AYJ EXPLAINS: PCSC Bill House of Lords Committee Stage

Missed Opportunities

Three missed opportunities for the Bill that the AYJ raised in our briefings were highlighted by Peers, which we warmly welcome:

Increase the age of criminal responsibility
Two amendments, in the names of Lord Dholakia, Baroness Butler-Sloss, Baroness Bennett of Manor Castle, and Baroness Chakrabarti, sought to address the unacceptably low age of criminal responsibility in England and Wales, by increasing it from 10 to 12, and by requiring a full review of the current age. The strength of feeling from Peers of all parties on this issue was clear, with a number of Peers speaking in support, highlighting evidence about the maturation of children, the impacts of dragging young children into the criminal justice system on identity and desistance, and the fact we are an outlier internationally and in conflict with the UN Committee on the Rights of the Child’s recommendations. Despite this, the Government argued that there is no need to either change or review the current age, claiming the low age provides flexibility, allows early intervention with children, and is necessary for public protection.

Address the injustice for those who turn 18 while awaiting their court appearance
Baroness Sater tabled an amendment that would require a review of youth sentencing, highlighting in particular the need to ensure all those who commit offences as children have their hearing and sentencing within the youth justice system. This is not currently the case, with those who turn 18 before their court hearing - through no fault or control of their own - being treated as adults and losing out on support, youth-specific sentences, and the childhood criminal record regime. Despite this issue being raised by Conservatives in both Houses, the Government response remains that the current framework and sentencing guidelines are sufficiently flexible.

Improve diversion provision
An amendment tabled by Lord Marks of Henley-on-Thames and Lord German would require all Youth Offending Teams (YOTs) to have a pre-charge diversion scheme available to children. A number of Peers spoke in support, about the need to place diversion on a statutory basis in order to improve availability and consistency of schemes, ensuring that YOTs have adequate funding in order to prioritise diversion alongside their other statutory duties. The Government argued that a statutory duty was unnecessary given improvements that are happening on the ground.

Custody for Children

Custodial sentencing
A number of harmful clauses in the Bill risk increasing the length and likelihood of custodial sentences and terms for children. Baroness Massey of Darwen tabled a series of amendments that would ensure children are removed from or not negatively impacted by the changes. A number of Peers spoke in support, highlighting how the measures would move us further away from alignment with the UN Convention of the Rights of the Child and would be discriminatory, discussing the inappropriateness of mandatory minimum custodial sentences, and other concerns addressed in the Joint Committee on Human Rights legislative scrutiny report that called for the measures to be removed.
Secure schools
Debate also took place on the future of the secure estate as Peers spoke in favour of Lord German’s amendment that would allow Local Authorities to run Secure Schools, as well as prevent them being run for profit. Peers highlighted the wealth of experience that Local Authorities have in running secure care facilities like Secure Children’s Homes, arguing that excluding those with the highest expertise – as the current framework appears to do - would hamper efforts to ensure the new form of custody improves outcomes for children.
Secure accommodation
A series of amendments from Lord Ponsonby of Shulbrede aimed to address national shortages of secure accommodation by placing a duty on Local Authorities to assess the local need and create a strategy. Peers highlighted the significant lack of secure beds in certain areas that leaves children being dispersed across the country, sent to unsuitable establishments, or unnecessarily remanded to custody. The Government responded that they are taking steps to support Local Authorities to maintain existing capacity and expand welfare bed provision in Secure Children’s Homes.
Remand
One of the few positives in the Bill is the increase to the threshold for remanding a child to custody. These reforms are urgently needed given over 40% of children in custody are unsentenced. We’ve highlighted how they could go further, including by introducing centralised monitoring of the remand decision making process, and we were glad to see Lord Falconer of Thoroton’s amendment that would do that. The Government has said that they will consider the best way to collect, analyse, and if appropriate publish, the information on remand decisions that courts will newly be required to provide in writing.

Criminal Records

Another positive of the Bill is the steps it takes to improve the criminal record regime, although again this could go much further for children. During a debate on an amendment from Lord Paddick that would remove rehabilitation periods for adult cautions, a number of Peers called for childhood criminal records to be wiped when a child turns 18.

Virtual Justice

The Bill includes measures that will permanently embed the expansion of video and audio links use in courts introduced due to COVID-19. Lord Falconer of Thoroton tabled an amendment that would remove children from the measures, and Lord Ponsonby of Shulbrede tabled an amendment that would require health needs screenings before defendants appear remotely. Peers spoke about the experience of remote justice and the issues it can create, particularly for children and other vulnerable defendants.

Serious Violence Duty

Although the intention of the Serious Violence Duty, to improve multi-agency working, is welcome, the details of the Duty raise significant concerns - that it’s a police-led, enforcement-focussed approach that doesn’t facilitate a safeguarding response to children affected by violence, that it will increase labelling and racial profiling, impact privacy rights, and undermine trusted relationships, impacting vulnerable children’s engagement with professionals. A large number of amendments were tabled to the Duty with Peers highlighting (here, here, here and here) these concerns and the need to remove or mitigate potentially harmful measures and centre the safeguarding needs of children, including addressing child criminal exploitation.

As Committee Stage comes to an end, parliamentary offices will be deciding which amendments they prioritise for Report Stage. Given the huge length of the Bill, and the late tabling of new Government amendments expanding stop and search and creating new protest offences, it is likely many of the issues raised so far won’t make it to Report Stage and to a vote.

The Bill’s impacts on children and the youth justice system must be a key priority, so we urge careful consideration of, and support for, the amendments highlighted here.

Millie Hall