HC Deb 12 May 1982 vol 23 cc764-73

`(1) A magistrates' court on summary conviction or the Crown Court on committal for sentence or on conviction on indictment shall not—

  1. (a) make a detention centre order under section 2 below;
  2. (b) pass a youth custody sentence under section 4 below;
  3. (c) pass a sentence of custody for life under section 6(2) below; or
  4. (d) make an order for detention under section 53(2) of the Children and Young Persons Act 1933, in respect of or on a person who is not legally represented in that court, unless either—
    1. (i) he applied for legal aid and the application was refused on the ground that it did not appear his means were such that he required assistance; or
    2. (ii) having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply.

(2) For the purposes of this section a person is to be treated as legally represented in a court if, but only if, he has the assistance of counsel or a solicitor to represent him in the proceedings in that court at some time after he is found guilty and before he is sentenced, and in subsection (i) and (ii) above "legal aid for the purposes of proceedings in that court, whether the whole proceedings or the proceedings on or in relation to sentence; but in the case of a person committed to the Crown Court for sentence or trial, it is immaterial whether he applied for legal aid in the Crown Court to, or was informed of his right to apply by, that court or the court which committed him.—[Mr. Mayhew.]

Brought up, and read the First time.

Mr. Mayhew

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this, it will be convenient to take the following:

New clause 3—Legal representation of persons under 21 (custodial sentences)— 'No court shall pass any custodial sentence on a person under 21 years of age who has not been legally represented unless it appears to the court that there are good reasons why legal representation is not necessary. In these circumstances the curt should state the reasons for its opinion.'. New clause 4—Social inquiry reports on persons under 21 (custodial sentences)— 'No court shall pass any custodial sentence on a person under 21 years of age unless the court has considered a social inquiry report, that is to say a report about him and his circumstances made by a probation officer or by a social worker of a local authority social services department, unless it appears to the court that there are good reasons why a social inquiry report should not be considered in a particular case. In these circumstances the court should state the reasons for its opinion.'. New clause 23—(Legal representation during consideration of sentence)— `No court shall pass a sentence on a person under 21 years of age who is not legally represented during consideration of sentence unless the court has first satisfied itself that such person has had the opportunity of being legally represented and has declined to accept such opportunity.' New clause 24—(Legal representation during consideration of custodial sentence)— 'No court shall pass any custodial sentence on a person under 21 years of age who is not legally represented during consideration of sentence unless the court has first satisfied itself that such person has had the opportunity of being legally represented and has declined to accept such opportunity.' Government amendments Nos. 41 and 42.

Mr. Mayhew

During the debate on this issue in Committee, I undertook to see what could be done to secure legal representation for all young offenders who receive custodial sentences. The new clause tabled in my name fulfils that undertaking.

This provision should not be seen as the young offender's only hope of legal help. It is more in the nature of a legislative backstop for those few offenders who have not, in the ordinary course of events, had any legal representation before they come to be sentenced. A court may grant criminal legal aid where it is in the interests of justice to do so and the defendant's means are such that he requires assistance in meeting his legal costs. Therefore, in practice, the vast majority of offenders who are in danger of losing their liberty are granted legal aid.

The Government were impressed with the arguments put forward in Committee and share the concern that lies behind the three new clauses tabled by Labour Members. We re-examined the existing provision in section 21 of the Powers of Criminal Courts Act 1973. That provides that an offender must be legally represented on the first occasion on which he receives each sort of sentence. The Government's amendments remove from the section references to young offender sentences and make fresh provision for them in a new clause.

Under that clause, a young offender is entitled to legal representation on each occasion on which he receives a custodial sentence, regardless of his previous custodial history. It also extends to juveniles sentenced under section 53(2) of the Children and Young Persons Act 1933, who have not hitherto been covered in the legislation. The Government are not persuaded that justice or principle demand any wider statutory right to legal representation than is provided for in this clause. Many less serious young offenders, who do not fall within the clause, will continue to be granted legal aid, but there should be some discretion for the courts to decide what is necessary in the circumstances of each case.

I appreciate the way in which new clause 4 has been drafted, to make allowance for the difficulty that the Government find with amendments on the same subject tabled in Committee. The Government are prepared to accept new clause 4 in principle. It is clear that Labour Members have given careful consideration to the need to allow the courts in some circumstances to dispense with a mandatory requirement to consider a social inquiry report. In broad terms, the difference between new clause 4 and the amendment then put forward in Committee is that new clause 4 recognises that there may be special circumstances where that will not be necessary and requires that there shall be a statement of those circumstances if that is the case.

I made it clear at an earlier stage that the Secretary of State has power under section 45 of the 1973 Act to make rules requiring a court to consider a social inquiry report. I also said that the Government would be prepared to use that power, if necessary. However, it is clear that there is a strong body of feeling in favour of including this provision in the Bill. The terms upon which the new clause is now urged on the Government make it acceptable, and we undertake to give effect to it.

I cannot advise the House to accept the new clause in its present form, although we have no objection to its substance. A provision requiring the consideration of social inquiry reports would need, somehow, to be reconciled with or incorporated in the provision that is now made in clause 1(6), and we shall seek the advice of counsel as to how that may appropriately be done. We thank the sponsors of the new clause for having taken careful account of what was said in debate at an earlier stage. I hope that in the light of my undertaking, we may proceed accordingly. I believe that that is the best way in which I can help the House.

Mr. Arthur Davidson (Accrington)

I am grateful to the Minister for tabling new clause 30, which meets most of the points that we raised in Committee about young offenders being sentenced to any period of custody without the benefit of legal representation. The need for legal representation is so obvious that, in view of the Minister's concessions, I need not burden the House with the reasons.

I am also grateful to the Minister for agreeing to implement the spirit, if not the entire wording, of new clause 4. It is obvious that no young offender should be given a custodial sentence unless the court has had the benefit of the fullest and most comprehensive report available on his domestic and social circumstances. That is why we suggested in Committee that social inquiry reports should be mandatory in sentencing any young offender to a period of custody.

In Committee the Minister said that there were circumstances when clearly it would be unnecessary and wasteful of resources for the court to contemplate a social inquiry report—for instance, in cases where the punishment is mandatory or where, no matter what the social inquiry report said, clearly on any rational assessment the young offender would have to undergo custodial treatment. That is why we sought in the new clause to enable the court to have some discretion and that, where it considers it appropriate to dispense with a social inquiry report, it should give the reasons.

There is nothing more that I need say, other than that I am grateful to the Minister for acceding to the wishes of the Committee.

Mr. S. C. Silkin (Dulwich)

Like my hon. and learned Friend the Member for Accrington (Mr. Davidson), I am grateful to the Minister for going as far as he has gone. I hope that he will not think me churlish if I follow that remark by complaining that, in my view, he has not gone far enough.

In Committee I said that, particularly when dealing with a young accused person under the age of 21, it is extremely important that, if that young person is likely to be convicted and given a custodial sentence, he should have the opportunity of legal representation, not simply after he has been convicted or pleaded guilty, but from the very beginning of the case. That would enable him to decide whether it was a proper charge to which he should plead guilty or one that he should contest. It would also enable him to prepare his defence.

I understand that procedural difficulties would be involved in such a rule. I am sure that the Minister will agree with me about the desirability of a person who is at risk of receiving a custodial penalty having legal aid all the way through, if he wishes. I understand the procedural difficulties, in that it may be said "You may not know until all the facts have been brought to the attention of the court whether a custodial sentence is likely, yet you would have to make a decision about legal aid at a much earlier stage".

I do not believe that would cause any procedural complication that would be impossible to overcome. At a certain stage of the case, when a defendant is not legally represented, the court may realise, having heard the outline of the facts or the evidence of a particular witness, that a custodial sentence may be imposed. At that stage it would be open to the court to say to the defendant "We think that you should have the opportunity of legal representation here and now." In a small number of cases it might be necessary to start again.

However, that inconvenience is as nothing compared with the injustice that can be done. I am sure that the Minister knows of many cases, particularly in relation to pleas, when people are easily influenced to plead guilty when they might have a perfectly good defence in law. The Minister, like me, will have come across cases in which people, particularly young people, have been advised by well-meaning persons to plead guilty and get it over quickly, when they should not have done so. He will also know of many cases in which the proper preparation of a defendant's case from the beginning—the search for witnesses, and so on—will secure an acquittal, while an unrepresented defendant simply would not know how to get the necessary evidence.

I take the Minister's point that a court can grant legal aid in such a case in any event. In my view, we should go further and make it equally mandatory to cover the whole proceedings before a custodial penalty can be imposed, just as the new clause provides in relation to a person who is convicted and in respect of whom the custodial penalty is at issue once that conviction has taken place. I hope that the Minister will think again about this issue before it goes to another place.

4.30 pm
Mr. Ivan Lawrence (Bolton)

I welcome my hon. and learned Friend's acceptance of new clause 4 because it gives formality to what is good judicial practice. No judge will sentence a young offender without first seeking a social inquiry report. Obviously if the procedure is formalised the reports will be produced at the earliest possible moment instead of later when there are adjournments. There is a great deal of good sense in that. It is no more than I would have expected of my hon. and learned Friend for him to have accepted that.

I also welcome his approach in the form of new clause 30. I am not sure that I understand why there is the qualification that if somebody is considered able to pay for himself he should not get legal aid. That is unrealistic in this context and I do not think that the proposal could have come from my hon. and learned Friend.

We are not talking about people who may be wealthy business men. It is highly unlikely that we are talking about people who have made a fortune out of crime and who can afford to pay for their defence. We are talking about young people. To say of young people that they have not satisfied the court that they are in need of legal aid is a little unrealistic; I put it no higher than that.

Any risks of wasting public money are surely taken into account by the principle that a person who is granted criminal legal aid must make a contribution according to his means. I always say this sort of thing with a certain hesitancy, but if my hon. and learned Friend accepted the proposals in new clause 23 or new clause 3, that would be much simpler and more sensible because the practice of any court with any sense would be to say, "This is a young person. We are considering sending him into some form of custody and he must be properly represented. We will not quibble about whether he should be given legal aid because, if he has the resources, we will be able to claim a substantial part of it back."

Why should we clutter the legislation with qualifications that clearly do not apply to persons under 21'? My hon. and learned Friend should reconsider that first qualification which does not seem to make a lot of practical common sense. Then perhaps we can move on more quickly to some of the more substantial matters that have to be discussed under the Bill.

Mr. Kilroy-Silk

Like my right hon. and learned Friend the Member for Dulwich (Mr. Silkin) and—if I read him correctly—the hon. and learned Member for Burton (Mr. Lawrence), I welcome the Government's new clause 30. Like them, I would also have preferred the Government to go further, at least, for example, to the extent of accepting new clause 3, tabled by my right hon. and hon. Friends.

When we were debating the issue on another occasion the Minister accepted that a custodial sentence is extremely important in the life of a young person It disrupts whatever employment, training opportunities or educational courses young people may be involved in. It can also have a profound impact upon family relationships and their whole social context. In those circumstances any additional safeguards that we can bring in to ensure that a custodial sentence is imposed only as a last resort are to be welcomed.

Young people who are legally represented are less likely to be given a custodial sentence, or, if given a custodial sentence, are likely to have a shorter one than those who are not represented. As my right hon. and learned Friend the Member for Dulwich pointed out, we are talking about the young person being represented throughout the proceedings and, most importantly, in the preparation of the case.

As the hon. and learned Member for Burton implied, many of the young people we are talking about in this context are not particularly articulate. The Government's figures show that about 30 per cent. of those committed to borstal training have a reading age of 10 years or less. Even if they are articulate, they are not skilled or adept at presenting their case in the difficult circumstances of a court hearing.

In those circumstances legal representation is important for ensuring that proper inquiries have been made about the facts of the case, that there is a clear presentation of the defendant's case, that he has considered the kind of judgment plea that he should make, that his view—if he has one—should be heard, that mitigating circumstances should be brought to the attention of the court, and, in many ways more important, that reports, if they exist, of probation officers or social workers are properly scrutinised and, if appropriate, challenged for accuracy. Of course, if he is convicted, he needs proper advice on applying for bail.

It is mandatory already under section 21 of the Powers of Criminal Courts Act 1973 for an offender of any age to be offered legal representation when a first custodial sentence is involved. That recognises that a first custodial sentence is a landmark for any individual. The same considerations apply equally to a further custodial sentence, particularly for a young person. The Government should recognise this and should feel able, particularly in the light of the cross-party support, to accept the new clause tabled by my right hon. and hon. Friends.

I should also like briefly to welcome the Government's acceptance, at least in principle, of the sentiments expressed in new clause 4. Again the point was made forcefully in Committee. The Minister did not accept it then, but he has accepted since that social inquiry reports are important in giving the court a full account of the background, family, employment, education, home and housing circumstances of an offender. Indeed, the Home Office in "Research Study Number 48 Social Inquiry Reports: A Survey", published in 1979, described the benefit that the courts derive in passing sentences from having a full knowledge of the background circumstances of an offender. I am pleased that the Minister has acknowledged this and will in another place ensure that it is properly put back into the Bill.

Mr. Alfred Dubs (Battersea, South)

I too welcome the new clause which the Minister has tabled. He will not be surprised if I join the other right hon. and hon. Members who feel that it is too narrow and that it does not give the necessary safeguards to the broad numbers of young people who are liable to come before the courts with the likelihood of receiving a custodial sentence.

In introducing the new clause the Minister referred to the few offenders who do not have legal representation. I wonder what the source of his information is. The various bits of information about legal representation provide few statistics about exactly how many people have legal representation. We have information about those who are granted legal aid, but, except in the case of the juvenile courts, that cannot be related to young people. There is a paucity of information, but one can draw some conclusions from the figures available.

I doubt whether any hon. Member would advise any young person who is before the courts on an offence, other than possibly a minor motoring offence, that he should not have legal representation. What we are saying is that because legal aid is difficult to come by, large numbers of young people without resources come before the courts without legal representation. I am bound to say that there is one law for the rich and one law for the poor. The vast majority of the poor are much more vulnerable in these circumstances.

Young people do not always come before the courts because their offence is liable to lead to a custodial sentence, but the very fact that they may not have legal representation and are found guilty makes it that much more likely that they will subsequently, when coming before the courts, be given a custodial sentence. So it is the start of a path for young people. Without the safeguards that we would advise them to have if they can afford them, they are much more likely to end up in custody eventually even if the first time they come before the courts they are unlikely on the balance of probability to receive a custodial sentence.

We all know that when the police pick up young people they use methods of coercion—I do not hesitate to use that word—to get them to plead guilty. If the young people agree to plead guilty there is less need to provide the sort of evidence that would result in acquittal if the young people themselves had the benefit of legal advice.

In this area of law justice is not always seen to be done. We must bear in mind the fact that for young people this is often their first serious confrontation with the forces of law and order. They may become cynical and believe that the court's decisions are stacked against them and that they are not being given real justice in the sense that we would like it to be given to all people.

A few figures are available. Statistics have been published on legal aid refusal rates. Some figures produced not long ago in the LAG Bulletin suggest that there are large discrepancies between the refusal rates given by one magistrates' court and another in the London area. In inner London in 1980 the rates varied from 4 per cent. at Hampstead to 26 per cent. at Highbury Corner. For outer London magistrates' courts there was a variation from 6 per cent. at Watford to 36 per cent. at Uxbridge.

Those wide variations cannot reflect an objective assessment of the entitlement to legal aid for the people who are applying. There must be an element of lottery or gamble over the court in which the person appears. In one court he may have a better chance of getting legal aid than in another. One cannot relate the refusal rates to the age of the offender. We must speculate about that.

Other figures in the criminal statistics suggest that whereas in Crown court proceedings the majority of people applying for legal aid receive it, that is not so for magistrates' courts proceedings. On the 1980 figures, 62 per cent. of all defendants received legal aid; 70 per cent. of those who applied for legal aid received it. We do not know much about those who did not bother to apply for legal aid. Those figures are for indictable offences in the magistrates' courts. For non-indictable or summary offences we find that of all the people who appeared in 1980, only 2 per cent. were granted legal aid, 3 per cent. having applied for it.

Entitlement to legal representation does not carry through for the majority of people who appear before magistrates' courts. I fear that we are not doing justice to many of the young offenders who are a subject of the Bill. I urge the Minister to think again about some of the other amendments, which would provide further safeguards for the many young people who come before our courts.

Mr. Mayhew

I am grateful for the words of appreciation that have been expressed, from whatever quarter. We are familiar with the adage: Unto every one that hath shall be given". When it comes to Governments at Report stage, there is a variant which says "From those who give ever more shall be demanded". I would not have thought that the speeches that have been made came from those who supported the Government in the past and who did none of the things that are now being demanded, let alone what the clause does.

The right hon. and learned Member for Dulwich (Mr. Silkin) said that there should be legal aid for every case that carries a possible sentence of imprisonment or custody in some other form. That was repeated in other speeches, including the speech of the hon. Member for Ormskirk (Mr. Kilroy-Silk). A small proportion of young offenders face custodial sentence without legal representation. The expense would be prohibitive to make legal aid available throughout. The resources are not there.

Mr. Kilroy-Silk

rose——

Mr. Mayhew

I shall not give way at the moment.

The resources are not available to meet an open-ended requirement. I agree that the smaller the proportion, the less the expense. The House will recall that the responsibility for funding legal aid lies with my noble Friend the Lord Chancellor. I cannot enter into an obligation for the use of resources in that way.

The question is not academic, but is whether the public purse ought to pay highly qualified lawyers to carry out functions for which their qualifications would not be needed. Every court has legal advice available to it from its clerk and power to grant legal aid where it is in the interests of justice to do so.

The court has a duty to see that the interests of justice are served. If it is dealing with a juvenile, it has a statutory duty to have regard to his welfare under section 44 of the Children and Young Persons Act 1933. The court should also ensure that the juvenile's parents are in the court. If one looks at the matter realistically, one sees that all those factors direct the court to consider whether the defendant's interests are properly represented. If not, the court should make sure that the defendant has legal representation.

4.45 pm
Mr. S. C. Silkin

Everything that the Minister has just said tends to reduce the expenditure of resources that would be required if legal aid were to be made mandatory. He is saying that in many cases the court is likely to ensure that the defendant has legal representation now; certainly in any case where it feels that there is a possibility of a custodial sentence being imposed eventually, assuming that the young person is convicted.

But the Minister will be as familiar as I am with the sort of case in which legal representation is granted after either a plea of guilty or conviction. When it comes to that point the legal representative says: "This is the sort of case in which the defendant should never have pleaded guilty or in which, on what he or she tells me by way of mitigation, had the case been properly proposed and presented, he would probably never have been convicted." It is no consolation to be told when the damage has been done that one can have legal representation. Surely the Minister will agree that the additional cost would be confined to a few cases during which it has become apparent that the case was graver than was thought in the first instance. The court should then decide that because of the possibility or even likelihood of a custodial sentence, it is right to grant legal aid.

Mr. Mayhew

I regret that I cannot go further thin I have in the new clause. It is a substantial concession, as has been acknowledged.

I had acknowledged the point that was raised by the hon. Member for Ormskirk before the right hon. and learned Gentleman intervened. The sum that we are talking about may not be large. We do not know. However, I cannot commit resources in an open-ended way. The right hon. and learned Gentleman must accept that. He knows that he and his colleagues were not able to do so when they were in Government.

On the example that the right hon. and learned Gentleman gave, if someone has pleaded guilty, representation is granted, and it becomes clear that there is an equivocal plea or that instructions to his representative by way of mitigation are inconsistent with a plea of guilty, it is the duty of the court to direct that the plea of not guilty is entered. Therefore, nothing is lost there. Usually, when the court finds that a case in the course of a hearing or a contested case seems to be acquiring greater gravity, under the ordinary legal aid procedures it is open to it to grant legal aid.

My hon. and learned Friend the Member for Burton (Mr. Lawrence) asked why we had to clutter up legislation with the question of means. The legal aid formula in the new clause is the same as that used in the existing provision, section 21 of the Powers of Criminal Courts Act 1973, which relates to legal aid before custodial sentence.

Virtually all young people will qualify for legal aid on means grounds, but these days there is no reason why the age of 21 should be regarded as the threshold in life at which one should have enough money to finance one's own representation. There is no reason why those few who can afford to pay for their representation should not do so. The general test in the Legal Aid Act is that the court should grant legal aid only when the defendant's means are such that he requires assistance. We would not want to depart in this instance from that general principle.

The hon. Member for Battersea, South (Mr. Dubs) was asking for legal aid right across the board, whether for imprisonable offences or not, on the grounds that in some cases failure to provide it can be the first step on a path that leads to more serious criminal convictions. The Government accept that some non-custodial sentences can be serious. That is why clause 21 provides for a juvenile to be legally represented before a residential care order is made. But we cannot accept that legal representation should always be guaranteed before a young offender is given a non-custodial sentence. I think that one or two illustrations will explain the force of that. There is no reason why a court should not, for example, give an absolute discharge to a 15-year-old who does not have a lawyer standing by him or impose a fine on a 20-year-old motoring offender. We would also probably have to put an end to the convenient arrangement which allows young adults such as those over 21 to plead guilty by post in some circumstances. We hold to the view that it is much better in some cases to leave the question of legal representation to the discretion of the court.

Mr. Arthur Davidson

As I was so generous in my appreciation of the Minister of State's concessions, will the Minister at least come to the House at some stage with an assessment provided by the Lord Chancellor of what the cost would be if legal aid were granted to all young people whether they had pleaded guilty or not, in accordance with the wishes of my right hon. and learned Friend the Member for Dulwich (Mr. Silkin)?

Mr. Mayhew

I cannot do that because too many uncertain factors go into that calculation.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

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