§ 173 [After Clause 51, insert the following new clause:
§ Supervised attendance orders as alternative to
imprisonment on fine default
§ '.—(1) A court may make a supervised attendance order in the circumstances specified in subsection (3) below.
§ (2) A supervised attendance order is an order made by a court with the consent of an offender requiring him—
- (a) to attend a place of supervision for such time, being 10, 20, 30, 40, 50 or 60 hours, as is specified in the order; and
- (b) during that time, to carry out such instructions as may be given to him by the supervising officer.
§ (3) The circumstances are where—
- (a) the offender is of or over 16 years of age; and
- (b) having been convicted of an offence, he has had imposed on him a fine which (or any part or instalment of which) he has failed to pay and either of the following sub-paragraphs applies—
- (i) the court, prior to the commencement of this section, has imposed on him a period of imprisonment under paragraph (a) of subsection (1) of section 407 of the Criminal Procedure (Scotland) Act 1975 (power of court, when imposing a fine, to impose also imprisonment on default) but he has not served any of that period of imprisonment;
- (ii) the court, but for this section, would also have imposed on him a period of imprisonment under that paragraph or paragraph (b) of that subsection (power of court to impose imprisonment when a person fails to pay a fine or any part or instalment thereof); and
- (c) the court considers a supervised attendance order more appropriate than the serving of or, as the case may be, imposition of such a period of imprisonment.
§ (4) Where, in respect of an offender, a court makes a supervised attendance order in circumstances where sub-paragraph (i) of paragraph (b) of subsection (3) above applies, the making of that order shall have the effect of discharging the sentence of imprisonment imposed on the offender.
§ (5) Schedule (Supervised attendance orders: further provisions) to this Act has effect for the purpose of making further and qualifying provision as to supervised attendance orders.
§ (6) In this section—
- "local authority" means a regional or islands council;
- "place of supervision" means such place as may be determined for the purposes of a supervised attendance order by the supervising officer; and
- "supervising officer", in relation to a supervised attendance order, means a person appointed or assigned under Schedule (Supervised attendance orders: further provisions) to this Act by the local authority whose area includes the locality in which the offender resides or will be residing when the order comes into force.'.
§ Lord Fraser of Carmyllie
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 173. I speak also to Amendments Nos. 217, 232 and 276.
Clause 48(3) restricts the use of community service orders to cases where otherwise the court intended to impose a custodial sentence. Community service, however, is a relatively scarce resource and it therefore requires to be targeted effectively.
It is not unlikely that the improved targeting of community service as an alternative to custody will lead to an increase in the use of the fine and, as a consequence, in the number of fine defaulters appearing before the courts. As part of the Government's overall policy of encouraging the use of non-custodial penalties, these amendments were tabled in order to ensure that there is an appropriate alternative available to the court so that offenders, where the original offence did not warrant imprisonment, do not automatically wind up there for fine default.
We therefore propose to introduce a "supervised attendance order". This order will be available to sentencers as an additional option to imprisonment for fine default. The intention is to punish those offenders by imposing restrictions upon their free time and by imposing the discipline of regular and punctual attendance coupled with satisfactory behaviour. Offenders who do not comply with the requirements of the order will be returned to court, where they will face the possibility of imprisonment.
The activities to be undertaken as part of the order will be constructive, of a socially useful or educational nature, and will include elements directed towards tackling anti-social behaviour. The duration of the order will be between 10 and 60 hours in discrete units of 10 hours and will require participation in a range of activities, some of which might be concerned with: alcohol and drug education; employment seeking and application; responsibilities to society; health education; literacy and numeracy; money management and unpaid work.
We intend to introduce supervised attendance orders on an incremental basis commencing with sheriff courts and subsequently extending their availability to the stipendiary magistrates' courts and then to the district courts.
During the passage of the Bill the noble Lords, Lord Macaulay and Lord Carmichael, tabled amendments intended to simplify and standardise the level of proof in respect of breaches of probation and community service orders. At that time I indicated that I was in sympathy with the intention of those amendments and that the Government would consider bringing forward an amendment which would meet their objectives at a later stage.
1643 I am pleased to advise the House that our proposals for supervised attendance orders take note of the noble Lords' intentions by specifying that the evidence of one witness shall be sufficient to prove failure to comp y with an order. Amendment No. 232 achieves the same effect in relation to the Community Service by Offenders (Scotland) Act 1978.
The amendments will provide sentencers with an additional disposal which will provide a practical alternative for fine default cases and will improve the effectiveness of supervision.
Moved, That the House do agree with the Commons in their Amendment No. 173.—(Lord Fraser of Carmyllie.)
§ Lord Macaulay of Bragar
My Lords, on this side of the House we have made it clear on more than one occasion that any reasonable steps to keep young people, in particular, out of prison are welcome. For that reason we welcome the new clause and the supplementary clause relating to standard of proof. I know that there is an amendment against that proposal, but it would be an evidential nonsense to require two people to certify that a person has breached an order, because in any event only one person might know about it. As I understand the matte -, the evidence concerning a breach is to be given on oath by a supervising officer. In that respect the situation is no different from a police constable obtaining a warrant from the sheriff on showing reasonable cause. The proposal is welcome and it will be interesting to see how it works out. I understand that he Lord Advocate will consider whether there should be no financial consequences to local authorities over the implementation of the provisions.
The Earl of Selkirk
My Lords, this is a most extraordinary schedule. It came into existence last Wednesday and previously had never seen the light of day. I am quite happy with the proposal, which I think is sound, but the matter needs very delicate handling. I think that it has been handled in a heavy-handed way. 1t has been made possible in a criminal case to accept single witness evidence that is uncorroborated. That runs contrary to one of the main principles upon which Scottish law is founded. One can go back 300 years to Stair. He states quite frankly where he stands. He does not stop there. He goes on to quote from the Second Epistle to the Corinthians, St. Matthew's Gospel, Deuteronomy and the early writings of the Bible. That is what he based his faith on. It is not a narrow issue relating to Scotland; it touches the basis of justice in all parts of the world, and that is what we are cutting out of the Bill.
May I picture the matter as I see it? One has to get people to come willingly and helpfully. There stands a dominant personality with a whip, who is saying: "Unless you do what I tell you, you will be back in prison". That is not the way to tackle the problem. It is the wrong way to do it.
I agree that it is ideal to give people who will not pay their fine a non-prison sentence. The idea behind it is first-class but, like so much in the Bill, it is heavy -handed. If the Government could only get out 1644 of that heavy-handed way, they might make an important step forward. I put forward that point, although it is not altogether to do with the Bill. If the matter can be handled properly, it will make a great difference.
§ Lord McCluskey
My Lords, it is my privilege to have my name annexed to Amendment No. 217A, which forms part of the group standing in the name of the noble Earl, Lord Selkirk.
I believe that the noble Lord, Lord Macaulay, has perhaps misconstrued what is happening here. Sub-paragraph (1) of paragraph (4) deals with warrants. That is the analogy with which the noble Lord is concerned. However, sub-paragraph (2) provides that, if it is proved to the satisfaction of the court that the offender has failed without reasonable excuse to comply with a requirement of paragraph (3), the court may, among other things, impose a period of imprisonment. That is a different point from the point with which the noble Lord drew an analogy. I see this point as being much more analogous—and I therefore agree with the noble Earl, Lord Selkirk—with the commission of an offence. For that reason, I do not like the provision.
When an issue of this kind falls to be determined by the court, the court requires to know two things; first, what, if any, were the terms of the purported instruction; and, secondly, whether the conduct or omissions on the part of the offender constitute a wilful deviation from that instruction. Plainly, if the matter is to be brought before the court with the idea of imposing a sentence of imprisonment, an instruction as important as that should perhaps be given in writing. It would then be easy to provide corroboration for the giving of the instruction.
As regards the other matter—what the person has done or omitted to do—that should not depend almost uniquely on the word of one person; namely, the supervising officer. I therefore consider that the matter should be dealt with in the way proposed by the noble Earl and supported by me. In saying that, I appreciate that there are provisions elsewhere of a similar character to which I believe my noble and learned friend Lord Cameron of Lochbroom will draw attention. However, we should not perpetuate this kind of thing as we are asked to do in the Bill. I therefore support the noble Earl.
§ Lord Cameron of Lochbroom
My Lords, I have some sympathy with the Government's desire to limit evidence to that of one witness. I refer to the new schedule in Amendment No. 217. In sub-paragraph (2) of paragraph (4) of the schedule, it is plain that one of the failures is a failure satisfactorily to carry out any instructions which he has been given by the supervising officer. It is unlikely that that officer will necessarily have any corroborating witness present at the time.
However, I should be grateful if the noble and learned Lord the Lord Advocate would explain to me why, having proceeded along those lines for the new clause and, in addition, in Amendment No. 232, having sought to introduce the same evidential 1645 requirement into the Community Service by Offenders (Scotland) Act—a requirement which is not opposed and will therefore go through the House unless otherwise negatived—it was not done in relation to probation. Sections 186 and 387 of the Criminal Procedure (Scotland) Act 1975 are phrased in almost identical terms with similar effects; namely, that, if it is proved to the satisfaction of the court that the probationer has failed to comply with any of the requirements of a probation order, he may be convicted of the offence for which the order was made and sentenced for that offence and, even if not convicted, may be convicted and sentenced as before.
I have no doubt that there is a good reason, not necessarily connected with the sheriff court decision in 1987. That court's decision proceeded upon the basis that where the words, "to the satisfaction of the court" or "the court is satisfied" appear in a criminal statute, the criminal evidential requirement has to be satisfied; namely, there must be corroboration and proof beyond reasonable doubt.
§ Lord Morton of Shuna
My Lords, surely it is absolutely necessary that these three linked items should have the same standard of proof. No doubt the noble and learned Lord the Lord Advocate would agree with that. It seems daft that one requires corroboration for breach of a probation order but apparently no corroboration is required for a breach of a community set 'ice order or of an attendance order.
§ 9.15 p.m.
§ Lord Fraser of Carmyllie
My Lords, the noble Lord, Lord Macaulay, asked about the funding arrangements for this provision. The supervised attendance order, in common with the community service order, will attract 100 per cent. central government funding. However, it will be supervised and managed by local authorities in accordance with agreed national standards.
I am afraid that I cannot immediately answer the point made by the noble and learned Lord, Lord Cameron of Lochbroom, on probation. However, as he has appreciated, one of the provisions within this group relates also to community service orders. There are considerable difficulties as regards securing the participation of people on community service orders. One area where difficulties may emerge is where someone is providing a form of community service in an old folks' home or some similar institution. There may be great difficulty in securing the participation of those who are involved in this form of community service if they are apprehensive that they will have to provide corroboration in the event of a failure to carry out their tasks fully. It is for that reason that these changes are being made.
The requirement for one witness was not introduced at this stage for probation as the standards in respect of probation do not yet require instructions regarding tasks to be documented and signed by the offender.
§ On Question, Motion agreed to.