COMMUNITY SERVICE ORDERS IN RESPECT OF CONVICTED PERSONS (Hansard, 20 October 1972)

§ Mr. John Fraser (Norwood)

I beg to move, as an Amendment to the Lords Amendment, No. 1, in line 1, leave out 'On' and insert 'Before'.

We are also to take as an Amendment to the Lords Amendment, No. 2, in line 10, at end add: 'and no consent to the making of such an order shall be valid unless such explanation has first been given'. The Lords Amendment clarifies the procedure on the making of a community service order. We on this side have given full support to the concept of the community service order and we welcome it as a useful experiment in reform of the penal system. We are grateful to my right hon. Friend the Member for Birmingham, Stechford (Mr. Roy Jenkins) in setting up, when he was Home Secretary, the advisory committee which led to the recommendation of the community service order. It was agreed when we discussed this before that if the provision is to be successful it must be explained properly to the defendant and that he must know of its because the emphasis is upon treatment rather than punishment. I believe it was for that reason that the Lords Amendment was passed in another place.

But in the wording of the Lords Amendment the duty to explain the community service order in its effect is an integral part of the making of the order rather than a condition precedent to the making of the order. If one takes the respectability of long-established precedent of the Criminal Justice Act, 1948, one sees that Section 3(5), which applies similar provisions to the making of a probation order, says that before making an order the court has a duty to explain it to the defendant and to seek his consent. Our Amendment seeks to adopt the same procedure so that the explanation is preliminary to the making of the order if the defendant consents and is not an integral part of the making of the order.

§ Mr. Carlisle

I do not know whether it is usual at this stage of the Bill, but I am glad to say that I propose to accept 657 Amendment No. 1 to the Lords Amendment if the hon. Member will be good enough not to press Amendment No. 2. The position here is, as he has rightly said, that the Amendment obliges the court making the community service order to explain to the offender in ordinary language its purpose and effect. Clearly that is right. The offender should be warned of the court's powers to fine or sentence him afresh if he fails to comply with the order's requirement and the powers in Clause 17 to review the order in the light of changed circumstances.

It was worded as it was because it was taken from the precedent of the similar wording of the requirement of the court under the Bill to explain fully the effect of a suspended sentence supervision order. But I agree that it is much more analogous to the requirement on the court to explain the individual provisions of a probation order using the word "before" making the order rather than "on" making the order, the reason being that both for a probation order and a community service order the person is required to consent and it is right that he should be warned of the effect of the order before being asked to consent. Therefore he should be asked to consent before the order is made rather than, as would be the case if the word "on" were allowed to stand after having given his consent.