§ 4.28 p.m.
§ Baroness Blatch
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(Baroness Blatch.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Turner of Camden) in the Chair.]
§ Clause 36 [Fine defaulters]:
Viscount Tenby moved Amendment No. 100:
Page 26, line 45, after ("period") insert ("not exceeding 56 days").
§ The noble Viscount said: In moving the amendment, I shall speak also to Amendment No. 101. We have already spoken at considerable length on the subject of driving disqualification as a disposal for non-motoring offences. In view of what is listed today on the Marshalled List after my amendment, I suspect that we are not yet out of this particular wood.
§ Clause 36 makes available to the court such disqualification where there has been wilful refusal to pay a fine or fines. I confess to having some reservations about the implications of using disqualification for anything other than a motoring or an associated offence. Let me say now that I understand fully the points made in particular by the noble Lord, Lord Thomas of Gresford, and the noble Earl, Lord Russell, on the third day of Committee.
§ There is justifiable worry that loss of mobility will obstruct those seeking jobs. After all, it is often loss of employment which makes some fine offenders get behind in their payments in the first place. Of course, the unpalatable fact, which many refuse to accept, is that a low income is not a solid basis for car ownership in the first place—a home truth which becomes only too 1296 apparent in many driving without insurances cases. In any event, there are many non-payers who are perfectly able to pay but who choose not to. Somehow the money has to be prised from their reluctant fingers. The courts need as many tools as possible for this, otherwise they may seek more draconian measures than fines in the first instance.
§ Having voiced these reservations, however, I have to weigh them against the fact that I, like so many others, have been seeking alternatives to custody for such fine evaders. Almost any initiative which seeks to do that ought to be given a try. In this I believe I share the views of the noble Lord, Lord McIntosh. I make two points only on this. First, there is to be a pilot scheme. Presumably if this shows that the proposal is unworkable or there is solid—I stress the word "solid"—evidence that it is proving inequitable, the provision will presumably be withdrawn. No doubt the Minister will confirm this.
§ I emphasise my second point in relation to the fears expressed on this subject earlier by some Members of the Committee. Magistrates will have complete discretion to use this sanction, or another more appropriate one. If a person's job is in jeopardy, the magistrates will not wish to use it as that will make the ultimate objective of paying the fine in question even more unattainable. I should have thought that was fairly obvious. I must assure the Committee that most magistrates are sensitive to these concerns and think long and hard before passing sentence. They endeavour to make that sentence as practical and constructive as possible.
§ I apologise to the Committee for the somewhat extended preamble. I now turn to the first of my amendments. The point about limiting the period of disqualification to 56 days is that after that time a driving licence has to be sent to the DVLA at Swansea and consequently existing penalty points will be automatically erased. These points will have been imposed as the result of driving offences of varying degrees of seriousness. It seems inappropriate that they can be wiped out by a sentence for a totally unrelated matter. Accordingly, it would surely make sense to keep the confiscated licence at the local court to which the offender could be listed to return on an appropriate date in the future.
§ I now turn to Amendment No. 101. Driving while disqualified is rightly seen as a serious offence which can attract a custodial sentence. Nevertheless, there are many who regrettably take that risk, as I am sure my magistrate colleagues in this place will confirm. On the whole, however, the police are able to keep tabs locally on such reckless and irresponsible drivers because most of them are known to them. In future they will have to deal with an added complication; namely, someone driving while disqualified whom they will have no reason to believe may be disqualified. This problem will be exacerbated if proportional reduction in the disqualification period is permitted as the full or part payment of the outstanding fine. A pilot scheme should surely above all be simple. The more complicated it is, 1297 the more likely it is to fail. Those of us who want to find alternatives to custodial sentences do not want it to fail.
These provisions will make it much more difficult for the police to catch disqualified drivers and that, in turn, will increase the risk to ordinary members of the public from disqualified drivers. I invite the Minister to grapple with the following at two in the morning in driving rain:
And the total number is reduced if it is reduced by such number of complete weeks or months as bears to the total number the proportion most nearly approximating to, without exceeding, the proportion which the part paid bears to the whole sum".
§ Quite frankly, I pass on that, and if a traffic cop has any sense, he will too.
§ I appreciate that it may well be thought by some to be inequitable that an offender may be able to cancel a community service order early through settlement of a fine when that right may be denied to a disqualified driver. I suppose I could argue that one disposal is negative while the other—putting something back into the community through work—is positive, but I do not have high hopes that such sophistry would gain agreement on all sides of this Chamber.
§ To summarise, these amendments seek to make the provisions as simple as possible. They seek to remove the administrative and operational complications inherent in permitting offenders to buy their licence back through early repayment. I ask the Minister even at this stage to look at these provisions again and, if need be, consult other interested parties before Report. I beg to move.
§ Lord Monson
I apologise if this question has already been raised and answered earlier in the Committee stage at a time when I happened to be out of the Chamber. When she replies, will the noble Baroness clarify the position regarding insurance if these amendments, and indeed these clauses, are ultimately accepted? When an individual is disqualified from driving for one, two, three or four years, or longer—as is usually the case when disqualification is imposed—the insurance cover automatically lapses. But if an individual is disqualified only for a matter of a few weeks, presumably the insurance policy normally remains in force. If, despite being disqualified, an individual nevertheless drives during the disqualification period, is the insurance cover—both the third party cover and, for example, the cover against injury to passengers—automatically invalidated? If so, it is the innocent who will suffer.
§ Baroness Blatch
The first amendment of the noble Viscount would restrict to a maximum of 56 days the period of disqualification from driving a court could impose for fine default. This Committee's debate on Clause 35 last week highlighted the fact that disqualification from driving can affect different offenders in different ways. For example, the person who lives in the country will feel a greater degree of punishment by being deprived of the freedom to drive than the person who lives in the town and has ready access to public transport.
1298 It is not our intention that those who default on small fines should be disqualified for years and years. Nor would it be right for the person who defaulted on a small fine to end up losing his job as a result of disqualification. But we do not doubt that magistrates will use this power responsibly. As the noble Viscount said, magistrates are sensible, sensitive and wise, and they will take such factors into account when determining an appropriate disposal of the court. I think the noble Viscount said that if a person's job was in jeopardy and he lived in a part of the country where it was simply not possible to get to and from work without driving, magistrates would be sufficiently sensible to take into account whether they were imposing a disproportionate sentence. That would, of course, be a matter for the magistrates.
I also take seriously the point the noble Viscount made about the pilot scheme. He asked what would be considered in the process of evaluating pilot schemes. I believe he mentioned solid evidence of a pilot scheme being unworkable. If there was evidence it was unworkable, or that it was not a practical disposal, or was not having the effect we believed it would have, there is nothing we shall not be prepared to consider in the course of looking at the pilot scheme. We would wish to consider carefully all the points raised by the noble Viscount and the many other aspects that will arise as the provision rolls out in the courts.
Magistrates will be able to decide in each individual case whether disqualification from driving is appropriate and, if so, for how long. We do not anticipate that magistrates will have any need for a power to disqualify fine defaulters for longer than a year. There is no reason not to make that clear on the face of the Bill. I propose, therefore, to bring forward amendments at Report stage to provide for an upper limit of 12 months. I note that the reasons given by the noble Viscount for 56 days are rather different, but addressing the principle of whether there should be a maximum is important, and we would wish to bring forward an amendment which would put the 12 months upper limit on the period of disqualification from driving which could be imposed for fine default.
The much shorter maximum period of 56 days proposed in the amendment would in my view be too short to be an effective means of enforcing anything but the smallest fine. Magistrates need a wider discretion so that they can reflect properly the amount of the fine in the penalty for default.
The pilot projects will provide an opportunity to judge whether 12 months gives magistrates a wide enough discretion in practice. It could be that even 12 months is too short a period for the effective enforcement of many fines. It would therefore be sensible to allow for this 12-month limit to be varied subject to the affirmative resolution procedure. This mirrors what we have already provided in the Bill in respect of the community service hours and curfew days that can be imposed for fine default.
Perhaps I may accept the spirit of what the noble Viscount said: we have to continue to be imaginative about balancing effective punishment but keeping 1299 people as far as possible out of prison cells. This is at least one more step down that road. Even though the noble Viscount has expressed reservations, I think that he is sufficiently open-minded to accept that this is an attempt to deal with fine defaulters in a way that would be effective. Without such a provision there would be no incentive for an offender to repay either in part or in whole.
I now deal with Amendment No. 101. We have already debated a similar amendment in relation to Clause 31. As I said on that occasion, the main purpose of provisions dealing with fine default is to make the offender pay the fine or other financial penalty imposed upon him by the court. That is why we have provided under subsection (4) of this clause for an offender who has been disqualified from driving for fine default to reduce the period of disqualification either fully, if he repays the total amount of fine outstanding, or in proportion to the amount of the outstanding fine repaid.
Perhaps I may respond to the point about the poor policeman in the middle of the night—I believe that 2 a.m. was mentioned—dealing with the complicated formula set out in Clause 36(4). I hope that that would not be the intention in the practical working out of the provision. I suspect that there would be some form of codifying the adjusted date so that the policeman's concern would be whether the person was or was not disqualified on the day that he was caught driving at 2 a.m. It would not be for the policeman to have to do that calculation but for the courts to make the adjustment in sentencing. I hope that that is helpful.
As regards the other points raised by the noble Viscount, buying back provisions would be complicated. It would be a matter for the courts to deal with, as I said. That is where the payment of the fine is made. We believe that the Bill's provisions will be clear to court staff who will have training in the matter. However, the noble Viscount did not want, nor do we want, policemen having to make those complicated arithmetical calculations in the middle of the night when their business is arresting someone who is driving while disqualified.
The noble Lord, Lord Monson, asked about insurance. We think it unlikely in principle that insurance cover will continue to apply to any person disqualified from driving for however short a period. I do not think that an insurance company would wish to carry that responsibility. It would be normally a condition of the insurance policy that it covers only a driver with a licence. However, that is a matter that we would wish to consider when working out the details of the provision. I believe that insurance companies would take that view.
Perhaps I may assure the noble Viscount that we shall consider all the points raised by him in speaking to the amendment, and will be extremely mindful of his reservations when evaluating the exercise.
§ 4.45 p.m.
§ Lord Swinfen
Before my noble friend sits down, perhaps I may refer to the question of insurance. Are 1300 not a large number of private motor vehicles stored on the public highway? Would they not have to be insured whether or not the driver was disqualified?
§ Baroness Blatch
The property would be insured. We are talking about the driver who may be involved in or cause an accident while driving and the degree to which the insurance company would consider itself liable for compensation. I cannot believe that there is an insurance company—if there is one, I should like to know where it is—which would meet a liability if the driver was disqualified.
§ Lord Ackner
Might I suggest that the Minister looks into the position about the motor insurance bureau and the extent to which it carries the risk where a third party ceases to be covered? I cannot tell the noble Baroness the position offhand, but I believe that it is a relevant matter to look into.
§ Baroness Blatch
I have given an assurance that we shall consider these matters. I have answered the question intuitively at present, but I should like to come back with a more reasoned reply, perhaps in writing, to the noble Lord.
§ Viscount Tenby
I am grateful to the Minister for her helpful reply to some of the concerns expressed. I am encouraged by some of the remarks she made. Perhaps I may leave one question hanging in the air, so to speak. Is the noble Baroness satisfied that people who have had endorsed points on their driving licence for motoring offences should have those points wiped off when their disqualification is the result of something totally unconnected with motoring? I have to confess to dramatised polemics in my illustration of the policeman. I also have to confess to an omission as regards the policeman. The incident took place in Cambridgeshire.
Perhaps I may leave the question with the Minister. On the grounds that she has been kind enough to express, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 101 not moved.]
§ Clause 36 agreed to.
Baroness Blatch moved Amendment No. 102:
Before Clause 37, insert the following new clause—
§ DISCLOSURE OF PRE-SENTENCE REPORTS
§ (" .—(1) This section applies where a court obtains a pre-sentence report within the meaning of Part I of the 1991 Act.
§ (2) Subject to subsections (3) and (4) below, the court shall give a copy of the report
- (a) to the offender or his counsel or solicitor; and
- (b) to the prosecutor, that is to say, the person having the conduct of the proceedings in respect of the offence.
§ (3) If the offender is under 17 and is not represented by counsel or a solicitor, a copy of the report need not be given to him but shall be given to his parent or guardian if present in court.
§ (4) If the prosecutor is not of a description prescribed by order made by the Secretary of State, a copy of the report need not he given to the prosecutor if the court considers that it would be inappropriate for him to be given it.1301
§ (5) No information obtained by virtue of subsection (2)(b) above shall be used or disclosed otherwise than for the purpose of—
§ (a) determining whether representations as to matters contained in the report need to be made to the court; or
§ (b) making such representations to the court.
§ (6) The power to make order under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
§ The noble Baroness said: The proposed new clause requires courts to give a copy of a pre-sentence report to prosecutors. At present, when a court obtains a pre-sentence report, the defence are given a copy but the prosecution are not, even though they are present at the time of sentence. This inhibits the prosecution from fulfilling their responsibility to correct any misleading or inaccurate information put before the court. It also inhibits the prosecution from challenging any assertions contained in a pre-sentence report about witnesses which may not be warranted according to the prosecutor's knowledge, or which may be detrimental to the defendant. The Government can see no justification, in the vast majority of cases, for denying the prosecution access to a report commissioned by the court. Indeed, the Crown Prosecution Service has for some time sought access to pre-sentence reports.
§ The proposal to allow prosecutors to see pre-sentence reports was included in the White Paper Protecting the Public which was published in April last year. It received overwhelming support from prosecuting agencies. Responses from probation services, probation committees and their representative bodies were mixed: there was much support, but also some concern expressed about which prosecutors would get a copy of the pre-sentence report and what use they could make of it. In drafting this clause we have taken account of those concerns and have built in the following safeguards.
§ First, pre-sentence reports will only be given to prosecutors in proceedings which are prescribed in an order made by the Secretary of State by statutory instrument and so will be subject to parliamentary approval. We envisage that such an order will include the main prosecuting agencies, like the Crown Prosecution Service, but that it will exclude private prosecutors. Where a prosecutor conducts proceedings who is not automatically entitled to receive a copy of the pre-sentence report, the court will have the discretion not to disclose, if it thinks it inappropriate to do so.
§ Secondly, prosecutors will only be able to use or disclose information obtained from a pre-sentence report when determining whether to make representations to the court about matters contained in the report, or when making such representations.
§ This clause strikes a good balance. It will enable the prosecution to perform its role more effectively but it will be subject to necessary statutory and judicial safeguards. We will be consulting with the Lord Chancellor's Department, the main prosecuting agencies, Probation Service representatives and other interested bodies about the details of implementation to 1302 ensure that the new arrangements operate to best effect. I hope that for those reasons noble Lords will accept this new clause as part of the Bill.
§ Lord Gladwin of Clee
As the Minister knows, there is some disquiet about this proposal. I am sure she will accept that courts regard the pre-sentence report as being their property. They have asked for it to assist in helping them determine the most suitable method of dealing with a convicted offender. If the facts of the offence outlined in the PSR are materially different to those of the prosecution case, and if that difference could affect the sentencing process, then a Newton hearing can be held in order to determine the facts in dispute.
Subsection (5)(a), as currently worded, has the potential to give the prosecution power to comment on any aspect of the pre-sentence report including the probation officer's assessment of an offender's response to a particular sentence. That may not have been the intention, but that is the power which the clause would give to the prosecution. I do not believe that provision will be welcomed by the Crown Prosecution Service.
There is a danger that convicted defendants, knowing that the PSR is to be routinely given to the CPS—a number of defendants still regard the CPS and the police as being part of the same organisation—would be inhibited and less co-operative with the Probation Service. That could mean that the pre-sentence report would be a less valuable document for use by the courts.
After 28 years' experience as a magistrate, my perception is that, eight times out of 10, when considering what used to be the "social inquiry report", now the pre-sentence report, the author of that report is not present in court. So if a prosecutor wants to comment on the pre-sentence report, an adjournment is inevitable. That increases the cost and means further delay.
I question the need for this change. When a Bench decides that it needs a pre-sentence report there has been a conviction. The job of the prosecution is finished. It should not be involved in the sentencing process. If, in the interests of justice and the protection of the public it was felt that a pre-sentence report should be shown to the prosecution, then that should be a decision for the court in each case. A pre-sentence report should not routinely be handed to the prosecution in every case. I therefore hope that the Minister will re-examine this proposal.
§ Earl Russell
I have some misgivings about the wording of the amendment. Subsection (3), dealing with offenders under 17, states that,a copy of the report need not be given to him but shall be given to his parent or guardian if present in court".If the word "may" had been used, I should not have raised this point. But, as the Minister knows, there are cases of young offenders where a great deal is likely to come out in the pre-sentence report in cases of estrangement, for example, which may be extremely prejudicial to the parent. Indeed, on occasion the parent may wish to argue with it. There will be great difficulty in getting frank statements, say, in cases of alleged but 1303 disputed child abuse if it is known when the statement is being put together that it will be shown to the parent. I should find it very helpful if the Minister will agree that at the next stage of the Bill we can change the word to "may". As it is, the wording of the subsection really will not do.
Subsection (4) begins with the words,If the prosecutor is not of a description prescribed by order made by the Secretary of State".I thought that the Government were hostile to over-prescribing. I understand the intention behind this as the noble Baroness stated it; namely, to exclude private prosecutors. I have no quarrel with that intention, but the power to prescribe, once it is there, may be used for all sorts of purposes by future governments other than the one for which it is intended. So far as I can see, there is nothing but our hybrid instruments procedure which stops this power from being used to say that it shall be disclosed to the prosecutor provided he is not Mr. Mike Mansfield, QC.
A much more serious concern is that I simply do not see what the prosecution has to do with the business of sentencing. The prosecution's job is to attempt to establish guilt. There is here a real separation of powers. When the prosecution has established guilt, then it is for the court, not the prosecutor, to establish the sentence. If people make disclosures in a pre-sentence report which may perhaps involve some other offending behaviour and that will come into the hands of the prosecution, there is a real risk of self-incrimination, and that really does worry me.
When I was a boy, I used to read in the papers reports of trials from Eastern Europe. I used to read that the prosecutor "asked for the death penalty". It always used to give me a great sense of shock. I used to think: what business is it of the prosecution to have these statements? I do not understand that.
§ Viscount Tenby
I am not entirely clear about the purpose of this amendment despite the Minister's concise statement. There seem to be two principal objections to it. They have been admirably identified—the first by the noble Lord, Lord Gladwin of Clee. He is probably at least two years senior to me on the Bench (I have not quite worked it out yet). Anyone with experience of a magistrates' court knows that the duty probation officer on any given day may well not be the author of the PSR being considered by the court. Accordingly, if the Crown Prosecution Service wishes to question the author, unless he or she is on the premises (often they are not; they are out looking after their charges) there may have to be an adjournment. All that adds to the cost and to the delay in justice. We all know that delayed justice is justice denied.
The other reservation expressed in particular by the probation services is that offenders may be reluctant to unburden themselves freely to the person compiling the report if they feel that it will be seen by the prosecution. I can understand that. I do not say that it will happen on every occasion, but that feeling may well be there. I have not felt that any particular disadvantage was 1304 suffered by the prosecution to date in not being aware of the details of the PSR. I have yet to be convinced that the amendment is necessary.
§ 5 p.m.
§ Lord Hylton
I am not a magistrate, but I have misgivings about the amendment. I take particularly seriously the criticism made by the Inner London Youth Court Panel of magistrates. The panel stated:We believe the inhibiting effect upon those preparing PSRs of knowing that material which is disclosed in the report … could fall into the hands of the prosecution will be deleterious to the interest of defendants, without in any way enhancing the need of the court to have a fair presentation of the Crown's case".In her introductory remarks, the noble Baroness mentioned that certain safeguards were contained in the amendment, but I am not convinced that the safeguards deal with the point.
§ Lord Simon of Glaisdale
I wish to raise a small drafting point supplementary to the point on subsection (3) made by the noble Earl. I shall be glad to hear whether I have misread it, but as I understand it, if the offender is under age and is not represented, the report need not be shown to him but shall be shown to a parent or guardian if the parent or guardian is present in court. But if there is no parent or guardian present in court, it seems to me that there is no obligation for the report to be shown to the offender or anyone connected with him at any stage. I cannot believe that that is the intention.
§ The Earl of Mar and Kellie
I am not keen on the amendment. I feel that it threatens the integrity of report-writers. It may be helpful to the Committee to say that a pre-sentence report is not a plea in mitigation; it is a report about the offender's background and the possibility of disposal.
As other Members of the Committee have said, it threatens the co-operation of the subject and there is already a problem with deciding exactly how much to put into the social background aspect of a pre-sentence report. I think the amendment will not be helpful because it will cause reports to be minimised rather than maximised.
§ Lord Thomas of Gresford
I have been seeking to identify the problem that has caused the Government to put down the amendment. It seems to me that the Government are concerned that a court may be misled in some way by a pre-sentence report and therefore that they want to have the matters contained in the report checked by the Crown Prosecution Service. I can think of no other reason for the amendment.
However, one must consider what happens in practice. Many Members of the Committee have talked about the magistrates' courts, perhaps I may refer to what happens in the Crown Courts. If a defendant pleads not guilty and is found guilty, that is the end of the matter. The case as put forward by the Crown has been accepted by the jury and therefore the sentencer proceeds to sentence on the basis of those facts. He is 1305 helped in that by looking at personal information relating to the offender, to which I shall return in a moment.
If, on the other hand, the offender pleads guilty and then a speech of mitigation is made on his behalf, there are two ways of dealing with any differences that may arise between what is said on the facts by the defence counsel and what is said by the Crown. One possibility is to hold the Newton hearing whereby evidence is called and the judge decides what happens. Another way recently approved in the Court of Appeal is that the facts should be agreed between prosecution and defence before the plea is tendered. Whichever of the two options is adopted, the court has a firm basis of fact on which to sentence.
If in the course of mitigation counsel for the defence puts forward another basis of fact which is in dispute, then it is open to the prosecutor who hears that speech in mitigation to intervene and ask for a Newton hearing or for some other way of dealing with the matter. It is not necessary that he should be given access to pre-sentence reports. Those are reports which may perhaps refer to the defendant's version of events, but it is more helpful if they are concerned with issues such as drugs, alcohol, family crises, the physical or mental health of the defender, his attitude towards the victim and his attitude towards the crime, whether he is remorseful. There will be references to his past record and how successfully he may have completed non-custodial sentences in the past. His attitudes and characteristics set out in that report are there to assist the sentencer to judge various matters: first, what kind of a risk is the defendant to the public; secondly, what is his attitude to re-offending likely to be in the future? That has nothing whatever to do with the function of prosecuting.
If it were merely a question of handing over a copy of the report to the prosecution to check the facts and there were no knock-on effects, perhaps nothing particularly serious would have occurred. But, as the noble Lord, Lord Gladwin, emphasised and as was repeated by the noble Viscount, Lord Tenby, inhibitions will be placed upon the offender which will prevent him from being as frank and open about the personal issues which I have outlined in discussing the matter with the probation officer who prepares the report. If those matters are not set out fully, if the prisoner has no confidence in the person who is trying to help him, then the recommendations of that person will be affected. It will be a less useful report to the court and nothing has been gained.
I repeat, if the purpose of the amendment is simply to check the facts, the prosecutor can hear them when mitigation is advanced in court.
I am astonished at the support for a lack of openness in the court. I am also astonished that the noble Earl, Lord Mar and Kellie, should say what he did when he has wide knowledge of the Scottish system where there is exceeding openness in court, 1306 where the prosecutor and the defence see the report. That has happened for years and years and there has been no problem.
I listened carefully to what Members of the Committee said. It seems to me that they have been making the case that no one should see the pre-sentence report other than the magistrate or judge. If there is a case for the defence seeing it, then in the interests of openness, there must be a case for the prosecution seeing it.
Experience has shown that it is possible for the courts to be misled by a pre-sentence report, even one carefully and diligently prepared in accordance with national standards. The purpose of the Government's new clause is to enable the prosecution to discharge its responsibility to ensure that the courts are not misled in this way.
What kind of cases are we talking about? It may assist the Committee if I offer some examples. The probation officer who prepares a PSR does so on the basis of information principally received from the prosecution and the offender. At the time the author prepares the report, the material supplied earlier by the CPS may no longer accurately reflect the current position. For example, there may have been a trial at which other evidence emerged or certain evidence was not accepted by the court. For many reasons the circumstances may well have changed.
It is also easy to see how an offender might succeed in giving the report writer a misleading account, for example, of the relationship between him and the victim of the offence. An offender may give the false impression that he had been bullied by the victim in the case over a long period. That may affect the writing of the section of the report which analyses the offence and assesses the degree of premeditation.
The PSR should also include information about the context in which the offence occurred, including information about relevant associated offences. Material supplied by the CPS and the offender's account may not give the full picture; it may not even give an accurate picture. If the CPS had the opportunity to see the report it could raise the matter with the defence in advance of the hearing. If the issue were not resolved, it could make appropriate representations to the court. The prosecution can already comment on matters raised orally. If it were to comment inappropriately the court would deal with that accordingly. There is no real difference between that situation and the proposed situation in which the prosecution is to have sight of written matters.
Matters upon which the prosecution can currently comment would include, for example, where the defence says in mitigation that there has been a history of provocation by the victim (a vendetta over several months) and that this was the last straw and the defendant snapped. If the prosecution information was significantly different from that, it might comment accordingly. Why should the situation be different because the defendant's version is included in a PSR rather than in a speech in mitigation? Though it is not a fact in the case, it is a matter upon which prosecution comment could be relevant.
1307 I looked again at the White Paper and came across another example. The defence may refer in mitigation to some aspect of the defendant's circumstances which either conflicts with or is not mentioned in the PSR and which it may be necessary to challenge. The noble Lord, Lord Gladwin of Clee, referred to Newton hearings. The advance disclosure of a PSR to the prosecution will not preclude the holding of a Newton hearing where factual matters are not agreed. Advance notice of possible disputes may reduce the number of such hearings and therefore save time and costs on sentencing.
The noble Lord, Lord Gladwin, referred also to the need for adjournments if there is a dispute about the PSR—a point made also by the noble Viscount, Lord Tenby. We envisage that the prosecution will have a copy of the PSR at the same time as the defence and therefore the issue can be addressed before the court at the time of sentence without the need for an adjournment.
The question was also posed that if offenders know that the prosecution is to see the pre-sentence report it may make them less frank when being interviewed by the report writer and so mean less effective supervision. It is already the case that prosecutors may obtain a copy of the pre-sentence report if they are appealing against an unduly lenient sentence[...]—rather late in the day for the prosecutor. Offenders know that. Furthermore, where the court decides to impose a custodial sentence, a copy of the pre-sentence report is sent to the custodial institution. Offenders know that too. I do not envisage therefore offenders being any less candid as a result of this clause than they already are.
The noble Earl, Lord Russell, referred to decisions in relation to private prosecutors that may be for the discretion of the court. There is no power to say who will not receive the PSR. However, I shall continue looking at the wording of the clause and keep the whole of the Bill under consideration while it passes through this Chamber.
The noble and learned Lord, Lord Simon of Glaisdale, posed a question concerning the juvenile under the age of 17 where the intention would be that the PSR should go to a guardian or parent. The point is an important one. However, I do not have an answer for the noble and learned Lord. I shall go away and consider whether, in the absence of a parent or guardian, the pre-sentence report should be given to the juvenile and whether there is a distinction between a 17 year-old and a much younger person.
§ Baroness Blatch
The noble and learned Lord, Lord Simon, referred also to the disclosure of reports to parents of juveniles. As I said, I shall look at that.
The noble Lord, Lord Hylton, referred to an offender's reluctance to disclose information. It is still in the offender's interest to co-operate; that is the whole purpose. The dialogue between the probation officer, who is the report writer for the purposes of putting the PSR before the court, and co-operation by the individual is extremely important. Frankness on the part of the report 1308 writer is also important. It is primarily inaccuracies that will be corrected; for example, misleading versions of a relationship, to which I have already referred.
Perhaps I may refer to a point raised by the noble Earl in relation to subsection (3), and refer him to subsection (5), which states:No information obtained by virtue of subsection (2)(b) above shall be used or disclosed otherwise than for the purpose of—(a) determining whether representations as to matters contained in the report need to be made to the court; or (b) making such representations to the court".The purposes for which the information can he used therefore will be properly prescribed in law.
§ 5.15 p.m.
§ Lord Thomas of Gresford
Before the Minister sits down, perhaps I may raise this matter. The noble Baroness said that there would be a saving of time and cost. That turns the practical position upside down. Where is the inquiry to end?
A sentencer receives a report from an independent person—the person who writes the report; he is not a defence advocate; he or she is neither working for nor instructed by the defendant; they are there to give an objective report to the court. If that objective report is to be handed in every instance to the Crown Prosecution Service dealing with the personal circumstances of the individual, what is the Crown Prosecution Service then supposed to do? The person in the CPS is unlikely to know anything about the background of the defendant and therefore the police will have to be brought in to investigate what the independent writer of the report has discovered. All of that will then be the subject of some sort of hearing, some dispute, which goes back to the judge to determine.
The whole thing escalates further and further. All that one can reasonably require, within reasonable cost and practicality—a matter which might appeal to the Minister—is to have the assistance of an independent report without having to take the nitty-gritty even further. That is in addition to the down-side of the preparation of that report, to which I have already referred.
§ Baroness Blatch
I have to ask the noble Lord what good reason he believes there is for the sentencer to see the report, for the defence to see the report and not for the prosecution to see the report. The noble Lord is vocal on many of these subjects; but if, as he is suggesting, something may be so wrong as to need to be challenged by the police in order for it to be resolved, is he really saying that reports that could contain that degree of inaccuracy—that degree of challengeable information—should be seen only by the sentencer and the defence and kept secret from the prosecution? There is no case whatever for that.
§ Lord Thomas of Gresford
I apologise to the Minister for being vocal; I thought that is what we were here for. 1309 The prosecutor has no business becoming involved in the sentencing process. The Government always fail to understand that the public must retain confidence in the criminal justice system; they have to feel that it is fair and impartial. There is a place for the prosecution and a place for the defence.
Pre-sentence reports are not held in great secrecy, delivered under plain envelope to the defence; they are freely thrown around the bench and reference is made to them throughout by the defence counsel. But the prosecutor is not interested. He knows instinctively that it is not a matter about which he should become vocal.
§ Baroness Blatch
The prosecutor represents the public interest in these affairs, and it is as much in the interests of the prosecution and the public that the sentencer does not proceed on the basis of possibly inaccurate information. Given that there is no one to challenge it other than the prosecution, there can be no reason for keeping the information from the prosecution.
I know the noble Lord is aware that not infrequently one finds the defence using PSR information in mitigation to the sentencer, influencing the sentencer when it comes to awarding a sentence. All I am saying is that, for the sake of openness, it must be right that the prosecution as well as the defence is privy to that information.
§ The Earl of Mar and Kellie
I thank the Minister for what she has said. She is right. The procurator fiscal in Scotland is always given the report. But I have never known a procurator fiscal to comment on or challenge what is in a report. Therefore, it is subsection (5)(b) that I find difficult.
§ 5.20 p.m
§ On Question, Whether the said amendment (No. 102) shall be agreed to?
§ Their Lordships divided: Contents, 122; Not-Contents, 57.1310
|Division No. 1|
|Abinger, L.||Campbell of Cray, L.|
|Addison, V.||Carnegy of Lour, B.|
|Anelay of St. Johns, B.||Carnock, L.|
|Balfour, E.||Chalker of Wallasey, B.|
|Belhaven and Stenton, L.||Charteris of Amisfield, L.|
|Beloff, L.||Chelmsford, V.|
|Berners, B.||Chesham, L. [Teller.]|
|Biddulph, L.||Clanwilliam, E.|
|Birdwood, L.||Clark of Kempston, L.|
|Blatch, B.||Clinton, L.|
|Bowness, L||Coleridge, L.|
|Brabazon of Tara, L.||Courtown, E.|
|Braine of Wheatley, L.||Cranbome, V. [Lord Privy Seal.]|
|Bridgeman, V.||Crickhowell, L.|
|Brigstocke, B.||Cross, V.|
|Brougham and Vaux, L.||Dacre of Glanton, L.|
|Burnham, L.||Davidson, V.|
|Byford, B.||Dean of Harptree, L.|
|Cadman, L.||Denbigh, E.|
|Denham, L.||Mountevans, L.|
|Denton of Wakefield, B.||Mowbray and Stourton, L.|
|Dixon-Smith, L.||Munster, E.|
|Donegall, M.||Murton of Lindisfarne, L.|
|Dundee, E.||Nelson, E.|
|Elles, B.||Norrie, L.|
|Elliott of Morpeth, L.||Northesk, E.|
|Gainford, L.||O'Cathain, B.|
|Geddes, L.||Oxfuird, V.|
|Goschen, V.||Park of Monmouth, B.|
|Gray of Contin, L.||Pender, L.|
|Harding of Petherton, L.||Plumb, L.|
|Hardinge of Penshurst, L.||Plummer of St. Marylebone, L.|
|Harlech, L.||Rankeillour, L.|
|Henyhoe, L||Renwick, L.|
|Henely, L.||Romney, E.|
|Holderness, L.||Rotherwick, L.|
|HolmPatrick, L.||Rowallan, L.|
|Hood, V.||St. Davids, V.|
|Hooper, B.||Seccombe, B.|
|Inglewood, L.||Selborne, E.|
|Keyes, L.||Shaw of Northstead, L.|
|Kilmarnock, L.||Skelmersdale, L.|
|Liverpool, E.||Stewartby, L.|
|Long, V.||Strange, B.|
|Lucas, L.||Stranthclyde, L. [Teller.]|
|Lucas of Childworth, L.||Strathcona and Mount Royal, L.|
|Luke, L.||Sudeley, L.|
|Lyell, L.||Suffolk and Berkshire, E.|
|McColl of Dulwich, L.||Swinfen, L.|
|MacFarlane of Bearsden, L.||Taylor of Warwick, L.|
|Mackay of Ardbrecknish, L.||Teynham, L.|
|Mackay of Clashfern, L. [Lord Chancellor.]||Trumpington, B.|
|Mackay of Drumadoon, L.||Westbury, L.|
|Marlesford, L.||Wharton, B.|
|Massereene and Ferrard, V.||Whitelaw, V.|
|Merrivale, L.||Wilcox, B.|
|Mersey, V.||Wise, L.|
|Miller of Hendon, B.||Wynford, L.|
|Mottistone, L.||Young, B.|
|Addington, L.||Hylton-Foster, B.|
|Alderdice, L.||Jay of Paddington, B.|
|Beaumont of Whitley, L.||Jeger, B.|
|Berkeley, L.||Jenkins of Hillhead, L.|
|Borrie, L.||Jenkins of Putney, L.|
|Brooks of Tremorfa, L.||Kilbracken, L.|
|Calverley, L.||Kirkhill, L.|
|Carlisle, E.||Longford, E.|
|Clinton-Davis, L.||McIntosh of Haringey, L.|
|Cocks of Hartcliffe, L.||McNally, L.|
|Desai, L.||Mar and Kellie, E.|
|Donaldson of Kingsbridge, L.||Milner of Leeds, L.|
|Dormand of Easington, L.||Morris of Castle Morris, L.|
|Dubs, L.||Oliver of Aylmerton, L.|
|Eatwell, L.||Peston, L.|
|Elis-Thomas, L.||Ponsonby of Shulbrede, L.|
|Geraint, L.||Prys-Davies, L.|
|Gladwin of Clee, L. [Teller.].||Richard, L.|
|Gould of Pottemewton, B.||Rodgers of Quarry Bank, L.|
|Graham of Edmonton, L.||Russell, E.|
|Grenfell, L.||Stallard, L.|
|Grey, E.||Symons of Vernham Dean, B.|
|Harris of Greenwich, L.||Tenby, V.|
|Haskel, L.||Thomas of Gresford, L. [Teller.]|
|Hollis of Heigham, B.||Thomson of Monifieth, L.|
|Hughes, L.||Turner of Camden, B.|
|Hutchinson of Lullington, L.||White, B.|
|Hylton, L.||Williams of Elvel, L.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 5.29 p.m.
Lord Rodgers of Quarry Bank moved Amendment No. 102A:
Before Clause 37, insert the following new clause—
§ LENGTH OE CUSTODIAL SENTENCES
§ "(2B) A court shall not form such an opinion as is mentioned in subsection (2) above or subsection (4A) below unless it is of the opinion that the sentence or sentences which it will pass (including the length of any custodial sentence) will he the same whatever the content of any pre-sentence report.".").
§ The noble Lord said: I move this amendment on behalf of my noble friend Lord Thomas of Gresford. He will now speak to it.
§ Lord Thomas of Gresford
The wording of the new clause is somewhat obscure because it refers to amendments to the Criminal Justice Act 1991. It proposes that a court may dispense with a pre-sentence report before passing a custodial sentence only if its sentence, including the length of any custodial sentence, would be the same whatever the content of that report might be.
There may be a number of circumstances where a court might conclude that a pre-sentence report would not alter its sentence; for example, where the offender is already serving a prison sentence and the court's intended sentence would not increase the length of time the offender will spend in prison; where the sentence that is envisaged falls at the lower end of the range of sentences which are possible for the offence within guidelines laid by the Court of Appeal; or where the offender has been remanded in custody and the short custodial sentence that the court considers appropriate would result in immediate release. That is a means of disposal which very frequently happens after a defendant has been held on remand for a considerable period of time.
In all other cases it will be necessary for the court to obtain a pre-sentence report which could make a difference to the sentence. I have already indicated the nature of the information that would be contained in such a report about the personal circumstances of the offender and it is right that in every case the sentencer should have that before him. In its absence it is possible that the court will impose a sentence which might be a great deal harsher than is justified in all the circumstances or, alternatively, the mistake may be in the opposite direction because, without the assistance of a report, the judge might pass a sentence which is too short to protect the public. For all those reasons the amendment is put forward to ensure that, save in exceptional circumstances, the sentencer will have a pre-sentence report before him. I beg to move.
§ Baroness Blatch
This amendment would not merely amend the Criminal Justice and Public Order Act 1994, 1312 which was of itself an amendment to the 1991 Act, but would abolish it completely and we would revert to the provision in the 1991 Act. The reason is that it would be impossible to know what would have been in a pre-sentence report, unless the court commissioned it and saw it. This amendment effectively removes the discretion to dispense with such a report provided by the 1994 Act.
We do not believe that this amendment is either practical or desirable. Requiring the court to be satisfied that any pre-sentence report could not in any measure or circumstances affect its decision as to sentence, is an impossibly high threshhold to meet. One can never totally rule out the theoretical possibility that the content of a report might have some impact on the outcome, however small. The effect would therefore be that the court would be required to obtain and consider a pre-sentence report in every case. That would effectively reverse the discretion given to the courts in this matter in the Criminal Justice and Public Order Act 1994. Our reason for giving the courts discretion at the time was that the previous arrangements were wholly inflexible, and imposed unnecessary fetters on the courts and unnecessary costs for the criminal justice system as a whole. These changes took account both of the views of judges and magistrates, and of the results of a review into the way the previous arrangements worked undertaken by Her Majesty's Inspectorate of Probation. We would not wish to reverse these changes. Research evidence shows that the courts are using this discretion wisely and we see no reason to alter the position.
I can appreciate the sentiment behind the noble Lord's amendment that the decision to sentence a person to custody and for how long should be carefully weighed. The courts are already required to take account of a number of factors in taking that decision. However, it does not necessarily follow that a pre-sentence report will help in that decision. The primary purpose of a report is to help the court to consider matters such as the suitability of a community sentence, the need to protect the public from further offending and the seriousness of the offence. A court that decides that a pre-sentence report is unnecessary will have made that decision on the basis that the probation service is unlikely to be able to offer anything further that could influence the outcome. Given the practical choices that have to be made in a limited time, the sentencing process has to be constructed on the basis of judgments as to likelihood of relevance. While there is always a slight possibility that further information could be provided, which might make some difference in some cases, this is not a reason to take away the court's discretion.
The defence will of course have the opportunity to put facts before the court relevant to sentence and, if necessary, ask the court to consider requesting a pre-sentence report. And if the defence believes that a sentence is too harsh, it can appeal against it. For those reasons, I hope that the noble Lord, Lord Thomas, will not press his amendment.
§ Lord Carlisle of Bucklow
Perhaps I may briefly support my noble friend on this matter and say to the noble Lord, Lord Thomas of Gresford, that surely this 1313 amendment is going back to the 1991 situation. Would he not agree that, particularly in the Crown Court, one of the problems of delay was the need always to obtain pre-sentence reports? I believe that amendment to the 1994 Act led to an improvement. In my experience in the courts it has meant that if the defence want a report I have never known a judge to refuse such a request and he will adjourn the case for that purpose. If the judge feels that a pre-sentence report is necessary he can get one himself.
However, if it is apparent that, because of the nature of the offence, after the trial there will inevitably be a custodial sentence and the defence, recognising that, do not ask for a report, surely it is in everyone's interest that the man should be sentenced straightaway rather than the case having to be adjourned for a pre-sentence report. It seems to me that the words of the amendment will mean that there should be a report in every case. Since one could not be absolutely 100 per cent. sure what was in the report, the court would be bound to ask for one.
The other point I raise is purely one of practicality and it is an important one. The noble Lord, Lord Thomas of Gresford, and myself both sit as part-time judges in the Crown Court from time to time. One knows of situations where, having listened to a trial, and having come to the end of the judge's two-week sitting, suddenly, although the defence is not asking for a report, under the 1991 Act one had to put the case over to obtain one. That meant that the case had to be fixed for a day when the noble Lord, Lord Thomas or myself, or whoever the Recorder was, was available to come back to that town, resulting in considerable delay, additional expense and very little advantage. I say to the noble Lord, Lord Thomas, that I draw a different conclusion from the one he does as regards the present situation under the 1994 Act.
§ Lord Thomas of Gresford
I always pay the highest respect and regard to the views expressed by the noble Lord, Lord Carlisle of Bucklow. All I shall add to what he said is that, in my experience these days, there is a certain resistance and reluctance shown occasionally by judges and Recorders in asking for a report at all or in granting an application for a report. Very frequently queries are raised as to whether that is really necessary. With some humility, sitting as a sentencer, one perhaps gets the bit between the teeth at the end of a trial. It is an advantage, even if one does not think so at the time, to have a pre-sentence report. I am sure the noble Lord, Lord Carlisle, agrees that it is helpful to have time to reflect and to have an independent report from someone who is not part of the defence team who has investigated the circumstances and can give perhaps a range of options, which may be other than those that one has immediately in mind sitting as a sentencer. However, as I say, I always pay great regard to the noble Lord's views and with that in mind I shall not press the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 37 [Committals for sentence]:
Viscount Tenby moved Amendment No. 103:
Page 27, line 24, leave out ("triable either way").
§ The noble Viscount said: This is a simple amendment which would be beneficial to the administration of the lower courts and equitable in the execution of justice. To the relief of all, I promise to be brief because the matter is simple.
§ Clause 37 extends the circumstances in a magistrates' court in which an offender who has been convicted of an either way offence may be committed to Crown Court for sentence. The amendment seeks to include in the package, so to speak, any related summary offences to which the offender has pleaded, or been found to be, guilty. Some of those offences might not in the usual way of things be passed to the Crown Court. I refer, for example, to some motoring offences, such as driving while disqualified or without insurance, which can attract a custodial sentence. Others, such as construction and use offences or not having a vehicle excise licence do not attract such a sentence. No matter, let them be passed up together. This simple proposal will reduce administrative costs and ensure that the offender, having served whatever sentence the Crown Court imposes, will not have to return to a magistrates' court at a later date and have all the related matters brought up again. It will also enable the Crown Court to have a more complete picture when it comes to sentencing.
§ This is such an unexceptionable and common sense proposal that I can only assume that the drafting team left it out of the final version of the Bill by mischance. Perhaps I may invite the Minister, with her usual robust common sense, to put the matter right. Indeed, to paraphrase her last week, the sky may not fall in if this amendment is agreed to, but I nevertheless fear that counsel will inevitably have something of an uncompromising nature to say on the subject. On this common sense proposal, however, can counsel for once be overruled? I beg to move.
§ Baroness Seccombe
I have the greatest sympathy with the thrust of this amendment and I am sure that fellow magistrates will have experienced the frustration of having to separate offences before the court, sending the substantive offences to the Crown Court while withholding the more minor ones. It seems to me that if the Crown Court can on one occasion pass sentence for all offences that occurred at the same time, that would lead to a much more just outcome.
§ The Lord Advocate (Lord Mackay of Drumadoon)
I am sorry to have to inform the noble Viscount that my noble friend Lady Blatch and her robust common sense are taking a rest on this amendment. It has been left to me to seek to explain our response to it. The Government certainly share the spirit behind the amendment.
This amendment seeks to extend the application of Clause 37 to all classes of offence, rather than to offences triable either way only. The effect of the clause as it stands is to extend the circumstances in which a magistrates' court may commit a person convicted of a triable either way offence to the Crown Court for sentence. If he pleads guilty in a magistrates' court, and is convicted, and if he is also being committed for trial 1315 for a related offence or offences, he may be committed to the Crown Court for sentence in relation to the offence of which he has already been convicted.
The effect of the amendment would be to widen magistrates' existing powers to commit for sentence in respect of any offence in cases where there are related offences that are to be dealt with by the Crown Court. We share the concern that, where appropriate, sentencing for related offences, of whatever class, should not be split between the courts. However, the view of the parliamentary draftsman is that the necessary powers already exist to enable this to take place.
I shall now seek to explain why that is and why there is at least one technical objection to the amendment. However, in view of the fact that this is a matter of practical importance, I shall certainly reflect further on what the noble Viscount has said.
Clause 37 as currently drafted is not concerned with the general powers of a magistrates' court. It is included in the Bill to remedy a specific practical difficulty which may arise when Section 49 of the Criminal Procedure and Investigations Act 1996 is implemented—
§ 5.45 p.m.
§ Lord Mackay of Drumadoon
That provision invites defendants charged with offences triable either way to indicate their plea before the mode of trial decision is taken. A magistrates' court must then either sentence or commit for sentence any defendant who indicates a guilty plea. This procedure enables those wishing to plead guilty to do so at the earliest opportunity and to be dealt with by the magistrates' court rather than be committed for trial to the Crown Court. Research has shown that many defendants so committed would have been willing to be dealt with finally by the magistrates' court. The effect of the provision, when implemented, will be to spare victims, witnesses and defendants the further delay of awaiting a Crown Court trial, and to retain appropriate business in the magistrates' court and thereby save the expense of remitting the matter to the Crown Court.
However, the provisions in the 1996 Act do not take into account any other offences with which a defendant might have been charged and on which he is anyway to be tried at the Crown Court. In certain circumstances, that might lead to the undesirable outcome that he would have to be sentenced by different tribunals at different times. Sentencing anomalies would be inevitable, resulting on the one hand in potential unfairness to the defendant and the possibility of appeal and on the other to the imposition of a sentence in the Crown Court which could well be too lenient.
As I have said, the purpose of Clause 37 is to seek to remedy that potential difficulty. As I have also said, it is believed that there are already sufficient general 1316 powers to enable the Crown Court to deal with all matters outstanding against an offender, including summary offences. Section 56 of the Criminal Justice Act 1967, as amended, allows the magistrates' court to commit an offender for sentence to the Crown Court for certain summary offences if the court is also committing him for sentence under other enactments, which will include Section 38A of the Magistrates' Courts Act 1980, as it will be inserted by Clause 37. In addition, Section 40 of the Criminal Justice Act 1988 enables counts for certain summary offences to be included in an indictment where they are related to an indictable offence for which the accused has been committed for trial. In such cases, the defendant will be tried at the Crown Court for both offences. Section 41 of the 1988 Act enables a magistrates' court, when committing a defendant for trial on a charge for an offence triable either way, to commit him to the Crown Court for any associated summary offence provided that such offence is punishable with imprisonment or carries disqualification.
The advice of counsel is that these existing general powers ensure that, where appropriate, the Crown Court can deal with all matters outstanding against an offender at the same time. As I said earlier, however, I shall reflect carefully on all the points made by the noble Viscount.
In conclusion, perhaps I may draw to the noble Viscount's attention the technical problem with his amendment as currently drafted. It arises because, as I have explained, Clause 37 as drafted is designed to remedy a specific difficulty with the existing plea before venue provision. That requires that two other conditions must also be satisfied for the provisions to apply. They will be met only where the magistrates' court has proceeded under Section 17A or Section 17B of the Magistrates' Courts Act 1980, these having been inserted into the 1980 Act by Section 49 of the Criminal Procedure and Investigations Act 1996. Sections 17A and 17B apply only to offences triable either way. That is why this technical problem has arisen. However, that is not why I oppose the amendment. I do so because it is believed to be unnecessary. With that assurance and with the undertaking that I have given, I hope that the noble Viscount will beg leave to withdraw his amendment.
§ Lord McIntosh of Haringey
I said "Aha!", not because I had been asleep—I had been fanatically attentive to the words of the noble and learned Lord the Lord Advocate—but because when he spoke of Section 49 of the Criminal Procedure and Investigations Act I was drawn back to the short debate on the Statement on the review of delay in the criminal justice system. He will recall that the proposals in the review which were referred to by the noble and learned Lord the Lord Chancellor were in conflict with the undertaking given by the Government that they would not make changes to the election for trial by jury until they had completed their review of Section 49—the plea before venue clause—of the criminal procedure and investigations Act. I reminded the noble and learned Lord the Lord Chancellor, as I now remind the noble and learned Lord 1317 the Lord Advocate, that Section 49 had not yet been brought into effect. It seems to me that in these matters the Government in their haste to show activity are tripping over their own feet.
§ Lord Mackay of Drumadoon
As a Scots lawyer who has been brought up in a jurisdiction that has never had the right to elect for jury trial and, to my knowledge, has never been criticised for its failure to do so, I am tempted to intervene in the discussion. Although the noble Lord now provides me with the opportunity to do so, I will resist the temptation for the moment. I take note of what the noble Lord has said about the position as explained by my noble and learned friend the Lord Chancellor. Nothing that I have said in explaining to the noble Viscount Lord Tenby why his amendment is unnecessary in any way conflicts with the Statement of my noble and learned friend the Lord Chancellor earlier today. However, as I am in a very accommodating mood, I shall draw the noble Lord's comments to the attention of my noble and learned friend.
§ Viscount Tenby
I shall strike while the iron is hot! I am grateful for the exchange of the robust common sense of the noble Baroness for the Scottish warmth of the noble and learned Lord the Lord Advocate. I understood him to say that these powers already existed; for example, in Section 56. I hope that the forces of obfuscation have not triumphed yet again. I am encouraged by his kindness in saying that he will look at this matter. Accordingly, I will retire to a very quiet place with six tonnes of ice and, I hope, the advice of numerous people and reserve the right to come back to this matter perhaps at a later date. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 37 agreed to.
§ Clauses 38 and 39 agreed to.
§ Clause 40 [Curfew orders]:
§ On Question, Whether Clause 40 shall stand part of the Bill?
§ The Earl of Mar and Kellie
I am not keen on the inclusion in the Bill of Clause 40. The extension of curfew orders to children under 16 leaves a lot of questions unanswered. While I see the desirability of a curfew being imposed on youngsters who have committed many very annoying offences, I am still unsure and unconvinced about the efficiency of using electronic and remote monitoring for children on a stand-alone basis. If the monitoring is being done by a human monitor, perhaps in conjunction with an electronic tag, possibly there is some good in it, but I do not believe that the human monitoring element will be there. I assert that everything done with children must be backed up with human guidance. The Committee does not need to be told about the state of flux and disorganisation in which many young offenders tend to live.
My other concern is about the process of tagging and its effect on the usually low self-esteem of the young offender. I start from the basis that low self-esteem 1318 allows the young person to do bad things to others because the young offender already feels bad about himself or herself. In his or her eyes there is no reputation to defend. The social work task is to build up self-esteem so that the young offender does not want to lose his or her reputation, and hence does not want to do bad things to others. The presence of an electronic tag has all the marks of permanence and confirmation of outlaw status or a new offender identity. This argument concedes that electronic tags on a stand-alone basis could be used on high self-esteem individuals who would be ashamed of having to wear them and therefore would be reasonably happy to comply with a curfew. However, high self-esteem offenders are few and far between. For this reason, I oppose Clause 40.
§ Lord McIntosh of Haringey
As the Government know, I have not been as resistant to electronic tagging as some other noble Lords. My worries about electronic tagging for adults have been restricted largely to my concern about the cavalier attitude of the Government to the research that they themselves have commissioned into the effects of electronic tagging and their willingness to commit themselves to legislation before the results of that research are available. But my acceptance of electronic tagging for adults under certain circumstances arises from an overriding desire to have as wide a range of alternatives to prison as possible.
I am bound to say that I do not believe that that can be extended to children as is proposed here. I am sure that the noble Earl is right that the low self-esteem of offenders under the age of 16 would be enormously reduced if they had to carry electronic tags. For example, what would be the position of a girl whose school uniform required her to wear a skirt rather than trousers so therefore the tag was visible to everyone? What would be the position of a child who had to wear an electronic tag at school and participate in games and physical education? The mind boggles at the degree of humiliation to which children may be subjected by their fellows if they were carrying electronic tags. I cannot see the justification for it, particularly as the research evidence even in relation to adults is not yet available.
§ Earl Russell
My noble friend Lord Mar and Kellie has referred to cases where the young person feels a sense of disgrace and low self-esteem as a result of wearing a tag. Those cases happen. But the problem may be even worse if they do not. It is not only the noble Baroness who travels on buses. A couple of weeks ago I opened my local paper and read a letter from our PPC for the Regents Park constituency. She described an occasion when she was travelling on a bus and found two rather violently-spoken young men next to her. They were exchanging boasts about the gravity of their crimes and the severity of the sentences that they had earned. The more severe the sentence, the greater the prestige. Some cases will fit my noble friend's description; others will fit this. In either case I do not see that anything is gained.
I very much share the concern of the noble Lord, Lord McIntosh of Haringey, about the indifference of the Home Office to research. It was only one week ago 1319 today that the Home Secretary commissioned extended trials—an extension of pre-existing trials—of the procedure for tagging. He might have waited for that. The Home Secretary's attitude to research increasingly reminds me of Sydney Smith's attitude to reviewing. He said that he never read a book before reviewing it because it prejudiced a man so.
I have here the report on the first instalment of those trials entitled Curfew orders with electronic monitoring (Home Office Research Study 163). To give it the most favourable gloss possible, it is not an entirely conclusive report. It also leads me to think again about the point made by my noble friend about the difficulty of using tagging as an exclusive way of dealing with the situation.
The economies proposed for tagging of course depend quite heavily on the idea that it can be used exclusively. I quote here from page 31 of the Home Office research report which states:The staff were keen on their work and took pride in it. They were rather surprised at the amount and type of help they had to give to offenders at times which had nothing to do with electronic monitoring itself; this was a probation service task as they saw it, but if no probation order was made alongside the curfew order probation officers had nothing to do with it".That seems to suggest that if tagging was going to work it would work in conjunction with probation. That may be worth further thought, but it rather gets rid of the argument of immediate economy.
The argument of costs, too, should be causing us some concern. The average cost per type of order is probation orders £2,425, community service orders £1,773 and tagging orders £2,295. That of course is all right if you consider it per order, but the trouble is that you cannot do it that way because courts are imposing so few tagging orders.
We seem to have a problem here, as we have had in earlier stages of the Bill, of courts being asked to impose orders which they do not want to impose. That is part of a much wider problem in the relationship between the Government and all the professions—the Government wishing to get everyone to exercise their professional judgment as the Government wish. It is not that simple.
Of course, if courts are not going to impose tagging orders in large numbers, then their alleged virtues will be very much diminished. The more I listen to any debate on tagging, the more I am struck by the fact that everyone who does not know anything about it is strongly enthusiastic about it and, with the single exception of the Home Office, everyone who does know anything about it is extremely doubtful. This may be an idea which has something to show us in future, but I do not believe that its time has yet come.
§ 6 p.m.
§ Baroness Blatch
The point the noble Earl made about young people boasting about their crime and the severity of the punishment made me wonder what 1320 message he intended to give. It seemed to me that it was a case for the admonition: no punishment on low punishment.
§ Lord McIntosh of Haringey
Perhaps I may suggest an answer to that, if the noble Earl, Lord Russell, will allow me. If they are boasting about their crime, are they not going to boast about their electronic tags as well?
§ Baroness Blatch
They may well boast about their electronic tags, but what they may not boast about is the hours that they will have their liberty restricted from going about their wrongdoing in the evenings or playing with their friends. It is the period of restriction that is the punishment. That is the whole purpose of the curfew order. There are many young people on our streets out of control. Not only do I believe that it will be helpful to keep them in one place at one time; it helps also with some adjustment in the family. There are some parents who will be jolly relieved to know where their children are, even if it is an enforced period, because there are some parents who just put up their hands and say, "I just can't control him or her". I believe that this will be a pilot scheme worth piloting for that alone.
§ Earl Russell
Perhaps I may interrupt the Minister. I think this underlines the point made earlier by my noble friend Lord Thomas of Gresford about the need to restore confidence in the criminal justice system. There is a lot of truth in the remark made by the first Earl of Strafford:A prince that loses the force and example of his punishment, loses with all the greatest part of his dominion".
§ Baroness Blatch
The point I am making almost makes the point that the noble Earl is just trying to make: the young people riding on buses and out in the streets among the public boasting about their crime and their punishment will not be boasting so much when they are tethered at home and curfewed at home by electronic tagging. It will at least ensure a period, determined by the courts, when they will need to be at home and not out on the streets boasting to anyone. It is that punishment that I hope the Committee will agree is at least worth trying in the pilot schemes.
The noble Earl made another point about reading the report. He referred to it as not being conclusive. It is not conclusive because the pilot scheme has not yet been concluded.
§ Baroness Blatch
Not only is it not conclusive, that report refers to the early part of the pilot. It is well advanced now. I believe that the subsequent report will be positive. There are many positive parts of that report, too.
The measures in the clause will operate initially on a trial basis. For instance, in our existing curfew pilot areas—greater Manchester, Norfolk and Berkshire—the present pilot schemes for offenders aged 16 and over which have been operating there are working extremely well. The research report which we published on 1321 30th December shows that curfew orders are becoming very effective. The research found that the tagging equipment consistently performed effectively and that 75 per cent. of offenders were tagged successfully. Tagging therefore looks likely to compare well with other community sentences in terms of completion and cost.
We now believe that there is also a role for curfew orders for young offenders enforced through electronic monitoring. They will be a means of keeping them at home, off the streets and away from shopping centres, clubs and other places where they may get into trouble. By keeping young people out of harm's way we believe that the curfew order should be able to help prevent young offenders from re-offending and help protect the public.
That links in with the point that the noble Earl made. It is about restoring public confidence in the judicial system, which is at a very low ebb at the moment. Young people are seen hanging around shopping centres and street corners. I am reminded of the words of my right honourable friend John Patten when he was Secretary of State for Education. He talked about street corner to prison cell—that awful downward cycle, when there is no early intervention with children. This is at least one opportunity to bring family and child together, enforced though that may be. There may well be positive aspects of that. We would at least like to see whether it will work.
Courts already have a power to impose a night restriction order on a young offender as part of a supervision order—the point made by the noble Earl, Lord Mar and Kellie—but those night restriction orders are more limited in scope than the curfew order. They can be imposed only as part of a supervision order and can operate only during the evening and the night. What is more, they are difficult to enforce. A curfew order is more flexible. Because it is monitored electronically, it is properly and strictly enforced. Its virtue so far has been that any movement of the individual who is subject to electronic tagging outside of the area is detected immediately and dealt with.
That is what gives the courts confidence that the order that they will make will be carried out. The curfew order will apply in the same way as it does for offenders over 16, but with modifications to reflect the younger age of the offenders. First, the order will be for a maximum length of three months and not six months; secondly, we have provided that in the case of offenders under the age of 16 one of the penalties for a breach should be an attendance centre order, which again I believe will answer one of the noble Earl's concerns which is one which I share—I believe that human contact is an important part of this.
Under existing powers, the courts may deal with the breach of curfew order by re-sentencing the offender for the original offence or varying or continuing the order and imposing a fine or community service order. As a community service order is available for those 16 and over only, we have filled that gap by giving courts the power to impose an attendance centre order on breach where the offender is under 16.
1322 Thirdly, as with the proposals for community sentences in the Bill, there will be no need for the offender to consent to the order. However, we will require the courts to obtain and to consider, before making a curfew order, information about the family circumstances and the effect that it will have on the family. That procedure should enable the courts to apply the new order appropriately. As with older offenders, a curfew order will be available for any offence as well as on breach of a release supervision order, as provided for in Clause 14.
I was asked whether or not it is irresponsible to extend tagging to juveniles before the trials finish in March next year and before the scheme is fully assessed. We do not believe that it is. I need to make the powers available to the courts so that pilot trials running in parallel with the main trials can take place. Given that they will be pilot schemes, decisions will not be taken about whether to make the sentence available nationally until there has been a fuller evaluation of the effectiveness and value for money of electronically monitored curfew orders. However, we need to have the powers in place if we are to be in a position to obtain the necessary information from appropriate pilot schemes. The noble Earl, Lord Mar, referred to the report that is already in the public domain.
I was also asked whether or not the tag will be worn as a badge of honour. Again, there will always be some young offenders who see a trip to court as something to boast about. However, that is not a reason for refusing to proceed with any action. Even if some young offenders wear their tags with pride they will still have to comply with the curfew orders imposed on them. What is important is the restriction of their liberty not to roam the streets and not to hang around the areas where they have been getting up to no good. We believe that the scheme is at least worth trying.
The night restriction order can be imposed as a condition of a supervision order, which is a longstanding provision. A night restriction order cannot be combined with electronic monitoring. A curfew order is separate from a supervision order, but the court can impose both a curfew and a supervision order. It must be for the court to determine which is appropriate. If the court regards close supervision as important it can impose such an order to run in conjunction with a curfew order. I share the point which the noble Earl made and I believe that we have covered it for the purpose of the pilot scheme.
§ Lord McIntosh of Haringey
Again, the Minister prays in aid the research which she acknowledges is incomplete, but she does not answer my question about how such schemes can be applied to school children. Do the trials show that any school children aged 16 or over have been sentenced to curfew orders? Do the trials show experience of older schoolchildren being given curfew sentences and the effect of those? I should have thought that that was at least relevant.
§ Baroness Blatch
I shall write to the noble Lord giving the statistics of all those who have been electronically tagged showing their ages, the sentences and the successful completion. However, perhaps I may 1323 apologise to him because I did not answer his concern about the visibility of the tag on young children. It is fair to say that for every-day wear the tag can be easily secreted. I have seen both tags which operate in the scheme in Manchester, which was repeated in Berkshire, and the scheme in Norfolk. Those tags can be easily secreted either under the sleeve or under the sock, and socks are worn by most school children.
The noble Lord is right in saying that if children were doing PE, or an activity for which they would strip away socks and/or sleeves, the tags would indeed be visible. We must judge the effect of that under the pilot scheme. However, we are talking about young people who have offended. They have come before the courts, been convicted and the courts believed that a curfew order was an appropriate sentence. The noble Earl has already given the Committee evidence of the fact that they are young people who go about boasting of their wrongdoing and of their sentences. Only recently I heard of a young person boasting to all his friends in school about his own personal social worker. That will continue for a long time, but some young people will not want to be seen with a tag. Those who appear before the courts and who must wear them may have a deterrent effect on those who do not want to wear them.
§ Lord McIntosh of Haringey
That means that it is an extra, more severe punishment for those children than it is for adults who can successfully conceal their tags.
§ Baroness Blatch
The full impact of a sentence will be a matter for consideration by the courts. Any magistrate awarding a penalty to an offender before him will think through the impact of that and will make a judgment about the degree to which it is a punishment that fits the crime.
§ 6.15 p.m.
§ Baroness Carnegy of Lour
My noble friend mentioned the fact that the court must consider how the home will be affected and what the reaction will be of the family of the child being curfewed in the home. Can she assure the Committee about the thoroughness with which that will be evaluated in the pilot schemes? How will it be done? Perhaps a variety of ways can be examined.
It is of the greatest importance that the family life should not create a worse situation for the child. That has been drawn to my attention in relation to the Scottish Bill. It should not be imposed if the family life will be wrecked by the fact that the child is forced to be at home for many hours over a period of three months, which is a long time in the life of a young child.
§ Baroness Blatch
My noble friend raises a very important point. I can give her an absolute assurance that those very aspects of the penalty will be evaluated. In view of my noble friend's concern about young people, I wish to mention another point with which she might agree. In addition to the penalty being effective, I believe that we should look to see whether it has a 1324 positive as opposed to a negative effect on a family. The point made by my noble friend will certainly be taken into account in evaluating the pilot scheme.
§ Earl Russell
I listened to the Minister with a great deal of interest on the need to restore respect for the criminal justice system. She made many good points, but does she see any merit in the view that we can do more good for this problem by the example we set than by any legislation we pass in the Bill?
Sadly, our own reputation, our own legitimacy, rightly or wrongly—and I believe often wrongly—is rather low. Until we can put that right, is there any use in imposing more draconian punishments? Should we not be concerned with restoring our own sense of legitimacy? Would not that perhaps do rather more good?
§ Baroness Blatch
I am obviously missing a point. I am not aware of our illegitimacy. I am not aware of what the noble Earl means by not attending to our own legitimacy. He cannot be unaware of the public anxiety about too many young people who are not at home in the evenings, who are out after school, who are hanging around places where they ought not to be, who are indulging in behaviour which is socially very unacceptable, and who are sometimes breaking the law.
That is most disturbing and we are all concerned about it. A great deal is being done about early intervention, but where that has failed and young people begin to behave criminally we are evaluating ways of coping with that. We believe that this is one way of coping with it and that the pilot scheme is worthwhile. The public have expressed that anxiety very volubly. We are responding to that and believe that confidence will be restored. However, I do not know what the noble Earl means about our illegitimacy.
§ Earl Russell
I am sorry that I did not explain myself. We have a large body of evidence which shows that respect for politics as a profession—that is what I meant when I referred to us—has fallen lower than it has ever been since opinion surveys began. We have fallen below everybody except journalists. If the public believe, often wrongly, that we are all on the fiddle it is very hard to stop them being on the fiddle.
The noble Baroness may know St. Augustine's story of Alexander the Great and the pirate. The pirate caused great damage around the Eastern Mediterranean and was arrested by Alexander, who was about to execute him, when the pirate said, "Because you do it with a great army and a great fleet, you are called a great emperor. Because I do it with one ship, I am called a contemptible pirate". It is that reaction that we are getting from the public. It worries me very deeply and I do not see that this Bill goes anywhere near addressing the problem.
§ Baroness Blatch
In a few weeks' time, I shall have been in this House for 10 years. Throughout that time, there has not been a day when I have not been deeply impressed by the way in which this House sets about its business; the seriousness with which it takes all the work that comes before it; and the thoroughness of the 1325 work done in this House. I believe that the proof of the pudding is how we perform in this House. I cannot possibly agree with some of the things that the noble Earl said.
I am not accounting for other people. I am accounting for this House and the way that it does its business. I believe that the matter before us is important. It has been properly discussed and I hope now that the Committee will accept that the clause shall stand part of the Bill.
§ Earl Russell
Perhaps I may very briefly clear my own honour. I do not disagree with anything that the noble Baroness said about this House; I think she knows that I do not disagree with her. But that is not the way that we are perceived outside and I do not believe that the noble Baroness disagrees with that either.
§ The Earl of Mar and Kellie
First, the story that my noble friend told us about people boasting on top of the bus shows that there is a certain point in any offender's life when he is so basking in his outlaw status that no amount of encouragement will make him alter his ways. Clearly, we must intervene at the point at which the offender is beginning to doubt the wisdom of his outlaw status.
Here we are considering a form of house arrest which I contend should be backed up by human monitoring. However, it is proposed that the monitoring should be done electronically, remotely and without any social work contact and that the monitoring should be done on a stand-alone basis. I am not happy about that. I am very worried about the exemplary justice aspect of it; that is, the so-called deterrent effect of seeing someone else wearing a tag. We do not normally use exemplary justice as a part of the criminal justice system. It is more a characteristic of military justice.
I am unconvinced by this proposal. However, I recognise that we have debated the matter quite thoroughly. I am still not convinced about this clause, but I shall withdraw my opposition to it.
§ Clause 40 agreed to.
§ Clause 41 agreed to.
§ Clause 42 [Publication of reports]:
§ On Question, Whether Clause 42 shall stand part of the Bill?
§ The Earl of Mar and Kellie
I turn now to Clause 42 which, once again, I do not believe should stand part of the Bill. The clause deals with the publication of reports and the giving of names of those under the age of 16.
I see the provisions of this clause as being generally counter-productive to the social work task. Allowing the naming of a child is counter-productive to the task of behaviour modification and reintegration into the community. As I see it, the risk is that the child or young person will bathe in notoriety and enjoy the confirmation of his outlaw status, to which I referred earlier.
1326 The use of this measure must be the absolute last resort. It would be a deliberate decision to identify a child as an offender beyond redemption and in fact, to leave him at that point.
There may be a small number of children for whom that must be true. But I believe that only very few people are evil; many are extremely misguided. This measure must not be used except in the most extreme cases, as I believe is the practice at present. I hope that the Minister will tell me about the guidance which will be given as regards the use of Clause 42 in an attempt to persuade me that it may be efficient and not counter-productive.
§ Lord Bingham of Cornhill
Perhaps I may mention a neutral point which has occurred to me while listening to the noble Earl, although I may be quite wrong. I wonder whether the reference should be to Section 49 of the 1933 Act or, as I think it should be, to Section 39.
§ Baroness Blatch
I shall take advice and return to the noble and learned Lord on that matter.
Under Clause 42, the Youth Court and a court dealing with an appeal from a Youth Court will have a discretion, where a juvenile has been convicted of an offence and where the court judges it to be in the public interest, to dispense with the existing prohibition on identifying juveniles which applies where juveniles are concerned in proceedings before such a court.
Under the existing provisions, the prohibition on the identification of juveniles may be lifted only where either it is appropriate to do so for the purpose of avoiding injustice to the child or young person concerned or where a child or young person charged with or convicted of a serious offence is unlawfully at large, so as to apprehend him.
The existing prohibition on identification reflects the principle that in view of their age and vulnerability, juveniles should be offered greater protection in court. The protection which the existing legislation affords to victims, witnesses or those who are acquitted will rightly remain.
But there is a balance to be struck between protecting the interests and identity of juveniles involved in court proceedings and protecting the public. It is important that members of the public should be protected from young offenders and there are circumstances in which the public has a right to know when those youngsters have been convicted; for example, when they are released back into the community having committed a crime which has had a particular impact on that community. In such cases, public awareness may also help to prevent further offences from being committed.
There may also be instances where it is right that the public should be reassured that an offender has been caught; for example, when he has been responsible for a spate of local crimes. Moreover, the prospect of being identified publicly should prompt many young offenders and their families to think more carefully about their actions.
1327 Juveniles convicted of serious crimes in the Crown Court can already be identified. It cannot be right that offenders convicted in the Youth Court should automatically have their identity protected. Of course, there is a balance to be struck between protecting the interests of the juvenile offender and protecting the public. For example, the court may consider identification to be inappropriate in the case of a first-time offender convicted of a less serious offence. But the court should be able to decide where the balance lies between the interests of the public and the welfare of the child. This provision, which is permissive, will allow the court to do that.
I understand that the answer to the noble and learned Lord's question is that the reference is correct. Section 39 covers Crown Courts and adult magistrates' courts. Section 49 covers proceedings in Youth Courts.
§ The Earl of Mar and Kellie
The noble Baroness has given an explanation. I still feel that children, however much of a nuisance, should not be placed in a situation in which they are beyond redemption. The maintenance of their status as offenders I continue to see as counter-productive. I wonder whether any offender has been helped by being named and by being seen by others as an identified offender. That is particularly true in rural areas. It is probably easier to be reintegrated into an urban social environment than it is in a rural area.
I believe that it conflicts with the welfare principle with which we normally approach young offenders. However, we have had a wee debate about this matter and I shall not oppose the inclusion of the clause at this stage.
§ Clause 42 agreed to.
§ 6.30 p.m.
§ Lord McIntosh of Haringey moved Amendment No. 104:
§ After Clause 42, insert the following new clause—
ENDING OF REMAND OF JUVENILES TO ADULT PRISONS
(" . The Secretary of State shall lay before Parliament within three months of the passing of this Act a report containing an assessment of progress towards the implementation of sections 60 and 61 of the Criminal Justice Act 1991 and specifying the day which he will appoint for the coming into force of those sections.").
The noble Lord said: The purpose of the amendment is to force the Government to do something about their intention, which has been expressed for a number of years, to keep juveniles on remand out of prison. I believe that we have all been in agreement on that objective; but, if we look back at the history, it is a sorry story of delay and one which ought no longer to be accepted. When I say that we have all been agreed about it, the Minister herself said in the debate on 10th January last year:
We are committed also to ending the remand of juveniles to prison custody once sufficient local authority secure accommodation is available"—[Official Report, 10/1/96: col. 215.]
That might be thought to be a restriction on the Minister's intention but, at the same time, and subsequently when we talked, for example, about secure training centres, the Government have boasted about the way in which additional local authority secure accommodation has indeed been provided and the extent to which the additional 100 places, which were required by the provisions of the Criminal Justice Act 1991, have been achieved.
§ As I said, this is a sorry history but there has been some progress. Between 1976 and 1981 we progressively excluded all girls under the age of 17 from custody of the Prison Service and we excluded 14 year-old boys from such custody in 1981. We have indeed made some progress in that time as regards the number of boys aged 15 and 16. The number of unsentenced juveniles entering prisons and remand centres fell from 4,812 in 1976 to 1,098 in 1992. The trouble is that that has gone up again and the most recent figure that I have is for 1995 when there were 1,899. This is true not only of that measure but also of the daily population of juveniles in Prison Service custody: the figure was 54 in 1992 but 319 at the latest count in 1997. To make it worse, the average number of days served by juveniles on remand in Prison Service custody increased from 36 in 1992 to 46 in 1997. Those are very disturbing figures.
§ We can all remember the public debate that took place at the time of the Criminal Justice Act 1991 when, I believe, many people were shocked by the suicide of a 15 year-old boy, Philip Knight, who hanged himself while on remand in Swansea prison in July 1990. That is why these provisions were placed in the Criminal Justice Act 1991 and that is why the opinion of the country was so strong that such detention should no longer be allowed.
§ In a number of annual reports, the then Chief Inspector of Prisons Judge Stephen Tumim pointed out the horrific effect of young boys of 15 and 16 being in the same prisons and remand centres as young men of 17 to 20. If ever there was a case for the opportunity for corruption and for becoming a university of crime, that is indeed what we have. Whether remand juveniles are held in local prisons or in remand centres, the inspections of those individual prisons and centres have produced very severe criticisms from the chief inspector of prisons.
In the report on Hull Prison of July 1995, Judge Tumim again made a recommendation that juveniles should be removed as soon as possible from that prison. That was the view of the governor, the board of visitors and the director of social services. The inspectorate said that the youngsters,
were held together on a landing in a Victorian prison … This is totally unacceptable. We were appalled at the Dickensian picture of children in a Victorian prison who were there because of lack of provision in the community".
That is simply no longer acceptable in 1997
§ The amendment would require the Secretary of State to lay before Parliament within three months of the passing of this Act a report containing an assessment of progress—let us hope that it is not as gloomy as the assessment that I have just given the Committee—and 1329 specifying the day which he will appoint for the coming into force of the relevant sections of the 1991 Act. I beg to move.
§ Lord Hylton
I should like to support the amendment. In moving the amendment, the noble Lord, Lord McIntosh, did not mention the disruptive effect on the education of these young people while on remand in adult prisons.
§ Earl Russell
I also took part in the debate on the imprisonment of young offenders on 10th January 1996, as indeed did the Minister. I have just been checking through Hansard to ascertain what the noble Baroness actually said in that debate. She said:We"—that is, the Government—are committed also to ending the remand of juveniles to prison custody once sufficient local authority secure accommodation is available"—[Official Report, 10/1/96; col. 215.]Well, it does not seem to be so as yet. As I understand it, the numbers are actually increasing. The report from the Howard League that we debated on that occasion gave an extremely disturbing picture of what was going on. In fact, it cast a great deal of doubt on the claim that prison reduces crime because the amount of crime that is taking place inside prisons is so immense. For example, we find cases like a prisoner who was found in Doncaster prison wearing only a towel because all of his clothes had been "taxed" off him.
The problem at that prison seems very largely to be one of overcrowding. The numbers of staff are simply not sufficient to supervise the number of people who are in the gaol. Until we can put people into what can properly be described as "safe custody", I think that we should be careful about increasing the prison population. Where we have young offenders in adult institutions, that sort of trouble seems to arise with quite alarming frequency. The Minister has said that the Government mean to do something about it: I do wish that they would get on with it.
§ Baroness Blatch
I should be most grateful if the noble Earl would kindly complete the overcrowding details of Doncaster prison. My information is that that prison is not overcrowded. Therefore, I am slightly alarmed at the story that he has just given us. However, if the picture that he has just outlined is a true one, I share the noble Earl's horror. Of course that is very much a management issue for the prison. Nevertheless, I should like to look into the specific case raised by the noble Earl. I should certainly be interested to know his source for the cause being one of overcrowding.
The Criminal Justice Act 1991 makes the necessary provision for replacing prison remands for 15 and 16 year-old boys with court-ordered remands to local authority accommodation with a security requirement. It also provides for the court to direct that 15 and 16 year-old girls be held in secure local authority accommodation. Such secure remands would be subject to strict criteria so as to ensure that they are only used in appropriate cases where it is important to protect the 1330 public from such juveniles. But that can only realistically happen when there is enough local authority secure accommodation available to replace the existing prison custody. In addition, the Criminal Justice and Public Order Act 1994 provides for the provision to be widened to include 12 to 14 year-olds.
With that aim, the Government are funding a 170-place expansion programme to provide more accommodation of this sort and, by the end of this building programme, we will have spent over £30 million. The first places came on stream at the end of 1995 and the vast majority should be in place by summer of this year. However, the Government would be failing in their public duty, and in their priority to protect the public, if they ended prison remands without making workable alternatives for the secure containment of such youngsters. As the noble Earl has already said, the fact of the matter is that the number of 15 and 16 year-old remands is increasing—270 15 and 16 year-old boys were remanded to prison custody on 30th June 1996, as compared to 211 on the same date in 1995. The latest figures show around 300 juveniles remanded to prison custody.
We have no single explanation for this increase. It may be that the courts are taking greater account than before of the need to protect the public; it may even be something else, for example, demographic reasons. Decisions about the use of remands to prison custody in individual cases are, of course, matters for the courts. But whatever the reasons for these increases it will be clear to the Committee that careful consideration must be given to the implications of this rising remand population for the implementation of the 1991 Act provisions. I can assure the Committee that we are doing just that, and that it is our intention to report to Parliament at the earliest possible opportunity on the implications for implementation. I believe I now know Members of this Chamber well and I know that they will not be reticent in making sure that pressure is maintained on the Government to give an explanation and progress reports.
The new clause proposed by the noble Lord, Lord McIntosh, would require the Secretary of State to lay before Parliament within three months of this Act being passed a report assessing progress towards implementing Sections 60 and 61 of the 1991 Act, and specifying an implementation day for these provisions. I understand the thinking behind the proposed new clause and its aim and I am sympathetic to that; indeed, I am extremely sympathetic. I know that there is a good deal of interest in these provisions within this Chamber and in another place. It is right that there should be. It is also right that Parliament should be informed of progress in moving towards implementation. However, I do not think that the new clause as proposed is either necessary or desirable. Certainly the achievement of the policy aim is desirable.
The amendment is technically flawed and on that ground alone it is difficult to invite the Committee to accept it today. The two sections to which the new clause refers are already in force, but as modified by Section 62 of the 1991 Act. Section 62 has the effect of preserving the use of prison remands for 15 and 1331 16 year-old boys until such time as an order made under Section 62(1) of the 1991 Act is laid. It does not therefore make sense to require a report on progress in implementing Sections 60 and 61.
What is more important, I believe that it would be quite wrong to include a provision in this Bill at this time which would in effect place a statutory requirement on a government of whatever complexion to provide Parliament with a report on progress and a specific implementation date for these provisions within what would be the first few weeks of a new Parliament. I remind the Committee that it would occur about six weeks after the new Parliament assembled, because if nothing untoward prevents this Bill from receiving Royal Assent that will occur during the month of March. Therefore, if one accepts this amendment, the clock starts ticking from that point. The measure would not affect the present situation to any significant or worthwhile extent. In addition, little of value would be achieved by requiring any Secretary of State to identify a specific implementation date for these provisions until the necessary accommodation is available. As I said, it would be difficult to give a specific implementation date until the additional expenditure—over and above the money that has been made available for the 170 places—has been approved to provide the additional accommodation that is needed to accommodate what appears at the moment to be an inexorable rise of young people remanded to custody and has been included in new spending programmes. The noble Lord will know much about new spending programmes because it is a current topic in his party. The public would not be properly served and nor would they be protected by bringing these provisions into effect before there is available sufficient secure accommodation. At this moment it is difficult to be specific about when these additional places—that is, additional to the 170 places—can be brought on stream.
I have said that I am sympathetic to the amendment. I am happy to put on record an assurance that a full report on progress should and will be made to Parliament. Today I have outlined progress in the planned building programme and explained the difficulties that we face in keeping pace with the rising demand for secure places for remanded juveniles. I have also indicated that we are looking closely at the situation and that we intend to report further to Parliament at the earliest opportunity.
I hope that with that assurance the noble Lord will not press the amendment. I say to those who have sympathy for this provision—I refer also to the noble Lord, Lord Hylton—that we are as concerned as anyone that 15 or 16 year-olds remanded to prison should be kept in a separate wing as far as is practicable. If that cannot be accommodated, efforts should be made to ensure that they are kept as separate as possible from adult convicted prisoners. Special attention should be paid to their regime while they are in prison to ensure that their education and training needs are not neglected. We are concerned about that and we shall continue to examine ways to ensure those needs are met.
1332 With the assurance that we shall produce a progress report and that attempts will he made to provide a timescale for when this policy will be implemented—the noble Lord referred to my saying in January of last year that that remains the policy aim; namely, that these young people will not be remanded to prison but rather to properly secure homes of local authorities—
§ Earl Russell
The noble Baroness asked me my source for the incident at Doncaster. It was from the Howard League report Banged Up, Beaten Up, Cutting Up which we debated on 10th January last year. However, I was not making any specific statement about overcrowding at Doncaster. I said the problem was generally one of overcrowding. I stand by that, but I made no specific statement about overcrowding at Doncaster.
§ Lord Acton
I was not quite clear about something that the Minister said. We have been told about these 170 fresh local authority places for some years now. I think it has been three years. Is the Minister's department pressing for more places, and if so how many?
§ 6.45 p.m.
§ Baroness Blatch
The 170 places are almost all provided. They will all be in place later this year. I have already said that about 300 young people are remanded at this moment. It is a technical difficulty that we have at the moment. Those 170 places will be available, but at the moment the court remands to the local authority, and the local authority finds the places in secure accommodation. We want to give the courts the power to remand to custody direct from court. Until we can give some guarantee to the court that the provision will be there, it is difficult technically to give the courts that power because we would do so knowing there is a deficit at the moment of about 130 places. It is important that we ensure there is not a continuing rising curve of these young offenders and that we have some understanding of the eventual figure so that when we give this power to the courts we do so knowing the places will be available.
§ Viscount Tenby
I must take the noble Baroness up on this because it is a matter of great importance. How is it proposed that that power will be given to the courts? The courts desperately need to be able to send these people straight into secure local accommodation.
§ Baroness Blatch
The power is there in the Act; it is a question of commencing the provision in the Act. The noble Lord, Lord McIntosh, wants to know when we shall implement that provision of the Act. It had its birth in the 1991 Act and was amended in the 1994 Act. It is our intention to implement the provision by means of a commencement order. The power is there; it is a question of when the Government will implement it. What we want is a proper match between the courts having the power, and having the places available to enable the courts to exercise that power.
§ Lord McIntosh of Haringey
It is impossible to avoid saying "We told you so". This undertaking was 1333 made six years ago in the 1991 Act. As has been said, the figure of 170 extra places has been referred to over a long period of time. As recently as last year the Government promised that they would be completed by the end of the year. The Minister is now saying that it will he later on this year. That is exactly why the amendment seeks to force the hand of Government, not merely to demand a report but to demand completion. However, instead of pushing ahead for local authority secure accommodation, as would have been required if the 1991 Act had been brought into force, the Government decided to spend far greater amounts of money per head on their publicity seeking initiative of secure training centres. The expenditure was £30 million for 200 places, not one of which exists after the 1994 Act. It was not just £30 million capital expenditure but £30 million a year to keep those centres going. Had the Government not used that diversionary tactic, we could now have had the places that we need in local authority secure accommodation and we would not have this problem and this quite unnecessary delay.
I recognise that the secure training centres are for younger people. But local authority secure accommodation is for a much wider range of ages. A further increase in local authority secure accommodation could have gone much further to solve the problem than the Government have done. They failed to anticipate the effects of their own propaganda resulting in increased remand in custody. As the review of delay in the criminal justice system published only today acknowledges, the delays in reaching decisions in the youth courts are totally unacceptable. I do not say that; the review, the Lord Chancellor and the Home Secretary say that.
§ Baroness Blatch
Is the noble Lord saying that he is absolutely against high quality secure training places with high quality education and training provision for 12 to 14 year-old very persistent offenders who appear in court having breached community service orders and having exhausted a number of convictions? What would the noble Lord propose should be done for that age group with that persistent level of offending?
§ Lord McIntosh of Haringey
We have always said that we were opposed to the initiative of secure training centres. We have always said that the same quality of training and education as well as security could be provided in local authority secure accommodation. There is no change in our attitude on that point. I said, "I told you so", and that is still the case. We have been proved right. Neither the secure training centres nor the necessary increase in local authority secure accommodation have been provided. In her speech the noble Baroness tacitly admitted that there is danger that the Bill will run up against the buffers; and she tacitly admitted that it would not be her party in Government to implement it. I suppose that should give me cause for concern.
§ Noble Lords: Oh!
§ Lord McIntosh of Haringey
Yes, because commitments are commitments for the Government in 1334 power. If this Government have not made the provision, it will be for the next Government to deal with the commitments which the Government have failed to honour. That is a problem which faces us across the whole range of the criminal justice system.
The Minister says that the new clause is technically defective. I have no way of rebutting that claim. Therefore on that basis alone, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ McIntosh of Haringey moved Amendment No. 105:
§ After Clause 42, insert the following new clause—
BAIL SUPPORT SCHEMES
(" . Every local authority shall provide for the support and supervision of children and young persons granted bail after a conviction in criminal proceedings, either directly or by making arrangements for the provision of such services with such persons as appear to them appropriate.").
§ The noble Lord said: I believe that we are talking about something less controversial. I think that it has been generally agreed across party lines that bail support schemes have been extremely valuable in reducing the likelihood of those who are not locked up on remand offending again during the crucial period awaiting trial. It comes back to the points made by the noble Earl, Lord Mar and Kellie, from his own experience. The schemes include regular reporting to probation officers, placements with volunteers in the evening and weekends, monitored attendance at youth activities, monitoring school attendance, reintroduction of truants to school, negotiation of specialist economic provision, assistance with employment, involvement in youth training schemes and many other services. In some cases they involve curfews and supervision throughout the day and regular daily reporting. This is a really sensible alternative to remand in custody and should be encouraged as far as possible.
§ The new clause places a duty on every local authority either itself to provide or to make arrangements with other persons—that could include the private sector or neighbouring local authorities—to provide the bail support schemes for the support and supervision of children and young persons granted bail in criminal proceedings. That will need financial support from the Treasury. However, I hope that the Minister will acknowledge that bail support schemes cannot cost as much as remands in custody. If they become an effective alternative, there will be saving to the public purse as well as a reduction in the likelihood of reoffending. I beg to move.
§ Baroness Blatch
The noble Lord is absolutely right. These are excellent schemes across the country. They were funded centrally for quite a long time but the Government then pushed the money down to the probation service areas for them to have control over both the money and the bail support schemes that they supported.
Bail must only be granted where it is safe to do so. Decisions about bail are, of course, a matter for the courts, but their decisions about granting bail will take 1335 into account the availability of bail support services locally which might help to prevent re-offending or breach of bail conditions.
The Government encourage the provision of bail support services where they can help to avoid the need for remands to custody. Bail support projects focusing mainly on juveniles are usually run by, or in partnership with, social services departments of local authorities; this may be in partnership with the Probation Service or voluntary organisations, of which there are some excellent ones. The Government believe that it should be for each local authority to decide on the whole range of services, including bail support, that it provides for young people in its area, in the light of local needs and priorities.
A recent research project funded by the Home Office and carried out by the National Association for the Care and Resettlement of Offenders showed that various kinds of bail support schemes are already in place throughout the country, provided by local authorities, social services departments, probation services, or both. The grant to NACRO also funded the production of a directory of bail support projects, published in November 1995, which is useful for practitioners. Probation services have been empowered to fund, or otherwise support, bail support schemes, depending on local needs and priorities. The Home Office has over the past couple of years devolved some £18 million to the Probation Service for local grants to the private and voluntary sector working with offenders and those on bail in the community. The probation service has also been set a target of spending at least 5 per cent. of its revenue, by the end of 1996–97, on partnership projects which can include bail support schemes.
National standards for the supervision of offenders in the community include standards for the management of approved bail hostels. There are currently 101 approved hostels—92 probation/bail hostels and nine bail hostels—providing a total of 2,314 places. Funding for these hostels is provided by the Home Office, local authorities and residents. They provide a total residential service under 24-hour supervision and are intended as a base from which residents can take full advantage of community facilities for work, education, training, treatment and recreation.
I hope that the Committee will agree from what I have said that the Government are already doing much to encourage the development and use of bail support schemes. But, as I have also said, decisions about provision of this kind should be made by local authorities in the light of their assessment of local needs and priorities.
Moreover, the amendment proposed by the noble Lord, Lord McIntosh of Haringey, is limited to youngsters who have been convicted; that is, those awaiting sentence or pending appeal. My experience through contact with bail support schemes up and down the country is that they are of greatest value during the period when a person has been charged and is waiting for a case to be heard in court. That is the most vulnerable time for young people. A very high proportion of young people, once they have been in court and convicted, are very quickly sentenced, and the sentence is put into play. The numbers involved would be 1336 very small. For those very few people bail support schemes are available in many parts of the country. We expect local authorities to give priority to young people.
As I said, it is for local authorities to decide on the allocation of their resources in the light of local needs and circumstances. I do not think that it would be right for us at this point to place a statutory burden on local authorities, particularly in respect of such a specific group of offenders. The point will not have been missed by the noble Lord that, were we to place a statutory burden on local authorities, it would have to go hand in hand with the resources to fund it. We still believe that local authorities do a very good job in providing bail support schemes, and, unlike the proposal in this amendment, at a time when it is more fruitful; namely, the time between the person being charged with an offence and the case being heard in court.
§ 7 p.m.
Viscount Colville of Culross
Before the noble Lord, Lord McIntosh, replies, I ask him to examine the words "Every local authority". I take the Minister's point about people awaiting trial as well as those who have already been convicted and who are awaiting sentence.
One of the difficulties in a large conurbation, of which we have a number (I operate in the London area), is that one does not want the local authority where the person normally lives to be providing that facility. It may only be possible to grant bail or await events if the person is away from the place where it all happened, where all the witnesses or all the victims are. "The" local authority is not the right organisation to organise this. A group of local authorities, and possibly a regional group, could very well provide exactly the sort of system we have been talking about. However, were it to be done on the basis of an individual local authority, the difficulty would merely be compounded.
§ Lord McIntosh of Haringey
The noble Viscount is right; however, I hoped that I had covered that point in introducing the amendment. The amendment states that local authorities shall make provision,
either directly or by making arrangements for the provision of such services with such persons as appear to them appropriate".In moving the amendment, I said that that could be other neighbouring local authorities.
The noble Viscount is also right in saying that this should not be too far away, because of the availability of witnesses and the general desirability of children being close to their homes if at all possible. However, I believe that my introduction to the amendment met his point.
However, it did not meet the very valid point made by the Minister that the amendment is wrongly restricted to bail after conviction in criminal proceedings. From the figures to which I referred in moving the previous amendment regarding the length of time spent on remand in custody, it is clear that the time preceding conviction after the charge is too great. As we have already agreed, the review of delay in the criminal justice system relates to that problem and is in recognition of the fact that it has not been solved. To that extent, my amendment is defective.
1337 However, I do not believe it is defective in the way suggested by the Minister regarding the responsibility of local authorities. Her statement about local authorities having to make arrangements suitable for conditions in their area is music to my ears. That is subsidiarity as it should be. She and I, coming as we do from local government, will certainly agree on that point. Although the rubric of my amendment is "Bail support schemes", the amendment does not lay down the nature of the provision that shall be made. It says,provide for the support and supervision of children and young persons granted bail".I began to list a whole range of measures that local authorities might take which could be covered by the general phrase "bail support schemes" but could, as the Minister suggests, vary from one local authority to another according to local need.
I acknowledge also that the Minister is right in saying that initiatives of local authorities and NACRO, often with financial support from central government, have been very valuable. However, that was the thrust of the amendment. The time has come to move on from pilot schemes, to build on the success of the schemes that the Minister described and try to make sure that they are available all over the country.
§ Baroness Blatch
I am grateful to the noble Lord. I now have a rather different understanding of what the amendment is about. I apologise if I spoke specifically about bail support schemes. The noble Lord referred to the range of support given to children on bail in local authority areas. There is not a local authority area in the country that does not have some provision for supporting children—the word "children" is used in the amendment—in one way or another. But if we are to put a statutory duty on local authorities, we need to have some view as to what the range should be and some specific prescription. I cannot think of a single local authority area, certainly a single Probation Service area within each local authority area, that does not provide some range of support for children on bail or awaiting a hearing of their case.
§ Lord McIntosh of Haringey
Again it is no pain to me to say that we are reasonably close together on this matter. We want the provision to be all over the country, and we want it to be flexible. If there is to be a statutory duty I am doubtful as to whether it is necessary to prescribe too tightly the nature of the fulfilment of that statutory duty. But let us not pursue that issue. We want the same thing. We have to make sure that the money is available for it to be done everywhere and to keep young people, whenever possible, out of custody pending conviction and the application of their sentence. When I say "whenever possible", I mean also with due regard to the safety of the public. Bearing in mind the defects of the amendment that have been pointed out, I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.1338
The Earl of Courtown
I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before ten minutes past eight.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.