Clause 67 - Youth rehabilitation order: curfew requirement

Legal Aid, Sentencing and Punishment of Offenders bill – in a Public Bill Committee at 5:30 pm on 15 September 2011.

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Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice) 5:30, 15 September 2011

I beg to move amendment 345, in clause 67, page 50, line 1, leave out subsection (2).

Photo of Philip Hollobone Philip Hollobone Conservative, Kettering

With this, it will be convenient to discuss amendment 346, in clause 67, page 50, line 4, at end add—

‘(4) After sub-paragraph (4) insert—

(5) Before making a relevant order imposing a curfew requirement, the court must obtain and consider information about any risk of physical or mental injury by or to the offender or an associated person which may be caused or increased by the imposition of a curfew requirement.

(6) In sub-paragraph (5) “associated person” means a person who is associated with the defendant within the meaning of section 62 of the Family Law Act 1996.’.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

Amendment 345 mirrors the amendments to clause 60 that we tabled. Clause 67 has the same purpose for young offenders as clause 60 had for adult  offenders. I will endeavour not to repeat the argument that we made about clause 60, but if I may, I will adopt the arguments of my hon. Friend the Member for Bishop Auckland in relation to this clause, particularly in relation to the period of curfew and our objection to the extension from 12 to 16 hours.

I would like to say a few words about the particular relevance of this clause to young people. It is right to say—this would apply to young people and adults—that the extension may limit the offender’s capacity to carry out positive rehabilitative activities and might contain them in premises that are unsuitable for that degree of confinement, where they may be in company or in circumstances that put them at risk of experiencing or perpetuating abuse, neglect or criminal behaviour. This is of particular concern in relation to children. Increasing the extent of curfews may result in a ratcheting up of curfew requirements and community sentences generally, and the comments the Minister made seem to support that view.

Concern has been expressed in a number of briefings from the Prison Reform Trust, Liberty, Justice, the Howard League and even the Magistrates’ Association. Although the Magistrates’ Association supports the extension of powers, it states that

“making maximum use of the new powers to impose a curfew of 16 hours per day, 7 days per week for 12 months would entail a severe restriction of liberty and would have implications for others in the same household.”

This is a significant step forward in sentencing policy. Liberty has said:

“This level of punishment in the community, amounting to virtual house arrest, is likely to have a stigmatising effect preventing successful reintegration. Such extensive curfew requirements further severely disrupt normal family life, effecting not simply the individual subject, but also family members and others residing with him.”

That view

“applies with still greater force in relation to young people, for whom long curfews may have a particularly profound effect. 16 hour curfews lasting for up to a year are likely to ostracise a young person in his or her community in an important time in their personal and social development and may impede effective rehabilitation, for example, by preventing children from taking part in productive activities such as after-school sports or music classes.”

The effect of a 16-hour confinement for up to 12 months on a young person is significant. I think the Minister said that we did not appear to be objecting to the duration of 12 months, but only to the 16 hours. We object more to the 16 hours, but we are also concerned about imposing that degree of confinement on a young person for a year. I will in due course ask the Committee to divide on amendment 345. I will not ask it to divide on amendment 346 or clause stand part, but I express concerns about the clause as a whole.

Photo of Kate Green Kate Green Labour, Stretford and Urmston

I support everything that my hon. Friend is saying. We are concerned because developmentally 12 months is a very long period for a young person. We heard that clearly in oral evidence at the start of our consideration in Committee. Although a year is a relatively long time for a curfew order to be imposed on an adult, for a young person, as a proportion of their life and in  terms of how they can envisage such a period of time and contextualise the nature of their sentence, it is simply inappropriate.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

My hon. Friend is absolutely right. It shows that even if the Government have given thought to the principle of extending curfews—they appear to have given that thought in two divergent ways—they have not given particular thought to how such additional punitive measures would affect young people.

I turn to amendment 346, which was suggested by the Prison Reform Trust:

“Before making a relevant order imposing a curfew requirement, the court must obtain and consider information about any risk of physical or mental injury by or to the offender or an associated person which may be caused or increased by the imposition of a curfew requirement.”

There is already a requirement for the court to

“obtain and consider information about the place proposed to be specified in the order (including information as to the attitude of persons likely to be affected by the enforced presence there of the offender).”

That is in the Criminal Justice and Immigration Act 2008. The Prison Reform Trust says, and we adopt its argument, that the courts should be specifically required to consider any potentially harmful impact on the offender; in particular, in the increased risk of domestic violence as a result of a curfew requirement. Confining people for longer periods—longer periods of the day and longer periods of the year—means that more care needs to be taken.

Photo of Ben Gummer Ben Gummer Conservative, Ipswich 5:45, 15 September 2011

I have to say, not for the first time today, that I am utterly befuddled by the Opposition’s position. It is utterly contradictory with their previous statements about wanting to see stronger community sentences. Secondly, other hon. Members on Government Benches sat through the Terrorism Prevention and Investigation Measures Public Bill Committee, during which the Opposition argued against relaxing curfew extensions on people not even convicted of a crime. We now have to listen to the Opposition saying that we should have weaker non-custodial sentences for those convicted of a crime.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I am glad that the hon. Gentleman raised that point. I only have two further points to make and he brings me on to one of them, which is whether this is a breach of article 5 rights. I will not go through the case law, which I have here, and the history in relation to control orders—the 18 hours, what was said in those cases in relation to 16 hours and so on—but we have spoken to very senior barristers who are expert in this field. We are advised that it may well be something that the Minister should take cognisance of. There may well be a breach of article 5 rights. The case law suggests that the legality is judged by the impact on the individual. If, in a specific case, it is seen that this, which effectively amounts to house arrest, will amount to that degree of impact, then it is perfectly possible, particularly in relation to young people, that the human rights aspects have not been considered by the Government. I very much look forward, having prompted him, to the Minister’s response.

The right hon. Member for Carshalton and Wallington has popped up once or twice in the few days that we have been here and expressed mild concerns about one or two aspects of the Bill. I do not know whether that is for his local papers, or to just register—

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

It is very hard to get a word in edgeways.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

If the right hon. Gentleman wishes to intervene and make his presence felt then that is fine. In a Bill that has so many implications for the liberty of the subject, I expected to hear a little more from the Liberal Democrats. I heard an awful lot between 2005 and 2010, and now I get a deafening silence. I think I will count up the lines in Hansard that the two Liberal Democrat Members have spoken in the course of these proceedings and see where we get to.

Photo of Helen Goodman Helen Goodman Shadow Minister (Justice)

Does my hon. Friend not feel that some of the Tory Members are also behaving in a surprising way? Repeatedly, they tell us that the biggest problem for the liberty of the individual is the state, yet so many of the rules and so much of the first part of the Bill will strengthen the powers of the state with respect to the rights of the individual. Members from both parties of the coalition are well matched.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I am grateful to my hon. Friend. Those comments are very well put. When we get on to talk about bail, not today I expect. [ Interruption. ] I am happy here. We will see a huge restriction on the discretion of the judiciary. That is one of the major challenges. When it suits the Government, they are quite happy to meddle and interfere and restrict the powers of the judiciary, but when it suits them the other way they declare, as the right hon. Member for Carshalton and Wallington said: “Oh well, we’re not necessarily expecting people to use 16-hour curfews; it’s just a matter of discretion.” No, it is not. The Government are clearly saying that it is reasonable to impose a curfew of 16 hours. If the right hon. Gentleman, who was expressing mild concern, thinks that 16-hour curfews for young people are unreasonable, he should say so and vote against the measure.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

Does the hon. Gentleman agree that if a 16-hour curfew is the only alternative to a custodial sentence it clearly is an improvement?

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I can only repeat the comment I made to the Minister earlier. First, he and the hon. Member for South Swindon have absolutely not previously described the curfew as the alternative to custody that it now appears to be. Secondly, if the confinement of someone as young as 12, 14 or even 16 in what might be highly unsuitable premises for 16 hours a day over a year is seriously being advanced by the Government as an alternative to custody, this measure is not the way to do that, even with all the safeguards that go with it, including the education and supervision that we have in secure training centres. We should at least be properly consulted, and the proposal properly put forward, not slipped in in that slipshod way.

Photo of Ben Gummer Ben Gummer Conservative, Ipswich

Earlier, the hon. Member for Bishop Auckland said that Her Majesty’s Opposition supported stronger community sentences. I take the hon. Gentleman at face value on this: if not here, where does he propose that they have stronger community sentences?

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

The hon. Gentleman can ask the same question as many times as he likes and he will get the same answer. This is not stronger community sentences; it is locking people up on the cheap. That is all.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I have been listening to the hon. Member for Broxtowe with her manufactured outrage all afternoon, and I am getting a bit sick of it. What we have here is a Government who purport, through the agency of the Minister, to be liberalising the sentencing regime, and all they are introducing is a series of half-thought-out, cheap ways to save money, because of the ridiculous level of budget that has been accepted, which no other Department would sign up to. It is obnoxious when adults are affected, but it is doubly so when young people are.

Photo of Kate Green Kate Green Labour, Stretford and Urmston

It is important to put on record how strongly I feel about the amendment, in relation to children and young people. The hon. Member for Ipswich has made some very valuable contributions to our debates over the past few weeks, but I am sorry to say that his latest set of interventions was absolutely the opposite of valuable.

Children and young people are different from adults, and we owe them special protections. The youth justice system cannot simply mimic the adult one, and nor should it, because we need to take different steps to intervene and to seek to effect improvement in young lives. We have to care for and treat children differently, and we recognise that through so many aspects of law.

It is not right to start talking about tough community punishments, without asking whether they are an appropriate form, at this extent, for young people and children. I believe that they are not, and I have already said that 12 months is an exceptionally long time in a young person’s life. It is difficult for a young person, particularly one from a dysfunctional background who has never known boundaries or order in his or her life, to get any sense of what a 12-month sentence means. A sentence that is not meaningful to a young person is worthless, and I am concerned that that might be the case here. I am deeply concerned about constraining young people in one place for 16 hours, limiting their opportunities for social interaction and participation in broader educational and extra-curricular activities, and limiting their ability to exercise and move around in their community and be part of their neighbourhood and their environment. I am deeply concerned that in some cases the home is not a very safe place for young people and to keep them there for longer may render it even less safe.

I therefore plead with Government Members, especially those who have made so many thoughtful contributions to the debate so far, to take on board the fact that children and young people are different from adults and  that a simple read-across of the framework of penalties that applies for adults is inappropriate. I was not happy with the framework for adults anyway, but even if I were, I would be arguing that this type of penalty for children and young people is too severe, too constricting and inappropriate. I beg hon. Members to think carefully before they push ahead with it.

Photo of Crispin Blunt Crispin Blunt Parliamentary Under-Secretary (Ministry of Justice) (Prisons and Probation)

Amendment 345 would amend clause 67 so that the maximum number of hours a day for which a curfew could be imposed remained at 12. Amendment 346 would require the court to obtain information in order to consider whether there was a risk of harm by or to the offender or the offender’s family associated with the imposition of the curfew requirement.

The Government believe that it is important to provide the option of a curfew that extends for a longer period than currently applies, for both young people and adults. The extension in the court’s powers will enable the court to impose a curfew requirement more creatively and more appropriately, based on those critical times when the offender is most likely to reoffend. That does not mean that the curfew would automatically have the same duration every day. A young person attending school, for example, would need flexibility during the school week, but their movements could be more tightly restricted at the weekends.

I noted that the hon. Member for Stretford and Urmston said that the measure might limit their opportunities for social interaction. That might be one of the precise objectives of the curfew, given the social interaction that some of those young people will have been inflicting on their communities. That is why these curfew requirements are appropriate. I think that if the hon. Lady has had the same constituency experience as I have, of young men and women under the age of 18 who can be a real problem to their communities, she will begin to see the benefit of a flexible curfew regime that can be properly applied in order to help protect the communities from which they come.

It is important to ensure that the youth rehabilitation order is recognised as a punitive and demanding order and is a sentence that has the confidence of both the courts and the public. We believe that giving courts the power to impose longer curfews will achieve that aim.

Photo of Helen Goodman Helen Goodman Shadow Minister (Justice)

Obviously, when Ministers prepared the Bill, they made checks and they have written a declaration saying that they believe that the Bill is in line with the Human Rights Act 1998. I think that there are questions about everything that has been written on that score, but did they also check whether these provisions were in line with the UN convention on the rights of the child?

Photo of Crispin Blunt Crispin Blunt Parliamentary Under-Secretary (Ministry of Justice) (Prisons and Probation)

Yes, otherwise we would not be doing this.

It is unnecessary to require the court, under amendment 346, to consider whether there is a risk of harm by or to the offender or the offender’s family associated with the imposition of the youth rehabilitation order curfew requirement. The youth offending team already carry out a risk assessment of possible harm to  the young person or family when they complete a pre-sentence report for the court. I am sure that the hon. Member for Hammersmith is familiar with the ASSET form. That form, which is the tool that the youth offending team use, includes assessments of all the risks that Opposition Members have adduced in support of their arguments. That makes it clear that there will have been a proper appreciation of the circumstances in which the young offender would be made subject to a curfew. It will be part of the recommendation from the YOT worker to the court about the appropriateness of a curfew sentence. In the light of the conclusions of that report, the court will consider whether a curfew requirement is appropriate or necessary.

Equally, local authorities also have an obligation under section 17 of the Children Act 1989

“to safeguard and promote the welfare of children within their area who are in need”.

Therefore, if necessary, a local authority can find suitable and safe accommodation for the young person subject to a curfew requirement if it cannot be safely imposed in their own family household. Therefore, the obligation that the hon. Member for Hammersmith wishes to impose is already being fulfilled. For those reasons, I urge the hon. Gentleman to withdraw his amendments and if he does not do so, my hon. Friends should reject them.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice) 6:00, 15 September 2011

We have concerns about the whole clause, but the part we are most concerned about is the extension to 16 hours. We believe—I do not think the Minister dealt with this point—that that may well be contrary to article 5, but that will no doubt be tested in due course. We will put amendment 345 to the vote, and I beg to ask leave to withdraw amendment 346.

Question put, That the amendment be made.

The Committee divided: Ayes 5, Noes 10.

Division number 38 Decision Time — Clause 67 - Youth rehabilitation order: curfew requirement

Aye: 5 MPs

No: 10 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Clause 67 ordered to stand part of the Bill.