§ House again in Committee.
Lord Archer of Sandwell moved Amendment No. 175:
After Clause 27, insert the following new clause—
("Abolition of death penalty
ABOLITION OF DEATH PENALTY FOR TREASON AND PIRACY, ETC
§ The noble and learned Lord said: Like other noble Lords who have spoken today, I regret that I did not participate at Second Reading. Had I done so, I would have extended a welcome to the Bill. This is a simple amendment to improve the occasion. Its purpose may be stated in one sentence. It is to remove from the statute book once and for all the practice of breaking a human being's neck on behalf of the community in time of peace.
§ There remain only three categories of offence for which the sentence is death: high treason, violent piracy, and certain offences against military law in time of war. That third category is not included in the amendment for two reasons. First, this Bill deals with the civil law and there was some doubt whether amendments to military law could properly be included within it. Secondly, I accept that in relation to the Armed Forces in time of war different arguments apply, and I was anxious to keep the issue simple. Personally, I do not believe that our country is any safer because we have capital punishment for mutiny in time of war, but I recognise that the arguments are different.
§ This is not a proposal to discontinue a practice which is part of our way of life. The death sentence for piracy was last carried out in 1830. The last person to be executed for treason was William Joyce, known to the British public in World War Two as Lord Haw-Haw. That was in 1947. So we have survived for 50 years without needing to resort to the death penalty except for murder; and even for that the last execution was before 1965. I doubt whether anyone would now argue that our national safety depends upon retaining these provisions on the statute book.
§ I raise the matter for two reasons. First, I believe that future generations will see this as a test of our civilisation. Over the centuries we have advanced from the blood feud, from torture, from burning and from the hulks, and none of those reforms was followed by a dangerous increase in lawlessness. On the contrary, we found more effective forms of law enforcement. Indeed, the Treason Acts of 1814 and 1790, part of the subject matter of this amendment, themselves represented the civilising process at the time they were passed. The Act of 1790 provided that women who commit treason should be hanged instead of being burned, and the Act of 1814 substituted hanging for disembowelling. So what we are dealing with is the last remnant from darker ages.
§ At this point I should confess to a defect in the amendment. It does not seek to repeal the Treason Act of 1775. That is the more inexcusable because I made the same mistake in an earlier debate, to which I shall refer in a few moments. It was I who noticed it at the time. I hope your Lordships will forgive this deplorable oversight, but if the matter proceeds, I do not believe that it will be beyond rectification.1342
§ The second reason why I raise this question now is that I venture to hope that it may enable this country to ratify the sixth protocol to the European Convention on Human Rights, which has now been ratified by 24 states, and the International Covenant on Civil and Political Rights, which has been ratified by 31 states, both of which documents, incidentally, permit the retention of the death penalty in time of war.
The Government have a good record internationally on this issue. At the summit of the Council of Europe last year the United Kingdom supported the Final Declaration which, among other things, called for universal abolition of the death penalty, and in a letter to Mr. David Bull, the director of Amnesty UK, my right honourable friend the Foreign Secretary said:
Our new stance will make a real difference in allowing us to make demarches in the death penalty in other countries, either alone or with our EU partners".
§ I recollect that on 18th November, in responding to an amendment which I had tabled to the Human Rights Bill, my noble friend Lord Williams of Mostyn said that the Government would be reluctant to commit the United Kingdom to an international obligation, because—I paraphrase but I hope he believes that I am paraphrasing accurately—Parliament might change its mind while an international commitment would be for ever. I will not embark on that debate today. I should like the Government to maintain the position of moral authority which they have achieved by reason of their international stance on human rights. So, I believe, would my right honourable friend the Foreign Secretary; and so, I believe, although I will not ask him to respond specifically, would my noble friend Lord Williams of Mostyn. But even if they do not, that would not be an argument for permitting these provisions to continue in our law, when, it is to be hoped, no one will ever again propose that they should be used.
§ Perhaps I may spend a moment clarifying two other aspects of the proposal. First—and I know it will be a matter of some concern to the noble and learned Lord, Lord Ackner—it may be wondered why, in place of the penalties to be abolished, I am proposing a mandatory life sentence. I am aware of the reasons why many reformers, and particularly the senior judiciary, are opposed to the mandatory life sentence. Indeed, they are set out by the noble Lord, Lord Windlesham, in his book Responses to Crime. I believe that those arguments are irresistible. I hope that the Government will seize an early opportunity to change the law in that respect. I promise such support that I can offer for that purpose. But I am anxious to keep this argument simple, and to deal with one anomaly at a time. That was the sentence with which Parliament replaced capital punishment for murder, and this would have the advantage of consistency.
§ Secondly, perhaps I may make clear that this amendment does not seek to amend the substantive law. It is a proposal about penalties. When I introduced a similar debate in another place on 17th December 1990, the debate to which I referred a few moments ago, we were met with the argument that the Law Commission was considering the whole law of treason with a view to recommending a complete revision. The next day, 1343 when I telephoned the chairman of the Law Commission, he said that no one had told him, and that the Law Commission was considering the law of treason only in the context of a codification of the whole of the criminal law.
§ For myself, I wish that the law of treason could be revised and made more rational. Much of it still rests on the Treason Act of 1351. In consequence it is treason to violate the eldest daughter of the Sovereign—even, apparently, if she were to consent—but only so long as she is unmarried. It is treason to slay the Lord Chancellor but only if he is in his place undertaking his office. So anyone who slays him while he is listening to a concert or walking his dog need have no concern about the Treason Act. Of course, we all know that my noble and learned friend's life and the virtue of the Royal Family do not depend on the Treason Act 1351, nor on the consequent death penalties. Anyone who offered violence to my noble and learned friend or to any future Princess Royal would be prosecuted under much more sensible provisions of the criminal law, without any consequent death penalty.
§ It is true that the Law Commission did in fact publish a paper on the subject in 1977, but through no fault of the Law Commission the law proceeded no further. However, this amendment makes no attempt to resolve those questions. I merely comment that if it is sought to argue that we ought not to rationalise the penalties for treason because the substantive law is in a mess, surely reason points in the opposite direction. To argue that because the law of treason is wholly unsatisfactory those who infringe it ought, for that reason, to be hanged, is to put it at its lowest, an unattractive argument.
§ Finally, I hasten to explain that the reason I propose to repeal the Sentence of Death (Expectant Mothers) Act 1931 is not that I am anxious to see expectant mothers dangling from a scaffold, but because it would be consequential on the repeal of those other provisions. If the Committee pass the amendment there will happily be no death penalty from which it is necessary to make an exception. I beg to move.
§ Lord Thomas of Gresford
I support the amendment on the principal grounds so eloquently moved by the noble and learned Lord, Lord Archer. Perhaps I may adopt his phrase. It is a test of our civilisation to ensure that the death penalty is wiped off the statute book of this country. I suppose that I must be one of the few Members of your Lordships' House who has actually heard the death sentence passed on a client, although not in this jurisdiction. While I have the greatest confidence in the criminal justice system, it is certainly not completely foolproof. It is a very chilling thing to hear a death sentence being passed.
Another way of approaching this argument is to point out how hopelessly out of date the legislation is. The time to amend or repeal the treason Acts is not in times of national emergency. The noble and learned Lord, Lord Archer, referred to the Joyce case. He will remember that William Joyce was convicted of treason although he was an alien—an American citizen—who had left British territory prior to the war on the 1344 presumed continued existence of a British passport. The only reason that he had a British passport was that he lied about his birth. He said that he was born in Galway and had obtained a passport as a result. In fact, he had no right to the protection of the Crown and was not a subject of the Crown. But in the times of national emergency of those days he was duly executed, as the noble and learned Lord has said.
So whatever may be the result of this amendment, surely the time to rationalise the law relating to treason has come. As the noble and learned Lord said, we go back to 1351 for the Treason Act. It is defined in terms which are wide and completely incomprehensible in today's world. He referred to some of the anomalies. Not only is it treason to violate the King's consort or Queen, but also the King's companion. It is not only treason to slay the Lord Chancellor—maybe some people think that hanging is too good for him, but not in this House, of course—but it is also treason to slay a High Court judge who may be conducting a court.
As regards the piracy provisions, the issue of Section 2 of the Piracy Act 1837 came before this House on consideration of the Statute Law (Repeals) Bill 1993. My noble friend Lord Wigoder then suggested that the proposal should not be debated because the House was dealing with a repeals Bill. He suggested that the section should be allowed "to go back to sleep". He was warmly supported by the noble Lord, Lord Williams of Mostyn, who, in his more radical days, was a little bit more robust and said that he thought we would welcome a little more than that—possibly euthanasia. Consistent as he always is, I have no doubt that the noble Lord has not changed his mind on that matter.
The Piracy Act 1698 did not apply to Scotland because it was before the Act of Union. It was designed to protect or to permit commissioners in the American plantations and other colonies to try cases of piracy summarily and to execute those convicted rather than have them sent back to this country to be tried at the Old Bailey or elsewhere. Captain Kidd was one of those who turned pirate after having been given a roving commission with a King's ship to destroy pirates preying on ships of the East India Company. As the noble and learned Lord said, further piracy Acts followed.
Section 3 of the Piracy Act 1837—we are debating Section 2—permitted the substitution of a sentence of life imprisonment or any shorter period for offences under the earlier Act. But Section 3 was effectively repealed by the 1993 Act, which repealed the earlier Piracy Act. So Section 2 of the 1837 Act. to which the noble and learned Lord's amendment is addressed, stands completely alone and unwanted. Indeed, the last conviction under the old Piracy Act was in 1870 in Wales. It concerned the crew of a ship called the "Vicksburg". It sailed out of Newport. The crew refused to work and effectively went on strike. The master was locked in his cabin. The ship sailed back into Cardiff where the crew duly appeared at Cardiff assizes and were sentenced to imprisonment.
The last known case of piracy in the United Kingdom, however, was in 1971 when the crew of a trawler out of Aberdeen revolted against the skipper, took possession 1345 of the ship by force and were convicted of piracy under Scottish common law. But Scotland abolished capital punishment for piracy as long ago as 1887. It is my submission to the Committee that it is time England and Wales caught up.
Indeed the Aviation and Maritime Security Act 1990, which was passed following the seizure of the "Achille Lauro" off Port Said in 1985, created the specific offences, punishable with life imprisonment, relating to the hijacking of ships, destroying them or endangering their safety. It covers anything that might come within the compass of piracy.
The noble and learned Lord, Lord Archer, also referred to the situation of the Services. That matter came before this House in a debate on the Armed Forces Bill on 18th June 1996. An amendment was proposed from these Benches by Lord Mayhew to abolish the death penalty in all Service discipline Acts. The Minister, the noble Earl, Lord Howe, justified the retention of the death penalty in military matters by reference to the piracy and treason provisions, which he pointed out were still extant on the statute book of England and Wales. It is a power that has been unused for some 50 years. The noble Lord, Lord Williams of Mostyn, again supported Lord Mayhew in that amendment and said this:it is unwise to have a penalty which has fallen…into complete disuse after 50 years".That is in relation to the death penalty in military matters. He went on to put it much more pithily in a way which we have come to know and love in these past few months. He said:a penalty not used becomes a penalty without value".—[official Report, 18/6/96: CWH 16 & 17.]When the Minister replies to this amendment, will he say whether any further consideration is to be given to the death penalty in the Armed Services and whether the Government have any views on returning to that? I fully support the amendment of the noble and learned Lord, Lord Archer.
§ Lord Henley
I rise to give my views on this amendment. I stress that on this occasion I am speaking personally and not for my party as a whole. I imagine that that will he the case for most of those speaking in a debate of this kind.
I should like to begin by stressing that 1 personally am opposed to capital punishment, for many reasons, many of which were put forward by the noble and learned Lord, Lord Archer of Sandwell. I would add that there are practical reasons for opposing any form of capital punishment, not least the increased difficulty of getting a conviction when so many people are opposed fundamentally to any idea of capital punishment. You need only one person on the jury who refuses to convict for fear that she might then be party to capital punishment taking place to see someone acquitted of an offence of which he should otherwise have been convicted.
As I say, I am personally opposed to capital punishment. The noble Lord, Lord Thomas of Gresford, said he felt the time had now come when we should be 1346 addressing these matters. I believe that might well he the case, but 9 o'clock on a Thursday evening as a Bill passes through this House is not necessarily the time when such matters should be addressed and the last remaining traces of capital punishment removed from the statute book. This applies particularly to treason. I feel that such matters ought to be addressed before a wider audience at possibly a better time. For that reason I could not support an amendment of this kind. No doubt it is an issue that could be revisited on another occasion.
There are a number of questions I should like to put either to the noble and learned Lord the Minister when he responds or to the noble and learned Lord, Lord Archer, when he decides what he wishes to do about his amendment—on possibly a lighter and more historical note. First, I should be interested to know just a little more about The Sentence of Death (Expectant Mothers) Act 1931. I am not familiar with that Act and, unfortunately, I have not done my research. I should like to know exactly what it was.
I should like to put a second point, which may be a matter for the noble Lord, Lord Williams, when he responds. The noble and learned Lord. Lord Archer, made it quite clear that some of the Acts which he hopes to repeal were Acts that liberalised matters as they went through Parliament: for example, they removed the burning of offenders and substituted the hanging of offenders. Some Members of your Lordships' House may remember that it used to be a privilege of the peerage to be entitled to be hanged, if such an event were to happen, by means of a silken cord rather than the ordinary hempen rope. I should be interested to know whether that privilege still exists.
As far as I am aware, the last Peer who was so hanged by means of a silken cord was a forebear of my noble friend Lord Ferrers. He was hanged, I think, about 1760. I know a little about the case in that the Member sitting on the Woolsack at that time was Lord Keeper Henley, who sat on the Woolsack as a commoner, as it is possible to do, but he had to be noble so as to preside over that trial. He then became the first Lord Henley of a different creation. I am descended from a daughter of that line. The trial was a sorry affair in that Lord Ferrers, who had murdered his manservant, decided to defend himself and he defended himself on the grounds of his insanity. The problem with a defence of that sort is that if you do very well quite obviously you are not insane and you go down, and if you do badly you go down anyway. I have to say that the poor earlier Lord Ferrers did go down and was hanged with a silken cord.
I do not know whether the noble Lord, Lord Williams, is briefed on these matters and can add any further enlightenment, particularly as regards the right which we may still have to be hanged by means of a silken cord. If he could help us I should be very grateful; but for the reasons I gave earlier, although I am deeply sympathetic to the aims of the amendment, I do not think that this evening is the right time to address these matters.
§ Lord Goodhart
My name is to the amendment and I rise to support the noble and learned Lord, Lord Archer of Sandwell, on his eloquent speech, on a cause about which I must say I, too, feel very strongly. This 1347 amendment, of course, is not about the death penalty for murder. That was abolished in 1965, as we all know, and although from time to time periodic attempts have been made to restore it they have all been defeated either in this Chamber or in the other place by comfortable margins. I hope and believe that that argument is now over for good.
Equally, this amendment is not about the complete removal of the death penalty from British law because, as the noble and learned Lord, Lord Archer, pointed out, death would remain the penalty under Sections 24 to 26 of the Army Act and corresponding provisions in the Acts governing the other services for grave military offences in time of war.
This amendment is mainly a clearing up operation, because the abolition of the death penalty for murder left a few miscellaneous offences for which the death penalty was still applicable. I believe one of them was arson in the Royal Dockyard but, so far as I have been able to discover from my own researches, that disappeared from the list in 1971 without, so far as I am aware, either comment or concern. I cannot think that any greater degree of either comment or concern would be raised by the removal of the death penalty for offences under Section 2 of the Piracy Act 1837.
Treason would no doubt be more controversial, as the noble Lord, Lord Henley, suggested. Treason is rightly regarded as one of the greatest of all offences and, indeed, if the Government were prepared to accept this amendment on this basis I would myself accept a version of the amendment, which would retain the death penalty for acts of treason committed in time of war. However, the death penalty for treason in peacetime should be abolished. There have been no charges of treason for any act committed at any time since the Second World War, and, indeed, I suspect that the last time that charges of treason were brought in peacetime was against the participants in some revolutionary movement such as the Cato Street conspiracy in the early 19th century.
That does not mean that treason cannot happen in peacetime, and, indeed, many of the IRA terrorist incidents may well be treason as defined in the Treason Act 1351, but for very clear reasons these offences are not prosecuted as treason but as murder. It is clear that treason, as a peacetime offence at least, is obsolete. I believe that the total exclusion of the death penalty, at least in times of peace, is one of the hallmarks of a civilised society and in practice that is indeed the case in the United Kingdom. Since 1965 the death penalty has ceased to exist in peacetime for any offence.
I believe that it is now time to bring law into line with practice and ratify the 6th Protocol to the European Convention on Human Rights and the 2nd Optional Protocol to the International Covenant on Civil and Political Rights. I regret that we have not done so already. I hope that the Government will be prepared to accept an amendment on the lines of this one so that we can do what we should have done some years past.
§ Baroness Hilton of Eggardon
I have very little to add to the previous arguments put so eloquently by other 1348 noble Lords. I have been an abolitionist for the past 40 years. I come from a generation which in many ways was scarred by the Christie-Evans and the Craig-Bentley cases. I realise that this is not to do with capital punishment for murder. Nevertheless, I believe that the feelings of many noble Lords about capital punishment resulted from those particular cases. I see this merely as a tidying up of the law in consequence of the previous abolition of the death penalty for murder. I believe that we would have greater moral authority internationally if we did not apply the death penalty in peacetime and that if we no longer had gallows and a death cell at Wandsworth Prison we would be a far more civilised society. I support the amendment.
§ Lord Slynn of Hadley
I too support the amendment. I read today for the first time the section of the Treason Act 1790 which abolished the punishment of the burning of women for the offence of treason. To read that that was a possible punishment on the statute book even at that time is chilling. By 1790 people believed civilisation demanded that the burning of women for treason should be abolished and that what was thought to be the more humane punishment of hanging by the neck with or without a silken thread until dead should be substituted.
I do not believe that the time is far off when people will find the words "You shall be hanged by the neck until you are dead" just as unacceptable as the punishment of the burning of women in 1790. I hope that we shall continue to move on in a civilised way. The time has now come to perform this tidying up operation and get rid of the death penalty both for piracy and for treason in times of peace. I do not believe for one moment that the existence of this punishment on the statute book acts as a deterrent. Like the noble Lord, Lord Goodhart, I thought that the offence of arson in a Royal dockyard was still an offence punishable with the death penalty until I looked into the matter today. As the noble Lord has said, that went without apparently too many arsonists in Royal dockyards appearing on the scene. I am sure that the same will apply with respect to both piracy and treason in times of peace.
It is quite plain that throughout the world countries are moving against the death penalty for the reasons referred to by the noble Lord, Lord Henley. I hope and believe that the Government will accept that the time has come to adopt this amendment. I do not believe that they should be deterred by the fact that it would then be possible to adopt the 6th Protocol to the European Convention on Human Rights or the International Convenant, if that is not what they want to do. If necessary, let us do it a step at a time. Let us tidy up the position and get rid of a punishment that should no longer be on the statute book. In time we can consider signing up to the 6th Protocol. I would support that.
The noble Lord, Lord Williams of Mostyn, said earlier this afternoon when replying to the debate on 10-year-olds that this country had got rid of barbarous 1349 punishments. Future generations will—many of us now would—put the hangman's noose among those barbarous punishments and get rid of it.
§ Lord Williams of Mostyn
My noble and learned friend Lord Archer of Sandwell has moved this amendment with his usual clarity, grace and humour, and I am grateful to him for doing it in that way. I believe that as long ago as 1991 he moved an amendment to the Criminal Justice Act which by and large would have brought about the conclusions that he now seeks. The stance of the Government is that ultimately the death penalty is a matter of conscience for Parliament to decide on a free vote. For that reason we have not ratified the 6th Protocol to which a number of noble Lords have referred. If we did so Parliament would not have an opportunity to reconsider the matter without rescinding this country's obligations under the European Convention on Human Rights.
As noble Lords have pointed out, we are de facto abolitionist. The death penalty is not used for these offences, and there are no conceivable circumstances in which that penalty can be used in peacetime on the basis that for the past 30 years whenever Parliament has been invited to reintroduce the death penalty it has refused to do so. That is why we have felt able and happy to support the final declaration of the second Council of Europe's Summit on the 11 th October 1997 which called for the abolition of the death penalty.
One always shudders at the prospect of earlier quotations being resurrected, but I am happy to say that every one that the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Slynn, mentioned still have their pristine attraction and stand unchanged in my mind. I am most obliged to the noble Lord, Lord Thomas, for his researches. They sound even better now than when they were first uttered.
I have made my own position perfectly plain, as has the noble Lord, Lord Henley, on a personal basis. I have a conscientious objection to capital punishment, and I would never, in any circumstances, vote for its retention. I believe that that is a view widely shared in this Chamber.
I join forces, temporarily, with the noble Lord, Lord Henley. We need to look at all the issues involved before we come to a conclusion. I am bound to say that it is probably better done in the other place than here, especially with so few of us present.
There are the usual technical objections which are provided on these occasions. I do not think that it will assist the Committee if I go into them. The noble Lord, Lord Henley, asked whether I was sufficiently briefed on the Sentence of Death (Expectant Mothers) Act 1931. I chide him for not believing in the absolute infallibility of Home Office Ministers on these occasions. As I believe every schoolboy knows, the Act of 1931 prohibits the passing of the death sentence on expectant mothers in cases of murder. The only alternative is penal servitude for life which, again, is somewhat archaic. I have a note here which I think I am entitled to enjoy reading out:The Earl Ferrers story is very well known in the Home Office".1350 There are other things upon which one can pause for a moment. The noble Lord, Lord Henley, asked me about the privilege of being hanged with a silken rope. That was discriminatory, because it applied to hereditary Peers only.
§ Lord Henley
It applied to Peers of first creation. I appreciate that there were not life Peers at the time but Peers of first creation—that is, those created rather than those who received the honour by means of birth—could also require silk.
§ Lord Williams of Mostyn
Certainly not, by necessary definition. It is well known, as all Members of the Committee are aware, that no noble and learned Law Lord could ever fall into error on any possible occasion. Therefore the opportunity of execution with a silken or hemp rope would never arise.
There were further questions that I was about to develop of great economic, social and political importance. Life Peers could not be hanged, either with a silken rope or a hemp rope, because they would not thereafter be able to attend and claim their daily subsistence allowance, I assume!
This is a serious matter, obviously. It has been dealt with on an agreeable basis tonight. Speaking personally, we are at the time for review, but not, I think, on this present occasion. I shall sit down now in the hope, expectation and belief that my noble and learned friend Lord Archer will accept that his views and mine largely coincide, as they do with those of the noble Lord, Lord Henley. We need to review these matters in greater detail, and perhaps with more present. Preferably, I suggest, they should be discussed in another place.
When the noble Lord, Lord Henley, and I acceded to our present respective responsibilities, we had a private bet which was that whoever of the two of us first used the phrase I shall specify in a moment or two would win the £10 prize. The phrase was:This is the House of Lords at its very, very best".I think that I have won the £10.
§ Lord Archer of Sandwell
I am most grateful to all who have participated in the debate, especially of course those who agreed with me. I am grateful to my noble friend Lord Williams for disagreeing with me so courteously and entertainingly. I accept that there are certain issues which have been raised tonight—no doubt I am partially responsible for raising them—which are not essentially part of this debate.
The noble and learned Lord, Lord Slynn, advised me—it would not be the first time that he has given me good advice—that we should perhaps take this a step at a time, and not necessarily raise the question of the 6th Protocol this evening. I accept that. The 6th Protocol is not part of this amendment, and it would not be part of this debate if we resumed it at a later stage.
1351 I accept, too, that there might be room for further consideration of the suggestion by the noble Lord, Lord Goodhart, of whether treason in time of war might at least be the subject of different considerations, and therefore not necessarily part of an appropriate amendment. For those reasons, among others, I would not be minded to press the matter to a Division at this time tonight.
I am bound to warn my noble friend Lord Williams that the argument that the matter should be carefully reviewed and perhaps debated somewhere else strikes me as rather less forceful. There has been ample opportunity to review it for many years. It was raised in 1990 to my knowledge. I always have a feeling that once the heat is off the Home Office loses something of its sense of urgency.
For that reason, I do not promise not to resurrect the issue in the future course of the Bill. However, I fully take the point of the noble Lord, Lord Henley, that it would not necessarily carry greater weight if the amendment were passed at nine o'clock on a Thursday evening in a House which is perhaps not as full as we have sometimes seen it. For those reasons, and with the formula which judges are sometimes encouraged to use when they put back a case for reports—that it does not foreclose anything and that all the options are open—I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 9.15 p.m.
Baroness Mallalieu moved Amendment No. 175A:
After Clause 27, insert the following new clause—
JUDICIAL DISCRETION TO EXCLUDE YOUNG SEX OFFENDERS FROM THE NOTIFICATION REQUIREMENTS
(" . In the case of a person who is under the age of 18 the court may in an appropriate case direct that the notification requirements for sex offenders under the provisions of the Sex Offenders Act 1997 shall not apply.").
§ The noble Baroness said: I propose to move the amendment swiftly in the hope that a good point is not improved by repetition or protraction. The Sex Offenders Act 1997 came into force last September. Its object was to allow the police to keep track of potentially dangerous or persistent sex offenders. It required people who were convicted of specific sex offences to notify the police of their name and home address and thereafter for a period of time to notify any changes.
§ The periods of time varied according to the severity of the sentence, but for an adult it was a minimum of five years up to an indefinite period. Under the provisions of the Act, which modified it in some respects for young offenders, a minimum period of two and a half years up to an indefinite period applied to those under the age of 18.
§ The Act is difficult to follow. Perhaps further scrutiny in your Lordships' House as the Bill passed through would have paid dividends because the end result is that it undoubtedly causes concern and difficulty. 1352 Apparently, the Act does not allow a judge discretion as to whether to require an offender of any age from 10 upwards to be required to register.
§ Some of the offences specified in the Act, particularly where they involve young defendants, may well not merit notification in the view of a sentencing judge or magistrate. I shall give two examples: first, a single indecent touching by a 10 year-old, a case which featured prominently in tonight's debate; secondly, under age sex between two 15 year-olds in some circumstances may not necessarily be felt to require registration.
§ The amendment therefore is a modest proposal to permit an element of discretion to be exercised by a judge in cases of those who are under 18. If the Act is intended to enable the police to keep track of those dangerous or persistent offenders—although there may be some within that age bracket who merit the requirement—there will be many cases where it is plainly absurd.
§ I hope that in reply the Minister will be able to offer some comfort to counsel and judges who have searched this difficult piece of legislation for some way out and at the present time cannot see one. I beg to move.
§ Lord Williams of Mostyn
If it is of assistance to the Committee, I shall indicate a helpful response. My noble friend's amendment makes a valid point. We know of cases which have caused concern because a young person has had to register under the Sex Offenders Act 1997 when it was not appropriate in terms of subsequent risk to the community. The schedule is very complicated. As my noble friend said, it is too complicated. There are different age limits for different offenders scattered liberally about. It is difficult to follow. We are not convinced that it is absolutely right. We need to give it thorough examination.
Therefore, I do not wish to accept the amendment as it stands without having an opportunity to look at it in more detail. I repeat that I am grateful to my noble friend for bringing forward the amendment. I seek my noble friend's agreement and that of the Committee to allow us to look at the issue further in depth before reaching a conclusion as to whether the amendment should be accepted and, more particularly, exactly what it should contain. I hope that that is a helpful response both to my noble friend and to the noble Lord, Lord Hylton, because I did not mean to be discourteous but rather to be helpful.
§ Baroness Mallalieu
I am most grateful to the Minister. Of course I shall look with great interest at what the Home Office produces. Emboldened by the Minister's helpful response, I ask him to look also at the question of discretion in relation to older offenders because they too are excluded under the legislation as presently drafted. I thank him and beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.1353
Baroness Anelay of St. Johns moved Amendment No. 176:
Before Clause 28, insert the following new clause—
("Trial procedure for rape and indecent assault
TRIAL PROCEDURE FOR RAPE AND INDECENT ASSAULT
§ The noble Baroness said: I tabled this amendment to give the Committee the opportunity to consider a sensitive and problematic issue which is of vital importance to those victims who suffer the trauma of rape and indecent assault. I invite the Government to explain how they are currently working to resolve the problem.
§ Members of the Committee will have read reports in the newspapers last autumn of a case which highlighted the problem which I address. The victim of a rape was cross-examined personally in court by the defendant for days upon end. That defendant had decided not to be legally represented and then indulged in the self-gratification of personally questioning the victim for far longer than was necessary to obtain the information relevant to the case. Finally, he was indeed convicted.
§ I do not say that that case is typical of the conduct of rape trials. Most defendants in rape trials are legally represented. But I believe that it is important that such behaviour—putting the victim through public humiliation simply to enjoy that humiliation and to relive the personal satisfaction gained from the assault and not to elicit succinctly evidence for the defence—should not be countenanced within our judicial system.
§ This amendment would direct that a defendant charged with a rape offence or an offence of indecent assault shall not personally ask questions of the alleged victim during the course of the trial. It applies equally whether the victim is a woman or a man. I have received several messages of support; for example, from the national organisation of victim support. However, I should say in fairness that some organisations, like the latter that I have named, would say that I have not gone far enough and, for example, would like the amendment also to cover the victims of stalking.
§ It may be asked why it is not possible to achieve the same result within the system as it stands today. Should we not leave it to the judges to take greater control over court proceedings than they do at present and prevent defendants exploiting cross-examination? I should welcome such a development but I see the difficulties inherent in it.
§ I am aware that there is already a requirement laid upon the judge to do his utmost to restrain unnecessary cross-examination. But the judge's role in doing so is 1354 hedged about with problems. If a judge stops a defendant in the middle of a line of questioning by querying the relevance of the questions, the defendant, rather like Question Time in your Lordships' House, will say, "Just wait a minute. I am just coming to the important point and then you will see the relevance of my questions". But then the defendant will continue with his irrelevant line of questioning solely to enjoy the discomfiture of the witness.
§ What happens if the judge stops the defendant? He must be very sure indeed of his ground and, perhaps even more important, sure that, on appeal, the Court of Appeal will back the judge in that decision. However, let us assume that the judge has silenced the defendant and then takes over the task of asking questions of the alleged victim to test the reliability and the accuracy of the witness's evidence. The problems still continue, for the judge must take care not to descend into the arena. Guidance on the matter has been given in the case of De Oliveira (CLR 1997).
§ Moreover, not all rape cases are tried by High Court judges of the fortitude, I might rather impertinently say, of the noble and learned Lord, Lord Ackner, whose strengths and forthrightness of views on tribunals have carried his reputation to this House. Rape cases are often heard by circuit judges. I would argue that it is unsatisfactory at present for us to rely upon individual judges to curtail proceedings when they seem to have insufficiently stringent rules governing the conduct of such cases.
At first sight, I realise that my amendment may appear overly restrictive of the rights of the defendant. We on this side of the Committee are quick to analyse whether measures are in contravention of the European Convention on Human Rights. I can assure Members of the Committee that I believe my amendment does not contravene Article 6 of the convention which refers to the general right to a fair trial. That article does not provide an absolute right to defend oneself. Subsection (3) says:
Everyone charged with a criminal offence has the following minimum rights: to defend himself in person or through legal assistance of his choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; to examine or have examined witnesses against him, and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him".
Thus the convention does permit of legal representation as an alternative to personal representation.
§ Finally, is my amendment too radical? Does it break new ground and threaten the basis of our judicial system? No, it does not; it simply builds on what is already in place. Parliament has already recognised that there are occasions where defendants should not be allowed personally to cross-examine the witnesses. I chose to refer to the case of De Oliveira a moment ago. I did so purposely because that is an example of just such a case.
§ Section 34A of the Criminal Justice Act 1988 provides that a defendant shall not cross examine in person any child witness who is the alleged victim of certain offences which include rape and indecent assault. 1355 I realise that I have very much given a précis there of Section 34A(1) which is to be found at paragraph 8–115 of Archbold and also Section 32.2 of paragraph 8–56.
§ Parliament has already recognised that child victims of rape and indecent assault should be protected from personal cross examination by the alleged offender. I ask that the same protection should now be given to adult victims. I beg to move.
§ 9.30 p.m.
§ Lord Ackner
I have great sympathy with the object behind the amendment. The cases to which reference has been made must have been immensely disturbing to the persons who were cross-examined in the manner described. However, I should have thought that to take the reference to Article 6 of the human rights legislation would cause considerable problems. First, Article 6(3)(d) gives to everyone charged with a criminal offence the right to examine or have examined witnesses against him. To examine or have examined means that he can do it personally or he can do it through a duly authorised representative. I do not see where there is a right to impose upon a defendant the obligation to have representation. It seems to me he is perfectly entitled to say, "I wish to defend myself. I do not have confidence in lawyers and I wish to defend myself', in which case, as I read Article 6, he has the right to examine witnesses against him.
Secondly, with regard to the child witness, I respectfully submit that is an entirely separate situation. In regard to children one has to have special provision. In the case of children I should have thought it is utterly unlikely that the defendant, given the opportunity of being represented, would refuse that offer.
Thirdly, it is the obligation of the judge to control his court. I appreciate there are difficulties with difficult litigants but it is a question of the technique which, if not known, should be taught by the Judicial Studies Board. So long as the judge ensures that justice is done in his court, he has nothing to fear. Since I ceased being a sitting Law Lord I have turned part of my attention to arbitration. There has in the past been anxiety about the arbitrator restricting cross-examination, restricting discovery and so on and so forth. It has now become accepted—the recent Act on the subject of arbitration emphasises this acceptance—that so long as justice is done, the control of the procedure is for the arbitrator. The same applies to any ordinary court.
The defendant may insist on appearing for himself. In a rape case or a sexual case the nature of the defence is apparent either before the trial starts, as a result of statements having been taken, or can easily be discovered at an early stage in the trial. One overlooks the fact that the judge is perfectly entitled in his discretion to ask the jury to retire while he deals with problems relative to the future conduct of the case. He can establish quite simply, without any anxiety vis-à-vis the jury, what exactly is the defence. He can explain to the defendant, either at the outset of a cross-examination or at a later stage as he thinks fit, that he is to restrict himself to questions that are relevant, and that the judge 1356 will not allow cross-examination either to become irrelevant or to become hectoring or otherwise an abuse of the right to cross-examine.
If the defendant does not adhere to what the judge considers appropriate, the jury is then sent out while the judge explains to the defendant that he, the defendant, is not complying with his instructions and that if he continues in the manner that he proposes the judge will stop the cross-examination, or he will limit it to a period of another half hour, or an hour, or two hours, or whatever he thinks is appropriate. So long as the judge ensures that justice is done in his court, he has nothing to fear. I am quite sure that the Court of Appeal will support the decision that he takes.
I think that what has arisen is a result of novelty and difficulty in being satisfied that one does not either alienate the jury by interfering too much, or run the risk of being criticised for not doing justice. It is a new situation for many judges. I believe that it should be the subject matter of guidance from the Court of Appeal, the Judicial Studies Board, or both. But to impose a prohibition on a litigant in person not to ask any questions of the defendant seems to me prima facie to be a denial of justice and to be contrary to what is provided in Article 6(3)(d) in particular. I therefore resist the amendment.
§ Lord Thomas of Gresford
The noble Lord, Lord Ackner, has said so much more clearly what I had intended to say that I have little to add. I support everything that he said. If the Judicial Studies Board requires any guidelines to be circulated to judges who deal with cases of this sort, I hope that it will take the noble and learned Lord's speech and do so tomorrow. He encapsulated everything that needs to be said.
It is a difficult issue. A Motion in similar terms to the amendment is to be discussed at the Liberal Democrat conference shortly and therefore whatever I say is a personal view.
I do not think that the comment made by the noble Baroness, Lady Anelay—that rape cases are dealt with sometimes by circuit judges—should be allowed to pass. Those judges have the greatest experience of the criminal law on a daily basis, and no rape case will be put before a circuit judge who is completely inexperienced. He will have experience of the type of case he has to try. The particular case to which the noble Baroness referred was tried by a very competent, able and caring judge. If one puts oneself in her position one can imagine that she was constrained, as the noble and learned Lord, Lord Ackner, said, on the one hand by a desire not to alienate the jury and by so doing to lead to an acquittal, or to give grounds for an appeal which would enable the person convicted properly by a jury to be acquitted.
With the advice that the noble and learned Lord has given, I am sure that this unique problem, as it was at that time facing a very experienced judge, will be dealt with along the lines indicated by the noble and learned Lord.
§ Baroness Mallalieu
I have concerns about the amendment although I support the intention underlying it. 1357 First, very few defendants charged with serious offences of this type choose to represent themselves. Most have more sense and recognise that a trained advocate is needed. There is a very small number of cases where a defendant has chosen to conduct his own defence and, if the press reports are true, (which I think is not always the case) has used the opportunity to cause distress or to try to intimidate the complainant.
I respectfully agree with all that has been said by the noble and learned Lord, Lord Ackner, and by the noble Lord, Lord Thomas, about the existing powers of a judge to deal with these situations. They are extremely difficult. But the powers are undoubtedly there and the judge in the last resort, if other means fail, can put paid to any further questioning.
Giving evidence is stressful for any complainant. A complainant in a sexual case may well be frightened of the defendant. But so may the complainant in an attempted murder case, or one involving serious violence or cases which involve defendants who are known to the complainant. All that can be done to enable a witness to give evidence as satisfactorily as possible, with the least possible amount of strain—whether by use of screens or sympathetic guidance about the court procedures beforehand or, with children, the use of videos—should be done. The right to defend yourself without a lawyer is an important right which should not be lightly removed. When it is abused, the judge should intervene. I believe that most judges do. I also believe that most judges would welcome guidance from the Court of Appeal to indicate to them that they may use those powers freely in an appropriate case. For those reasons, I cannot support the noble Baroness's amendment.
§ 9.45 p.m.
§ Lord Falconer of Thoroton
I should make clear straight away that the Government share the concerns that underpin this amendment. Many noble Lords mentioned the horrific case in which a witness in a rape case went through six days of cross-examination. We are determined that vulnerable witnesses should not have to go through that type of experience. We have already pledged to provide greater protection to victims in rape and other serious sexual offence cases. In June last year, we set up an inter-departmental review of the way in which vulnerable or intimidated witnesses are treated in the criminal justice system, including a consideration of ways to prohibit unrepresented defendants from personally cross-examining victims in rape and serious sexual offence trials. That group has already met on a number of occasions. It meets again in March, and it is to be hoped that shortly thereafter its product will become known.
The new clause proposed by the noble Baroness, Lady Anelay of St. Johns, introduces in effect a blanket prohibition on defendants in rape and serious sexual offence trials from personally cross-examining the victim. It makes no provision whatsoever for alternative procedures to be invoked where defendants are unrepresented to ensure that the interests of justice are served. The effect therefore, on the basis of the existing amendment, is that the defendant who chooses 1358 to be unrepresented has no right to cross-examine the main witness against him. There are many issues that need to be addressed, including how we can balance the needs of the victim and the victim's right not to be subjected to this type of dreadful experience, with the right of the defendant to a fair trial. We need to take into account the other measures being considered to provide greater protection to vulnerable or intimidated witnesses. And for the reasons given by the noble and learned Lord, Lord Ackner, we must also take account of our obligations under the European Convention on Human Rights.
The clause that is proposed makes no provision for the victim's evidence to be tested. As the Committee will appreciate, in rape and serious sexual offence trials it is the victim's evidence which is normally crucial, and if that evidence cannot be tested, its weight could be so seriously reduced that the prosecution might be left unable to pursue the case. We want to ensure that that does not happen.
The Government remain committed to measures which, consistent with the interests of justice, protect victims of rape or serious sexual offences from direct cross-examination by the defendant. We will seek to take action as soon as possible, but we are determined that any changes we make will stand the test of time and be consistent with our obligations under the European Convention on Human Rights.
I note the remarks of many Members of the Committee regarding greater judicial intervention to seek to obviate the problems. I am sure it is the case that there is a place for judges to try to protect witnesses where it is appropriate to do so. Rape cases are always tried by either a High Court judge or a senior and experienced circuit judge who is, as it were, licensed for the purpose of trying such serious cases. So I do not believe that simply because a circuit judge tries a case, as suggested by the noble Baroness, Lady Anelay, that gives rise to any real concern as to the quality of the judges trying such cases. For the reasons I have given, I hope that the amendment will not be pressed.
§ Baroness Anelay of St. Johns
I thank the Minister for his reply and the explanation so carefully given as to the steps which the Government are currently taking in order to test ways in which the situation can be improved so that the alleged victims in such cases may not be put through some of the experiences that they have had in the recent past.
I wish to make one or two comments in response to contributions from other noble Lords. I am, of course, aware that it is senior circuit judges who hear rape trials. But whoever the judge hearing the trial, it is not simply in one case that problems have arisen. I chose the most severe case, so far as I am aware, and one that has had perhaps the most publicity. However, I am aware from research sent to me by victim support groups in the country of other cases where the victims—I use the word "victims" because they are all cases where the defendant was subsequently found guilty—were put through the most appalling experiences simply for the gratification of the defendant and where no relevant information was elicited.
1359 I would always defer to the interpretation by the noble and learned Lord, Lord Ackner, of the European Convention on Human Rights. I notice that in the case of De Oliveira, the defendant was statutorily barred from carrying out his own defence. As I am sure the noble and learned Lord is aware, he was not allowed the legal representative of his own choice and therefore problems arose. That is why guidance notes were provided and why I quoted that. The situation has arisen where we do not have the legal right to defend ourselves in person in certain cases.
I have no intention of pressing the amendment to a Division tonight. I listened with humility to what was said, but before I formally withdraw the amendment I end by making the comment that the Minister said that the case I mentioned was one where six days had been spent in cross-examination. For many victims, six hours would be too much. If what we have done tonight makes us all, including judges, think a little more carefully about how evidence is tested, then perhaps I have achieved my objective.
§ Lord Ackner
Before the noble Baroness sits down, I feel that I must intervene. "Six days" gives a false impression of day after day after day. That is not what occurred, as I understand it. There were breaks and adjournments because the complainant did not feel well. If it was all added together, the actual period spent under cross-examination, while grossly excessive, was nowhere near the equivalent of six days of cross-examination.
§ Baroness Anelay of St. Johns
I shall not prolong the discussion except to say that I imagine that in this victim's case for every minute of the six days she felt she was under the most appalling pressure in cross-examination, even if she was not physically answering questions from that person every minute.
Like the noble and learned Lord, I have been present at rape trials. I have been present when someone has patently been wrongly accused, as well as where someone has been found guilty and where the evidence was overwhelming. I am sure that we all feel for defendants in these cases when they are wrongly accused, but I feel for those who are victims. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 28 [Aim of the youth justice system]:
Lord Goodhart moved Amendment No. 177:
Page 22. line 4, leave out ("It shall he the principal aim") and insert ("Aims").
§ The noble Lord said: I rise to speak to these amendments in place of my noble friend Lord McNally who is unable to be present this evening. The three amendments, Amendments Nos. 177 to 179, are linked. They have support from, among other organisations, the Law Society and Justice. The original drafters of the amendments were the Law Society.1360
The reason for moving the amendments is that Clause 28, as it stands, is one-sided, in our view, in saying in subsection (1):
It shall be the principal aim of the youth justice system to prevent offending by children and young persons".
The prevention of offending is one of the principal aims of the youth justice system, but it should not be seen as being the only aim or even the principal aim. Another aim, surely, is the welfare of the child.
The aim of the youth justice system is not just to protect people from criminal offences committed by children and young persons; its aim must also be to divert children and young persons from adopting a criminal lifestyle in their own interests as well as in the interests of society as a whole. Having the sole aim of preventing offending is not only in itself unbalanced and one-sided, it is also contrary to our international obligations under, in particular, Article 3 of the United Nations Convention on the Rights of the Child, to which this country is a party. Article 3 says,
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, or administrative bodies, the best interests of the child shall he a primary consideration".
It does not say "the" prime consideration but, at the very least, "a" prime consideration and therefore surely a principal aim. The welfare of the child should be recognised therefore as a principal aim alongside the prevention of offending.
§ A different point was raised by the Law Society. That is responsible for subsection (a) of the amendment. The youth justice system involves not only the police and the prosecution, it also involves the courts and the defence lawyers. It is not the duty of the court, except in relation to its powers of sentencing, to prevent offending. The primary duty of the court is to hear the evidence and to decide whether the guilt of the child or young person is proven.
It is certainly not the duty of defence lawyers to prevent offending. Their primary duty is to the child as a client, against which must be balanced their duty to the court. The defence lawyers have a duty to test the prosecution case and to cross-examine prosecution witnesses. They have a duty, as the amendment says, to,
protect and advance the legal interests of the child or young person".
§ Indeed, one aim of any criminal justice system must be to prevent offending. But a criminal justice system also has other aims. One of those aims is to ensure that allegations of crime are tried fairly before an impartial tribunal, as required by the European Convention on Human Rights. In the case of a youth justice system, the protection of the interests of the child is surely also a necessary and important aim of the system.
§ Amendment No. 177 is perhaps of symbolic rather than of practical importance, but symbolism is important when setting the tone of legislation. That is why Clause 28 needs modification on the lines suggested in the amendment. I beg to move.
§ Lord Williams of Mostyn
Clause 28 of the Bill is intended to provide a clear statement that the principal 1361 aim of all those working in the youth justice system should be to prevent offending by the children and young people with whom they deal. That is the principal aim; it is not the only aim; it is not intended to be exclusive. Preventing offending is in the best interests of a young person. It helps to ensure his or her welfare, well-being and, not least, future prospects in life and future opportunities. At present that principle is nowhere set out and we deliberately—with a general welcome from your Lordships at Second Reading—inserted Clause 28 to provide that principle.
Obviously, the other issues which the noble Lord, Lord Goodhart, has identified are of importance, but we have dealt with the point quite fully and clearly in Clause 28(2). It provides that all persons and bodies carrying out functions in relation to the youth justice system must have regard to the principal aim in addition—I underline those two words—to any other duty to which they are subject; that is, international convention duties, European convention duties, and others. For instance, Section 44 of the Children and Young Person Act 1933 requires courts to take account of the welfare of the child or young person in fulfilling duties. That is the particular purpose behind the structure of Clause 28, and in particular, subsection (2).
Lawyers are hound by their professional codes, as are doctors. Judges and magistrates are bound by their judicial oaths. We do not need to spell those out because we have encompassed them all in Clause 28(2). We are not saying that the only aim is that specified in Clause 28(1). We are saying that it is a principal aim and that we have dealt with all other matters compendiously, and, I hope, appropriately, in Clause 28(2). We do not overlook the aspects to which the noble Lord Goodhart, referred. We think they are already included in Clause 28(2). The one thing the youth justice system needs is clarity of purpose, and that is what Clause 28(1), with the further ramifications provided for in Clause 28(2), provides. I hope I have satisfied the noble Lord that he does not need to press his amendment.
§ 10 p.m.
§ Lord Goodhart
I noticed that in replying the noble Lord, Lord Williams of Mostyn, referred to the aim spelt out in Clause 28(1) as a principal aim, which is exactly the point I was making. It is a principal aim, and quite rightly so. No one would deny that for a moment. I believe that there is an important symbolic value in making it clear that, in relation to youth justice, when we are dealing with the interests of young persons and children, preventing offending is a principal aim but must be balanced against others of equal importance, including, specifically, the welfare of the child. However, I do not seek to take the matter further today. I therefore beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 178 and 179 not moved.]
§ Clause 28 agreed to.
§ Clause 29 [Local provision of youth justice services]:
§ [Amendment No. 179A not moved.]1362
The Earl of Mar and Kellie moved Amendment No. 180:
Page 22, line 3l, after ("accommodation") insert (", including where appropriate placement with foster parents,").
§ The noble Earl said: In the absence of my noble friend Lord McNally, I wish to move this amendment and speak to Amendment No. 181. The purpose of Amendment No. 180 is to add to the list of youth justice services one of the most valuable assets in child support services; namely, foster parents. It would be useful to do that because the support offered by foster parents and the normalcy of the fostering placement is often the best solution for a child who has to be received into the care of a local authority.
§ Foster parents are recruited from a wide variety of citizens. Many have remarkably effective understanding of the needs of children, especially those from delinquent or inadequate homes. I can state from my experience working in a social services department in Sheffield that some of the best foster parents we had were themselves the product of such homes as I have described. They had made a remarkable transition. Therefore, I strongly urge the Minister to include foster parents in the list of youth justice services.
The aim of Amendment No. 181 is to clarify the possible membership of a youth offending team. At present, I believe that Clause 30(5) is rather vague. The inclusion of a specific reference to personnel from voluntary organisations would give a much clearer message to the organisers of youth offending teams as to where they might find talent for the teams. The amendment would not preclude a wider range of people also being considered for it retains the words,
such other persons as the local authority thinks appropriate after consulting".
My case is this. In certain areas the main dynamic in youth work may lie in the voluntary sector. In recent years we have seen the rise and dismantling of the statutory youth service, much to my regret. When I recall the situation of my first post-qualification job in the Craigmillar district of Edinburgh, which was a post-war peripheral housing scheme, the youth service there was delivered by the Churches; the Save the Children Fund, which ran an adventure playground; the Scottish Association of Boys' Clubs which ran, yes, a boys' club; and the Craigmillar Festival Society. Only after I moved on was there any direct statutory provision. I believe that voluntary organisations should appear on the face of the Bill. They may well have a better grip on the situation than any other agency. I beg to move.
§ Lord Williams of Mostyn
If it is convenient to the Committee I shall speak to Amendments Nos. 180, 180A, 181 and government Amendment No. 182. We entirely agree as regards Amendment No. 180 and remand fostering, that placement in local authority accommodation of children and young people remanded or permitted to such accommodation should allow them to be placed, where appropriate, with foster parents. The definition of local authority accommodation Section 70 of the Children and Young Persons' Act 1969, already provides that. Section 70 of the Act and the words "local 1363 authority accommodation" mean any accommodation provided by or on behalf of a local authority. It can include a children's home, a foster placement or supported lodgings. It is a matter for the local authority to determine which of the available forms of accommodation is appropriate in any particular case. So we suggest that this amendment simply is not required.
Amendment No. 180A in the name of the noble Lord, Lord Hylton, seeks to change the name of youth offending teams to youth justice teams. The term "youth justice team" is often used at present to describe teams of social workers and probation officers working in local partnerships to deliver some youth justice services in the youth justice area. Many of them have been very productive. We want to build on good practice, which has been developed through those teams, in particular, multi-agency working extended to a wider range of agencies, including education and health authorities. They have a relevant role to play.
We believe that our new teams ought to focus on tackling youth offending, which is a very important text in this Bill. That is why we have considered "youth offending team" to be the expression which offers the best description.
Amendment No. 181 is in the name of the noble Earl, Lord Mar and Kellie. This makes it clear that youth offending teams established by local authorities and other relevant local agencies under Clause 30 can include a member of staff or a volunteer from a voluntary organisation. I reiterate that we want to see co-operative work between youth justice agencies and voluntary organisations. We believe that their work is extremely important. But that is going to be achieved in different ways in different areas, depending on local circumstances. We want to allow for flexible differences according to local circumstances. Youth offending teams may draw members from the voluntary sector or a particular youth justice service, such as bail support or specified activities programmes.
Local areas do vary, and we do not consider that the amendment is appropriate on the face of the Bill. We want to allow local discretion and local flexibility. Clause 30(5) already enables a youth offending team to include such other persons as the local authority—that is the relevant local authority—considers appropriate after consulting the police authority, the probation committee and the health authority. This of course allows individuals from voluntary organisations to be included in youth offending teams. Where it is considered appropriate in a particular local area we think it is best left to local decision. I hope, on the basis of that explanation and the firm expression of government policy that we value and welcome the support of voluntary organisations, that noble Lords will not press their amendments.
Moving forward to government Amendment No. 182, this amends Clause 30(5) and, if your Lordships accept it, it will ensure that there is full local consultation before other persons are included as members of youth offending teams. It will require the local authority to consult every police authority, probation committee and health authority in its area before including other 1364 persons it considers appropriate in a youth offending team, rather than simply the bodies mentioned in subsection (4). So we have widened the trawl, as it were, consonant and consistent with what the noble Earl, Lord Mar and Kellie, mentioned. On the basis of that explanation I would invite the Committee to welcome the withdrawal of the amendments of the noble Lords, if they are withdrawn, and to support the Government Amendment No. 182.
§ The Earl of Mar and Kellie
I am extremely grateful to the noble Lord, Lord Williams of Mostyn, for making it quite clear that what I sought to make explicit in the Bill was essentially implicit. It is typical of me, and no doubt typical of him, to have differing approaches to the same issue. I am certainly very keen that with regard to voluntary organisations there should be a "prompt" in the Bill, but I am quite satisfied that there will be and that the organisers will be left in no doubt about the matter. Therefore, I am pleased to beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 29 agreed to.
§ Clause 30 [Youth offending teams]:
Lord Hylton moved Amendment No. 180A:
Page 23, line 9, leave out ("offending") and insert ("justice").
§ The noble Lord said: This amendment is freestanding. It raises a question of what is in a name. The amendment may appear to be a purely drafting one. I believe it goes further than that. The object of the Bill has been stated as being to prevent crime, and this is spelt out not only in the Long Title but also in Clause 28 in relation to youth justice and in Clause 31(3).
§ It would be wrong to give the impression that all young people offend or that youth is by nature offensive. Even in the most crime-ridden neighbourhoods many young people remain essentially law-abiding and I do not want them to be stigmatised. The youth teams provided by the Bill will include members from outside the traditional spheres of criminal justice. The noble Lord, Lord Williams has already mentioned social, health and education services being included and also voluntary organisations. I understand that 14 respondents to the consultation which preceded the Bill emphasised the preventive role of these teams. I then searched for a better word than "offending- because the functions of the teams will be wider than just crime.
§ It seems to me that the teams will be implementing the strategies mentioned in Clause 6 of the Bill and also implementing the youth justice plans outlined in Clause 30. "Justice" therefore appeared to be a better word. Can the Government improve on that, I wonder? Did the consultation which preceded the Bill produce any more helpful ideas? I remain open to alternative wording, but in the meantime I beg to move.
§ 10.15 p.m.
§ Lord Williams of Mostyn
I spoke to Amendment No. 180A when dealing with Amendments Nos. 180 to 182. I believe that I have offered such contribution as I may usefully offer. I ask the noble Lord, Lord Hylton, 1365 to withdraw his amendment. The expression "youth justice team" is already used. For the reasons that I specified earlier we believe that "youth offending team" is right.
§ Lord Hylton
I do not intend to press the amendment at this hour. I beg leave to withdraw the amendment but with the right to return to it possibly at a later stage.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 181 not moved.]
Lord Williams of Mostyn moved Amendment No. 182:
Page 23, line 34, leave out ("represented by the persons mentioned in subsection (4)") and insert ("mentioned in subsection (3)").
§ On Question, amendment agreed to.
§ Clause 30, as amended, agreed to.
§ Clause 31 agreed to.
§ Clause 32 [The Youth Justice Board]:
Baroness David moved Amendment No. 182A:
Page 24, line 22, at end insert ("not less than four of whom shall he representatives of local authorities or police authorities").
§ The noble Baroness said: In Clause 32 we come to the setting up of the youth justice board which will monitor the operations of the youth justice system. Amendments Nos. 182A to 184 make various suggestions as to the membership of the board which can he as many as 12. Amendment No. 182A proposes that four of those members should be representatives of local authorities or police authorities. Both will have a large part to play in the working of this Bill when it becomes an Act. It seems to me that it is only right that they should be well represented on the board. I beg to move.
§ Lord Williams of Mostyn
If it is convenient to the Committee, I intend to speak to Amendments Nos. 182A to 184. I hope that no noble Lord will feel aggrieved if I deal with those amendments en bloc.
§ Lord Windlesham
I intended to comment on Amendment No. 183. I do not know whether it is the intention of the noble Baroness to move that amendment to enable some discussion to take place. If not and the Minister prefers to have contributions now on the whole group, perhaps it is convenient for me to speak to it now.
§ Lord Windlesham
If Amendment No. 183 is not to be moved I should like to spend a few minutes even at this late hour considering the question of whether or not victims should be formally represented. That is not the subject of the amendment moved by the noble Baroness, Lady David, but it is the subject of Amendment No. 183, in the name of the noble Baroness, Lady Anelay of St. Johns. The amendment reads:The members of the Board shall include at least one person who appears to the Secretary of State to have extensive recent experience of working with or on behalf of victims of crime".
1366 In the debates on this Bill both in Committee and on Second Reading very little has been said about victims. However, their interests should be in the mind of everyone who is concerned with any aspect of the justice system. I have spent a good number of years working with Victim Support (the National Association of Victim Support Schemes). For that reason I should like to spend a few minutes this evening drawing attention to the interests of victims and how they should be represented. For several years I have had the honour and privilege of serving as president of that organisation. I declare that interest.
Victim Support has no formal policy on this issue and it eschews adopting political positions, so far as possible, on those matters which are not within its purview. It is entirely desirable that there should be an awareness of the victim's perspective, and that that should play a part in the deliberations of the new national board—an extremely important body.
In the White Paper, the Home Office indicated the representation that there might be on that body—largely the statutory services. I have no quarrel with that; but I say to the Committee, and anyone whose mind is undecided on the issue, that there is a risk of institutionalising victims' interests. One must be conscious of that for the reason that I gave at the beginning: it is not a separate compartment; it is the responsibility of everyone within the system of justice to be aware of the interests of victims of crime and to keep those interests at the front of their minds.
Victim Support workers have clear tasks, recognised by the statutory services, especially the police with whom we work closely. They are available to give their support, practically and emotionally, in the immediate aftermath of a wide range of crimes. Victim Support does not claim to speak on behalf of all victims. It would be a mistake to assume that it should do so. If the Home Secretary should choose to select someone to serve on that board who had a background of working with victims, I would welcome that, but I do not believe that it should be a statutory obligation.
§ Lord Williams of Mostyn
I shall deal, as I said, with the four amendments. I shall start with Amendments Nos. 183, 184 and 183A. They deal with the membership of the board. I do not argue with the thinking behind the amendments, because we agree that the youth justice board should take account of the position and welfare of the victims of crime, and of the perspective of sentencers, but we do not see those as being appropriate on the face of the Bill.
We want—I echo what the noble Lord said—the membership of the board to reflect a broad range of skills and experience relevant to its functions as set out in Clause 32(5); that is, to monitor the operation of the youth justice system as a whole, and to provide advice on that to the Secretary of State.
How the youth justice system deals with the victims of crime, and whether it safeguards their interests, will be an important part of the board's monitoring and advisory role. It is important that the board is able to draw on the views of those working within the youth justice system as to how the system operates.
1367 Clause 32(4) already requires that the membership of the board should include persons with recent extensive experience of the youth justice system. I can assure the Committee that the Government intend that experience of how that system deals with the victims of crime, and of the perspective of sentencers, should form part of the range of experience and expertise which they would wish to see reflected in the membership of the board. We do not believe that it is necessary or appropriate that any particular area of experience or expertise should be highlighted on the face of the Bill.
My noble friend Lady David moved Amendment No. 182A, which also concerns the membership of the youth justice board. It would oblige the board to include at least four representatives of local authorities or police authorities. Again, I understand, I hope, the thinking behind the amendment. Local authorities and police authorities, as well as probation committees and health authorities, will have an important role in delivering the new local structure. They are placed under specific duties in Clauses 29, 30 and 31 concerning the provision of youth justice services, the establishment of youth offending teams, and the drawing up of a youth justice plan.
We recognise that the deliberations of the board should take account of the perspective of these local agencies on the operation of the youth justice system. We want the membership of the board to reflect the range of agencies and organisations involved in youth justice work and the delivery of youth justice services. We are looking for a membership which reflects a broad mix of relevant skills and experience, including people with extensive recent experience of the system.
I revert specifically to the noble Lord's point. We do not intend that the youth justice board should be a directly representative body. Members will have experience and expertise, but they will not be representatives. They will serve in a personal capacity, discharging the functions set out in Clause 32(5) and accountable to the Secretary of State. They will not be representatives of particular bodies or agencies. Although we understand the thinking behind the amendments, we do not believe that they are appropriate on the face of the Bill.
I hope that that commends itself as a satisfactory explanation. We do not want representatives: we want people with relevant experience and expertise. Their particular point of origin may be less important than what they can offer to the board.
§ Baroness David
I cannot say that I am entirely satisfied with the response. However, I understand the point that the Government do not want to have representatives of certain kinds of authorities or people. I still hope that someone with experience of local authorities and police authorities will be on the board because that is extremely important. Having heard the Minister's response, I shall for the time being withdraw the amendment.
§ Amendment, by leave, withdrawn.1368
§ [Amendments Nos. 183 to 184 not moved.]
Baroness David moved Amendment No. 184A:
Page 24, line 33, after ("pursued:") insert—
("( ) how the welfare of children who are either at risk of offending or who have offended might most effectively be promoted:).
§ The noble Baroness said: The amendment aims to clarify the advice which will be given to the board. It emphasises how the welfare of children who are at risk of offending or have offended might most effectively be promoted. We have always said that the welfare of the child should be paramount and I hope that these words can be added to clarify the aims and functions of the board. I beg to move.
§ Lord Williams of Mostyn
We believe that promoting the welfare of children and young people is directly concerned with preventing offending by them. Clause 28 provides for the new principal aim of the youth justice system to prevent offending by children and young children. It requires all those working within the youth justice system to have regard to this aim in carrying out their functions. But Clause 28(2) also casts the net much wider. Under Clause 32(5) the board will have the functions of monitoring the operation of the youth justice system and the extent to which the principal aim is being achieved. It will have the functions of advising the Secretary of State.
We believe that the functions as presently defined will enable the board to consider all the relevant matters, which would include the general proposition encapsulated in the noble Baroness's amendment. We believe that our definitions and aims and the functions of the board which we have defined would incorporate the general principle which she is pursuing. I hope that on that basis she is able to withdraw her amendment.
§ Baroness David
That is a fairly satisfactory reply. I should like to read it carefully at a better time of day, but in the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 32 agreed to.
§ 10.30 p.m.
§ Schedule 1 agreed to.
§ Clause 33 agreed to.
§ Clause 34 [Time limits]:
Lord Falconer of Thoroton moved Amendment No. 185:
Page 26, line 29, leave out from ("section,") to ("shall") in line 31 and insert—
( ) After that subsection there shall he inserted the following subsection—
(6A) The following, namely—
- (i) the person's escape or failure to surrender; and
- (ii)the length of the period mentioned in paragraph (a) above,").
§ The noble and learned Lord said: In moving this amendment, I shall speak also to government Amendments No. 186 and 187 and Amendment No. 188 in the name of the noble Lord, Lord Thomas of Gresford. These four amendments are all concerned with statutory time limits. Government Amendments Nos. 185 and 186 are designed to ensure that the system of statutory time limits provided in Section 22 of the Prosecution of Offences Act 1985, as amended by Clause 34, is not open to manipulation by the defendant.
§ Clause 34 provides that the time limit for the prosecution to complete any specified stage of the proceedings be suspended automatically during any period that the defendant is unlawfully at large and that the remainder of the time limit reapply when the defendant reappears before the court.
§ At present, the 1985 Act provides for the limit to be stopped altogether once a defendant absconds. Clause 34 improves that arrangement by ensuring that the discipline of statutory time limits be maintained right through the proceedings. However, it would be wrong if, by absconding and reappearing after some considerable time, the defendant were to cause such disruption that the prosecution were unable to pick up the threads of the case in the remainder of the time available. This might lead to a breach of the time limit and the staying of proceedings against the defendant, thereby providing him with an incentive to abscond.
§ We cannot necessarily expect the prosecution to keep up to speed on an absconder's case, particularly as there will be no indication of when or if he will reappear. However, we must balance this against the need to ensure that time limits are an effective discipline on the criminal justice system. In many instances the absconding of a defendant will not have any significant impact on the prosecution, who will be able to complete all necessary procedures within the remaining time available.
§ In some circumstances, however, there may be a need for further preparatory work to be undertaken as a result of the defendant's absence; for example, in tracing witnesses or arranging a new trial date. In those cases it is only right that the prosecution should be allowed extra time to carry this out. The determining factor for the courts in deciding whether, and if so by how much, further to suspend the time limit will be the extent to which the prosecution has been disrupted by the absconder's absence and the length of time that he was unlawfully at large.1370
§ I turn to Amendment No. 187, which deals with a different aspect of time limits. Clause 35 of the Bill is concerned with providing additional powers to set time limits for cases involving young offenders. We intend to use the powers in Clause 35 to make regulations which will set more stringent time limits for persistent young offenders than for other young offenders. Government Amendment No. 187 will ensure that time limits between conviction and sentence can be set for all persistent young offenders, including those who are under 18 at the point of arrest but have turned 18 by the time they are convicted.
§ As currently drafted, Clause 35(1)(b) would allow us to set time limits only for those persistent young offenders who are under 18 at the point they are convicted. However, the definition of a persistent young offender adopted by the Government, and set out in an inter-departmental circular issued in October last year, makes clear that if someone is identified as a persistent young offender at the outset of the case—at the point of arrest, or the laying of an information—he should be treated as a persistent young offender for the duration of that particular case.
§ This definition is designed to ensure that where a persistent offender is under 18 at the outset of the process, that young person should be "fast-tracked" from that point on, regardless of whether he or she becomes 18 during the process. Amendment No. 187 is designed to give effect to that and designed to ensure that people do not drop out of the process simply because they become 18 before conviction, but after arrest.
§ Amendment No. 188 is in the name of the noble Lord, Lord Thomas of Gresford. The noble Lord's amendment would allow for extensions to time limits that are set between the point of conviction and sentence. I do not believe that such a provision is necessary. The time limit between conviction and sentence is designed as an administrative time limit. It is not a time limit in the sense that if it is not complied with the proceedings are stayed. That limit, once set, will give a clear indication of the maximum time that should reasonably be allowed for the preparation of any pre-sentence reports and for the court to sentence. In cases involving young offenders, court administrators will be obliged to set the date for sentencing within the time limit, and pre-sentence report writers will be expected to meet that deadline.
§ However, where the date fixed for sentencing arrives and the court is not satisfied that it has sufficient information on which to sentence, the court could decide to adjourn the hearing until a later date. There is, therefore, no need to make explicit provision for the time limit to be extended in advance; the court has that power in any event. The courts will be able to exercise their discretion so that where there have been genuine difficulties an extension may be granted. However, all parties will be expected to do their utmost to be ready to sentence on the date set for sentencing, and the courts will be expected to be rigorous in granting adjournments and in determining the length of those adjournments.1371
§ In setting the time limit—it has not yet been set—between conviction and sentence, the Government will of course take account of the target for providing a pre-sentence report set by the National Standards for the Supervision of Offenders in the Community. The Government also acknowledge the particular issues which arise in preparing pre-sentence reports for young people, especially the need to seek input from family and school.
§ Finally—and this is important—the Government have also made clear that time limits will only be set after piloting and further consultation. Therefore, there should not be any concern that the time limit between conviction and sentence will operate so as to undermine the effective operation of the sentencing process. In the light of that explanation, I hope that the noble Lord, Lord Thomas of Gresford. will not press his amendment. I beg to move.
§ Lord Thomas of Gresford
I am most grateful to the noble and learned Lord for his very full exposition of the point which was raised by way of a probing amendment. One is anxious to ensure that there is sufficient time for the proper inquiries and reports to be prepared as regards the progress of treatment of young offenders. We on this side of the Committee support the concept of stringent time limits so that persistent young offenders can be dealt with swiftly. In the circumstances, I do not propose to press my amendment.
§ On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendment No. 186:
Page 26, line 35, at end insert—
("( ) In subsection (7) of that section, after the words "time limit," there shall he inserted the words "or to give a direction under subsection (6A) above.".
( ) In subsection (8) of that section, after the words "time limit" there shall be inserted the words ", or to give a direction under subsection (6A) above,".").
§ On Question, amendment agreed to.
§ Clause 34, as amended, agreed to.
§ Clause 35 [Additional time limits for persons under 18]:
Lord Falconer of Thoroton moved Amendment No. 187:
Page 27. line 5. leave out from ("person") to ("as") in line 6 and insert ("convicted of an offence who was under that age at the time of his arrest for the offence or (where he was not arrested for it) the laying of the information charging him with it,").
§ On Question, amendment agreed to.
§ [Amendment No. 188 not moved.]
§ Clause 35, as amended, agreed.
§ Clauses 36 and 37 agreed to.
§ Clause 38 [Powers of youth courts]:1372
§ The noble Lord said: I have already spoken to this amendment. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 189A not moved.]
§ Clause 38, as amended, agreed to.
§ Clause 39 agreed to.
§ Clause 40 [Powers of magistrates' courts exercisable by single justice etc.]:
§ 10.45 p.m.
Baroness Anelay of St Johns moved Amendment No. 190:
Page 30, line 30, after ("peace") insert ("who is approved by the bench chairmanship committee").
§ The noble Baroness said: The Committee may have noticed that a grouping was changed rather unexpectedly today. Amendment No. 195 had been grouped with this amendment and was inadvertently ungrouped this morning. I have sent a note to those on the Front Benches and others interested in this amendment. I hope that with the leave of the Committee I may speak to both amendments while moving Amendment No. 190.
§ Clause 40 authorises a number of powers of the magistrates' court to be exercised by a single magistrate and allows the noble and learned Lord the Lord Chancellor to make provision, following consultation with the justices and justices' clerks for an area, for any of the listed powers to be exercised by justices' clerks in that area.
§ I accept that it is appropriate for the powers which are listed in Clause 40 to be exercised by a single justice and that these changes would speed the flow of cases. However, I am concerned to make sure that there is the tightest possible quality control—as it were—exercised when a single justice is sitting. Therefore I have tabled Amendment No. 190 which makes it a requirement that any justice sitting alone to exercise the powers within Clause 40 should be on the list of those approved by the bench chairmanship committee. This would mean that one could be guaranteed that those who sat as a single justice had been approved, having followed the system of appraisal and in-built assessment and training which is required for all newly appointed magistrates and, on a rolling programme, has been applied to all magistrates already appointed. Therefore there would be the guarantee that even if one were very experienced or less experienced, one had met the requirement of the bench chairmanship committee by reaching a certain standard.
At Second Reading I made clear my objections to some of the aspects of this clause. I gave my support for the statement made at that stage by the noble and learned Lord the Lord Chief Justice at col. 561 that,
a clear and categorical distinction be preserved between the role of the justice as judicial decision maker and the role of the justices' clerk as objective, professional legal adviser and, on occasion. administrator".—[Official Report, 16/12/97: col. 561.]
§ I believe that this is a matter of constitutional importance and public confidence. Assessing the defendant and the seriousness of his offence is essentially a judicial matter. The Magistrates 1373 Association has provided a list of issues which it believes fall within the judicial sphere of action. They are liberty or custody; mode of trial; separate or joint trials; assessing the seriousness of the offence and ordering PSRs (pre-sentence reports), ordering a medical report and granting or refusing bail or custody. I believe that the list is correct. The powers listed in Clause 40(1)(a) to (p) are all of different types. Some are formal administrative acts which could indeed be exercised by a justices' clerk but others are quite clearly judicial. I believe that there should be no power to delegate such judicial acts to justices' clerks.
§ My Amendment No. 195 seeks to prevent such judicial acts being delegated to justices' clerks. I have read carefully the submissions made upon this clause by the Magistrates Association and by the Justices' Clerks' Society and I am grateful to the latter for making available to me detailed information about the early administrative hearings pilot scheme at Bexley Magistrates Court. I take note of the fact that there is divergence on some points between these two bodies about the acceptability of the changes proposed by this clause.
§ Subsection (1)(a) refers to extending bail or imposing or varying conditions of bail and would indeed devolve this either to a single justice or to a justices' clerk. But this is indeed a judicial act. It has been argued by the Justices' Clerks' Society that police officers already have power to grant or vary bail with conditions; and it makes the point that justices' clerks are just as competent as police officers. I do not dispute that. But it is not a matter of competence. There simply is not an alternative to the police granting bail after an arrest. This is intended to be a short-term arrangement to keep the defendant in touch until proper arrangements are made. When arrangements are made for proper bail a court should deal with them so that the process is conducted in a judicial setting. My arguments against extending bail under subsection (1)(a) apply also to subsection (1)(p) which grants powers to adjourn a hearing under Clause 41 and, on doing so, to remand the accused in custody or on bail.
§ Subsection (1)(e) grants the power to request a pre-sentence report following a plea of guilty and for that purpose to give the probation service an indication of the seriousness of the offence to both the single justice and the clerk. Before a person can make a decision to call for a pre-sentence report, he must go through processes which are in themselves judicial in nature. He must consider the seriousness of the offence. Does it warrant a pre-sentence report; or can one proceed directly to sentence? And if a report is required, one should give an indication about the level of seriousness. That in itself means one has to go through almost a quasi-sentencing procedure in deciding what sentence might be appropriate.
The Justices' Clerks' Society and the Magistrates' Association are at one on this issue. I quote from the Justices' Clerks' Society paper to us that,
Although it is good practice for a report, where appropriate, to he prepared as soon as possible after a guilty plea is entered, the Society is of the opinion that a clerk should not make a judicially binding judgment as to the seriousness of the offence".
§ That has to be correct.
Subsection (1)(f) refers to the power,
to request a medical report and, for that purpose, to remand the accused in custody or on bail".
Again this requires the exercise of judicial judgment. I note that the Justices' Clerks' Society states that,
Clerks do not wish to he concerned with remands in custody".
§ When one is considering whether or not to order a medical report, one has to pose questions that are not only relevant to the consideration of the case but also as to whether it is essential that an unconvicted defendant should be forced to undergo an interview to prepare those reports; and indeed such a decision could involve custody to ensure that the report is obtained. In such circumstances, bail is commonly granted only on the basis that conditions are attached—again simply to make sure that the defendant complies with the necessity for the report to be compiled.
I am grateful to the noble Lord, Lord Williams of Mostyn, for writing to my noble friend Lord Henley on this point. But I am afraid I am not persuaded by his arguments at this stage. In his letter the noble Lord states that,
In providing for these powers to be extended in this way clause 40 allows them to he restricted…it is appropriate when requesting a medical report a single justice should he able to remand the defendant in custody, but it would not be appropriate for a clerk to do so, and any rules extending that power to clerks would take account of that fact".
First, will the Minister confirm that it is his position that it would not be appropriate for a clerk to grant bail in those circumstances? We should not pass a provision in the Bill allowing powers to be delegated to clerks which plainly should not be delegated to them in the hope that rules will be issued which will prevent them from exercising that power at some stage in the future. All should be absolutely plain in this Bill on so important a matter.
Lastly, I refer to paragraph (o), which would give powers to a clerk,
to give, vary or revoke orders for separate or joint trials".
I shall be brief on this provision; everything that has to be said was said by the Lord Chief Justice at Second Reading, at col. 562. I would argue, as he did then, that this is a judicial decision which should he reserved to magistrates.
§ In this country we have a proud history of service by lay magistrates performing judicial duties. Until recently, I was proud to be counted as one of them. I resigned from that task only because I found that the duties and enjoyment of being in this House meant that I was no longer able to sit regularly on a Friday, which was the only day of the week left to me to sit as a magistrate. So, with regret, I retired from the Bench. The respect that I have for all those who perform that task is unbounded, and I am sure will remain so.
§ I also have great respect for those who carry out the task of a magistrates' clerk. The role of the clerk is to complement the work of magistrates, not to compete with it. Nor, I suggest, is it to supplant that work. The 1375 transfer of judicial powers away from the magistrate to the justices' clerk under Clause 40, for me, is a matter of constitutional importance. I beg to move.
§ Viscount Tenby
I support Amendments Nos. 190 and 195, so ably proposed by the noble Baroness, Lady Anelay. In a sense these are "short straw" amendments. They come at the end of a very long day on which everyone, not least the ministerial team, has withstood a battering ranging from hanging by silk cords to the interception of private telephone calls. My sympathies are entirely with them.
These are important amendments and should not be passed over lightly. I have been a magistrate for many years and I am now on the supplementary list, so I have to declare an interest. I must also declare an interest in the sense that I am consulted from time to time by the Magistrates' Association and also by the Justices' Clerks' Society of England and Wales. So in a sense I am split two ways.
The magistracy has undergone something of a revolution in recent years. I do not refer to the increased training burden occasioned by the volte-faces of previous administrations but of its resolve to ensure that those who sit on the Bench work to the highest standards, are properly trained in accordance with modern techniques, and are annually assessed on their competence in a whole range of appropriate skills.
When the programme started (I remember it very well) there were many hiccups and not a little wringing of hands when some magistrates—often, it has to be said, the senior ones—were found not to be quite up to snuff. But the system is now up and running well and should be used in matters such as this.
Not every magistrate who sits on the Bench is capable of being a chairman. I hope that we shall not take that for granted. Some, indeed, do not want to be chairmen, and find their fulfilment in being good "wingers". And good "wingers" are worth their weight in gold and are greatly to be treasured. If one is a chairman sitting on a Bench, one normally has two "wingers" with whom to conduct business. If the system, rightly, decrees that to be a chairman requires assessment and ratification by a duly appointed chairmanship committee, how much more essential it is that that committee should decide who is capable of sitting alone in the chair. It is absolutely vital.
Some noble Lords—not, I hope, the Minister and his colleagues—may feel that this is merely a technical point. I assure them that it is not, and that the suggested experiment will stand or fall by it.
I now turn briefly to Amendment No. 195, which carries my name, although I am also sympathetic to the general principle contained in Amendment No. 194 in the same field. The noble Baroness expertly enunciated all the various points. I shall therefore not go over them at this late hour. I have already indicated my wholehearted support for speeding up the criminal justice process. It is absolutely vital.
1376 But—yes, my Lords, there is always a "but"—the objections to some of the duties being performed by a single justices' clerk were clearly enunciated by the noble and learned Lord the Lord Chief Justice at Second Reading. It would therefore be almost presumptuous of me to discuss those duties again. I shall refer briefly to just one; namely, the ordering of a pre-sentence report. This is so clearly a judicial function that it is difficult to see how the authors of the Bill could have regarded it as anything else.
In ordering such a report, the court has to make it clear whether the matter is so serious that any future court would be likely to implement a custodial sentence or, if it is serious enough, that any future court would be likely to implement a community sentence. That is a judicial direction given by three magistrates as to the future disposal. Although that future court might be disposed to vary the direction as a result of some fact brought to light by the report, it remains a direction.
I cannot leave this area without referring to something which is not the subject of an amendment but to which I briefly referred at Second Reading. I did not put an amendment down since I was unsure whether I would be able to be here today on medical grounds. At the time of Second Reading I expressed the hope that when or, I suppose I should say, if this part was enacted, the order would make it clear that only clerks and their deputies would be so entitled and not assistant clerks. I should be most grateful to the Minister for an assurance on the point.
§ Lord Goodhart
I rise to express strong support for the amendments which have been moved by the noble Baroness, Lady Anelay of St Johns. In doing so, I believe it would be convenient, particularly in view of the lateness of the hour, if I spoke now to Amendment No. 194 which stands in my name, as well as that of my noble friend Lord Dholakia and the noble and learned Lord, Lord Ackner. There are also four amendments, Amendments Nos. 191, 192, 193 and 196, which stand in the name of my noble friend alone. I do not propose to say anything specific about them, but it might be helpful if they were treated as being included in the debate.
The incentive for moving Amendment No. 194 came entirely from the speech of the noble and learned Lord the Lord Chief Justice on Second Reading. Speaking for myself, I am entirely happy with the powers being conferred on a single justice under Clause 40(1). But the criticisms of the powers conferred or potentially conferred on justices' clerks by Clause 40(2) were extremely impressive. During Second Reading, the noble and learned Lord the Lord Chief Justice, at cols. 561 and 562 of Hansard for 16th December 1997, pointed to paragraphs (b), (c) and (j) of subsection (1) as being "formal, administrative acts" which are properly exercised by a clerk. I suspect he would include subsection (1) paragraph (1), production of a driving licence, in the same category. But he also strongly criticised the power for remanding an accused in custody pending medical report under paragraph (f) and the provisions 1377 of paragraph (e). Without going through each of the paragraphs in detail, it is clear that a number confer powers which should not be exercised by justices' clerks.
Amendment No. 194 standing in my name and Amendment No. 195 contain different lists of powers that are properly exercised by justices' clerks. That is a matter of detail and I do not suggest that my list is the exclusively correct list. I hope that the Government will be prepared to agree that there is an important matter of principle here, that the powers of justices' clerks should be restricted under Clause (40)(2) and that the appropriate method of dealing with the matter would be by consultation before the Report stage of the Bill with the Magistrates' Association, the Justices' Clerks' Society and the Lord Chief Justice.
§ 11 p.m.
§ Baroness David
With the leave of the Committee, it may be sensible for me to speak now to my Amendment No. 196A, which is on the same subject of the possible powers given to the justices' clerks. My amendment would prevent the delegation to a justice's clerk of the power to remand an accused in custody.
Clause 40 authorises a number of the powers of the magistrates' court to be exercised by a single justice of the peace or by a justice's clerk. We agree that there is a case for delegating some of these powers to justices' clerks. For example, powers to extend bail; to mark an information as withdrawn; to discharge a defendant when the prosecution offers no evidence and to appoint (with the consent of the prosecution and defence) an earlier time for the appearance of a defendant on police bail. However, we consider that powers which substantially restrict the liberty of the defendant—for example, to remand the defendant in custody—should not be delegated to justices' clerks, but should be subject to the safeguards of a judicial court procedure.
The clause as it stands would enable justices' clerks to remand an accused in custody when ordering a medical report or when adjourning an early administrative hearing. In its briefing on the Bill, the Justices' Clerks' Society states in relation to this clause,Clerks do not wish to be concerned with remands in custody".This amendment would ensure that clerks were not involved in making decisions of that kind, which restrict the liberty of the subject.
It seems to me that if the Justices' Clerks' Society is not agreeable to what is proposed in the Bill, the Government should take heed. I too am a JP on a supplemental list and therefore have had some experience of dealing with justices' clerks and 1378 magistrates' courts. I feel strongly that this group of amendments is important and I hope that the Minister will listen sympathetically.
§ Lord Williams of Mostyn
It may be that the noble Lord, Lord Henley, was right to de-couple Amendment No. 195 from Amendment No. 190 as it turned out. We have had a useful panoramic review of Amendments Nos. 190 to 194, 196, 196A and 195, and it is a little difficult to answer Amendments Nos. 190 and 195 because the intervening amendments really bite on them, as was indicated in the review which the noble Baroness gave us.
Perhaps I can deal separately with Amendment No. 190 because that seems to be in a category of its own. Essentially it requires that a single justice of the peace would need the approval of the bench chairmanship committee to exercise powers in Clause 40. We agree with the thrust of the point; that is, that it is important that the Clause 40 powers should be exercised only by justices or clerks who are suitably experienced and qualified. The only point of departure is that we do not believe that there is any need for a statutory requirement for justices to be approved. There is no such requirement at the moment in respect of quite wide powers which can already be exercised by a justice sitting alone. We believe it is matter of good practice and does not need to be enforced through legislation. I believe that deals distinctly with Amendment No. 190.
There are then the grouped amendments to which the noble Lord, Lord Goodhart, spoke—Amendments Nos. 191 to 194 and 196—together with Amendment No. 196A in the name of my noble friend Lady David. I do not believe that justice will be done to those concerns at this time of the night, with such a thin Committee. I am bound to say, without giving a commitment, that when the noble Lord, Lord Goodhart, said that it might be time to draw some threads together and further revisit this in consultation with the Lord Chief Justice, the Magistrates' Association and the Justices' Clerks' Association, I felt that there was virtue in that. We want to obtain the best outcome, rather than to make any party political points—which I hasten to add no one has. I do not believe that we will do justice to this, though I shall do my best to deal with the points that have been raised.
I start with Amendment No. 193. This amendment allows prosecution or defence to prevent a single justice from bringing forward the date of a hearing to which the defendant had been bailed by the police. Obviously, common sense would imply that a hearing should not be rearranged for a date when either party will not be ready. But I do not think we really need that in legislation. It is difficult to understand why a magistrate should require the consent of the parties to alter a date originally set by a custody sergeant—not that it has been set by the custody sergeant but has been set without reference to either of the parties. That is the kind of point that may need a little further reflection.
1379 Amendments Nos. 194 to 196 and the starred amendment in the name of my noble friend Lady David, Amendment No. 196A, seek to restrict the powers in Clause 40. Amendment No. 191 goes further and denies to single justices and clerks the power to order a pre-sentence report. I acknowledge the concerns that have been mentioned this evening by those who have experience in this field and I bear in mind the Lord Chief Justice's and the Magistrates' Association's concerns also.
I do not think the point really is whether the powers are administrative or judicial, because justices' clerks already perform, notably in family proceedings, tasks which are plainly judicial. They carry out directions hearings and they order medical examinations. In the letter of 6th February from the Honorary Secretary of the Justices' Clerks' Society to the Lord Chief Justice the point is clearly made. Justices' clerks can carry out directions hearings in the family courts and order welfare reports and medical examinations, including those of an intimate nature. As someone said earlier—who it was I cannot remember—those are plainly not administrative but judicial acts. That is what justices' clerks do at the moment, and I am not aware of any complaint or concern about that.
Mr. Marsh, the honorary secretary, says in the same letter that there is no real reason why, for instance, if a clerk has in the list a person charged with assault occasioning actual bodily harm who pleads guilty, he should not be able to order a pre-sentence report as opposed to transferring the matter to a Bench of justices, simply for them to deal with a request for a pre-sentence report. So I think that all the right is not necessarily on one side of the line in this matter.
The amendments differ but two in particular contain a reference to remanding the defendant in custody. The noble Baroness, Lady Anelay, asked for reassurance. I can say quite adamantly that it is not intended that justices' clerks should be given the power to remand in custody a defendant who hitherto has been on bail. The powers are defined in this way because this is the form in which they are appropriate for a single justice. Under subsection (2)(a) the Lord Chancellor is empowered to specify restrictions or conditions on the powers listed in subsection (1) when they are to be exercised by clerks. One restrictionI give this undertaking—which would certainly be imposed is on the power to remand in custody a defendant who had previously been on bail.
The amendment of my noble friend Lady David removes for the purposes of delegation to clerks the power to remand in custody. This would mean that a clerk could not remand in custody a defendant who had already been so remanded in custody even where both parties agreed. That goes a little further than any restriction we had in mind; that is, a defendant already in custody and prosecution and defence agree to a remand in custody, which is not unknown, particularly in serious cases. However, I bear in mind the concerns that have been expressed and, in respect of the amendment in the name of my noble friend Lady David, I am certainly prepared to consider that matter.
1380 I dealt with Amendment No. 191 in part by citation from the letter from the Justices' Clerks' Society of 6th February. It would take out the power of a single justice to order a pre-sentence report. It is argued that this forms part of the sentencing process.
That would be a stronger argument if it was always the Bench which was to sentence that requested the pre-sentence report. In practice it seldom happens that the magistrates who request it are also the sentencing Bench in its entirety. If the report is quite often requested by a Bench other than the Bench that sentences, it is not obvious that there is any virtue in requiring three magistrates rather than a single justice to make a request.
Amendment No. 192 in the name of the noble Lord, Lord Dholakia, has not been dwelt on. It is a drafting amendment and I shall deal with it quite shortly. We do not believe that it is necessary.
There is no doubt at all that there are important questions here. I do not reject the suggestion put in a spirit of helpfulness by the noble Lord, Lord Goodhart. I do not believe that we have discharged our duty properly to tease out all the intricacies and possible problems or the possible answers to problems this evening. It may well be that we ought to return to them earlier than at ten minutes past eleven on a future occasion.
Viscount Colville of Culross
Before the noble Lord sits down, will he add to his list just one thing? Where bail is opposed by the prosecution there is now an appeal to the Crown Court. It is a matter of urgency and it disrupts a great deal of business. All bail applications are extremely time consuming. I am pretty sure that that also is not a function that ought to be done by a justices' clerk. If it is done by him or her, I suspect that it may be controversial. In the consultation will he think about that?
§ Lord Williams of Mostyn
Of course I will. I think that any suggestion in this particular area is most welcome, particularly from those who practise in the field and who have knowledge of it.
§ Baroness Anelay of St Johns
I am grateful to the noble Lord for his response on all the matters. It was helpful to the House that we were all able to speak to the amendments at this late stage. As the Minister himself remarked, there are indeed important questions which run through all the amendments to which I and other Members of the Committee have spoken tonight. I welcome his recognition that there are still unresolved matters which need, as he said, to be teased out. That is certainly my belief. I have serious concerns about this clause but, like the Minister, I believe that they should be discussed after the Government have had the opportunity to reflect further and particularly to consult with interested groups and 1381 also perhaps to bring forward other measures when the House is more full and the hour is earlier.
§ Lord Williams of Mostyn
Perhaps I may also say that it would probably be helpful if we have informed consultation that these amendments should be grouped together because they all focus essentially on the same general points.
§ Baroness Anelay of St Johns
I thank the Minister and welcome that as well. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 191 to 196A not moved.]1382
§ Clause 40 agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.