act provides that fresh proceedings may beinstituted within a period of three months(or such longer period as the court may allow) afterthe date on which the original proceedings were stayed by the court. Where fresh proceedingsare instituted following a stay of proceedings, new subsection (5) is intended to prevent theprosecution and defence from having to comply for a second time with the disclosurerequirements under the Criminal Procedure and Investigations Act 1996 where these werecomplied with in the course of the original proceedings. Where a person is convicted in freshproceedings brought following a stay, new subsection (6) seeks to prevent the institution offresh proceedings becoming an issue in any subsequent appeal against conviction byproviding that the institution of proceedings shall not be called into question in any suchappeal.

Clause 43 is designed to amend section 47 of the Police and Criminal Evidence Act 1984 byseeking to ensure that where a person is bailed by the police to appear before a magistrates'court the date set by the custody officer for the person's appearance is the first sitting dayafter the person is charged or, if the custody officer is informed by the local justices' clerkthat the case cannot be accommodated until a later date, that later date. The Notes on Clausessay that:

The purpose of this clause is to ensure that where a defendant is bailed by the police to appearin court, the date set for his appearance is the earliest possible, rather than (as is now theusual practice) a date several weeks after the charge. This will reinforce other measureswhich are being implemented (pursuant to recommendations made by the Review of Delay inthe Criminal Justice System) with a view to enabling straightforward guilty plea cases to bedealt with shortly after charge.

2. Powers of youth courts

Clause 44 is designed to implement a number of recommendations in the report of theReview of Delay in the Criminal Justice System109 as well as proposals set out in theconsultation paper Tackling Delays in the Youth Justice System.

109 Home Office, February 1997


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Clause 44(1) seeks to give the youth court a discretionary power to remit a person chargedwith an offence who subsequently attains the age of 18 for trial or, as the case may be, forsentence to a magistrates' court (other than a youth court) acting in the same petty sessionsarea as the youth court. The power may be exercised at any time before the start of the trial orafter conviction and before sentence. The Notes on Clauses comment that the provision isintended to ensure that older juveniles are dealt with in courts best suited to deal with theirmaturity and attitude.

Clause 44(2) is intended to create a presumption against adjournments in the youth courtwhere the only reason for the adjournment is that the defendant is being committed for trial atthe Crown Court for a separate offence or is charged with another offence. As far as the firstof these sets of circumstances is concerned the provision is intended to reverse the ruling bythe Court of Appeal in the 1994 case R v. Khan that:

"save in exceptional circumstances, the youth court which sends a young personfor trial at the Crown Court should postpone sentence in respect of other, exhypothesi, less serious offences, until after the more serious matter has been dealtwith.

As far as the presumption against adjourning the court where the defendant is charged withanother offence is concerned, the Notes on Clauses comments that this is intended to avoiddelays occurring where a youth court adjourns simply in order to tie up outstanding cases.

Clause 44(3) seeks to implement one of the recommendations of the Review of Delay in theCriminal Justice System 110by amending section 24 of the Magistrates' Courts Act 1980 toprovide that where a youth court commits a person under the age of 18 for trial at the CrownCourt for homicide, or one of the very serious offences listed in section 53(2) of the Childrenand Young Persons Act 1933, it may also commit him or her for trial at the same time for anyindictable offences with which he is charged, if the other offences are related, in that theycould be joined in the same indictment. The Notes on Clauses state that:

This amendment is intended to avoid the unnecessary delays which arise becausethe youth court currently has no power to commit related charges to the CrownCourt, and may therefore feel compelled to await the outcome of the Crown Courtproceedings before dealing with any lesser charges which remain within itsjurisdiction.

Taken together with subsection (2) this provision should ensure that where a caseis committed to the Crown Court for trial, related offences are committed at thesame time and unrelated offences are dealt with in the youth court without delay.

110 Home Office (February 1997) recommendation 32


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Clause 44(4) is intended to give effect to one of the recommendations of the Review of Delayin the Criminal Justice System111 by repealing part of section 47(2) of the Children andYoung Persons Act 1933 which currently prescribes an hour's interval between a magistrates'court and a youth court sitting in the same room. The Notes on Clauses state that:

The objective of the change is to reduce inefficiency in the use of court time.Section 31 of the Children and Young Persons Act 1933 will continue to requirethat arrangements must be made to ensure that young defendants do not associatewith adult defendants whilst awaiting hearing.

Clause 45 is designed to amend Schedule 2 to the Children and Young Persons Act 1933 soas to allow stipendiary magistrates to sit alone in the youth court. This measure is another ofthose recommended by the Review of Delay in the Criminal Justice System112. The Notes onClauses set out the background to it as follows:

At present, the 1933 Act requires that a youth court should consist of threemembers, comprising a chairman and two other members, including a man and awoman. The only exception to this is where these requirements cannot be metwithout adjournment, and where adjournment would not be in the interests ofjustice. In these circumstances, a stipendiary magistrate may sit alone. The clausewill allow a metropolitan stipendiary magistrate to sit alone in any circumstances.

The Notes on Clauses point out that this Clause deals only with metropolitan stipendiarymagistrates who operate in Inner London or the City of London. They add that:

Primary legislation is not necessary to allow stipendiary magistrates sitting in theyouth court elsewhere in England and Wales to sit alone. This can be achievedthrough changes to the Youth Courts (Constitution) Rules 1954, which govern thecircumstances in which non-metropolitan stipendiary magistrates may sit in theyouth court. It is the Government's intention to amend the Youth Courts(Constitution) Rules 1954 in this way.

3. Powers of single justices in magistrates' courts

The Review of Delay in the Criminal Justice System113 stated that:

Getting guilty plea cases to court promptly would dispose of a large number ofcases which currently, despite their simplicity, can take nearly as long as contestedtrials. But if cases which cannot be dealt with at first appearance are to make goodprogress, they must be managed m court.

The importance of case management has been recognised in the area of civiljustice by Lord Woolf's proposed reforms, and in the Crown Court by the adoption

111ibid. recommendation 33112 ibid. recommendation 31113 ibid. p.24


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of Plea and Directions Hearings. On the evidence of what I have seen, it seemsdear that there is a great deal that could be achieved in magistrates' courts throughmore rigorous management of the case before it goes to trial.

The Review went on to make the following comments about who should undertake casemanagement in magistrates' courts:Everyone I spoke to agreed that case management ought to be a priority formagistrates' courts. Ideally, lay magistrates should do this. But for a number ofreasons they are not well suited to the role. The need for a Bench of three laymagistrates to reach agreement between themselves is not conducive to decisiveaction; and where a court does act firmly, there is frequently no continuity, so thatthe next time the case comes to court it will probably be before a differentlyconstituted Bench which may either be less inclined to press matters, or not beaware of the opinions and attitude of the earlier Bench. The first of thesedifficulties could be overcome, and the second possibly reduced, by allowinghearings concerned with case management to be heard by a single justice. But thiswould not go to the heart of the problem, which is that (with rare exceptions)magistrates have neither the detailed background knowledge of law and procedure,nor the confidence, which enables stipendiaries or professionally qualified clerksto take the type of robust decision necessary to drive the case forward.

The report recommended that Justices' Clerks be given the responsibility of managing thepre-trial preparation of all cases, putting them before magistrates only when the cases wereready for trial. As a means of achieving this the report also recommended that the powers ofJustices' Clerks be extended and clarified to give them non-judicial powers similar to thosethey have in family proceedings. The reviewer, Martin Narey, said114:

There is in my view a powerful argument for reinforcing the position of the laymagistracy by giving to justices' clerks (and other senior staff to whom they maydelegate their powers) the responsibility for managing cases. Some will argue thatthis would amount to redefining the essentially judicial role of the lay magistracyand the administrative role of court clerks and would diminish the role and statusof magistrates. I am quite certain that this would not be so. On the contrary,removing administrative case management from magistrates' remit - enabling themto concentrate on determining the bail or custody status of defendants and decidingon guilt and sentencing, for which they are best qualified - would do much toincrease the quality and attractiveness of the work of the magistracy and increaseits efficiency.

In its consultation paper Tackling delays in the Youth Justice System the Government said115:

20. The Review of Delay recommended, inter alia, that Justices’ Clerks shouldmanage the pre-trial preparation of all cases, putting them before magistrates onlywhen ready for trial, and that in order to enable Clerks to do this more effectivelytheir powers (both in adult courts and in the Youth Court) should be extended and

114 ibid. p26115 Home office October 1997


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clarified (see Annex A) . The Government agrees that the case management is ofthe utmost importance in reducing delays in Magistrates’ Courts, including theYouth Court; there is a role both for magistrates and, in appropriate circumstances,for justices’ clerks. Further consideration is being given to which of the powersidentified in the report as desirable for the effective running of pre-trial reviewscould properly be delegated to clerks. The Crime and Disorder Bill will contain aprovision authorising the exercise by a single justice of all these powers. Furtherdelegation to Justices’ Clerks could then be effected by secondary legislation.

Clause 46 is designed to carry forward these measures by enabling some of the powers of amagistrates' court to be exercised by a single justice of the peace. The powers concerned arelisted in the Clause. It also seeks to permit the Lord Chancellor to make provision throughrules made under section 144 of the Magistrates' Courts Act 1980 following consultationwith the justices and justices' clerks for an area, for the justices' clerks in that area to exerciseany of the powers listed in the Clause, subject to certain modifications. The rules will have tobe set out in statutory instruments which, under section 144(4) of the 1980 Act will be subjectto annulment by resolution of either House of Parliament under the negative procedure.

The powers listed in Clause 46(1) as being exercisable by a single justice and which maytherefore be delegated to Justices' Clerks, if the appropriate rules are made, are the following:

(a) to extend bail or to impose or vary conditions of bail;

(b) to mark an information as withdrawn;

(c) to dismiss an information, or to discharge an accused in respect of aninformation, where no evidence is offered by the prosecution;

(d) to make an order for the payment of defence costs out of central funds;

(e) to request a pre-sentence report following a plea of guilty and, for that purpose,to give an indication of the seriousness of the offence;

(f) to request a medical report and, for that purpose, to remand the accused incustody or on bail;

(g) to remit an offender to another court for sentence;

(h) where the mode of trial on a charge has been determined, to determine themode of trial on an amended or additional charge;

(i) where a person has been granted police bail to appear at a magistrates' court, toappoint an earlier time for his appearance;

(j) to extend, with the consent of the accused, a custody time limit or an overalltime limit;

(k) where a case is to be tried on indictment, to grant representation under Part Vof the Legal Aid Act 1988 for purposes of the proceedings in the Crown Court;


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(l) where an accused has been convicted of an offence, to order him to produce hisdriving licence;

(m) to give a direction prohibiting the publication of matters disclosed orexempted from disclosure in court;(n) to give, vary or revoke directions for the conduct of a trial, including directionsas to the following matters, namely-(i) the timetable for the proceedings;(ii) the attendance of the parties;(iii) the service of documents (including summaries of any legal arguments reliedon by the parties);(iv) the manner in which evidence is to be given; and

(o) to give, vary or revoke orders for separate or joint trials in the case of two ormore accused or two or more informations.

Clause 46(2) seeks to enable the Lord Chancellor to place restrictions and conditions on theexercise by justices' clerks of powers authorised under the appropriate rules to be done bysingle justices. It also aims to permit the Lord Chancellor to make rules area by area, so thathe new arrangements can be introduced on a pilot basis. Clause 46(4) is designed to requirethe Lord Chancellor to consult justices of the peace and justices' clerks for a particular areabefore making rules authorising the Clerks to the Justices for that area to exercise any of thelisted powers.

During the debate on the Bill in the House of Lords some peers expressed the view that someof the powers listed in what is now clause 46 involved judicial rather than administrative actsand should not be delegated to Justices' Clerks. The Lord Chief Justice, Lord Bingham ofCorkhill, referred to this in his speech during the debate on the Bill's Second reading, whenhe said116:

There are some powers listed in Clause 40(1) which can quite unobjectionably beexercised by a justices' clerk, for example,

"(b) to mark an information as withdrawn;"(c) to dismiss an information...where no evidence is offered by the prosecution"

and, probably,

"(j) to extend, with the consent of the accused, a custody time limit".

These are formal, administrative acts; they are not judicial acts. But some powerslisted in the clause are quite different, for example in (f) to require,

116 HL Deb Vol 584 c.561-562, 16.12.1997


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"a medical report and, for that purpose, to remand the accused in custody or onbail".

To send a defendant to prison is a judicial act; it is not an order which anyone notexercising judicial authority should make, and it is certainly not a matter ofadministration. There should be no power to make rules which would enable ajustices' clerk to make such an order. The same, I suggest, is true of (e), to require,"a pre-sentence report following a plea of guilty and, for that purpose, to give theprobation service an indication of the seriousness of the offence".

That is, if power were delegated and rules were made, the justices' clerk could tellthe Probation Service whether custody or community service or probation was thelikely outcome. That is not an appropriate function for anyone but the judicialdecision maker and could be gravely embarrassing to the court. I take as my lastexample,

"(o) to give, vary or revoke orders for separate or joint trials in the case of two ormore accused or two or more informations".

Those are significant discretionary decisions as to whether two or more offendersor two or more offences can be tried together. The making of such decisions is aregular ground of appeal in the higher courts, the complaint being that unjustdecisions have been made. It is, again, not a decision for anyone not exercisingjudicial power. The terms of the subsection permit an order previously made,perhaps by a justice or justices, to be varied or revoked, if rules were made andthis power were delegated, by the justices' clerk. That, I suggest is not acceptable.

I shall not weary your Lordships by examining all these provisions. I make it clearthat I have no objection to the exercise of these powers by a single justice. But Iobject to the possibility that some of these powers might by rule be exercised bythe justices' clerk because such a rule would erode the fundamental distinctionbetween the justices and the justices' legal adviser and in the longer term--as I fear--signal the demise of the lay magistracy which would be an irreparable loss.

If the justices' clerk were to be entrusted with these important decisions andjudgments, judicial in character, the time would inevitably come when peoplewould reasonably ask whether he or she should not be left to get on and try thewhole case. That is a result which might be welcome to some; I would not beamong that number. Most of your Lordships would not, I think, be among thatnumber either, and nor would most of those with knowledge of how justice isadministered at a local level up and down the country. I am sorry that I appear todevote my time to a criticism of the Bill which in general I welcome but I feelconcern about this power. I hope that the Government, valuing the magistracy asof course I am sure they do, will think again about this provision and remove whatI believe to be a potential blemish.


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During the debate on the Bill's report stage in the House of Lords the Home Office ministerLord Williams of Mostyn said117:

We always intended that the powers in Clause 40 should be exercisable by ajustice sitting alone, not a full court. The Lord Chief Justice sees no difficulty inthat. We intended that the listed powers should be capable, if suitable rules weremade, of being exercised by clerks but that it might be necessary--indeed it wouldbe necessary--for the powers to be restricted when given to clerks. The drafting ofthe clause, which has been explained earlier, made provisions for thoserestrictions.

Following very strong representations, and they were reasoned representations, wewondered whether there should be restrictions on the face of the Bill. We havecome to the conclusion that it is possible to do that and furthermore that it is rightto do that. I can tell your Lordships that we propose to move suitable amendmentsat Third Reading to make clear the extent of the powers which clerks would becapable of exercising subject to rules.

Amendments to what is now Clause 46, placing restrictions on the powers which could begiven to Justices' Clerks, were duly moved by Lord Williams of Mostyn during the debate onthe Bill's Third Reading in the House of Lords. These restrictions are now set out in Clause46(3), which provides that:

(3) Rules under that section which make such provision as is mentioned insubsection (2) above shall not authorise a justices' clerk-

(a) without the consent of the prosecutor and the accused, to extend bail onconditions other than those (if any) previously imposed, or to impose or varyconditions of bail;

(b) to give an indication of the seriousness of an offence for the purposes of a pre-sentence report;

(c) to remand the accused in custody for the purposes of a medical report or,without the consent of the prosecutor and the accused, to remand the accused onbail for those purposes on conditions other than those (if any) previously imposed;

(d) to give a direction prohibiting the publication of matters disclosed or exemptedfrom disclosure in court; or

(e) without the consent of the parties, to give, vary or revoke orders for separate orjoint trials in the case of two or more accused or two or more informations.

In moving the amendment which introduced them, the Home Office minister Lord Williamsof Mostyn made the following comments about these provisions118:

117 HL Deb Vol 587 c.900-901, 19.3.1998118 HL Deb Vol 588 c.226, 31.3.1998


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The most significant is that which adds new subsection (2A) to Clause 43.

It limits the powers which are capable of being made available to justices' clerks.Clerks will have no power to remand a defendant in custody, and will have thepower to remand on bail only on the same conditions as those previously imposed,unless the prosecution and the accused consent to their being varied or to new onesbeing imposed. The same restrictions apply to the power to remand defendants atan early administrative hearing, which now appears in Clause 44. The result is thatthere are no circumstances in which a clerk will be able to remand a defendant incustody.

The other restrictions on Clause 43 powers are that a clerk cannot impose reportingrestrictions; he may make orders for separate or joint trials only with the consentof all the parties; and while he may request a pre-sentence report, he cannot givean indication of seriousness. Those latter matters were raised in particular by thenoble Lord, Lord Goodhart, whose presence I was looking for and have nowdiscovered to my surprise, because I was going to make those remarks in hisabsence.

In the debate on Report the noble Baroness, Lady Anelay, wondered whether theeffect of this would be that pre-sentence reports would be ordered almost as amatter of course, with unfortunate implications for resources. I see no reason tofear such an outcome, since clerks should be as well able as magistrates to assesswhether a PSR is likely to be required. The other amendments are draftingimprovements only.

I hope that noble Lords who expressed concern about those matters will feel thatwe have reasonably met those concerns.

Clause 47 is designed to implement a recommendation of the Review of Delay in theCriminal Justice System that early administrative hearings be placed on a firm statutoryfooting. The purpose of the hearings is to determine defendants' eligibility for legal aid, andwhere appropriate encourage them to obtain legal advice before the first full court hearing.The Clause seeks to provide for the hearings to be conducted by a single justice, or a Justices'Clerk to whom powers in relation to such hearings have been given. An exception is intendedto be provided for preliminary hearings for indictable offences under Clause 48, from which adefendant would be sent directly to the Crown Court and which are to remain matters for thefull court. Clause 47(2) is designed to set out the procedure to be followed at an earlyadministrative hearing (the term itself is not used in the Bill). It is intended that the singlejustice ( or a justices clerk if rules permit) should ask the accused whether he wishes toreceive legal aid and if the accused indicates that he does, the single justice or clerk shoulddetermine his eligibility and if he is found to be eligible, make the necessary arrangements forhim to obtain it.

Clause 47(3) seeks to permit the single justice conducting the hearing to exercise any of hispowers as a single justice and to remand the accused in custody or on bail when he adjournsthe hearing. A justices' clerk exercising the powers of a single justice will not, however, have


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powers to remand the accused in custody or, unless he has the consent of the prosecutor andthe accused, remand the accuse on bail on conditions other than those previously imposed (ifany) This restriction on the powers exercisable Justices' Clerks was added as a Governmentamendment during the Bill's Third reading in the House of Lords, at the same time as theamendments restricting Justices' Clerks use of the more general powers of single justicesunder Clause 46119.

4. Ending of committal proceedings for indictable-only offences

Clause 48 and Schedule 3 of the Bill are designed to implement the recommendation of theReview of Delay in the Criminal Justice System that proceedings for offences triable only onindictment should commence in the Crown Court. It seeks to ensure that, when an adult(defined in Clause 48(12) as a person aged 18 or over) is brought before a magistrates' courtcharged with an offence that is triable only on indictment, he is sent directly to the CrownCourt for trial for that offence and for any either-way120 or summary121 offence which fulfilsthe "requisite conditions". These conditions are defined in Clause 48(11) as being that theoffence appears to the court to be related to the indictable-only offence and, in the case of asummary offence, is punishable with imprisonment or involves obligatory or discretionarydisqualification from driving.

Where an adult who has already been sent for trial to the Crown Court under these provisionsis subsequently brought before a magistrates' court charged with further either-way orsummary offences which fulfil the requisite conditions, Clause 48(2) is intended to give thecourt a discretionary power to send him to the Crown Court for trial for these offences aswell.

Where the court sends an adult to the Crown Court for trial on an indictable-only charge andanother adult appears or is brought before the court on the same, or on a subsequent occasion,charged jointly with him with an either-way offence which appears to the court to be relatedto the indictable-only offence Clause 48(3) seeks to require the to send the second adultdirectly to the Crown Court where he adult appears before the court on the same occasion asthe first, and a discretionary power to send him there where he appears on a subsequentoccasion. Where an adult who is sent to the Crown Court for trial in this way the magistrateswill also have to send him there for the trial of any further either-way or summary offenceswith which he is charged which fulfil the "requisite conditions" set out in Clause 48(11), inthat they appear to be related to the indictable-only offence and, in the case of summaryoffences, are punishable with imprisonment or obligatory or discretionary disqualificationfrom driving.

119 HL Deb Vol 588 c.229, 31.3.1998120 i.e. an offence triable either in the Crown Court or by magistrates121 i.e. an offence triable only by magistrates


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Where in either of these circumstances, a child or young person appears before themagistrates' court, on the same or a subsequent occasion, charged jointly with the adult withan indictable offence for which the adult is sent to the Crown Court for trial, Clause 48(5)seeks to enable the magistrates' court to send the child or young person directly to the CrownCourt if the court considers it necessary in the interests of justice to do so. Where a child issent for trial at the Crown Court under these provisions Clause 48(6) seeks to provides thecourt with a power, but not a duty, to send him to the Crown Court for trial in respect ofoffences with which he is charged which fulfil the requisite conditions.

The magistrates' court will be required to specify in a notice the offence or offences for whicha person is being sent for trial and the place at which he is to be tried. Where there is morethan one indictable-only offence and the court includes an either-way or summary offence inthe notice it will be required to specify in the notice the indictable-only offence to which theeither-way or summary offences appear to it to be related.

In moving some technical amendments to what is now Clause 48 during the Bill's committeestage in the House of Lords the Solicitor-General, Lord Falconer of Thoroton, described howthe Government thought what was then Clause 42 would work122:

As presently drafted Clause 42 is designed to secure the prompt removal to theCrown Court of indictable-only offences, but it is not sufficient for these offencesalone to be sent to the higher court. If a defendant faces other charges triable eitherway which are related to the indicatable-only one it may be necessary for thosecharges to accompany it to the Crown Court. That is why where an adult is sent tothe Crown Court for trial for an indictable-only offence, Clause 42 requires thecourt also to send there any related either-way charge which is before the court onthat occasion either against him or against another adult jointly charged with him.But because of the reference to "that occasion" the clause does not take account ofthe situation where the defendant has already been sent to the Crown Court fortrial for an indictable-only offence and there is a subsequent appearance in courton a related either-way charge either by that person or by another adult jointlycharged with him. For example, a suspect may be caught and charged with aneither-way offence jointly with the main suspect only after the latter has beenarrested and appeared in court. The effect of these amendments is to give themagistrates' court a discretion to send the defendant to the Crown Court for trial onthat related charge.

In deciding whether to exercise this discretion the court will be able to take intoconsideration the stage which the indictable-only case has reached. Theappearance on the related charge may follow soon after the indictable-only one, inwhich instance it would be right for that case to be sent forward too so that theycan be dealt with together. If, on the other hand, the indictable-only case hadalready progressed a long way, it is possible that sending the related charge up tothe Crown Court to join it would lead to extra delay, in which case the discretion

122 HL Deb Vol 586 c.550-551, 24.2.1998


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would be exercised against sending it up to the Crown Court. That is what the firstpart of these amendments seeks to achieve.

In relation to young people, these amendments merely bring the clause into linewith Section 24 of the Magistrates' Courts Act 1980. In place of a simplediscretion to send a young person to the Crown Court to be tried jointly with anadult on an either-way charge, the court is required to send him where it isnecessary in the interests of justice. That is the same test as under the Magistrates'Courts Act 1980. That is the effect of the proposed amendments.

Commenting on the provisions of what is now Clause 48 the Conservative peer and formermagistrate Baroness Anelay of St. Johns said123:

We on these Benches do not oppose the amendments. However, I should like totake this opportunity to remind the Minister of the potential effects of Clause 42.The Law Society has pointed out that the practical implications of this majorprocedural change must be carefully thought through to ensure that it is fair andworkable. There has already been a significant increase in the number of plea anddirections hearings at the Crown Court. These are invariably heard by the residentjudge or senior nominated judges at the Crown Court centre. That reduces theamount of time available to them to preside over trials. If they are to undertakecase management of indictable-only offences and related matters, I believe thatthey will have even less time to spend on trials where they would normally beexpected to take a lead in cracking the lists. Not only will that cause delayultimately in the disposal of cases which go to trial, there will also be a tendencyto allocate trials to recorders and assistant recorders. I am referring to those whoare not authorised to take plea and directions cases.

There is a risk that the provisions may change the overall character of the work ofthe judges in the Crown Court: they become case managers instead of presidingover trials. We on these Benches do not oppose the amendments. However, weseek reassurance from the Minister that the Government have taken into accountthe potential changes that may occur as a result of the amendments which buildupon the original clause. It is important that the Committee is aware of thepotential changes when agreeing to Clause 42 with the amendments.

In responding to these comments the Solicitor General Lord Falconer said124:

I am grateful for the indication by the noble Baroness that she does not opposethese amendments. I note carefully the points that she has made about theadministrative effect of having indictable-only offences in the Crown Court. Ireassure the noble Baroness that considerable thought is being given to thequestion of how it will affect proceedings in the Crown Court. Unquestionably theoverall aim is to speed up the trial of indictable-only offences. However, I reassure

123 ibid. c.551-552124 ibid. c.552


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the noble Baroness that proper thought is being given to how this may work out inpractice.

5. Powers of non-legal staff in the Crown Prosecution Service

Clause 50 is designed to enable the Director of Public Prosecutions (DPP) to designatemembers of the staff of the Crown Prosecution Service (CPS) who are not legally qualified,for the purposes of enabling those who are designated to exercise certain powers. Thesepowers are:

(a) the powers and rights of audience of a Crown Prosecutor in relation to-(i) applications for, or relating to, bail in criminal proceedings;(ii) the conduct of criminal proceedings in magistrates' courts other than trials;

(b) the powers of such a Prosecutor in relation to the conduct of criminalproceedings not falling within paragraph (a)(ii) above.

CPS non-legal staff who are designated under Clause 50 will be required to exercise theirpowers subject to instructions given by the DPP.

Clause 50 was introduced as a Government amendment during the Bill's Committee stage inthe House of Lords. In moving the amendment the Solicitor-General Lord Falconer said125:

The new clause gives effect to two recommendations in the report, ReducingDelay in the Criminal Justice System. One was that the Director of PublicProsecutions should confer on staff of the Crown Prosecution Service who are notlawyers, the power of a crown prosecutor to review files; the other, that such laystaff should be able to present uncontested cases in magistrates' courts.

The new clause enables the DPP to designate members of CPS staff who are notlegally qualified for two purposes. The first is making decisions whether toinstitute or (more usually) continue cases; at present a decision to prosecute cannotbe taken by any member of staff of the CPS who is not a crown prosecutor. Thesecond is conducting criminal proceedings in magistrates' courts other thancontested trials. Such proceedings include bail applications, which non-qualifiedstaff can already be designated to deal with under Section 7A of the Prosecution ofOffences Act 1985.

A lay member of staff who has been designated under this clause will have thesame powers and rights of audience as crown prosecutors. Such a person would berequired to exercise those powers subject to instructions given by the DPP, whichwould cover (among other things) the circumstances in which it would beappropriate for proceedings to be discontinued. Lay presenters are alreadysuccessfully used in substantial numbers of cases brought in the magistrates' courts

125 HL Deb Vol 586 c.577-578, 24.2.1998


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by prosecuting authorities other than the CPS; for example, HM Customs &Excise and the Health and Safety Executive.

I should like to emphasise that the effect of this provision is not to extend therights of lay presenters to review cases or to appear in cases beyond the proposalsadvanced by Narey in his review of delay in the criminal justice system. In effect,that would deal with uncontested with cases of a relatively minor sort.

During the Third Reading debate on the Bill Lord Falconer introduced amendments to thisprovision designed to exclude cases involving offences triable only on indictment from thescope of the powers which would have been available to non-legal CPS under the Clause asoriginally drafted.126 The amendments are now set out in Clause 50(5)(a) as amended andClause 50(5)b).

6. Bail

Section 3(5) of the Bail Act 1976 provides that a person may be required to give security forhis surrender to custody before being released on bail "if it appears that he is unlikely toremain in Great Britain until the time appointed for him to surrender to custody". Clause 51 isintended to increase the powers available to the police and the courts to attach conditions to agrant of bail. by removing this qualification, enabling security to be required in a wider rangeof circumstances. The Clause is also deigned to enable a court to require a defendant to attendan interview with a legal representative as a condition of granting bail. The Notes on Clausesstate that these measures are aimed at reducing delays caused by the non-appearance ofdefendants or their failure to obtain legal advice in advance of a hearing, the measures wereproposed in the Home Office consultation paper on Reducing Remand Delays127

Clause 52 is designed to amend section 120 of the Magistrates' Courts Act 1980 to enable amagistrates' court to declare a recognizance to be forfeited immediately upon the non-appearance of a bailed defendant and to summons the surety to show why the recognizanceshould not be forfeited. This Clause was added by a government amendment moved duringthe Bill's third reading in the House of Lords by the Solicitor-General Lord Falconer, whosaid128:

The noble and learned Lord said: My Lords, this clause seeks to strengthen the useof sureties in bail cases. A surety is a person who undertakes to hand over anagreed sum to the court if a bailed defendant fails to attend a court hearing. Thenew measure gives the magistrates' courts a new power to declare a recognizance--that is, the agreed sum--to be forfeited immediately and automatically where adefendant fails to appear at a court hearing. The new clause deals only with theprocedure in the magistrates' courts only because it is only those courts to which

126 HL Deb Vol 588 c.229-235, 31.3.1998.127 Home Office October 1997 paragraphs 32-33128 HL Deb Vol 588 c.236-237, 31.3.1998


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the existing provisions apply. Forfeiture of a surety's recognizance in other courtsis dealt with by rules of court, which may be amended by subordinate legislation.

The aim of this measure is to make sureties take their responsibilities moreseriously. In too many cases, delay is caused by adjournments due to the non-appearance of the defendant. Stricter enforcement is needed to ensure thatdefendants who are released on bail surrender to the custody of the court at thenext hearing.

Sureties are an important part of the bail process. The court may release adefendant on bail subject to providing a surety in cases where it considers that thedefendant may not otherwise answer to bail. The particular advantage of the use ofa surety, of course, is that that person can be with the defendant between hearingsready to remind him that it is in the best interest of the defendant, and indeed ofthe surety, for the defendant to attend court. In addition, where despite the surety'sbest efforts it seems that the defendant is intending to abscond, the surety isobliged to contact the police. The surety will generally be a friend or relative, butprincipally someone with influence over the defendant, who will promise to pay asum to the court in the event that the defendant fails to appear at his next courthearing. This is a heavy responsibility and the surety should be certain that he orshe would be able to ensure the defendant's appearance before making such anundertaking.

At present, where a defendant fails to answer to bail the court must first considerthe extent to which the surety was at fault before deciding whether the sum shouldbe forfeited and whether the person bound should pay the whole sum or only partof it. In some cases we believe that this approach may encourage the surety toenter into this contract recklessly, perhaps in the belief that he will easily be ableto persuade the court that he did all that he could and that his money is never indanger.

The new measure which we are proposing will scotch that mistaken belief andsend a strong signal to prospective sureties about the seriousness of theundertaking and the consequences of failing to keep to their side of the bargain. Onthe non-appearance of the defendant, the court will immediately declare automaticforfeiture of the sum. Notice of the forfeiture will then be sent to the suretytogether with a summons to attend court for the purpose of showing why the sumshould not be paid. The court will then make a decision whether to order paymentof the sum in whole or in part or whether to remit it to the surety. If the surety failsto answer the summons, the court may proceed in his or her absence provided thatit is satisfied that the summons has been correctly served. This will enable thecollection process to begin at an earlier stage than at present.

Under the new system, sureties will still have the opportunity to explain why theywere unable to keep their side of the contract and the court retains the discretion todecide whether the sum should in fact be paid, in the light of the particularcircumstances. But the important difference is that the onus for establishing lack ofculpability is shifted fairly and squarely onto the surety. The fact that thedeclaration of forfeiture is automatic upon the defendant's failure to appear createsa much stronger link between the defendant's absconding and the surety losing his


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money. For this reason the surety will take his responsibilities more seriously andensure that the defendant appears in more cases, thereby reducing adjournmentsand delay.

The Conservative peer Lord Henley said his party entirely accepted the amendments,although he thought it possible that some concerns about it might be expressed in the Houseof Commons129. The Liberal Democrat peer, Lord Thomas of Gresford said sureties werefrequently at court proceedings to tell the court that they had no idea where the defendant wasand that it seemed excessive that they should be summonsed to appear to give an explanationat another date130.

Section 25 of the Criminal Justice and Public Order Act 1994 created an absolute prohibitionon the granting of bail to people charged with murder, attempted murder, manslaughter, rapeor attempted rape, following a previous conviction anywhere in the UK for such an offence orthe Scottish offence of culpable homicide. In the case of manslaughter, the prohibition isrestricted to cases where the previous conviction resulted in a sentence of imprisonment, ordetention where the offender was a child or young person. Clause 53 is designed to amendthis provision so as to create a rebuttable presumption that bail will not be granted to peoplecharged with such offences, rather than an absolute prohibition. It is intended that suchpeople should only be granted bail if the court or, as the case may be the constableconsidering the grant of bail is satisfied that there are exceptional circumstances which justifythe grant of bail.

Clause 53 was introduced as a Government amendment during the Bill's third reading in theHouse of Lords by the Solicitor-General, Lord Falconer, who said131:

The offences concerned here are very serious and the fact that a person chargedwith or convicted of one of those offences has previously been convicted of anysuch offence cannot and should not be ignored by those who have to considerwhether that individual should be placed in custody or whether he should bereleased on bail. But to remove the ability of the police and the courts to make thatdecision is not in the interests of justice. It cannot be right to fetter the judicialdiscretion of the court in this way. It is possible, although I would suggest mostunlikely, that there may be very exceptional circumstances where a release on bailin such cases might be the more appropriate option. The police and the courtsshould not be denied a statutory discretion to enable them to take account of thosecircumstances where appropriate.

In providing for such discretion, this amendment does not of course mean thatdefendants with previous convictions for these very serious offences will now bereleased on bail. As I have said, given the very serious nature of the offences andthe associated risk to the public, this is highly unlikely to be the case. It wascertainly not the case before the introduction of Section 25, which is one of the

129 ibid. c.237-238130 ibid. c.238131 ibid. c.239-240


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reasons why, when in Opposition, we argued that that provision was unnecessary.Indeed I recall that, during the passage of the Bill that became the 1994 Act, whenwe pressed the then government to give examples of cases which demonstrated theneed for such an extreme provision, they had a very difficult time of it. They wereunable to cite a single case where such a defendant had been granted bail, let alonean example of such a bailed defendant committing an offence while on bail,thereby casting doubt on the bail decision. The fact is that, as with any remanddecision, the court will have to consider, in accordance with the provisions of theBail Act 1976, whether the person before the court would, if released on bail,abscond, commit an offence or interfere with the course of justice. In reaching thatdecision, they must have regard, among other matters, to the nature andseriousness of the offence and to the defendant's antecedents.

There are also existing safeguards to insure against any unacceptable risk to thepublic as a result of the judicial discretion which we are proposing to restore. TheBail (Amendment) Act 1993, which applies to cases involving any offenceattracting a maximum penalty of five years' imprisonment or more, gives theprosecution a right of appeal to a Crown Court judge against a magistrates' courtdecision to grant bail. The defendant must be kept in custody pending the outcomeof the appeal. In addition, the Bail Act indicates that if a defendant who has beencharged with any such offence is granted bail and representations have been madethat he should be denied bail, the court must state its reasons for granting bail andcause those reasons to be included in the record of the proceedings.

When in Opposition we argued against the introduction of Section 25 in 1994, butwe were mindful then and remain aware of public concern about some baildecisions. While it is important that the bail decision remains with those who arein possession of the full facts of the particular case, the public must haveconfidence in the bail process as a whole. Section 25 as amended will ensure thatwhere the police or the courts are dealing with cases of what might well be repeathomicide or rape, the presumption will be that the defendant is taken into custody.We consider that, in the exceptional cases at which Section 25 is targeted, it isright to reverse the general presumption in favour of bail and shift the onus ontothe defence to provide good and sufficient reason why bail should not be denied.We do not envisage that this new burden on the defence will be easily overcome inmost cases, but to rule out the possibility of granting bail cannot be justified.

We see this new provision as allowing some flexibility to prevent injustice, whileensuring that the protection of the public remains the primary concern andproviding a tough additional safeguard against bad bail decisions in theseparticularly serious circumstances.

The Labour peer Baroness Mallalieu welcomed the amendment, as did the Liberal Democratpeer Lord Thomas of Gresford, who said132:

132 ibid. c.240-241


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My Lords, I feel like a spectator on the road to Damascus. I reached for my verydark glasses because light appears to have dawned upon the Government in twospecific ways. First, they are going back to a position that they adopted inOpposition; and I cannot remember that happening before in all the eight or ninedays that we have spent on this Bill. Secondly, I could hardly believe my earswhen I heard the noble and learned Lord talk about flexibility to prevent injustice:that it cannot be right to fetter the discretion of the court. The whole thrust of theBill so far has been to remove discretion from the courts and to seek to imposelimitations upon their powers.

I hope that this is a genuine conversion and that we see Ministers turning againtowards what I regard as the true light of justice and flexibility.

7. Use of live television links at preliminary hearings

Where a defendant is in custody, Clause 54 is designed to enable second and subsequentremand hearings and other pre-trial hearings to be conducted through a live television linkbetween the court and the prison where the defendant is held. It is intended that, after hearingany representations from the defence and prosecution, the court should have a discretion as towhether it is appropriate to use the television link in any particular case.

The use of television links on security grounds proposed by the Learmont Report133 on prisonsecurity, while their use as a means of reducing delay in the courts was suggested in theHome office consultation paper Reducing Remand Delays134

133 Review of the Prison Service Security in England and Wales and The Escape form Parkhurst Prison onTuesday 3rd January 1995 Cm 3020 paras 4.36-38

134 Home Office, October 1997 paras 34-35


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IV New Measures for Dealing with Young Offenders

A. Reprimands and warnings

Underpinning many of the arrangements for dealing with young people who misbehave is theview that as far as possible children and young people should be kept out of the criminal justicesystem. The police have discretion to decide whether or not to charge a person for a particularoffence, or to warn them about their behaviour or caution them instead. In doing this whereyoung offenders s are concerned they play an important part in diverting children and youngpersons from the criminal courts. There is no statutory basis for the police caution and theissuing of them is largely a matter for police discretion. The Home Office issues guidelines forthe police which are intended to promote consistent practice between the different police forcesin England and Wales. The latest version of these guidelines135 set out national standards forcautioning. These state that:

2. A formal caution is a serious matter. It is recorded by the police; it shouldinfluence them in their decision whether or not to institute proceedings if theperson should offend again; and it may be cited in any subsequent courtproceedings. In order to safeguard the offender's interests, the followingconditions must be met before a caution can be administered -

- there must be evidence of the offender's guilt sufficient to give arealistic prospect of conviction;

- the offender must admit the offence;

- the offender (or, in the case of a juvenile, his parents or guardian)must understand the significance of a caution and give informedconsent to being cautioned.

The notes on this section of the national standards state that:

Note 2A Where the evidence does not meet the required standard, acaution cannot be administered.

Note 2B A caution will not be appropriate where a person does not make aclear and reliable admission of the offence (for example if intent is denied orthere are doubts about his mental health or intellectual capacity).

Note 2C If an offence is committed by a juvenile under the age of 14, it isnecessary to establish that he knew that what he did was seriously wrong.

Note 2D In practice consent to the caution should not be sought until it hasbeen decided that cautioning is the correct course. The significance of thecaution must be explained: that is, that a record will be kept of the caution,that the fact of a previous caution may influence the decision whether or not to

135 Home Office Circular 18/1994


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prosecute if the person should offend again, and that it may be cited if theperson should subsequently be found guilty of an offence by a court. In thecase of a juvenile this explanation must be given to the offender in thepresence of his parents or guardian, or other appropriate adult. The specialneeds of other vulnerable groups should also be catered for, in accordancewith the Code of Practice for the Detention, Treatment and Questioning ofPersons by Police Officers.

Further guidance on the cautioning process is set out in the Code of Practice for the Detention,Treatment, and Questioning of Persons by Police Officers.

Diversion schemes for children and young persons known as "cautioning plus" have beendeveloped in some parts of the country, offering further measures in respect of the child oryoung person who is accepts the caution. These may include befriending or mentoring byadult volunteers, voluntary participation in intermediate or reparation schemes, contact witheducation welfare officers or referral to youth work projects.

In a Labour Party consultation paper Tackling Youth Crime: Reforming Youth Justicepublished in May 1996 the then shadow Home Secretary and shadow Home Affairs MinisterAlun Michael said:

Cautioning has prevented many youngsters being brought into the criminal justicesystem unnecessarily. But it has to be used with discrimination, and whereappropriate combined with effective intervention. Carrying on cautioning does notwork and leads to a loss of public confidence.

At the time of the first offence, it may not be easy to distinguish those youngpeople for whom a caution will be effective from those who will simply ignore it.Many young offenders have already had an informal caution before they receivetheir first formal caution, so producing a second or third caution withoutintervention is a waste of time.

We have to start again. We would leave discretion with the police to use informalmethods of talking firmly to young people about offending behaviour where theyconsidered that this was likely to be effective and was sufficient. We would expectsuch informal methods to be used sparingly. We would then replace the currentformal caution with a new Final Warning.

The proposal to replace cautions for young offenders with a new statutory system of policereprimands and Final Warnings was set out again in the consultation paper Tackling YouthCrime136 and the White Paper No More Excuses - A New Approach to Tackling Youth Crimein England and Wales137. Clauses 61 and 62 of the Crime and Disorder Bill are intended toimplement these proposals.

136 Home Office September 1997 p.12137 CM 3809 paras 5.12-5.20


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Clause 61 is designed to set out the circumstances in which a police officer should issue areprimand or a warning and seeks to enable the Home Secretary to issue guidance on thecircumstances in which reprimands and warnings are to be administered and the form theyshould take. The criteria which will have to be met before a police officer issues a reprimandor warning to a child or young person, are set out in Clause 61(1). These criteria are that:

(a) a constable has evidence that a child or young person ("the offender") hascommitted an offence;(b) the constable considers that the evidence is such that, if the offender wereprosecuted for the offence, there would be a realistic prospect of his beingconvicted;(c) the offender admits to the constable that he committed the offence;(d) the offender has not previously been convicted of an offence; and(e) the constable is satisfied that it would not be in the public interest for theoffender to be prosecuted.

Paragraphs (2) to (4) of Clause 61 are designed to provide a systematic response to offendingby young people to take account of repeat offending and the seriousness of the offencesconcerned. The Notes on Clauses summarise the intended effect of these provisions asfollows:

• A first offence could be met by a police reprimand, warning or charge, depending on itsseriousness

• A further offence, following a reprimand, by the same person could result in a warning orcharge, again depending on the seriousness (In no circumstances would a young offenderreceive two reprimands)

• Any further offence following a warning should lead to criminal charges, with a secondwarning only possible where at least two years have passed and the subsequent offence isnon-serious (In no circumstances would a young offender receive more than twowarnings)

Under paragraph (5) of Clause 61 , which is intended to reflect the requirement of the Policeand Criminal Evidence Act 1984 it is provided that reprimands and warnings should be givenin a police station in the presence of the "appropriate adult" The "appropriate adult" is definedin paragraph (7) as the young offender's parent or guardian, or if he is in the care of the localauthority or a voluntary organisation, a person representing that authority or organisation, asocial worker of a local authority social services department or, if none of these is available,any responsible person aged 18 or over who is not a police officer or person employed by thepolice.

The Clause also provides that the police officer should explain the full consequences of thewarning or reprimand. These consequences are set out in Clause 62, which requires aconstable who has warned an offender under Clause 61 to refer the offender to a youthoffending team. Every young offender so referred will have to be assessed by the youthoffending team, which will have to arrange for each offender concerned to participate in arehabilitation programme, unless they consider it inappropriate to do so, Clause 62(3) seeks


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to give the Home Secretary powers to publish guidance on what is to be included inrehabilitation programmes, the manner in which a person's failure to participate is to berecorded and the persons to whom such failure is to be notified.Clause 62(5) provides that any reprimand, warning or report on a failure by a person toparticipate in a rehabilitation programme may be cited in criminal proceedings in the samecircumstances as a conviction.

Clause 62(4) is designed to prevent the courts from giving a conditional discharge to a childor young person convicted of an offence within two years of being given a warning underClause 61, unless there are exceptional circumstances related to the offence or the offender.The Notes on Clauses comment that:

This provision is intended to be an incentive for the offender to heed the warningand stay out of trouble, and to ensure that if he or she does re-offend, this will bemet by constructive punishment.

B. Young offenders: Non-custodial penalties and orders

Clauses 63 and 64 of the Crime and Disorder Bill are designed to provide for a new type ofsentence called a reparation order, to be available to courts dealing with young offenders.

In recent years a number of projects providing for reparation by offenders and mediationbetween victims and offenders have been set up in Britain. Several of these projects havebeen evaluated by the Home Office138. A Home Office discussion paper on reparationpublished in 1986 set out proposals for the greater use of reparation as a remedy for criminalacts139, but these were not implemented. More recently there have been further calls for thegeneral introduction of reparation schemes and other methods of providing "restorativejustice"140.

Proposals for a new type of sentence, to be called a reparation order, were set out in theHome Office consultation paper Tackling Youth Crime141 and repeated in the White Paper NoMore Excuses142.

Clause 63 of the Crime and Disorder Bill, provides for a new form of sentence, a "reparationorder", which is intended to require young offenders to make reparation to the victims of theiroffences or to people otherwise affected by it, or to the community at large. Offenders will

138 see Tony F. Marshall & Martin E. Walpole, Bringing People Together: Mediation and Reparation Projectsin Great Britain.- Home Office Research and Planning Unit Paper 33 (1985); Gwynn Davis, JackyBoucherat & David Watson, A Preliminary Study of Victim/Offender Mediation and Reparation in Englandand Wales –– Home Office Research and Planning Unit paper 42 (1987); Tony Marshall & Susan Merry,Crime & Accountability: Victim/Offender Mediation in Practice – Home Office (1990)

139 Reparation: A Discussion Document, Home Office (1986)140 see e.g. Jonathan Burnside & Nicola Baker ed. Relational Justice: Repairing the Breach. (1994); MartinWright, Justice for Victims and Offenders (1996)141 Home Office, September 1997 p.8-9142 CM 3809 p.14


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not be required to work for more than 24 hours in aggregate under these arrangements, norwill they be required to make reparation to any person without that person’s consent. Clause55 of the Bill provides that before making a reparation order, a court should obtain andconsider a written report from a probation officer, a social worker from a local authoritysocial services department, or a member of a youth offending team, setting out the type ofwork suitable for the offender and the attitude of the victim or victims to the requirementswhich may be included in it. The court will also have to explain to the offender in ordinarylanguage the order’s effects and requirements, the consequences of any failure to complywith these requirements and the court’s power to review the order.

Clauses 65 and 66 are designed to implement the proposals set out in the consultation paperTackling Youth Crime143 and the White Paper No More Excuses144 for the introduction ofaction plan orders requiring young offenders to comply with the requirements of three monthaction plans designed to address their offending. These orders are intended to provide a short,intensive and individually tailored programme combining punishment, rehabilitation andreparation involving the young offender and his or her parents. Clause 65(2) provides that:

(2) Subject to the provisions of this section and section 66 below, the court by orbefore which the offender is convicted may, if it is of the opinion that it isdesirable to do so in the interests of securing his rehabilitation, or of preventing thecommission by him of further offences, make an order (an "action plan order")which-

(a)requires the offender, for a period of three months beginning with the date ofthe order, to comply with an action plan, that is to say, a series of requirementswith respect to his actions and whereabouts during that period;

(b) places the offender under the supervision for that period of the responsibleofficer; and

(c) requires the offender to comply with any directions given by that officer with aview to the implementation of that plan.

A court will only be able to make an action plan order where it has received notification fromthe Home Secretary that arrangements for implementing the orders are in place in the areawhich is to be named in the order. It will not be possible for the court to make an action planorder in respect of an offender who is already subject to such an order. Similarly, it will notbe possible for an action plan order to be combined with a custodial sentence, or with anothernon-custodial order, such as a probation order, community service order, combination order,supervision order or attendance centre order. The Notes on Clauses state that:

There should be no need for any young offender to be subject to more than oneAction Plan Order, as the order is sufficiently flexible to allow any requirements

143 Home Office September 1997 p.15-16144 CM 3809 p.18


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which may be sought to be included in one order. The Action Plan Order will notbe combinable with the other community sentences listed above because to do socould lead to conflict between the differing demands of different orders andbecause many elements of the orders listed above - for example, the requirement toattend an attendance centre - are able to be included in the Action Plan Order itself

Clause 65(5) provides that action plan orders may require the offender to do all or any of thefollowing:

(a) to participate in activities specified in the requirements or directions at a timeor times so specified;(b) to present himself to a person or persons specified in the requirements ordirections at a place or places and at a time or times so specified;(c) to attend at an attendance centre specified in the requirements or directions fora number of hours so specified;(d) to stay away from a place or places specified in the requirements or directions;(e) to comply with any arrangements for his education specified in therequirements or directions;(f) to make reparation specified in the requirements or directions to a person orpersons so specified or to the community at large; and(g) to attend any hearing fixed by the court under section 66(3)

Clause 65(6) provides that any requirements or directions given should as far as practicablebe such as to avoid any conflict with the offender's religious beliefs or with the requirementsof any other community order to which he may be subject; and any interference with thetimes, if any, at which he normally works or attends school or any other educationalestablishment.

Clause 66 provides that before making an action plan order, the court must obtain andconsider a written report by a probation officer, local authority social worker or member of ayouth offending team outlining the proposed requirements of the action plan, its benefits tothe offender, and the attitude of the offender's parents and guardians to the proposedrequirements.. Where the offender is under 16 the report will also indicate his or her familycircumstances, and the likely effect of the order on these circumstances. The court will berequired to explain to the offender in ordinary language how the Action Plan will operate, theconsequences of any failure to comply with the Plan's requirements and the court's power toreview the order.

Clause 66 also permits the court to fix a further hearing within 21 days of making an actionplan order to enable the effectiveness of the order to be reviewed.

Provisions concerning the enforcement of reparation order and action plan orders are set outin Schedule 5 of the Bill

Clause 67 of the Bill seeks to amend the Children and Young Persons Act 1969 and isintended to enable conditions to be attached to supervision orders requiring offenders who aresubject to these orders to make reparation to the victim of an offence, a person otherwise


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affected by it, or the community at large. The Clause also seeks to widen the criteria underwhich a local authority residence requirement can be imposed on an offender who is subjectto a supervision order. At present s residence requirement can only be imposed following aserious imprisonable offence committed while a supervision order with additionalrequirements was in force, and not simply for breach of the supervision requirements. Clause67(4) sets out the new criteria under which a residence requirement may be imposedrequiring a convicted young offender to live in local authority accommodation. These aresummarised in the Notes on Clauses as being:

• That the juvenile has previously been the subject of a supervision order which imposed arequirement (other than a requirement as to mental treatment);

• That the juvenile fails to comply with that requirement or is found guilty of an offencecommitted while the Order was in force; and

• The court is satisfied that the failure to comply with the requirement or the offendingbehaviour were due to a significant extent to the young person's living arrangements andthat the residence requirement would assist rehabilitation

Clause 68 is designed to amend provisions in the Children and Young Persons Act 1969concerning the variation and discharge of supervision orders. It is particularly intended tosimplify the current arrangements for breach of these orders arrangements and provides thatwhere a supervision order imposed by the Crown Court is breached, proceedings relating tothe breach may be remitted to the Crown Court. It provides a new power for the courts tovary supervision orders by imposing curfew orders made under section 12 of the CriminalJustice Act 1991

C. Young Offenders: Custodial Sentences

Clauses 70 to 74 are designed to provide a new custodial sentence for 10-17 year oldoffenders called a detention and training order. It is intended that this should replace thesentence of detention in a young offender institution available for 15-17 year olds undersection 1A of the Criminal Justice Act 1982 and the secure training order for 12-14 year oldsunder section 1 of the Criminal Justice and Public Order Act 1994. The provisions of the1994 Act concerning secure training orders were brought into force on March 1st 1998145

The provisions concerning detention and training orders were summarised in some detail inthe White Paper No More Excuses. The proposed new order was described as follows 146::

˝6.12 The Government will introduce a new disposal available for 10 -17 year olds,the detention and training order (DTO). It will be subject to the restrictions on useof custody laid down in the 1991 Criminal Justice Act, i.e. courts may impose theorder only where the offence or offences in question are so serious that only

145 SI 1998/277146 CM 3809


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custody is justified. For 10 and 11 year olds, the power to make an order would beavailable only in response to persistent offending and only where the courtconsiders that a custodial sentence is necessary to protect the public from furtheroffending by that child. For 12 -14 year olds, the DTO could be imposed only inrelation to persistent offending. For 15 -17 year olds, it would be available for anyimprisonable offence sufficiently serious to justify custody under the 1991 Act.

6.13 In the first instance, the Government will implement the order only for 12 -17year olds. But there will be a discretionary power for the Home Secretary tointroduce the DTO for 10 and 11 year olds, by order laid before Parliament, if thisproves necessary or desirable at a later date.

6.14 Half the length of the DTO will be spent in custody and half undercommunity supervision, with provision for shortening or extending the custodialelement depending on the young offender’s progress against an agreed sentenceplan. Orders will range in length from a minimum of four months to a maximumof two years with orders of 6, 8, 10, 12 and 18 months available. Courts will berequired to take account of remand time as well as the seriousness of the offendingin deciding the length of sentence instead of time spent in custody on remandbeing deducted after sentence from the time to be served in custody.

The Government set out its view of the advantages of the new detention and training order asfollows147:

˝6.20 The Government believes the new detention and training order will provide clearer, simpler,more flexible and more consistent custodial arrangements for young offenders. The increasedemphasis on supervision after release, on a clear sentence plan to tackle the causes of offending andon continuity of supervision before and after release from custody should provide for a more effectivecustodial sentence, complementing the Government’s proposals for more effective communitypenalties.

˝The White Paper made the following remarks about the release of offenders sentenced todetention and training orders148:˝

˝6.15 In order to respond to good or bad progress, for longer sentences there will besome flexibility in release date. For DTOs lasting between a total of 8-12 months,a young person making good progress against his or her sentence plan might bereleased from custody a month before the half-way point. For longer sentences,one or two months’ early release would be available. Conversely, if poor progresswere made, with the agreement of the court, a young offender sentenced to anorder lasting 8-12 months could be held in custody for a month beyond the 50%

147 ibid.148 ibid.


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point and one sentenced to 18 or 24 months could be held for one or two monthsbeyond the normal release date.

6.16 For DTOs lasting less than 8 months, there would be no specific arrangementfor early release to reflect good progress, but the general arrangements in theCrime and Disorder Bill for home detention curfews - as announced by the HomeSecretary on 20 November 1997 - would apply. Implementation of the homecurfew arrangements for juveniles will be subject to the successful completion ofpilot studies of the related curfew order for 10-15 year olds, due to start in January1998.

Arrangements for the supervision of offenders after their release from custody were describedin the White Paper as follows149:

6.17 A supervising officer - a member of the Youth Offending Team (see chapter8) would be appointed at the start of the sentence. He or she would be responsiblefor supervision after release from custody and would also be involved in theplanning and supervision of the custodial element. Whether the young offenderwas released from custody early, late or at the normal half-way point, the period ofsupervision would last until the end of the sentence. A young offender whobreached his or her supervision requirements during the normal supervision periodwould be liable to a fine of up to level three (currently £1,000) or to be returned tocustody for three months or the remainder of the sentence, whichever is theshorter.

The White Paper also made the following comments about where young offenders sentencedto DTOs would be detained150

6.18 The order will be served in any accommodation deemed to be suitable by theHome Secretary. This could mean a Young Offender Institution, a secure trainingcentre, Youth Treatment Centre or local authority secure unit. How this works inpractice will need to take account of the outcome of the review of the secure estate(see paragraph 6.3). The Youth Justice Board will set and monitor standards toensure high quality and consistent regimes.

6.19 Under the new arrangements, therefore, there will be scope for individualyoung offenders to be placed in secure accommodation depending on their age andmaturity. The new arrangements will allow the Home Secretary to delegate theresponsibility for placements to local Youth Offending Teams, rather than havingplacements decided centrally.

149 ibid150 ibid.


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D. Young Offenders: Remands to local authority secureaccommodation, remand centres and prisons

In the White Paper No More Excuses the Government said it was carrying out a review of thewhole range of secure accommodation. It added that151:

6.6 The Government believes that the courts should have clear powers to remandto secure accommodation, young people aged 10-16 who are awaiting trial, wherethis is necessary to protect the public. At present, courts may remand juveniles tolocal authority accommodation but are not able to specify that they be kept insecure local authority accommodation (though the local authority may apply to thecourt for the young person to be held in secure accommodation). Currently courtsmay only order a secure remand for 15 and 16 year old boys and only to PrisonService accommodation.

6.7 The Criminal Justice Act 1991 and the Criminal Justice and Public Order Act1994 contain provisions to amend the Children and Young Persons Act 1969 toallow courts to remand 12-16 year olds directly to secure local authorityaccommodation when certain conditions are met. These provisions, however, havenot been implemented. The previous Government began a building programme toprovide 170 new local authority secure places which will be completed in 1998.The additional places will not be sufficient to meet the full Likely demand forremand places for 12 -16 year olds. The Government proposes to use the Crimeand Disorder Bill to enable implementation of court ordered secure remand powersfor certain groups of young people. Its priorities are to:

•introduce court-ordered remands direct to local authority secure accommodationfor all 12-14 year olds and for 15 and 16 year old girls as soon as practicable; and•enable the most vulnerable 15 and 16 year old boys to be remanded by the courtsdirect to local authority secure accommodation, rather than prison, if a place hasbeen identified.

The legislation will specify that vulnerable boys are those whom a court considersshould not be remanded to prison because of heir physical or emotional immaturityor heir propensity to harm themselves. Other 15 and 16 year old boys, for themeantime, will continue to be remanded to Prison Service accommodation.Regime standards currently being developed by the Prison Service will includeprovisions to safeguard he welfare of young people, consistent with he need toprotect the public and staff.

6.8 The Government believes that this approach will ensure that the courts havethe towers that they need to protect the public, and the young person, fromoffending while waiting trial. It will also help protect the welfare of young peopleby providing some flexibility over where 15 and 16 year old boys are held.

151 CM 3809


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Clause 89 and 90 of the Crime and Disorder Bill are designed to implement these proposals.Clause 89 is intended to allow courts to remand children and young persons aged 12 and overdirect local authority secure accommodation and to allow the Home Secretary to implementthe provisions in stages. The provisions are intended to replace existing provisions and willrepeal provision concerning secure remands for young offenders set out in section 20 of theCriminal Justice and Public Order Act 1994, which have never been brought into force. TheClause is designed to amend section 23 of the Children and Young Persons Act 1969 toenable a court to remand a child of at least 12, or a young person of a prescribeddescription152, direct to local authority accommodation. It is intended to allow the HomeSecretary to extend the provision for court-ordered remands to any male or female age groupsup to and including 16 year olds.

Clause 89 was amended during the bill's report stage in the House of Lords153, followingrepresentations by the civil liberties group Liberty, about an anomaly concerning the legalrepresentation of juveniles awaiting remand to secure accommodation. Clause 89(3) nowseeks to prevent a court imposing a security requirement in respect of a child or young personwho is not legally represented in the court unless the child or young person:

a) has applied for legal aid and been refused because his means are considered to be suchthat he does not require assistance or

b) he has refused or failed to apply for legal aid, having been informed of his right to do soand having been given the opportunity to apply.

Clause 90 makes alternative arrangements under section 23 of the Children and YoungPersons Act 1969 concerning the remand and committal of 15-16 year old boys. The Notes onClauses state that:

The combined effect of these amendments is that until such time as it is decidedotherwise, 15 and 16 year old boys who do not fall within the prescribeddescription under Clause [89] shall be remanded to a remand centre or prison asopposed to local authority accommodation, and as such continues the existingarrangement. However, the courts will be able to remand or commit some 15 and16 year old boys whom the courts, on an exceptional basis, consider to bevulnerable( as set out in subsection (3)) direct to local authority secureaccommodation, rather than to a remand centre or prison, provided that a place inthat accommodation has been identified in advance of the hearing.

Penal reform groups have expressed disappointment at the Government's decision to continuethe present arrangements permitting the remanding of 15 and 16 year old boys to adultprisons.

152 defined in Clause 89(4) as a description prescribed by reference to age or sex or both by an order of theSecretary of State

153 HL Deb Vol 587 c.932-933, 19.3.1998


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V Electronic monitoring of offenders

1. General provisions for the electronic monitoring, or "tagging" of offenders

In the July 1988 Green Paper Punishment, Custody and the Community154 the previousGovernment suggested that it might be useful for the courts to have powers to make curfeworders, confining people to their homes at certain times. It was also suggested that these could beenforced through electronic monitoring of the people who were subject to such orders. A pilotproject on the use of electronic monitoring for defendants remanded on bail awaiting trial, whowould otherwise have been remanded in custody, was carried out by the Home Office in 1989-90. This particular group was chosen for the study because electronic monitoring devices couldbe used as a condition of bail without the need for primary legislation, which was not the casewith convicted offenders. The report of the study of the pilot project was published in 1990.155

In the concluding chapter of the report of the study, the researchers noted that:156

Magistrates and judges generally did not seem to have much confidence in the applicability ofelectronic monitoring as an alternative to a remand in custody, and commented on thedifficulties of finding suitable candidates for it. They were willing to countenance a trial with alimited time-span, but if monitoring were to be introduced on any national basis then muchgreater confidence in the system on the part of both these groups would be vital.

They also made the following observations about the views of the people who had beenmonitored during the study:157

One key point to note is that, generally, those who were monitored preferred it to custodythough they also found it to be restrictive and demanding, A significant minority, however, saidthat they would not choose monitoring again; it was too rigorous and it would not be deductedfrom a custodial sentence. More knowledge for potential candidates in advance of consenting tobe monitored would be helpful.

An account of the pilot study of electronic monitoring in England and Wales in 1989-90 by theresearchers involved, George Mair, is set out in Michael Tonry and Kate Hamilton's 1995 bookIntermediate Sanctions in Overcrowded Times.158

154Cm 424

155Electronic Monitoring: The Trials and Their Results - HORS 120

156HORS 120 p.65

157HORS 120 p.68

158p.116-120


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In the White Paper Crime, Justice and Protecting the Public, published in 1990 the previousGovernment proposed new legislation to enable the courts to make curfew orders, either as acondition of bail or as a penalty following conviction. The White Paper noted that;159

Subject to the outcome of the experimental projects and on evaluation of the costs of electronicmonitoring, curfews could be enforced by electronic monitoring. A separate power would beneeded to enable the courts to order electronic monitoring to enforce a curfew order. Standardsfor the equipment and schemes of operation would have to be approved by the Secretary ofState.

Provisions designed to introduce the new 'curfew order', which could be imposed as a sentenceon convicted offenders who were aged sixteen or over, and would require the offender to remainat a specified place for specified periods, were introduced by Section 12 of the Criminal JusticeAct 1991. Section 13 of the 1991 Act provides that a curfew order may include requirements forsecuring the electronic monitoring of the offender's whereabouts during the curfew periodsspecified in the order. Such requirements may not, however be imposed unless the court hasreceived official notification from the Home Secretary that electronic monitoring arrangementsare available the area in which the place to be specified in the curfew order is situated, and issatisfied that the necessary provision can be made under these arrangements. Section 13 of the1991 Act include provisions enabling electronic monitoring arrangements to be contracted-outby the Home Secretary.

At the time of the passage of the Bill which became the Criminal Justice Act 1991 the LabourParty was opposed to electronic tagging160.

Curfew orders enforced by electronic monitoring under sections 12 and 13 of the 1991 Act haveyet to be introduced on a nation-wide basis. As originally drafted they provided for theintroduction of curfew orders nationally but did not, it was thought, permit either the gradual orthe selective introduction of such orders. Paragraph 41 of Schedule 9 of the Criminal Justice andPublic Order Act 1994 introduced an amendment to Section 12 of the 1991 Act which wasintended to enable the curfew order provisions to be introduced and, if necessary, withdrawn inselected areas. This was to enable pilot trials involving electronic monitoring of curfew orders tobe conducted in selected areas prior to their more general introduction at a later date.

Trials of curfew orders and electronic monitoring began in three different areas in July 1995,initially for a period of 9 months. On February 20th 1996 the former Home Secretary, MichaelHoward, announced that the trials were to be extended until March 1997 and that the number ofcourts which had the sentence available to them might be increased.161 In a Written Answer of

159Cm 965 para 4.23

160 see HC Deb Vol 181 c.160-161, 20.11.1997& HC Standing Committee A 18.12.1990 c.273-281 161Electronic Monitoring: Extension of Trials - P.N. Home Office 20.2.1996


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March 20 1997 he announced that the trials, which are taking place in Berkshire, Manchesterand Norfolk, would be further extended until March 1998162.

Section 43 of the Crime (Sentences) Act 1997 is designed to extend the courts' powers to imposecurfew orders enforced by electronic tags, which are currently only available in respect ofoffenders of or over the age of 16, to offenders aged from 10-15. In a Written Answer to aQuestion from Lord Lucas on 26 June 1997 the Home Office minister Lord Williams of Mostynsaid the new Government was considering whether, and if so when, section 43 of the Crime(Sentences) Act 1997 should be brought into force. He added that the Government wasdeveloping more general proposals for a child protection order allowing the introduction of childprotection curfews on a local basis as a means of protecting children who were on the streets atnight without supervision and ensuring that parents faced their responsibilities163. An order wassubsequently laid bringing section 43 of the 1997 Act into force on January 1st 1998164.

2. The Crime and Disorder Bill: home detention curfews

In a statement to Parliament on November 20th 1997 the Home Secretary, Jack Straw said heintended to being in measures to enable short term prisoners to serve part of their sentence athome, subject to curfew conditions enforced by electronic monitoring. The Home Secretaryset out his reasons for introducing this proposal as follows:165

I turn to how I propose to use electronic tagging in respect of those who have beenin prison and are very near to the end of their sentences. Those who are sentencedto prison typically have lived disordered, irresponsible lives. They are poor atmaking sensible decisions about their own futures or those of their families. Inprison, of course, they do not have to. However, the moment prisoners come out ofprison, they have to make critical decisions about what they do with every momentof the day; whether they drift back into crime, and into the company of theircriminal associates, or whether they try to bring order into their lives.

Tagging has a key role to play here. If prisoners who are serving short-termsentences are tagged towards the end of the custodial period of their nominalsentence, they can be given the opportunity to structure their lives more effectivelyand be swiftly brought back to prison if they breach the tagging conditions.

The research into the first year of the trials showed that offenders see curfewsenforced by tagging as a very severe restriction of liberty--just as magistrates andjudges do. Some offenders have said that they found the self-discipline required tocomplete such a curfew order made it harder than prison. Tagging also providesopportunities for offenders to take proper responsibility for working or looking forwork, for keeping their families together and for maintaining self-control.

162 HC Deb Vol 292 c.856W 20.3.1997163 HL Deb Vol 580 c.WA183-184 26.6.1997164 SI 1997/2200165 HC Deb Vol 301 c.457-463, 20.11.1997


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The case for introducing an element of tagging into the last part of a short-termprison sentence is very strong in any event, but it has been reinforced by the recentrise in the prison population. No one wants to see an unnecessarily overcrowdedprison system, and it would be the height of irresponsibility not to take advantageof modern technology to help prevent that. The alternatives are bound to be at theexpense of constructive prison regimes, and at the expense of improving theprisoners' prospects for resettlement--in other words, at the expense of the law-abiding public.

Therefore, I have decided to seek Parliament's approval to impose electronicmonitoring on selected short-term prisoners in the last two months of theirsentence. The orders will be called home detention curfews, and the relevantpowers will be sought in the forthcoming crime and disorder Bill.

The Home Secretary, Jack Straw, went on to describe how the home detention curfew wouldoperate166:

Home detention curfews will be available for prisoners who have receivedsentences of more than three months' but less than four years' imprisonment. Theywill be tagged for between two weeks and two months, according to the length oftheir original sentence. Currently, under the Criminal Justice Act 1991, suchprisoners are automatically released at the halfway point of their sentence. Allthose prisoners will in any event shortly be back in the community.

There will be no automatic entitlement to tagging. The Prison Service will in eachcase conduct a risk assessment. If the prisoner fails it, he or she will continue toserve the sentence in prison until its halfway point, as now. The prison governorwill set the place and times of curfew, in consultation, where needed, with theprobation service. It will usually be 12 hours a day and could be more, but will inno case be less than nine hours a day.

That will enable the prisoner to have a specified period each day in which he orshe can adjust to living in the community, while still facing a restriction on libertyfor a major part of the same day. The curfew conditions will be in addition to thesupervision requirements with which anyone with a nominal sentence of 12months or more must comply.

If a prisoner breaches the conditions of the home detention curfew, he or she canimmediately be returned to custody. As with the present trials of curfew ordersenforced by tagging, the monitoring will be provided by private sector contractors,and there will be an invitation to tender in due course. Our aim is for the scheme tobe operational in 1999.

At the heart of all my policies as Home Secretary is my commitment to providebetter protection for the public and for the victims of crime. I am ready to useevery measure at my disposal to honour that commitment. We now have a real

166 ibid.


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opportunity to use modern technology to provide a much better transition forcarefully selected prisoners from prison into the community.

Provisions designed to implement the Home Secretary's proposals for home detentioncurfews are set out in Clauses 91 and 92 of the Crime and Disorder Bill. Clause 91 of the Billinserts a new section 34A into the Criminal Justice Act 1991which is intended to provide apower for prisoners serving sentences of more than three months but less than 4 years to bereleased on a home detention curfew licence. The licence would be enforced by electronicmonitoring, and would operate for up to two months before their normal date of release.

Clause 92 inserts new sections 37A and 38 A into the Criminal Justice Act 1991 providingfor the curfew conditions which will have to be met for a prisoner released under curfew andfor the arrangements for recall to prison on breach

Amendments moved by the Home Office minister Lord Williams of Mostyn during the Bill'sreport stage in the House of Lords are designed to restrict the initial availability of the homedetention curfew scheme to offenders aged 18 and over. Lord Williams described the purposeof the amendments as follows167:

These amendments relate to those released from prison under home detentioncurfew on an electronic monitoring basis. Amendments Nos. 146, 149 and 150restrict release under curfew to those aged 18 or over but with a power to amendthat restriction. As regards Amendment No. 147, prisoners who are in custody as aresult of breach of an electronically monitored curfew order will not be eligible forrelease on home detention curfew. Amendment No.152 establishes a means foroffenders recalled to prison to be given the reasons for their recall and providesthat they can make representations against the decision. Amendment No. 211provides the phasing in of home detention curfew.

I undertook to respond to the amendment of the noble Baroness, Lady David,which would have made 10 to 15 year-olds ineligible for home detention curfew.We recognised at the time the special considerations applying to them. That is whywe are trialling court ordered monitoring orders for 10 to 15 year-olds separatelyfrom those for offenders aged 16 and over. We do not want to rule out thepossibility that juveniles may at a future date be assisted by being considered forrelease under home detention curfew. Therefore, we intend to restrict the schemewhen it starts to those aged 18 and over, as proposed in Amendment No. 146.

Amendments Nos. 149 and 150 provide, subject to affirmative resolution, that thatrestriction can be repealed. We shall not take such a step before the trials of thecurfew orders on 10 to 15 year-olds have been fully evaluated.

Clause 83 has a list of categories of offenders who will not be eligible for release. Imade the point in a letter to the noble Lord, Lord Henley, a copy of which is in theLibrary, that those who fail to comply with a court ordered electronically

167 HL Deb Vol 587 c.933-934, 19.3.1998


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monitored curfew order and as a result receive a custodial sentence should notbenefit from release. That is the purpose of Amendment No. 147. I believe that Ihave explained Amendment No. 152 sufficiently. Amendment No. 211 deals withproviding a tapered introduction of the home detention curfew, so that there is notan unmanageably large number of releases on the first day of the scheme.

In the debate on these amendments the Liberal Democrat peer Lord Goodhart said168::

I welcome the fact that by tabling these amendments the noble Lord has done whathe undertook to do, which is to provide for pilot schemes to see whether taggingwill work for under-16s. In the amendment which the noble Baroness, LadyDavid, moved in Committee, and which I supported, we pointed out the problemswhich might arise with the tagging of juveniles under 16. What concerns me is thefact that if the pilot schemes do not work, it appears to be the Government'sintention to rule out altogether the possibility of the release on licence of thejuveniles who are undergoing such sentences. Therefore, I must express more of areservation than a welcome to the Minister's amendments, although this is notsomething on which I would seek to divide the House

168 ibid. c.934


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VI Appendix

Parental responsibility: payment of fines and compensation orders under the CriminalJustice Act 1991

Juveniles sentenced for indictable offences whose parents were ordered to pay fines or compensation

England and Wales, males and females

Number As a percentage of all fines Number

As a percentage of all compensation orders

Aged 10-13

1991 45 23 196 29

1992 46 26 177 30

1993 30 25 229 35

1994 48 30 307 34

1995 66 44 340 43

1996 47 35 331 51

per cent increase 1991-96 4% 69%

Aged 14-17

1991 319 4 983 9

1992 293 5 967 10

1993 212 6 1,067 12

1994 336 8 1,618 16

1995 463 10 1,905 20

1996 371 8 1,956 19


Aged 10-17

1991 364 4 1,179 10

1992 339 5 1,144 11

1993 242 6 1,296 14

1994 384 9 1,925 17

1995 529 11 2,245 21

1996 418 9 2,287 21


(a) includes compensation orders made in addition to the principal sentence

Source: Criminal Statistics England and Wales 1996 Table 7.24

Parents to pay fine Parents to pay compensation (a)

The only data collected centrally concerning the responsibilities of parents under theCriminal Justice Act 1991 relate to the number of young offenders (aged 10 to 17) whoseparents are ordered to pay fines or compensation.

For all juveniles, between 1991 and 1996 the number of parents ordered to pay fines rose by15% while the number of parents ordered to pay compensation orders almost doubled.However, the increase in the use of both fines and compensation orders has been greater for14-17 year olds than for 10-13 year olds. In absolute terms, far more fines are imposed on


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14-17 year olds than 10-14 year olds, but this reflects the pattern of offending which peaks at18 for males and 15 for females169 as well as, presumably, the intention that sentences shouldbe appropriate.

Indeed, as a proportion of all fines and orders imposed on juveniles, the number whichparents are ordered to pay is consistently higher for the younger children. In 1996 parentswere ordered to pay 35% of all fines and over half of all compensation orders for 10-14 yearolds, compared to 8% of fines and almost a fifth of all compensation orders for 14-17 yearolds.

169 see Library Standard Note Juvenile Crime – 1996 March 1998

Documents

RESEARCH PAPER The Crime and Disorder · The Crime and Disorder Bill is due to be debated on Second Reading on Wednesday, April 8th. This paper considers the provisions of the Bill