HL Deb 02 March 1999 vol 597 cc1576-621

4.35 p.m.

Report received.

Clause 1 [Referral of young offenders to youth offender panels]:

Lord Cope of Berkeley moved Amendment No. 1:

Page 1, line 13, after ("sentence") insert ("or a sentence of electronic tagging").

The noble Lord said: My Lords, I hope it will be obvious from the drafting of the amendment that it is intended to leave the court the option to pass a sentence involving electronic tagging on an offender even though it is for a first offence or in the other circumstances outlined in the Bill. At the moment the court can pass a custodial sentence for the offence or it can dismiss it. However, in some cases the matter is compulsorily referred to one of the new offender panels.

When we discussed this matter in Committee the Government rejected the idea that electronic tagging might be used by the youth offender panel as part of its monitoring process in making sure that the young offender concerned carries out the terms of the contract. Therefore, if youth offender panels are unable to use that device it should remain open to the court in the first instance before the matter is sent to the panel. I still marginally prefer the idea that the panel should have the option of tagging available, but at the same time I recognise that the Minister had a valid point in saying that it was a restriction of liberty and therefore should be confined to the court rather than be given to a panel of that nature.

It is true that the restrictions which can be placed on an offender by a panel through the contract can include the restriction of liberty at least in the negative sense. So the position is not quite so black and white. For the purposes of this amendment I have accepted that electronic tagging is not available to the panel. Therefore, it seems to me that in appropriate cases, when the law otherwise provides for it, it should be available to the court in the first instance. I beg to move.

The Earl of Mar and Kellie

My Lords, I am surprised that the noble Lord, Lord Cope, has returned to this subject. Electronic tagging is a form of limited house arrest. It has the drawback of not having counselling built into it. In fact, the only contact would be with the monitoring staff of the company which supplies the electronic tagging. I agree that electronic tagging is an alternative to custody, but in that regard when a child is held in custody he or she is certainly going to be surrounded by adults skilled in discussing their future with them. Electronic tagging does not have that effect. In any case, I regard it as unsuitable for first offenders. I wonder why the noble Lord, Lord Cope of Berkeley, is trying to extend the list of exemptions from the wisely few compulsory referral conditions.

Lord Windlesham

My Lords, at earlier stages of the Bill I spoke in support of the referral of young offenders under the age of 18 to youth offender panels. It is a policy that has been widely welcomed both inside and outside this House as a constructive alternative to custody or to other disposals that are currently available to magistrates' courts. But how will the proposed new arrangement work in practice?

During the first day of consideration in Committee, again at the initiative of my noble friend Lord Cope of Berkeley, there was some discussion about the compulsory nature of the referral order which would bring the case before the youth offender panel; that is, the panel to be set up by local youth offending teams.

If we examine the first two clauses of the Bill, as I have done with some care, we see that the drafting is elaborate and not at all easy to follow. Why is that? It is because, providing certain conditions are fulfilled, the making of an order is to be mandatory. As a result, many of the conditions are in effect exclusionary. Clause 1(1)(a) states: neither the offence nor any associated offence is one for which the sentence is fixed by law". I shall return to that shortly. If it is such an offence, the young offender is excluded from eligibility for an order. Clause 1(1)(b) states that if the court is proposing to impose a custodial sentence or make a hospital order, the young offender is excluded. The amendment of my noble friend Lord Cope would add a third disposal; namely, a sentence of electronic tagging. We have just heard some well-argued criticism that to do so would add just one more to the existing list, and there may be something in that argument. Clause 1(1)(c) states that the court must not be considering an absolute discharge.

Providing that each of those conditions is satisfied, we then move on, as the magistrates' courts will need to do, to Clause 2. That sets out a second list of requirements to activate a compulsory referral. A young person must have, pleaded guilty to the offence and to any associated offence". He must have had no previous convictions, nor have been bound over to keep the peace or to be of good behaviour. Why is all this necessary? It is necessary because the making of the order is not to be left to the discretion of the court.

In Committee, the noble Lord, Lord Williams of Mostyn, argued, when challenged by my noble friend Lord Campbell of Alloway, that the new order was not a sentence. The Minister said: What makes the new referral order different from the ordinary sentence disposition is that its purpose is not a sentence (full stop)". I pause there. Whether the noble Lord said "full stop" or whether it is a typographical error inserted by Hansard I do not know, but that is what appears in the printed record. He went on: Its intended purpose is to ensure that the conviction of the young offender, who has to be a first offender and plead guilty, will trigger on a basis of mandatory obligation an inquiry into the reasons for the offending behaviour. That is the real importance of the youth panel. It is not a sentence in itself; it is the triggering of an inquiry".—[Official Report, 18/1/99; col. 375.] How does that eloquent reply relate to the wording in the Bill? If we turn to Clause 1(2)(b) we find that if the conditions stated in the earlier sub-paragraphs are satisfied, the court shall sentence the offender for the offence by ordering him to be referred to a youth offender panel". Such action may or may not trigger the subsequent series of events to which the noble Lord referred. However, the wording in what will become the statute, unless it is changed between now and the Bill becoming law, is that "the court shall sentence". If it was intended that the court should make an order, the wording could have been that the court "shall make an order", or simply that the court "should order" the offender to be referred to a youth offender panel.

I hope I am not making too much of a meal of this matter by attaching some broader reflections to the narrower amendment moved by my noble friend Lord Cope. I do so because there is a dangerous trend in criminal policy at present—the most dangerous of all trends in my opinion—towards mandatory sentencing.

For many years, the only sentence fixed by law, which is referred to as one of the conditions precedent in Clause 1(1)(a), was the mandatory sentence of life imprisonment on conviction for murder. But that is no longer the case. As noble Lords will be aware, the Crime (Sentences) Act 1997 authorised three new categories of criminal offence which would attract mandatory sentences: repeat offences of violence, for which there is a mandatory sentence of life imprisonment on second convictions; serious drug offences, for which, on third conviction, there is a mandatory sentence of seven years; and repeat offences of domestic burglary for which there is a mandatory sentence of three years on third conviction. The first two were implemented shortly after the general election in 1997, but the third, the mandatory sentence for repeat domestic burglaries was not brought into force. Many people inside and outside the Prison Service believed that it never would be implemented and that the new Government were understandably being cautious in considering repeal. That is now not going to happen. Totally unexpectedly, in January this year, it was announced that a mandatory sentence for repeat offences of burglary would be implemented, and we await a commencement order to that effect before long.

My reason for speaking at some length on this issue is that I am convinced, and I am not alone in this, that mandatory sentencing is fundamentally wrong. I should be very reluctant to see any extension, although it may seem a trivial matter in the context of this Bill on the treatment of young offenders. Any extension of mandatory sentencing has to be scrutinised in a wider context.

4.45 p.m.

Lord Renton

My Lords, we are indebted to my noble friend Lord Windlesham for his rather full but very relevant comments on the use of the word "sentence" in Clause 1. One asks oneself: when is a sentence not a sentence? It is when the court has not been required to decide the ultimate fate so far as treatment for a criminal act by the offender is concerned. Although my noble friend's comments go well beyond the scope of the amendment, they refer to a matter which should be put right and which could be put right at Third Reading. I hope that the noble Lord, Lord Williams of Mostyn, will bear that possibility in mind.

Having mentioned the noble Lord, perhaps I may express my thanks and say how impressed I am by the lengthy letters he has sent to noble Lords about various matters which were raised at an earlier stage of the Bill and which he promised to consider.

Viscount Brentford

My Lords, I, too, thank the noble Lord for his letters, which were gratefully received. I believe that Clause I would be improved if it included the concept of sentencing. That is a new thought and I look forward to hearing the Minister's comments on it.

Turning to Amendment No. 1, I wonder what kind of offences my noble friend Lord Cope has in mind for which electronic tagging would be appropriate. My view is that the more cases that can be remitted to the panel, the better for these young offenders. I should not like the existence of an option of electronic tagging to result in offenders not being referred to a panel. On the other hand, in cases of offences where a custodial sentence would be awarded and where a panel would not be involved, I should be happier if a sentence of electronic tagging could be awarded instead of a custodial sentence. I should be interested to know what kind of offences would be appropriate for a sentence of electronic tagging rather than a custodial sentence.

Lord Campbell of Alloway

My Lords, I have been in this arena before and I have referred to my abhorrence of mandatory sentencing. I received the answer that it was not a sentence anyway. Having looked at the Bill, that argument does not, with respect, seem wholly viable. I return to the matter because I so much agree with everything said by my noble friends Lord Windlesham and Lord Renton. This is a serious problem. One reverts to the point, which the Government will not accept, that the sentence should be left to the discretion of the magistrates and not be the subject matter of a mandatory penal regime. There is no reasoned answer to that. The process of leisurely, constructive debate, which the noble Lord, Lord Williams, always entertained with such grace and charm, has come to an end. His brief says, in effect, "This is what we are going to do, and we are going to do it because we want to." We have driven into a cul-de-sac. The only way out is that suggested by my noble friend, Lord Renton, with his years of experience. We should return to the matter at Third Reading, try to put it straight and do away with the mass of verbiage in Clause 1(1) and (2) which is wholly unnecessary. Of course, it is necessary to keep the substance of the structure, but it does not have to be so complex and circumscribed with conditions. This is a matter for the discretion of the magistrates. We are in a cul-de-sac and can only seek to bale out of the vehicle and walk our own ways, unless the matter can be dealt with at Third Reading.

Lord Thomas of Gresford

The noble Lord, Lord Windlesham, has helpfully widened slightly the scope of the amendment, which deals with electronic tagging, in an important respect. At Second Reading I complained about the lack of flexibility shown in the provisions for youth offender panels and referral orders. Your Lordships have already pointed out that the sentence is mandatory, but it is mandatory in extremely limited circumstances; namely, where a person is before the court who has pleaded guilty, who has never been convicted previously and who has never been bound over in criminal proceedings previously. That would exclude persons who were subjected to mandatory sentencing for burglary, drug offences or rape, because those are repeat offences and consequently would not come within the scope of these provisions.

My complaint is the lack of flexibility and the imposition of a mandatory referral under the Bill. I believe that this is a matter that must be dealt with at Third Reading.

The Minister of State, Home Office (Lord Williams of Mostyn)

My Lords, I do not treat myself to reading old copies of Hansard, but I have a fairly clear recollection, first, that I did not say "full stop" and, secondly, that what I was saying, in answer to the reasoned points put by the noble Lord, Lord Campbell of Alloway, was that this was not a sentence in the conventional sense. I invite noble Lords, not least the noble Lord, Lord Windlesham, to turn over from page 1 to page 2 where one sees abundant support for what I was—I dare say fallibly—trying to suggest. We find there: the court may sentence the offender for the offence by ordering him to be referred to a youth offender panel". So one has the words, ordering him to be referred", in the Bill itself.

On a more fundamental matter, I entirely understand the point of principle which has been referred to by four noble Lords; namely, what is claimed to be the objectionable aspect of mandatory sentences. I respectfully agree with what the noble Lord, Lord Campbell of Alloway, said. If that is the argument of principle, this is not the amendment to attach it to. This amendment gives a further alternative by way of tagging.

On a point of drafting, there is no such thing as a sentence of electronic tagging, so the amendment would be defective. But that is not the fundamental point, of course.

Coming to the general points about mandatory sentences, life imprisonment for murder remains the only sentence fixed by law. The provision in Section 2 of the Crime (Sentences) Act 1997 is not fixed by law because it is possible for the court, in exceptional circumstances, not to impose the sentence. The same applies to Sections 3 and 4. I do no more than simply point to them; that is the fact.

The noble Lord, Lord Campbell of Alloway, is right. We have a difference of approach. He said that we were driving the vehicle up a cul-de-sac and we ought to bale out. I am not sure that I want to follow that advice, for fear of damage to neighbouring houses. I believe I have made it plain that in the policy we have arrived at we are looking to a fundamental shift in the way the youth court deals with young, first-time offenders. One sees this not only on page 2 of the Bill but also at the bottom of page 1 where Clause 1(2)(b) states: the court shall sentence the offender … by ordering him to be referred to a youth offender panel". It is our policy conclusion—I cannot put it more gracefully because we have reached that conclusion and we intend, unless voted down, to stick to it—that, except where a custodial sentence is imposed or where there is an absolute discharge, all offenders within the category, which, as the noble Lord, Lord Thomas of Gresford, rightly said, is a limited category, should have the benefit of being referred in the way that the Bill provides. The only exceptions are absolute discharge or custody. Plainly, in some cases custody will be necessary, and there may well be cases in which absolute discharge is the appropriate outcome. We do not believe that there is any persuasive or compelling argument to allow curfew orders to be used in the same way. At the moment they are being trialled. They have been trialled since 1995 for offenders aged 16 and over. The power in respect of 10 to 15 year-olds has been trialled since the beginning of last year. Those trials will continue until June of this year. No decision has been made on the extension of those powers nationally. With the greatest respect to the point of the amendment—I put on one side the infelicity of drafting—we do not believe that the point of the sentence should be varied in the way suggested by the noble Lord. We want referral, which means an in-depth consideration at an early stage of an offender within that limited category. Effectively, that means a first-time offender who has pleaded guilty. Experience demonstrates that early intervention can be effective. We do not want it to be an option or something that can be considered. Except in the circumstances of custody or absolute discharge, we want the court to sentence by ordering referral to the youth panel.

I have listened carefully to the arguments that have been put forward. I understand the points of principal difference. As the noble Lord, Lord Campbell of Alloway implies, the probability is that we shall be unable to agree. I hope that I have put that as tactfully as I may. I cannot see any possibility of agreement, unless noble Lords are wholly persuaded by the case that I have put forward.

5 p.m.

Lord Cope of Berkeley

My Lords, this has turned into a rather wider debate than my proposed amendment. I am grateful to my noble friend Lord Windlesham for causing that widening. I apologise for the infelicitous nature of the drafting of the amendment. However, the noble Lord was kind enough not to oppose the amendment solely on those grounds. In response to my noble friend Lord Brentford, I view curfew orders—tagging—as an alternative to custody rather than as an alternative to referral to a panel, although obviously there will be marginal cases in which if the court has flexibility the decision will be based on one of the three options, or any two of them. However, in view of the drafting it is unwise to pursue this amendment too far.

But we are still in a position in which curfew orders are being trialled. Trials have recently been extended to other categories, and the question as to whether or not they will be of great use has not yet been settled. But for certain categories of offenders this Bill rules them out before the trial of the curfew orders has been completed. That arises because of the compulsory nature of this provision in certain circumstances such as those explained by the noble Lord, Lord Thomas. I argued against compulsion at Committee stage. Perhaps we should return to that argument since it is the underlying one.

As to whether a referral of this kind is or is not a sentence, I cannot put my finger on the particular passage in Hansard but my recollection is that the Minister said rather later in the Committee stage that it could be regarded as a sentence if one so wished. Whatever the legal niceties of the wording, I believe that offenders will regard being sent to a panel that requires them to have to pay money—admittedly in reparation rather than by way of an ordinary fine, but they still have to pay money—as a sentence. Alternatively—perhaps in some cases as well—they will be confined to their homes for part of the day and be subject to a curfew, whether or not an electronic tag is attached. For that matter, they must avoid going to other places. All of these matters are available as parts of the contract. They are in the nature of a sentence and will be seen by offenders as such. Whatever the legal niceties, these will be regarded as sentences by the public at large, even if they are not viewed that way by legal minds or the courts themselves. However, I seek leave to withdraw Amendment No. 1.

Amendment, by leave, withdrawn.

Clause 2 [The referral conditions]:

Lord Cope of Berkeley moved Amendment No. 2:

Page 2, line 12, leave out from ("conditions") to end of line 19 and insert ("shall be such conditions as are set out in regulations made under subsection (3).").

The noble Lord said: My Lords, I beg to move Amendment No. 2. Contrary to the suggested groupings, it may be wise to consider also Amendment No. 3 because that is consequential on Amendment No. 2. As we discussed in relation to the previous amendment, I wish to leave it to the discretion of magistrates, or the Crown Court in some cases, whether to impose the new referral in various cases. However, the Minister does not really trust magistrates in this respect and wants an element of compulsion. This amendment has a purpose similar to that of my more radical amendment moved in Committee, but it does not go so far.

The amendment provides that there should not be an automatic referral in the first place under the Bill but allows the Secretary of State, in pursuance of his order-making power, to introduce compulsory automatic referral at a later stage. I believe that that would permit a more gradual introduction of the compulsory element rather than to start with that element on the day that the Bill becomes an Act. I believe that it is desirable to start the compulsory element in a gradual way, if it is to start at all, rather than write it in firmly on day one. We all know that the Secretary of State has power to vary these matters and to move offenders with certain characteristics from "discretionary" to "compulsory" or, for that matter, in the opposite direction. I suggest that the whole of the compulsory part of it should be introduced in a more gradual way. Amendment No. 3 widens the definition of "discretionary" to include all of the guilty pleas in the early stages as part of the re-writing of the Bill in this respect. I beg to move.

Lord Williams of Mostyn

My Lords, I shall follow the example of the noble Lord and speak to Amendments Nos. 2 and 3 together. I deal first with Amendment No. 2. This amendment would remove the compulsory referral conditions from the face of the Bill. As the noble Lord indicated, it introduces a power for the Secretary of State to set compulsory conditions by way of regulations. The flaw here is that Clause 2(3) provides the Secretary of State with the power to alter the conditions set out in Clause 2(1), but this amendment removes those conditions from the clause. Therefore one would be left with a provision which might be regarded as undesirable. We would have in the Bill the power to amend compulsory referral conditions without any compulsory conditions to be amended. I do not think that that would be a useful step forward. That is an important point. It is not simply cosmetic drafting.

I do not think that I can expand on what I said in the quite lengthy debate on the first amendment. We have deliberately targeted this new disposal at the group of offenders we consider most likely to benefit: young, first time offenders, pleading guilty. We believe that we should limit it in that way. We want to direct resources effectively to tackle offending behaviour. That focus has been deliberately chosen, we believe rightly, to fall on first time offenders to have early intervention as soon as possible to break the cycle of offending behaviour.

Amendment No. 3 would have little practical effect, but it would add further to the words in the Bill which have already been criticised as not entirely clear—although I do not accept that. At present the Bill allows the court some discretion to make a referral order where the compulsory referral conditions have not been met. They are specific circumstances which are set out in the Bill.

The court has a discretionary power to make a referral order when dealing with a young person charged with multiple associated offences and entering not guilty pleas on one or more of them provided he enters a guilty plea on at least one of them.

The noble Lord's amendment would take from the Bill the fact that not guilty pleas can be entered and a referral order made under the discretionary referral conditions. It would not alter the power to make orders in such cases since it would only require that the young person plead guilty to one or more offence without ruling out the possibility of pleading not guilty to any other associated offences.

The only consequence of Amendment No. 3 that I can foresee is a degree of confusion created by doubt as to whether not guilty pleas do or do not preclude a discretionary referral order. I am convinced (for what that is worth) that the present drafting is preferable to the alternative formulation proposed in Amendment No. 3.

Lord Cope of Berkeley

My Lords, Amendment No. 3, which I had thought consequential upon Amendment No. 2, brought out a fuller response than I had anticipated. If one were altering the Bill as proposed in Amendment No. 2 it seemed to me essential to alter the wording of subsection (2) to make clear that even though it was not compulsory for the offender to plead guilty to one of the offences nevertheless he could be referred.

The Minister also said that I should have put forward a consequential amendment to subsection (3). I take into account the legal advice that he was kind enough to give me. However, it does not seem to me that the amendment is all that faulty. Subsection (3) states: The Secretary of State may by regulations make such amendments of this section as he considers appropriate for altering in any way the description of offenders". The description of offenders which would remain in the Bill if my amendment were carried would provide that the compulsory referral conditions, shall be such conditions as are set out in regulations". Perhaps the drafting is somewhat repetitive and no doubt could be improved if the Minister were prepared to accept the spirit of the amendment. However, clearly he is not so prepared because he wants to keep the compulsion inherent in the Bill and in the scheme. We have already suggested that compulsion is a matter to which we may wish to return. But for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Lord Cope of Berkeley moved Amendment No. 4:

Page 2, line 33, after ("section") insert ("or of the age limit in section 1(1)").

The noble Lord said: My Lords, the amendment makes clear that the Secretary of State could vary the conditions for compulsory or discretionary referral to include an age limit.

At present the age limit occurs in Clause 1(1) and is not able to be altered by regulations, as are all the other conditions. Therefore all the conditions must apply to a person under 18. It is possible, perhaps likely, that in future the panels may work differently for younger offenders—perhaps those under 16—than for older offenders. The Secretary of State may wish to make referrals compulsory in more cases of those under 16, or some other age. Alternatively, he may wish to remove some of that age limit from the compulsion element.

The amendment seeks greater flexibility with regard to age subject to the fact that the Secretary of State will have to make regulations which would be subject to the affirmative procedure before Parliament. I beg to move.

5.15 p.m.

Lord Williams of Mostyn

My Lords, the referral order is intended to be targeted at the group we think it is most likely to benefit; namely, first time offenders aged 10 to 17. That is why the Bill makes it plain in the Long Title—it refers to the referral of offenders under 18—and in the conditions for making a referral order, to which noble Lords have referred, that it is only available for those under the age of 18.

We are expanding the principles of restorative justice into the youth court. We believe that that is the proper approach in the Bill. We think that young people early in their criminal careers are more likely to respond positively to the panel approach and to be successfully diverted from crime, as I indicated earlier today.

One could not manage the referral order in the way in which we envisage it in terms of adults since the youth offender panel will be organised and serviced by the local youth offender team. I take the noble Lord's point that there may come a time on some other legislative occasion when one might wish to extend that opportunity to adults, but in its Long Title and structure, the Bill is deliberately focused on those who are not over the age of 18.

Lord Cope of Berkeley

My Lords, I am not clear from what the Minister said whether the Secretary of State will have the power to have different conditions for different groups of young offenders under the age of 18—those under 16, or perhaps over 16. Can the Minister indicate whether the Secretary of State will have the power to differentiate within the under-18 age group?

I understand the Minister's argument that he does not wish the youth offender panels to have to deal with those over 18. We had a discussion earlier as to what happens where the offence is committed when the offender is under 18 but during the passage of perhaps a considerable number of months between the commission of the offence and coming to trial the offender passes his 18th birthday and the apparatus of youth panels becomes impossible to use. However, I understand the Minister's assertion that we should not extend this machinery to those over 18. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Making of referral orders: attendance of parents etc.]:

The Deputy Speaker (Viscount Allenby of Megiddo)

My Lords, before calling Amendment No. 5, I should inform your Lordships that if it is agreed to, I cannot call Amendment No. 6.

Lord Williams of Mostyn moved Amendment No. 5:

Page 4, line 45, leave out from beginning to ("to") in line 2 on page 5 and insert ("may make an order requiring—

  1. (a) the appropriate person, or
  2. (b) in a case where there are two or more appropriate persons, any one or more of them,").

The noble Lord said: My Lords, in this substantial group of amendments are Amendments Nos. 5 to 16. Some of the amendments are in the name of the noble Lord, Lord Cope of Berkeley, and some in my name.

Perhaps I may summarise the purpose of the government amendments. Your Lordships will remember that the noble Lord, Lord Cope, raised the interesting question of whether or not—I think I summarise fairly—the attendance of both parents should he seriously considered where appropriate. I undertook to consider the matter and that is the genesis of the amendments to which I am speaking now.

I had some reservations, which your Lordships may remember, about the practical difficulties of insisting in every case that both parents or guardians should be present. It was helpful that the noble Lord, Lord Cope, raised the question. I agreed that we should be encouraging parents to be involved wherever possible and that it would be helpful for the courts to have discretion to order the attendance of both parents where it seemed reasonable and practical to do so. Therefore, the amendments to Clause 5 introduce that discretion.

It will not always be practical for both parents to attend. There may be other family or employment commitments. There will be some cases where it will be feasible, desirable and practical for both parents to attend to support their child through the youth offender panel experience. I repeat my gratitude to the noble Lord for raising the issue. We have reached the conclusion that it is helpful, if the court sees the presence of both parents as positive and constructive, that the court should have the power to order their attendance. That is the purpose of the amendments in my name. That is in relation to those offenders who are under 16, where parental attendance is always required, and for 17 year-olds where parental attendance is considered appropriate.

Clause 5 also addresses the position of those young offenders for whom parental responsibility is with the local authority. In those cases, plainly, the local authority representative should be the key individual required to attend meetings. But in those cases where responsibility has been vested in the local authority but the young person is still living at home with the parent or guardian, the court may well decide that the presence of the parent or guardian would also be of value. Therefore, the effect of the amendments is to include discretion for the courts to order the presence of the parent or guardian in addition to the local authority representative.

I believe that the amendments in the name of the noble Lord. Lord Cope, and the noble Viscount, Lord Astor, are set to achieve the same ends. I do not consider that there is a difference between us. We sought to reflect the spirit of our previous discussion in Committee in what we believe to be properly drafted form.

There is still a concern in my mind about the definition of an offender for whom the local authority may have parental responsibility. We are looking at that as a matter of urgency. I merely indicate that a small amendment may be required with which I shall deal on Third Reading, if that is agreeable to your Lordships. I beg to move.

Viscount Astor

My Lords, we are grateful to the Minister for bringing forward these amendments. It was an issue which I, rather than my noble friend, raised in Committee, although the amendments were in the names of both of us. I am extremely grateful to the Minister for taking on board our concerns. It is important that if both parents are able to attend, they should be encouraged to do so. The government amendments put forward today allow that to happen. However, they allow rather than encourage it to happen. It may be that after Royal Assent the Home Office will issue guidance to the courts in relation to the legislation. If that is so, perhaps it will be possible to include in that guidance encouragement to the courts to have both parents present. The amendment allows it rather than encourages it. Perhaps the Minister will consider that point.

The Minister has accepted the matters which we raised. I should be grateful if he will respond to my point about the guidance. However, we shall certainly accept the government amendments and I shall not move Amendments Nos. 6, 10, 11 and 13.

The Earl of Mar and Kellie

My Lords, at the risk of returning to the debate about when is a sentence not a sentence, in criminal justice social work practice it was routine to explain to offenders who had been placed on orders such as probation and community service orders that they had not been convicted. It was explained that they had not been convicted because they could be resentenced in the event of a breach of the order.

Lord Swinfen

My Lords, there is a small point which is worrying me. Does "parent" include step-parent? Sometimes, in some families, the step-parent has greater responsibility for, and influence over, a child than a divorced parent. There may need to be a slight adjustment to the Bill at the next stage. It is important that the person who is acting as the parent, who may not legally be the guardian, is the person responsible because sometimes he may have the greatest influence over the child.

Lord Williams of Mostyn

My Lords, I always shudder when small points are raised because they are always the ones for which one has no briefing. My immediate reaction—which I am sure is wrong—is that it probably does include that. However, perhaps I may research that and write to the noble Lord. As always, I shall put a copy in the Library.

I was right, and it is not even my birthday. It is included.

Viscount Astor

My Lords, before the Minister sits down, perhaps he will answer my question about the guidance which his department may issue.

Lord Williams of Mostyn

My Lords, I shall certainly give consideration to including in guidance the points raised by the noble Viscount. We are at a very early stage because the Bill was introduced in this House. However, there is no doubt at all that guidance of one sort or another will be useful and I shall certainly bear in mind what the noble Viscount said.

Viscount Astor

My Lords, I am extremely grateful to the Minister for his reply.

Lord Williams of Mostyn

My Lords, I commend the government amendments to the House.

On Question, amendment agreed to.

[Amendment No. 6 not moved.]

Lord Williams of Mostyn moved Amendments Nos. 7 to 9:

Page 5, line 3, at end insert— ("(1A) Where an offender is under the age of 16 years when a court makes a referral order in his case—

  1. (a) the court shall exercise its power under subsection (1) so as to require at least one appropriate person to attend meetings of the youth offender panel; and
  2. (b) if the offender falls within subsection (5), the person or persons so required to attend those meetings shall be or include a representative of the local authority mentioned in that subsection.").

Page 5, line 4, leave out ("Subsection (1) does") and insert ("Subsections (1) and (1A) do").

Page 5, line 7, leave out from ("(5)") to end of line 9 and insert (", each person who is a parent or guardian of the offender is an "appropriate person" for the purposes of this section.").

On Question, amendments agreed to.

[Amendments Nos. 10 and 11 not moved.]

Lord Williams of Mostyn moved Amendment No. 12:

Page 5, line 10, leave out (""the appropriate person" for the purposes of subsection (1) is") and insert (", each of the following is an "appropriate person" for the purposes of this section").

On Question, amendment agreed to.

[Amendment No. 13 not moved.]

Lord Williams of Mostyn moved Amendments Nos. 14 to 16:

Page 5, line 13, leave out ("or") and insert ("and").

Page 5, line 14, leave out first ("a") and insert ("each").

Page 5, line 14, leave out ("and with whom he") and insert ("with whom the offender").

On Question, amendments agreed to.

5.30 p.m.

Clause 6 [Establishment of panels]:

Lord Cope of Berkeley moved Amendment No. 17:

Page 5, line 40, after ("held") insert ("within 10 days of the making of the order or orders").

The noble Lord said: We now move on to the position where the offender has been sentenced or ordered to be referred to the panel, and the panel is about to start its work. The question the amendment addresses is one which we also discussed in Committee; that is, how soon that work should begin. I suggested then that it should be within 14 days of the sentence being passed. When I say "begin" I mean the time when the panel should have its first meeting and commence its work.

The noble Earl, Lord Mar and Kellie, suggested that that should be within three days. There seemed to be some agreement among Members of the Committee that three days was too short a period and 14 days too long. In the amendment I have therefore suggested 10 days.

I believe it was the Minister who said that three days was too short and 14 days too long. However, there was some agreement for that proposition.

Of course, the first meeting should be as soon as conveniently possible, both for the panel and others concerned. That is why I believe that a time limit would be a good idea. It will take time to set up membership of a panel and fix a time for meetings. Members are likely to be busy people with other things to do than just sit about waiting to be called upon to serve on the panel.

In particular, victims will often need a little time. They do not just have to turn up, but have to consider—sometimes very carefully—whether to confront an offender in such circumstances. They will need time to make the necessary arrangements to attend such meetings. They may also need to take advice and be encouraged to attend. They may be reluctant, immediately after a court case, to confront an offender.

Therefore, it seems to me that a reasonable time limit should be set. As I have said, having been told that 14 days was too long, I propose 10 days. I beg to move.

Lord Dholakia

My Lords, we support the amendment. This addresses precisely the point made in Committee by my noble friend Lord Mar and Kellie. Whenever a youngster has been ordered to appear before a youth panel, it is important that the effect of that panel is not lost on that youngster. Therefore, a time factor is important. The sooner the meeting is held—we are referring to the first meeting in this instance—the more importance will be attached by the youngster to the work it will do. We certainly support the amendment.

The Earl of Mar and Kellie

My Lords, after the hard words spoken as regards Amendment No. 1, perhaps I may say to the noble Lord, Lord Cope, that I certainly agree with him on this amendment.

Lord Williams of Mostyn

The noble Lord, Lord Cope, mentioned that we debated similar amendments. If my memory is right, I believe that the time limits discussed varied from three to 15 days.

I sympathise with the motive behind the amendment. We want youth justice delivered as quickly as possible. That is why, in a slightly different context, we are looking to halve the average time it currently takes to deal with persistent young offenders. I underline the fact that I have a good deal of sympathy with the motive behind the amendment and, indeed, the other amendments which varied as regards time.

Reducing unnecessary delay is not the only issue to consider. It is important that the panel meetings should be properly prepared in order to proceed successfully. The noble Lord, Lord Cope, rightly observed that such preparation may include contact with the victim. That needs to be done without delay but must also be approached sensitively as people differ in their reactions to crimes committed against them.

In Committee I stated that this is the sort of issue in which we want to use pilot schemes, and I repeat that. A number of different timescales have been proposed. I suggest to your Lordships that it is unwise to put a particular figure on the Bill. At present, we do not have the experience upon which to reach a soundly-based conclusion. This is exactly the kind of issue that we intend to discuss with those who have relevant professional experience.

Perhaps I may say to the noble Viscount, Lord Astor, that we shall issue guidance in the pilot areas. I suggest that it is best to evaluate the time limits as they appear in the guidance, and as translated into practice in the pilot areas. We will then see, on the basis of practical experience, what time limits are realistic. Once we have carried out that review, it is intended to have national standards to be approved by the youth justice board.

I hope that I have been able to reassure your Lordships. I sympathise with the point behind the amendment. However, at present we do not have the practical experience on which to reach a conclusion. I respectfully suggest that we will be much better informed having seen guidance and pilot schemes in practice.

Lord Cope of Berkeley

My Lords, it is encouraging to have the support of the noble Lord, Lord Dholakia, and the noble Earl, Lord Mar and Kellie, and to have sympathy, at least in principle, from the Minister.

However, the Minister draws attention to the practical difficulties of writing it into the Bill as opposed to the guidance. I believe that point has validity. In the circumstances, I hope that I shall not offend those who spoke in support of the amendment, but I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Cope of Berkeley moved Amendment No. 18:

Page 6, leave out line 2.

The noble Lord said: My Lords, in moving Amendment No. 18 I shall speak also to Amendment No. 19. There seems to be a little confusion or difficulty in the Bill as regards this matter. Subsection (2) states that the panel is to be constituted in accordance with guidance to be given. On the other hand, subsection (5) permits the Secretary of State to make certain regulations regarding who should serve on the panel. It seems to me that it would be better if all matters regarding constitution of the panel were to be found either in guidance or regulations. I would prefer them to be in regulations.

In Committee we discussed the kind of people who might serve on the panel, in particular, magistrates or policemen as suggested in the original White Paper upon which the Bill is based. Those are the type of matters which may appear in guidance or regulations. They may vary from time to time as experience is gained in the management of such panels and the effects are seen. We all believe that there should be a certain flexibility in this matter; that we should not attempt now to fix in stone, or at least in statute, the constitution of the panels. That is why the Secretary of State has the power to vary them. But I would prefer, as the amendment suggests, that the constitution of the panel should be put into regulations. I beg to move.

Lord Williams of Mostyn

My Lords, I do not believe that there is much difference in approach between the noble Lord, Lord Cope, and the Government. We both want to make certain that the individual members of the panels can deal effectively with young offenders and that they are representative of the whole community. Amendments Nos. 18 and 19 seek to make the constitution of panels a matter of regulation rather than guidance.

The Bill already states that each panel shall contain at least three members, of whom one will be a youth offending team member. The constitution of each panel needs to respond to the specific circumstances of the young offender. The pool of panel members therefore needs to encompass a wide range of skills and experience. It will be important to use them flexibly—I agree with the noble Lord, Lord Cope—and to the best effect.

We will have guidance on the constitution of the panels but it will be prohibitive because one needs the flexibility about which the noble Lord spoke. The Bill in its present form allows the Secretary of State to set regulations as to qualifications, experience and any other criteria that people will need to fulfil if they are to become panel members. That is the crucial tool to be used to ensure that panel members are of the right calibre.

I understand the noble Lord's desire to require the Secretary of State to be governed by the word "shall" rather than "may". Perhaps I can indicate, and thus reassure the noble Lord, that we have no intention of allowing panel members to be recruited without setting down clear qualification criteria in the regulations. Thereafter we will have the proper balance between qualification criteria in the regulations—there will not be any recruitment before those are made—and the flexibility on which the noble Lord and I agree in relation to selecting individuals for a specific panel for a specific offender.

Baroness Carnegy of Lour

My Lords, with the leave of the House; I may be forgetting what I heard in Committee and have not had time to look at the Official Report. Can the Minister remind me, and perhaps the House, whether there will be a pool of people known to be available in each area from whom members of the panel can be selected, or whether there will be a fresh search each time the need arises? I am trying to picture how this will work from a pragmatic point of view. Will there be a pool of people suitably qualified according to the definition set out?

Lord Williams of Mostyn

My Lords, yes. There will be a pool of panel members who will have different skills, different experiences and different expertise. Each panel also has to have at least three members drawn from that wider pool, so the noble Baroness is quite right.

Lord Cope of Berkeley

My Lords, the Minister set out clearly his view on the matter and stressed to us that regulations will be made before any panels are appointed. That relates to the wording of Amendment No. 19, which seeks to replace "shall" by "may". With the Minister's reassurance I do not intend to press that amendment.

However, I feel that it is better if the maximum concerning the constitution of the panels, including qualifications, is set out in the regulations rather than in guidance. I am not relying wholly on the fact that a parliamentary procedure is necessary in the case of regulations but not in the case of guidance; it is only the negative procedure, in any case, which is the least control that Parliament can be given over the matter.

That is one aspect, but it is better also if the constitution of the panels is a more formal matter than something tucked away in guidance which can be altered at any point by the Secretary of State. It should be a formal matter; it is a formal arrangement which is part of the regime for young offenders. It should therefore be set out in statutory regulations as much as possible. However, the Minister has gone some way towards reassuring me and those who agree with me, including my noble friend. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 19 not moved.]

5.45 p.m.

Clause 8 [First meeting: agreement of contract with offender]:

Lord Cope of Berkeley moved Amendment No. 20:

Page 7, line 45, leave out ("or otherwise").

The noble Lord said: My Lords, Amendment No. 20 is another modest amendment. It concerns the question of how the panel will ensure that the offender carries out some of the things he is obliged to do. Some of those are set out in Clause 8(2) of the Bill and include making financial reparation. It will be fairly clear whether or not he has done that. But many of the other requirements involve the offender going to a specific place at a specific time—for example, to attend mediation sessions; to carry out work or service; to be at home at times specified in the contract (a sort of curfew); to attend school or another educational establishment, or to attend a place of work.

All those requirements may be part of the contract and at a later stage the panel will have to say, ultimately to the court, whether or not the offender complied with the conditions. However, later on—this is where the amendment comes in—the programme may not provide for the monitoring of the offender's whereabouts, whether electronically or otherwise. I have some sympathy with electronic tagging as a means of monitoring an offender's movements in these circumstances. But if we rule out "or otherwise", the panel will not be able to monitor whether or not the offender has carried out any of the requirements. Indeed, taken to the extreme, nobody will be able to monitor whether or not he has carried out his obligations; for example, whether or not he turned up for school. If the teacher were to call the roll it seems to me that the offender would be entitled to say, "You are not entitled to ask me whether or not I am here and, what is more, you are not entitled to write down whether or not I am here". To do so would be to monitor his whereabouts otherwise than by electronic tagging; in other words, by another means.

It seems to me therefore that if we rule out all other means as well as electronic tagging, we are preventing the proper monitoring of whether or not the offender has complied with his obligations. We should therefore delete the words "or otherwise" so that we are only ruling out, by Clause 8(3)(a), the electronic means of monitoring his whereabouts and leaving the others in. I am not sure what "the others" are, apart from calling the roll in school and the equivalent procedures in the other places where he might have to turn up, but the panels need to be able to monitor the whereabouts of the young offender. I beg to move.

The Earl of Mar and Kellie

My Lords, I have some sympathy with the noble Lord, but a meeting with the supervising officer is not monitoring. I believe that the Bill has in mind the type of human monitoring that has been trialled. In that scheme, the offender was monitored either through visits by monitoring staff at home or a previously agreed place, or by telephone. I quite like the scheme, which does not seem to have proceeded beyond trial. It had the merit of some human contact but perhaps one drawback was that the monitoring staff were untrained, so the counselling contact was perhaps not good enough.

Baroness Carnegy of Lour

My Lords, does the Minister consider that Clause 8(2)(i) means that one alternative of the terms of the programme is: enabling the offender's compliance with the programme to be supervised and recorded"? Or is that paragraph supposed to attach to the whole subsection? There is something strange in the wording. When I first read that subsection, I thought it meant that the terms of the programme might be any of those things, which would enable, the offender's compliance with the programme to be supervised and recorded". If that is the case, monitoring is not needed and can be ruled out. If subsection 2(i) is simply one of the considerations, it seems that one has to monitor or there could be misunderstanding in the wording. One has to find out whether the person has been at school or a mediation session. Does the Minister understand the problem?

Lord Williams of Mostyn

My Lords, Clause 8(2) makes it plain that the terms of the programme may include, provision for any of the following", so any of the provisions (a) to (i) can be included.

The noble Lord, Lord Cope, dealt with his stance on electronic tagging. I understand that is outwith the purpose of Amendment No. 20, so I am not being discourteous in failing to deal with electronic tagging.

We included the phrase "electronically or otherwise" in subsection 3(a) to ensure that the legislation will be sufficiently flexible to accommodate advances in technology. Having seen the amendment, I was concerned that the Bill's wording may be too prohibitive in the way that the noble Lord suggests. By precluding the monitoring of the offender's whereabouts by electronic means or otherwise, we may prevent a young offender team member from checking up on a young person, to ascertain whether they are complying with a particular element of his or her contract. We would not want that consequence and it was not our intention. I am most grateful to the noble Lord for tabling the amendment.

If our preliminary view remains, we will be looking to alter the wording and, if necessary, I will put it right on Third Reading. I am grateful to the noble Lord, not for the first time, for raising an issue that we had overlooked, possibly, because we were focusing on electronic monitoring rather than personal monitoring. I undertake to give the matter further careful thought and, if necessary, come back to it on Third Reading.

Lord Cope of Berkeley

My Lords, I am grateful to the Minister for his response. I am not sure what technology other than electronic could be pressed into service. Perhaps ultrasound, but that would involve electronics as well. The Minister acknowledges that there is a real if small point here, which he will consider. It could be dealt with by including a definition of "monitoring" that would restrict its meaning, to permit the sort of controls that we both have in mind. In view of the helpful nature of the Minister's reply, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn

moved Amendment No. 21:

Page 8, line 35, at end insert ("unless it has already expired.").

The noble Lord said: This group includes Amendments Nos. 22, 23, 24 and 26 and has been tabled to clarify the role of the panel and the powers of the court after the referral period has expired.

In Committee, the noble Lord, Lord Cope, was concerned that the courts might be constrained in dealing with a breach of contract if the compliance period expired by the time that the case returned to court. He was understandably concerned that if the courts could only discharge orders in those circumstances, a young offender who failed to co-operate could evade sentencing. I am happy to reassure the House that that is not the case. The expiry of the compliance period does not constrain the courts. There is no automatic time bar in the arrangements.

Following the noble Lord's intervention, which I again found helpful, we considered again the panel's role at the end of the compliance period. The Bill sets out the expectation that the final meeting will be held before that period expires. The first amendment to Clause 12 strengthens the arrangement by stipulating that the meeting shall be held before it expires. The duration of the referral period and attendance at panel meetings is ordered by the court.

The amendment of the noble Lord, Lord Cope, would have the opposite effect. I cannot see a compelling reason to do anything other than to encourage the team to operate in the most efficient and timely manner, to ensure that all the business with the young offender is completed within the compliance period. The purpose of the final meeting is to consider the young offender's compliance with the contract. If compliance is satisfactory, the panel has the power to discharge the order. Where it is not, the young offender may be referred back to the court for breach proceedings. There will he cases where the young offender fails to attend that meeting, and non-attendance at a panel meeting is one of the triggers for the panel to return the young person to court.

There may be a good reason for the young person's absence—perhaps ill health—and, in all other respects, the young person may have complied in full with the requirements of the order. It would be a waste of the court's time for the case to be referred back, so I have tabled a further amendment to Clause 12 to make it clear that the panel may, where appropriate, discharge the order in the young person's absence. Written confirmation of that decision will follow, as required in Clause 12(2)(b).

Compliance will not always be so clear, however. The panel may have serious doubts about the reasons for the absence of the young offender from the meeting, and may already have concerns about compliance with the contract terms. While the government amendments will preclude the panel from adjourning and readjourning to prolong their discussion with the young offender, they will not preclude the panel from referring the case back to the jurisdiction of the court for the breach to be considered. Where it is agreed that a breach has taken place, the court retains the power to resentence. This is made clear in the amendment to Schedule 1.

In light of the fact that breach proceedings may take place after the period of the referral order, the amendment to Clause 9 clarifies the position with regard to revocation. It makes clear that where formal revocation takes place after the expiry of the referral order, that does not have the effect of extending the period of the order beyond the original expiry date.

The government amendments have been drafted to deal with the noble Lord's concerns, and I hope that they meet his purpose. I beg to move.

Lord Cope of Berkeley

My Lords, I am rather puzzled by the Government's insistence, reinforced by the amendments, that the last meeting of the panel—at which it will take the final decision that an offender has complied with the contract—should take place before the end of the contract period. From memory, I believe that that will be between three and 12 months, and will be set at the time the offender first appears in court. It may end, for example, just after Easter or just after Christmas. Indeed, the only possible or reasonable date upon which to hold the last meeting of the panel falls before the holiday period. Therefore, if it is obliged to be before the end of the contract period, it could actually be quite a long time—some weeks, in some circumstances—before the end of the period. To oblige the panel to make up its mind whether or not the offender has completed all the conditions of the contract over the whole period when there are still some weeks to go seems to me to be unwise.

Ideally, I would want the panels to hold their final meeting on more or less the last day of the period, so that the matter is dealt with promptly. Nevertheless, at the same time, the panels would have the opportunity to see how offenders have behaved during the whole period. If panels are obliged to have such meetings before the time has expired, which seems to me to be the purport of the Government's amendments, they will sometimes have to make a premature decision about the final completion of the offender's terms under the contract.

My amendment would provide that panels could meet after the period has expired. It is perhaps too permissive and it may be that the circumstances in which they would do so should be restricted. However, it does not seem to me to be sufficient just to say that, if necessary, a panel could meet without the young offender concerned being present. If such an offender were available to be present for some reason a day or two after the expiry date, that would seem to me to be perfectly satisfactory and would enable the panel to make a better decision about whether he has complied with the terms of the contract. Therefore, my amendment has a justification over and above the amendments that have been tabled by the Government.

On Question, amendment agreed to.

6 p.m.

Clause 12 [Final meeting]:

[Amendment No. 22 not moved.]

Lord Williams of Mostyn

moved Amendments Nos. 23 and 24:

Page 10, line 36, after ("holding") insert (", before the end of that period.").

Page 11, line 6, at end insert— ("( ) Nothing in section 7(2) prevents the panel from making the decision mentioned in subsection (3) in the offender's absence if it appears to the panel to be appropriate to do that instead of exercising either of its powers under section 7(2). ( ) Section 7(2)(a) does not permit the final meeting to be adjourned (or re-adjourned) to a time falling after the end of the compliance period.").

On Question, amendments agreed to.

Schedule 1 [Youth offender panels: further court proceedings]:

Lord Cope of Berkeley moved Amendment No. 25:

Page 45, line 44, at end insert ("; and (c) where appropriate, may impose an additional sentence in respect of the time of the panel which has been wasted by the behaviour of the offender.").

The noble Lord said: My Lords, we have now moved on to the position where the contract has been completed— or, at least, the contract period has been completed—but the contract itself has not been fully complied with and the offender has, therefore, been referred back to the court for sentencing. As I read the Bill as it stands, the court has to ignore the existence of the panel and what has happened during the period of the contract when deciding what sentence to pass. It has to pass a sentence relevant to the offence and not take into account anything that has happened since that time. I see some logic in that, but it seems to me to be very important that the court should also be able to consider the additional information about the offender which has come to light as a result of his response to the panel and to the contract, to which he agreed; or, for that matter, his refusal to agree to a contract, if he refused.

When the young offender returns to the court the latter is in a position to know more about him as a result of what has happened and should take that into account. Part of the reason for moving this amendment, which would give the court power to impose an additional sentence in respect of the time of the panel which has been wasted by the offender, is to provide some form of assistance to the panel in its work. If my amendment is passed, there would be a bit of a stick behind the purpose of the panel. The offender could not just string the panel along. Some young offenders who will find themselves enmeshed in all this are extremely manipulative. In effect, they will string the panel along to see how long they can get away with it. If they know that, whatever they do, the sentence will be exactly the same as if they had been sentenced in the first place, it seems to me that there will be nothing to deter them from doing exactly what I said. That would be a terrible waste of the panel's time; and we certainly do not want that.

We should bear in mind the fact that some of these cases will have been compulsorily referred to such panels; in other words, if the Bill remains as it is, the magistrates will have no discretion. Such offenders will be compulsorily referred, even if the magistrates suspect that the panel might be wasting its time. If the magistrates prove to be right, there is no way in which the court can allow for that in sentencing. However, I think that there should be, hence the tabling of this amendment. I beg to move.

Lord Dholakia

My Lords, I still fail to see the logic of the precise circumstances that the noble Lord, Lord Cope, has in mind in relation to this amendment. I have sat as a youth court magistrate and I believe that those courts have ample powers to deal with the circumstances that are presented to them. I do not think that one needs any draconian measures. Indeed, there may be special circumstances where the youngsters who appear before the youth panels are given a contractual obligation and yet are unable to meet it. I shall give your Lordships an example. If someone is made the subject of a probation order and is unable to meet the requirements of the Probation Service, he will be brought before the court, which has ample power to deal with the situation.

We discussed youth panels earlier. However, there may be borderline cases where, for example, they fail to make a hospital order. There may indeed be other borderline cases where it is right and proper to say that youngsters make use of some of the provision that has been agreed with the youth panel, but that may be very difficult in relation to certain individuals. There may be those who abuse drugs, who are brought before the panel and given a contractual obligation, and yet may not be able to meet it because of the very condition from which they suffer. I do not believe that the courts require additional powers for them. They can take into account the circumstances as presented to them. The powers are there and they can sentence the youngsters accordingly. I cannot support this particular amendment.

Lord Monson

My Lords, before the noble Lord sits down, does he agree that the amendment uses the word "may" and not "must"? I believe that that answers the reservations that he has expressed.

Lord Dholakia

My Lords, I thank the noble Lord for that observation. I wish that I had the same confidence in the ability of all magistrates to distinguish between the two.

Baroness Carnegy of Lour

My Lords, surely the sentencing of a young person is done in the normal way, taking into account how that particular young person is likely to react to a certain sentence. More will be known about how a young person will react to a sentence because of the experience of appearing before the panel, and his reaction to that, than was known before. I should have thought that it would be very difficult for a court not to take that into account to a certain extent. I am not quite sure whether the underlying philosophy—that an attempt should be made to make a referral to the panel before someone finally appears in court—necessarily precludes that. I believe that the Government are a little unwise to assume that it is unnecessary to take account of what has happened during the referral period or, indeed, even to ask about it.

Lord Williams of Mostyn

My Lords, when a young offender breaches the terms of the contract and it is determined that the non-compliance is unreasonable, the court has to consider re-sentencing. I believe that the noble Lord, Lord Dholakia, is right in saying that in those circumstances the court will re-sentence in respect of the original offence with the full range of sentencing powers that they would have had there been no referral order.

This amendment seeks to give the court power to make an additional sentence in respect of the time the panel may have wasted. I do understand the noble Lord's arguments, but I cannot accept his amendment. Breach of a referral order is not an offence. It is an indication that the referral order is not working in that case. In the worst cases, when it is plain that there is no prospect of co-operation, we would expect—and I take the point of the noble Lord, Lord Cope of Berkeley, here—that the offender would be brought back to the court with the minimum of delay and the minimum therefore of wasted time on the part of the panel, and we intend to ensure through clear guidance that young offenders are given the minimum opportunity to manipulate the panel or give the panel the runaround, as the noble Lord, Lord Cope, indicated.

It is important to bear in mind that the breach of the referral order is not the offence for which the offender is being sentenced. The offender is being sentenced for the original offence for which the referral order was made and has then failed. We do not think therefore that what the noble Lord, Lord Cope, proposes is acceptable, but I stress that we intend to have clear guidance about prompt returns in cases of failure to co-operate.

Lord Cope of Berkeley

My Lords, I should first like to reassure the noble Lord, Lord Dholakia, that I was not proposing that it should be automatic that an additional sentence would be imposed. I am only proposing that the court should have the opportunity to do so. As I read the Bill, the court at the moment cannot take into account even the most obstructive and difficult behaviour of the offender towards the panel. The Minister seemed to be confirming this by saying very firmly that breach of a referral order is not an offence in itself and should not lead presumably, therefore, to any alteration of the sentence which is imposed on the young offender. However, I am grateful to the Minister for assuring us all that the guidance will provide for the minimum of manipulation (if that can be done), and in particular for the offender to be brought back to court quickly if that seems to be the way in which it is all going. Such a provision would be less necessary if there were not compulsory provisions on the magistrates, but that, as we have already said, is an argument for another time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 26:

Page 45, line 46, at end insert ("; but those powers are exercisable even if, in a case where a contract has taken effect under section 8, the period for which the contract has effect has expired (whether before or after the referral of the offender back to the court).").

On Question, amendment agreed to.

Clause 16 [Witnesses eligible for assistance on grounds of age or incapacity]:

6.15 p.m.

Lord Swinfen moved Amendment No. 27:

Page 12, line 27, leave out ("17") and insert ("18").

The noble Lord said: My Lords, this amendment is in the name of the noble Lord, Lord Rix, as well as my name. Unfortunately the noble Lord is not well and is unable to be here this evening, but I am sure that he would have moved the amendment much better than I can.

At Committee stage a similar amendment was introduced by the noble Lord, Lord Dholakia. The noble Lord, Lord Rix, supported it on the ground that this new legislation ought to be in line with the age limit of children to be found in the 1989 Children Act. I also supported this amendment and noted the inconsistency between the Long Title of the Bill, which refers to offenders under 18, and this clause, which now deals with witnesses and which stipulates 17 as the upper limit of childhood.

The Minister responded positively in discussion at that stage, indicating that protection would be afforded to 17 year-olds with disabilities and to 17 year-olds in circumstances in which there were legitimate concerns of intimidation. However, I am still concerned about the majority of 17 year-olds which will include some with mild learning disabilities who do not fall into either of these categories, yet may be considered vulnerable solely on account of age. It seems to me that their position remains ambiguous unless this amendment is accepted. In my view 17 year-olds should be considered children. I beg to move.

Lord Renton

My Lords, I would like to support my noble friend on this amendment. We are getting into a rather strange position and I am not blaming the Government. It is partly due to the previous legislation. When we discussed the difference between Northern Ireland law and the law of England and Wales as regards the definition of youth—and I am grateful to the noble Lord, Lord Williams of Mostyn, for the long letter that he wrote to me on the 25th February, explaining all this and giving the background—we found that the age limit for youth in Northern Ireland is 17, whereas in England and Wales it is 18.

Here we have the question of what I call delicate witnesses suffering from mental disorder, impairment of intelligence and physical disability, and there we are referring to the age of 17. I feel that it is somehow very artificial that we should have these different ages for different circumstances when dealing with the criminal law relating to youth. The circumstances that are different (on the one hand living in Northern Ireland or in England and Wales and, on the other hand, suffering from some slight impediment) do not seem to me to justify the differences in the age limits. I hope it is not too late for the Government to consider the desirability of being consistent and it is for that reason that I support this amendment.

Lord Williams of Mostyn

My Lords, I sympathise with the desire for certainty and indeed consistency, as the noble Lord, Lord Renton, said a moment ago, which was I think raised when we discussed this matter in Committee. There is obviously a period of time between true childhood and adulthood and (the noble Lord is quite right) Parliament has not produced consistent outcomes.

As I said on the earlier occasion, a girl is able to give consent to sexual intercourse at the age of 16, in other words before she can drive a car; she can buy cigarettes before she can buy drink; and she can be held on remand with adults before she is eligible to be tried for a minor offence in an adult court. There are discrepancies undoubtedly. What we have done here is to adopt the age limits for young people set by Parliament only eight years ago when we passed the Criminal Justice Act 1991, which is of course two years after the Children Act 1989. At that time Parliament agreed that the age limit for treating a witness as a child for the purpose of privileged access to special measures, like video recording or live-link, should be 17 in sexual offence cases and 14 in cases involving violence. It also agreed that the age limit for treating an offender as a child for the purpose of being dealt with by the court, or a witness as a child for the purpose of reporting restrictions, should be set at 18.

I recognise the case that the noble Lord has made for a comprehensive overhaul of age limits. However, I do not think this Bill is the vehicle in which to do that because the discrepancies—as the noble Lord. Lord Renton, indicated—are dotted about a considerable body of legislation. I am happy to say that my resistance to this amendment does not, of course, mean that 17 year-old witnesses cannot have access to special measures. The Bill allows 17 year-olds to claim eligibility for special measures on the grounds that intimidation, disability or disorder, or the nature or circumstances of the offence, will otherwise reduce the quality of the evidence they have to give. I recognise that if one wants perfect symmetry, one can take examples from other Bills. However, if one wants to aim for perfect symmetry underpinned by a wholly consistent approach, this Bill does not constitute the opportunity to do that.

Lord Renton

My Lords, before the noble Lord sits down, of course he was justified in referring to age limits of various kinds, right down to the age of 14, in other circumstances mentioned in other Bills, but here we are dealing with an important matter within the scope of this Bill alone—leaving aside the other Bills—in which we should try to achieve consistency. It is relevant to mention that we are now going to re-establish a Northern Ireland parliament. Knowing the people of Northern Ireland as I do—and whom I have good reason to know through my responsibilities in the past—I should have thought that the people of Northern Ireland might be rather resentful if they find that there is a disparity between the definition of youth for the purposes of this Bill in this country and its application to similar circumstances in Northern Ireland.

Without doing what the noble Lord, Lord Williams of Mostyn, said might be done—namely, going right across the statutes in order to achieve consistency—here is an outstanding matter in which I suggest that an attempt could and should be made in this Bill. The Bill, of course, will have to go to another place. Therefore there is plenty of time for the Government to think about it. I hope that before the Bill receives Royal Assent that may very well be done.

Lord Swinfen

My Lords, like my noble friend I hope that the Minister and those who advise him, and also the Ministers in his department in the other place, will give this matter further serious consideration because it is an important matter.

Lord Cope of Berkeley

My Lords, before my noble friend sits down, will he reflect on the fact that the Minister says that we cannot put all the inconsistencies right in this Bill? However, that is not necessarily a reason for adding another inconsistency by means of this Bill.

Lord Swinfen

My Lords, I entirely agree. The Minister has been helpful in some respects in replying to this amendment but, as I said, I hope that he and his advisers will reflect upon the matter further and that before the Bill finally completes its passage through both Houses of Parliament the Government will bring forward an amendment of this kind. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Annaly moved Amendment No. 28:

Page 12, line 38, at end insert— ("(c) that the witness is deaf and will require a sign language interpreter for the purposes of giving evidence.").

The noble Lord said: My Lords, Amendment No. 28 is also supported by my noble friend Lord Swinfen and the noble Lord, Lord Ashley of Stoke, who is not able to he present today. He supports the amendment strongly. I wish to speak also to Amendments Nos. 29 and 44, which also stand in my name and those of the two other noble Lords I have just mentioned. They are all connected and they concern profoundly deaf people who rely on sign language to communicate.

This matter is particularly relevant in the context of a court. 1 must declare an interest. I have a stepsister and a halfsister who are both profoundly deaf, one of whom is under the wing of the RNID in Blackburn. The RNID has been kind enough to brief me on these amendments. I declare another interest in that the RNID and British Telecom have sponsored two text phones for me, one of which is in my office in this House. Should anyone wish to communicate with a deaf person, they should feel free to use the phone in my office. I believe it is the only such phone in this House, believe it or not.

I can speak quickly to Amendments Nos. 28 and 29. I believe it is justified to mention on the face of this Bill deaf people who rely on sign language because they are a vulnerable category of people. They may suffer from a mental disorder, as is mentioned in Clause 16(2). I propose to include a further provision. Deaf people may look quite normal but if they cannot hear and have never heard a thing since they were born, I need say no more about how vulnerable they are. Amendment No. 29 proposes to insert the words, "the means of communication" in the Bill. That speaks for itself.

That leads me to Amendment No. 44, which requires a little more explanation. It concerns the case for video recording all sign language communication within a court. The case for video recording all sign language that occurs within a court—whether by a deaf person or an interpreter—is quite simple. Without video recording a mistake can occur in interpreting which can never be corrected as sign language is a visual-spatial language. At the very best audio recordings or written accounts are simply a record of an interpretation. The video taping of all communication by sign language within a court is therefore the most basic safeguard to ensure that mistakes in interpreting can be picked up. It is a simple step to ensure that justice occurs for both deaf and hearing people.

The case for video taping is strong. I wish to highlight research which was carried out two years ago by the Deaf Studies Research Unit at the University of Durham. In the report, Equality Before the Law—Deaf People's Access to Justice, the authors state, Yes, interpreters make mistakes. They make wrong decisions. We have certainly observed such errors. Sometimes they have been resolved quickly, at other times they have been ignored. Some errors could have grave consequences. It is generally agreed that it is almost impossible to interpret for any period of time without making some type of error. It is even more likely that the interpreter will make several debatable decisions. When we consider the number of court cases involving deaf people that will proceed with just a single interpreter and with no one in the court who actually knows what they are doing, how competently or incompetently they are proceeding, then this must give all those who have an interest in justice cause for concern". It therefore comes as no surprise to learn that a key recommendation of this study is that in all stages of legal interaction a video recording should be taken. The video recording within courtrooms at the very least would be easy to undertake and would cost little, yet such a step would do much to ensure that mistakes could be corrected and equality before the law obtained for deaf people. I beg to move.

6.30 p.m.

Lord Swinfen

My Lords, I support this group of amendments. With regard to Amendment No. 28, one of the circumstances set out in Clause 16(2)(a)(i) is, suffers from mental disorder within the meaning of the Mental Health Act 1983". A profoundly deaf person may suffer from that, but most deaf people do not. Sub-paragraph (ii) states: otherwise has a significant impairment of intelligence and social functioning". Just because someone is profoundly deaf does not mean that he is not intelligent. Some profoundly deaf people are extremely bright. Neither does it mean that they have an impairment of social functioning. Subsection (2)(b) states: that the witness has a physical disability or is suffering from a physical disorder". As far as I am aware, profound deafness is not a physical disability or a physical disorder; it is a sensory disability. The Minister and his advisers should look at this part of the Bill in that light. The same also applies to Amendment No. 29.

With regard to Amendment No. 44, my noble friend pointed out that it is essential to have a video recording of the sign language interpretation. There are relatively few interpreters of sign in this country and some are better than others. In answer to a question the other day, the noble Lord the Minister, when talking about video recording police interviews which can be brought into the criminal proceedings in court, mentioned that it was perfectly satisfactory to have a sound recording of that interview. That would be perfectly all right for those who can understand the spoken word; a profoundly deaf person cannot understand the spoken word. He may be able to lip read but there will be no effective video recording of the lips of the people speaking—certainly not of the profoundly deaf person.

There should be excellent video recording facilities in these instances. If excellent ones are not available—the noble Lord the Minister was talking about the costs and said that not all police stations have recording equipment—I should have thought that it would be possible, because there are so many camcorders around today, to borrow one and even to get someone in—and, if necessary, put them under oath not to reveal what has gone on—to video record the profoundly deaf person's signing and the signing of the interpreter translating. If there is a sound recording of someone translating from, say, Chinese into English, that can be corrected later on. There is no alteration. But it is no good having a sound recording of a sign language interpretation. It makes no sound. Therefore, it is essential to have a video recording of it. Such an occasion will come up rarely, but it is important. I hope that the Minister will give serious thought to this matter when he is considering, the amendments. I sincerely support my noble friend's amendment.

Lord Cope of Berkeley

My Lords, I, too, support my noble friend's amendments. It seems to me that it might be possible to define physical disability so as to include deafness and sensory disability within that term. I accept that it is not generally regarded as within that term and that is. after all, crucial to the amendment. If it were within that term, there would be no need for Amendment No. 28 and, I suppose, Amendment No. 29. Nevertheless, there is no doubt that profoundly deaf people suffer from a disability which prevents them from giving evidence in the normal way.

Similarly, as my noble friend has said, it is absolutely useless to have a tape recording of sign language. It would not show anything. The video recording is essential in such cases, as drafted in Amendment No. 44.

Viscount Brentford

My Lords, I support this group of amendments. The impression I get is that errors may creep in with the sign language. The nearest analogy is that of the third umpire that one now has at important cricket matches; someone who can study a video of what actually took place and then give a clear impression of whether a person is out. On that kind of analogy, it seems to me that there should be a video recording so that people can subsequently make sure that what the witness has said has been correctly interpreted by the court. While I appreciate the problems of not always having the recorders available, it is something towards which we should be aiming.

Lord Williams of Mostyn

My Lords, the Trials Issues Group looked at the difficulty of those who are deaf in court and the entitlement of deaf witnesses to a sign language interpreter is perfectly plain. The Bill does not affect that. That is by way of background.

My advice is that Clause 16(2)(b) covers deaf witnesses, including those who are deaf by virtue of neurological disability, a point raised by the noble Lords, Lord Swinfen and Lord Cope. The advice I have is that deaf witnesses are covered by Clause 16 (2)(b). I must underline that the guidance we propose to provide will make that abundantly clear.

If deaf witnesses have a problem in communicating they may have great difficulty in giving their evidence in the way they would wish. Distress can be considered as an effect of disability, which should be considered under Clause 16 rather than Clause 17. I repeat what I said in Committee. It is perfectly possible that applications for special measures can be made under both Clause 16 and Clause 17 and they can be granted under both. I repeat: the application needs to set out why the witness was eligible for special measures and what special measures were needed with reference to either or both Clauses 16 and 17.

Under Clause 17, the court may consider whatever factors it thinks are relevant. The clause sets out a list of factors which must be particularly taken into account, but it is not an exhaustive list. The court will consider the factors under Clause 17(2)(c) if they seem to be relevant. I therefore do not think that the first two amendments are needed.

As to the question of the video recording of sign language interpreting in court, increasingly, experience shows that the sign language interpreters are accredited. That is not a perfect answer because not all of them are, but I am told that most of them are accredited and those who are not are normally recommended to the court by those who are properly able to judge their competence. At present, the video recording of proceedings in court is contrary to Section 41 of the Criminal Justice Act 1925. It is covered by the general prohibition in Section 41.

What I can do, and what I am happy to do, is to say that I will consider—I am dealing now with Amendment No. 44 because it is rather different—the matter with the Lord Chancellor's Department. Whether it will have a view that is agreeable to the noble Lords, Lord Annaly and Lord Swinfen, who put forward the amendments—and did so very moderately—I do not know. I certainly undertake to look at that, perhaps get some indication of the extent of the problem, and see whether the Lord Chancellor's Department has a view, hearing in mind that it is essentially within the remit of the Lord Chancellor's Department rather than the Home Office as it concerns the conduct of a criminal trial.

Lord Swinfen

My Lords, before the noble Lord sits down. may I say that my understanding is that examination-in-chief can take place over a video recording. I am speaking now as a layman. I am not a lawyer. If I use a wrong expression I hope that the noble Lord will forgive me. I understand that with a vulnerable witness the video recording of the first interviews at the police station can be used in court as primary evidence.

I was suggesting that it is necessary to examine the sign language given by the profoundly deaf person at the police station, which may be accompanied by the signing of an interpreter who may have been engaged at short notice and therefore may not be perfect. The situation may become fairly heated and excited as the profoundly deaf person is asked awkward and sometimes most unpleasant questions. They may have been the victim of an assault and be still upset. It is essential that there is an opportunity to examine the very first signing which one can do with a verbal recording. But that cannot be done with a person who speaks through sign only. There is that aspect of the matter as well as the court aspect. I appreciate the noble Lord's view that at the moment it is illegal to video in a court room. I appreciate that the noble Lord will take up the matter with the noble and learned Lord the Lord Chancellor. The initial recording at the police station is as important—possibly even more so—than at court.

Lord Williams of Mostyn

My Lords, I appreciate that this is Report stage, but I believe that the noble Lord is entitled to a full response to that latter aspect of the matter. When I answered the noble Lord, Lord Annaly, recently, I was not simply saying that an audio recording would be of benefit to the person at the police station who was profoundly deaf. I underlined that the audio recording would be available and also a signed, written record. That was the second part of my answer, which the noble Lord may have forgotten. I was careful to do that. I take the point that technology is available and that one can have split-screen recording so that one has a view of the suspect or the questioned person's demeanour as well as of the actual signing. I shall certainly consider it with the Lord Chancellor's Department. I do not know whether we will come to a conclusion that is satisfactory to noble Lords who have urged this course. I shall certainly consider the matter carefully.

Lord Annaly

My Lords, I am very grateful to the Minister for his reply which offers hope. The noble Lord can do no more than talk to the Lord Chancellor and use his powers of persuasion. As regards Clause 16(2), the noble Lord said that he did not agree to the amendment. My concern is that the magistrate, judge and, if necessary, the jury may not perceive a perfectly normal, but deaf, person as a vulnerable witness. That is why I asked for that particular amendment to be included in the Bill. The noble Lord said that he would mention the matter in the notes for people to see. My suspicion is that when something is included in the small print people do not necessarily refer to it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 [Witnesses eligible for assistance on grounds of fear or distress about testifying]:

[Amendment No. 29 not moved.]

Clause 18 [Special measures available to eligible witnesses]:

Lord Williams of Mostyn moved Amendment No. 30:

Page 14, line 9, at end insert— ("( ) The withdrawal of a notice under that subsection relating to a special measure shall not affect the availability of that measure in relation to a witness if a special measures direction providing for that measure to apply to the witness's evidence has been made by the court before the notice is withdrawn.").

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 115 to 119 and Amendments Nos. 121 and 124. We have laid these amendments relating to transitional provisions. The reason is that not every special measure is likely to be made available on the same date to every eligible witness in every court area, in the magistrates' courts as well as the Crown Court.

Implementation plans are being considered by the project groups established under the supervision of an inter-departmental steering group led by the Home Office. We are concerned to produce an integrated programme for all the 78 recommendations of the Speaking Up for Justice report. We are likely to have advice by the end of April.

We would not want to lead witnesses to believe that they could benefit from the new measures in Chapter 1 of Part II of the Bill, especially before a training strategy has been implemented, guidance has been produced and the necessary equipment is in place. It may be necessary to commence this chapter early to allow for pilot arrangements. I emphasise that no detailed decisions about timetables and approaches have yet been taken. We simply want to allow the maximum flexibility.

Therefore, until full implementation, there will be a continuing need to rely on existing provisions such as Sections 32 and 32A of the Criminal Justice Act 1991, which provide for video and live link evidence from children. There will be a continuing need to rely on the common law power of the court to arrange for such measures as taking off wigs and gowns; for screens, sign language interpreters and signboards. The amendments are essentially designed to ensure that in the earlier stages the new arrangements and the old are able to run side by side. They also provide for the situation where a notification that a measure is available to a court is withdrawn by the Secretary of State. The amendment provides that witnesses who had been awarded the measure through a special measures direction before the measure was withdrawn would still be able to benefit from them.

The amendments also provide that we can commence rule and order-making powers provided for by both parts of the Bill before commencement of the substantive provisions to which they relate. This is an administrative device but it should enable us to bring in measured and effective implementation of the substantive provisions in the Bill when their time comes. I beg to move.

On Question, amendment agreed to.

Clause 19 [Special measures direction relating to eligible witness]:

Lord Swinfen moved Amendment No. 31:

Page 15, line 4, leave out ("might tend") and insert ("would be likely").

The noble Lord said: My Lords, this amendment is a redraft of an amendment introduced at Committee stage to ensure that special measures are not ruled out by judges unless there are good grounds to do so. As currently drafted, special measures can be rejected on the rather loose grounds that they might tend to inhibit the evidence. The Minister warned of the need for a balancing act between protecting the witness and allowing the court discretion in such matters. That is why he did not support the earlier amendment which he considered went too far in favour of the witness. I hope that this redrafting of the amendment will be a compromise solution sustaining the balancing act that the Minister is so keen to safeguard. I believe that the amendment strengthens the verification conditions of the clause creating a slightly stronger burden of proof in line with the test on the balance of probabilities without denying the court discretion in such matters. I beg to move.

Lord Williams of Mostyn

My Lords, I am sorry that I cannot accept the amendment. The courts have to ensure that the witnesses' evidence is properly examined and that they do not set up obstacles to its being challenged by a party to the proceedings. That is why we believe that we have got the balance right in Clause 19(3)(b) which provides, whether the measure or measures might tend to inhibit such evidence being effectively tested by a party to the proceedings". If the court has any doubts about whether it will be possible to test a witness's evidence adequately if the evidence is going to be given with a special measure, which may sometimes be difficult, the court should not award the measure. I believe that conflicts will be rare. Special measures are designed to improve the quality of a witness's evidence. They are not designed to prevent the evidence that the witness gives from being challenged.

The phrase introduced in the amendment, "would be likely to inhibit", would require the court to decide whether it is likely, on the balance of probabilities, that a measure would inhibit a witness's evidence being tested. If it considered, for example, that there was a one in three chance that it might be inhibited—a substantial risk, but still more unlikely than likely—then, if it followed the test strictly, it should award the measure.

"Might tend to inhibit" would allow the court to refuse measures where there is a real risk of inhibition but the risk is not so high that it is more likely than unlikely. "Tend to" caters for a more general interpretation of inhibition in the context of the wider circumstances of the case.

We have doubts as to whether this amendment would be capable of being upheld because of the conflict with Article 6 of the European Convention on Human Rights, whereby everyone charged with a criminal offence has the right to have witnesses against him examined, and to have those who are called on his behalf examined under the same conditions. That is a point that I include in the debate; it is not determinative of the Government's response. We simply think that the balance referred to by the noble Lord, Lord Swinfen, is about right in the present phraseology.

Lord Swinfen

My Lords, this is possibly a matter of six of one and half a dozen of the other. The language is very close. But language tends, and is likely, to change over the years. However, I thank the Minister for the trouble that he has taken in replying. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 [Further provisions about directions: general]:

Viscount Astor moved Amendment No. 32:

Page 15, line 44, at end insert— ("( ) In particular, the court must state in open court its reasons for any special measures direction which restricts the ability of representation of the news media to observe fully all the proceedings of the court.").

The noble Viscount said: My Lords, this amendment is the first of a group of amendments concerning the press. Amendment No. 33 allows the news media to see witnesses.

We understand that witnesses may need to be protected and screened from either the accused or the public, or both. However, it is important that under exceptional circumstances, when for some reason the news media are also to be screened, the court should have to say why. Otherwise, we run the risk of courts taking, as it were, the easy route and automatically excluding everyone.

If the news media are not present (this point relates to a later amendment) there is always lopsided reporting. The amendment asks the Government to explain the reasoning behind this clause. There has been great concern in the press about the Bill, as the Minister is aware. There is a strong case for the onus to be put on the courts to explain their decisions. I beg to move.

Lord Williams of Mostyn

My Lords, Part II of the Bill has two main aims: to encourage witnesses to come to court to give evidence and to help those who need it to give their evidence when they get there. Clause 19(4) already provides that any special measures direction must specify particulars of the provision made in respect of each special measure which is to apply. The amendments seek to alter that position by imposing an obligation on the court to justify any special measure which restricts the media's ability to see what is going on and to give specific permission to restrict the media's view. We do not think that is necessary.

I do not believe that it is essential for the media to have an unrestricted view of a witness giving evidence if that is impossible in practice; and I do not believe that the interests of open justice require that the court should have to give reasons to the media why special measures have been awarded if their effect is to restrict that view.

The reasons are clear enough. The court will only be able to award the special measures described in Chapter I of the Bill if the witness needs them to give best quality evidence. The court will have to give its reasons for awarding every individual measure. It seems unnecessary also to require the court to spell out each time that it is not imposing the measure simply to obstruct the press.

I agree that where possible the media should be able to see witnesses as well as hear their evidence and report it; but I do not believe that it should be a critical factor in the court's decision to award such measures. After all, the measures are there in order to obtain the best evidence from witnesses and to help the witnesses who are giving evidence by reducing the feeling of being simply on public show or in a public debate while they talk about matters which they may feel will place them in danger or about which they find it extremely difficult to talk, even to those who are closest to them.

The measures are all designed so that witnesses can be watched while they are giving evidence by the judge or magistrate, the jury, and a legal representative, so that the evidence can be properly challenged by the parties to the case. If in some circumstances the media, particularly in older courtrooms, simply cannot see the witness, they can hear the evidence. If the evidence is given by live link or video they can see that also.

Perhaps I should say a word or two generally. The noble Viscount, Lord Astor, is right. Some of his concerns will be more fully ventilated when we debate amendments to Clause 24. In Committee, I promised your Lordships that I would meet representatives of the media as fully as they wanted. I and my officials have met them. We are still having discussions, which I hope are open-minded on both sides, about how we safeguard the genuine public interest in having media reports of court cases. I shall speak to some amendments later this evening. I am simply touching on the amendments to Clause 24 to indicate that we take the rights of a free press in a civil society extremely importantly.

I believe that there are sufficient safeguards in the Bill as presently drafted. Therefore, I cannot on behalf of the Government accept Amendments Nos. 32 to 34.

Viscount Astor

My Lords, I am grateful for the Minister's considered reply. However, I do not find it entirely satisfactory. The Minister rightly raises the issues of a live link, so that the media can see, and of old courtrooms and the difficulties that exist where the press are unable to see, possibly as a result of seating arrangements. I accept that point.

However, where that is the case, and I suspect that it will be the case with regard to witnesses in a minority of cases, it seems reasonable to ask the court to explain its reasons. That is all that the amendment seeks to do. It does not in any way force the court to screen or unscreen. It does not force the court to do anything. It merely says that where the court is decided on an action, it must give its reasons. That is not unreasonable.

I accept the other points made by the Minister. However, the press—certainly the Guild of Editors and other members of the press to whom I have talked—have all made the point that the onus should be on the court to state its reasons. This is an important point. It is a simple one. It is not an onerous duty to place upon a court. I wish to test the opinion of the House.

6.59 p.m.

On Question, Whether the said amendment (No. 32) shall be agreed to?

Their Lordships divided: Contents, 80; Not-Contents, 105.

Division No. 1
Addington, L. Lyell, L.
Anelay of St. Johns, B. Mackie of Benshie, L.
Annaly, L. McNally, L.
Astor, V. Maddock, B.
Balfour of Inchrye, L. Mancroft, L.
Beaumont of Whitley, L. Mar and Kellie, E.
Belstead, L. Marlesford, L.
Bridgeman, V. [Teller.] Miller of Chilthorne Domer, B
Carlisle, E. Miller of Hendon, B.
Carnegy of Lour, B. Monson, L.
Chalker of Wallasey. B. Montgomery of Alamein, V.
Chesham, L. Northesk, E.
Colwyn, L. Palmer, L.
Cope of Berkeley, L. Pearson of Rannoch, L.
Cranborne, V. Plummer of St. Marylebone, L.
Dean of Harptree, L. Prior, L.
Dholakia, L. Rankeillour, L.
Dixon-Smith, L. Razzall. L.
Falkland, V. Renton, L.
Fookes, B. Rodgers of Quarry Bank, L.
Gardner of Parkes, B. Russell, E.
Geddes, L. Seccombe, B.
Gray of Contin, L. Skelmersdale, L.
Grey, E. Skidelsky, L.
Grimston of Westbury, L. Soulsby of Swaffham Prior, L.
Haddington, E. Stewartby, L.
Hampton, L. Swinfen, L.
Hamwee, B. Thomas of Gresford, L.
Hamar-Nicholls, L. Thomas of Gwydir, L.
Harris of Greenwich, L. Thomas of Walliswood, B.
Harrowby, E. Tope, L.
Hayhoe, L. Trumpington, B.
Hemphill, L. Vinson, L.
Henley, L. [Teller.] Vivian, L.
Hooson, L. Waddington, L.
Kimball, L. Weir, V.
Kingsland, L. Williams of Crosby, B.
Lucas of Chilworth, L. Winchilsea and Nottingham, E.
Ludford, B. Windlesham, L.
Luke, L. Wise, L.
Acton, L. Carter, L. [Teller.]
Ahmed, L. Chandos, V.
Allenby of Megiddo, V. Christopher, L.
Alli, L. Clarke of Hampstead, L.
Amos, B. [Teller.] Clinton-Davis, L.
Archer of Sandwell, L. Colville of Culross, V.
Bach, L. David, B.
Blackstone, B. Davies of Coity, L.
Blease, L. Davies of Oldham, L.
Borrie, L. Dean of Thornton-le-Fylde, B.
Bragg, L. Desai. L
Bristol, Bp. Donoughue, L.
Brooke of Alverthorpe, L. Dormand of Easington, L.
Brookman, L. Evans of Watford, L.
Brooks of Tremorfa, L. Farrington of Ribbleton, B.
Burlison, L. Gallacher, L.
Carmichael of Kelvingrove, L. Gilbert, L.
Glenamara, L. Murray of Epping Forest, L.
Gordon of Strathblane, L. Nicol, B.
Goudie, B. Orme, L.
Graham of Edmonton, L. Pitkeathley, B.
Grenfell, L. Plant of Highfield, L.
Hacking, L. Ponsonby of Shulbrede, L.
Hardie, L. Prys-Davies, L.
Hardy of Wath, L. Puttnam L.
Harris of Haringey, L. Ramsay of Cartvale, B.
Hayman, B. Randall of St. Budeaux, L.
Hilton of Eggardon, B. Rea, L.
Hogg of Cumbernauld, L. Renwick of Clifton, L.
Hollis of Heigham, B. Sainsbury of Turville, L.
Hoyle, L. Sawyer, L.
Hughes, L. Sefton of Garston, L.
Hughes of Woodside, L. Sewel, L.
Hunt of Kings Heath, L. Shepherd, L.
Janner of Braunstone, L. Simon, V.
Jay of Paddington, B. [Lord Privy Seal] Simon of Highbury, L.
Stoddart of Swindon, L.
Jenkins of Putney, L. Symons of Vernham Dean, B.
Judd, L. Taylor of Blackburn, L.
Kirkhill. L. Taylor of Gryfe, L.
Levy, L. Thomas of Macclesfield, L.
Lockwood, B. Thornton, B.
Lofthouse of Pontefract, L. Turner of Camden, B.
Macdonald of Tradeston, L. Uddin, B.
McIntosh of Haringey, L. Varley, L.
Mackenzie of Framwellgate, L. Walker of Doncaster, L.
Mallalieu, B. Warner, L.
Milner of Leeds, L. Watson of Invergowrie, L.
Molloy, L. Weatherill, L.
Molyneaux of Killead, L. Whitty, L.
Monkswell, L. Williams of Elvel, L.
Montague of Oxford, L. Williams of Mostyn, L.
Morris of Castle Morris, L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

7.8 p.m.

Clause 22 [Screening witness from accused]:

[Amendment No. 33 not moved.]

Clause 23 [Evidence by live link]:

[Amendment No. 34 not moved.]

Clause 24 [Evidence given in private]:

Viscount Astor moved Amendment No. 35:

Page 18, leave out lines 40 and 41 and insert ("or (d) bona fide representatives of newspapers or news agencies.").

The noble Viscount said: Amendments Nos. 36, 37 and 38 are grouped with Amendment No. 35. These amendments concern the press. I welcome Amendment No. 36 standing in the name of the noble Lord, Lord Williams of Mostyn, which I believe addresses the concerns raised in my Amendments Nos. 37 and 38. If that is not the case, I am sure that the noble Lord will explain to me the way in which the amendments differ.

An important issue is raised in Amendment No. 35, which goes further than the amendments grouped with it. As currently drafted Clause 24(2) provides that representatives of newspapers and news agencies are included in the group that can be removed from the court.

The Guild of Editors and various other press organisations are concerned about this very general power. They feel that it is not consistent with the principle of open justice and the long-standing exception to permit the press to be present as the public's representative when other members of the public are excluded in similar circumstances. There are plenty of circumstances in which the public are excluded but the press is allowed to remain. One asks why in those circumstances the press should be allowed to stay. At Committee stage the noble Lord, Lord Williams of Mostyn, cited the example of a hostile press, for example those who represented the National Front or something of that kind. There is clear evidence—no doubt the noble Lord will put me right if I am wrong—that if a reporter sought to intimidate a witness in court, in any court building, on the way to court, or in any publication or coverage of the case that affected the witness's willingness to testify or changed his or her evidence, the existing law of contempt and the powers of the court would be sufficient to deal with that problem.

The Government appear to take the view that there are exceptional circumstances in which the press should be excluded. Quite naturally, that has caused alarm bells to ring. I am aware that the Minister is concerned about this matter and has had meetings with representatives of the press. As he said at an earlier stage, he is a supporter of the press and its ability to report court proceedings. I believe that in this electronic age when there are cameras in court it is important that information technology should allow the press immediate access to transcripts. I should like the Minister to address that point because it would clear up confusion in the mind of the media as to exactly how the Government see the process working.

It is difficult to envisage a case in which media representatives should merit total exclusion and that the discomfort felt by witnesses could not be met by other means now within the powers, for example by means of technology. If the press lacks an absolute right to live links, transcripts and tape recordings, fair and accurate reports will be very difficult to produce. That is probably the most important issue that is raised by Clause 24.

While thanking the Minister for going some way to alleviate our concerns and also for the meetings that I know he has had with representatives of the press, I do not believe that this issue has been satisfactorily resolved. This is an opportunity for the noble Lord to explain the Government's thinking on this matter so that noble Lords can give the matter careful consideration. I beg to move.

7.15 p.m.

Lord Williams of Mostyn

My Lords, this amendment is grouped with Amendments Nos. 36 to 38. I briefly repeat my comments of a few moments ago. I said in Committee that I would have further discussions with the media. We have had useful discussions with the broadcast and print media. I am particularly grateful to Miss Santha Rasaiah of the Guild of Editors and the Newspaper Society who has been very patient and extremely helpful in putting forward what I recognise to be genuinely held concerns within the press.

I do not believe that the noble Viscount is right in one respect. He gave the example of the presence of National Front reporters and said that that would amount to contempt. That is not so, unless they committed an act of contempt by way of harassment or intimidation. Their presence might in some circumstances disturb witnesses, but I believe that to be a marginal point. The amendments that I have tabled are designed specifically to make clear that the court should exclude the press only where it expressly wishes to do so rather than as a matter of routine or assumption.

The noble Viscount rightly pointed out in Committee that the very fact that the press was currently the only group specified on the face of the Bill perhaps suggested that it should be excluded more regularly than other groups. That is quite the opposite of our intention. I tried to give the press a safeguard that it could not be excluded without a deliberate decision by the court in particular circumstances. Undoubtedly, that would be a greater safeguard for our colleagues in the press. Whether or not that is sufficient for their purposes is another question. I am still in correspondence with them. Based on my latest instructions, I hope to have a meeting with them at 11 o'clock tomorrow morning.

The second amendment is a specific protection for the press. The noble Viscount is quite correct that its purpose is essentially that of his last amendment; namely, continuation of the protection by way of privilege or exemption from liability in respect of fair, accurate and contemporaneous reports of legal proceedings held in public". What I seek to do in that amendment has the same purpose as that which underlies his Amendment No. 38. Therefore, to that extent he is quite right.

My amendment is not set in stone. I want to assist the press as fully as possible. We had extremely good discussions in the context of the Data Protection and Human Rights Acts and were able to reach a compromise that satisfied all parties. I stress that I recognise the importance of a free press in reporting court proceedings. Any exclusion of the press should be extremely rare. I table these amendments at this stage, but I am still considering whether or not the present amendments in my name are as good as we can get them. I hope that on that basis and with fairly vigorous reassurance—however, there can be no promises—the noble Viscount will feel able to withdraw his amendment.

Viscount Astor

My Lords, I am grateful to the noble Lord. Before he sits down, perhaps I may put two questions. I preface them by saying that my Amendment No. 35 makes reference to bona fide representatives of newspapers or news agencies". I realise that "bona fide" is an expression that is open to interpretation and probably does not satisfy the Minister. However, that was my modest attempt to exclude those who might not be regarded as representatives of proper news media (if that is a term that can be used). I should like to put two specific questions to the Minister. First, the noble Lord said that the press would be excluded only in extremely rare circumstances. I believe that the difficulty faced by your Lordships lies in understanding those circumstances. Can the Minister give an example of rare circumstances? I believe that that would be helpful.

Secondly, if the press is excluded, does it mean that it lacks those absolute rights to live links, transcripts or tape recordings during the proceedings or at a later stage? It would be helpful if the Minister could answer that question.

Lord Williams of Mostyn

My Lords, the press does not have an absolute right to live links. It does not have a right to have cameras in court. At present it does not have the right to have tape recordings. On my recollection of the law a journalist is entitled to operate a tape recording in court only with the specific authority of the tribunal.

I undertake to think carefully about the legitimate worries of the press. I regard them as genuinely held. They are an important aspect of the proper reporting of court proceedings in this country.

Viscount Astor

My Lords, I am grateful for the Minister's reply. I am sorry to press him, but if the press were excluded for some reason, will it then be given access to those court proceedings at one time or another, whether or not it has an absolute right? Is it the Government's intention that the press should be able to report those proceedings?

Lord Williams of Mostyn

My Lords, the noble Viscount does not understand the present position. No transcript at present is kept by the magistrates' court. Very often now there is no contemporaneous transcript in the Crown Court. There used to be, but the proceedings are now mainly recorded mechanically and transcripts are not available until ordered.

I do not think that the exclusion of the press has anything to do with whether or not it has access to specific pieces of evidence. I repeat: it has no right to a camera; it has no absolute right to take tape recordings; it has only the opportunity to request the court that the proceedings be tape recorded.

I believe that two issues are being confused: first, the exclusion of the press and, secondly, what "rights" it might have. Those are, in fact, limited and are not as extensive as the noble Viscount mentioned.

Viscount Astor

My Lords, I am grateful for the Minister's response. I did not seek to say that the press had greater rights than it does at present. I sought to establish the Government's view in circumstances where the press was excluded. The Minister was unable to give me an example. How will the press report the case when it is excluded for a part of the proceedings? What is the Government's intention? Is the press to be allowed to know what happens in those proceedings?

I recognise that there are two issues here. I believe that they are linked. However, the Minister said that he will continue his discussions with the media, the press and the Guild of Editors. I am delighted to accept that important statement. The Minister has gone a long way with his amendment. The issue will require more negotiation between the press and the Minister. We shall wish to consider the matter carefully and return to it at Third Reading. In the light of what the Minister said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 36:

Page 19, line 4, at end insert— ("( ) A special measures direction shall not be taken to provide for the exclusion under this section of representatives of newspapers or news agencies except to the extent that it does so expressly. ( ) Any proceedings from which persons are excluded under this section (whether or not those persons include representatives of newspapers or news agencies) shall nevertheless be taken to be held in public for the purposes of any privilege or exemption from liability available in respect of fair, accurate and contemporaneous reports of legal proceedings held in public.").

On Question, amendment agreed to.

[Amendments Nos. 37 and 38 not moved.]

Clause 26 [Video recorded evidence in chief]:

Lord Thomas of Gresford moved Amendment No. 39:

Page 19, line 8, leave out first ("the witness") and insert ("a witness who is eligible by virtue of section 16(1)").

The noble Lord said: I move now to an entirely different topic. It deals with the special measures proposed in Clause 26 concerning video recorded evidence-in-chief. It is linked to Clause 27: where a special measures direction may provide for a video recording of evidence-in-chief that same direction can include video recorded cross-examination or re-examination.

The purpose of the amendment is to limit the circumstances in which such a direction can be made to exclude all witnesses and to include merely witnesses who are eligible for assistance on the ground of age or incapacity as set out in Clause 16(1) of the Bill.

When I raised the matter in Committee, the noble Lord, Lord Williams of Mostyn, replied at col. 1357 of Hansard of 1st February: There is a case, if it is carefully and cautiously approached, for keeping nervous witnesses out of court and allowing them to give their evidence in a more relaxed way. We need to bear in mind that for witnesses intimidated by threats or fear of violence the law already allows the written statements of absent witnesses to be placed before the court, or for a witness to be granted absolute anonymity in court". Since the noble Lord referred to the existing law under Section 23 of the Criminal Justice Act 1988, I thought that it would be instructive to compare the existing law with the proposals set out in the Bill in order to indicate the extent to which the law is weakened so far as concerns the interest of the defendant.

Section 23 of the Criminal Justice Act 1988 states that, a statement made by a person in a document shall be admissible in criminal proceedings as evidence in any fact of which direct oral evidence by him would be admissible if —there are a number of conditions— the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders". A statement that is made to a police officer or to a person charged with investigating offences is made in a statutory form and, as the statement will say in terms, any person who says anything he knows to be false or does not believe to be true in that statement can be charged and convicted of an offence and is subject to penal sanctions. Under the 1988 Act the statement has to be one to which the proper provisions apply. The second condition is that, the person who made it does not give oral evidence through fear or because he is kept out of the way". "Fear" is a rather stronger word than the words employed in the Bill. For these existing provisions to apply, "fear" must be established by evidence to the appropriate standard of proof—that is to say, beyond reasonable doubt—and such evidence must itself be admissible.

The court has a duty to consider where the interests of justice lie with regard to the admission of the evidence. Essentially, for the provisions to apply at present there must be admissible evidence which will prove that a witness is in fear before the statement can be read.

When one looks at the provisions of this Bill, it is helpful, first, to look at the circumstances, set out in Clause 17(1), in which a person becomes eligible for assistance. It is not simply through fear proved by admissible evidence. That clause states that, a witness in criminal proceedings … is eligible for assistance … if the court is satisfied that the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings". So the first question that one must ask in relation to Clause 17(1) is: what is the standard of proof? Does the court have to be satisfied so that it is sure—the criminal burden of proof—that the quality of evidence is likely to be diminished?

Secondly, it refers not only to reason of fear but also to distress, so that a witness who says, "I cannot give evidence because I am distressed", not, "because I am fearful" can have special measures applied to him. There is no reference in that clause to the court considering the application that was made for the special measures to apply in the interests of justice.

Clause 17(3) states: In determining that question the court must in addition consider any views expressed by the witness". What does that mean? That does not mean that it is evidence on oath given by the witness. Presumably it can be by a letter or hearsay evidence. The court must consider any views expressed by the witness. The same standard of requirement is not suggested in this Bill.

Under subsection (4) a complainant in a sexual offence is presumed to be eligible for assistance. There is already a weakening there of the circumstances in which special measures can be ordered.

Perhaps I may turn to the particular clause in question and my amendment to it. Clause 26(1) states: A special measures direction may provide for a video recording of an interview of the witness to he admitted as evidence in chief of the witness". That is simply an "interview of the witness". It is not qualified in any way. it clearly does not have to satisfy any particular statutory requirements; it is not under oath; and there is no criminal sanction for anything that the witness may say in that interview.

Of course, it has the practical disadvantage that it may apply to any witness who cannot necessarily be identified when the interview takes place. If my amendment were to be adopted, it would be fairly obvious that the proposed witness was either a child, under Clause 16(1), or a person who suffers from a mental disorder or who has a significant impairment of intelligence and social functioning. So, in those circumstances, from the very beginning of an investigation, the police can say, "This is the sort of witness for whom special measures will be required", and an interview can be carried out in a particular way.

However, that video-recorded interview does not, according to Clause 26, have to be carried out even by the police. I presume that a discussion between a complainant and her solicitor or anybody else could be admitted under this special measures dispensation.

Then, as I have said, the circumstances of Clause 27 follow. Once the court makes a determination by way of a special measure in relation to any witness in any sort of case—we are not dealing with sexual complaints but with any sort of case—then the cross-examination by way of a video recording can also be ordered at the same time.

In a subsequent amendment I shall deal with what I consider to be the perils of video cross-examination, but before we reach that stage I must deal with Clause 26. Therefore, my amendment is extremely important. It simply cuts down the broad expression of "witness" to a witness who can be identified at the beginning of an investigation by the police and provides for proper safeguards to be put in place and proper questioning to take place. Instead of the broad definition of "witness" it provides specifically that it shall refer to a child under the age of 17 or a mentally impaired person for whom, perhaps, some special regard must be had. I beg to move.

7.30 p.m.

Lord Williams of Mostyn

My Lords, the purpose of this amendment is to reduce the availability of video-recorded evidence, in the context of Clause 26, and limit it to those persons, as the noble Lord, Lord Thomas of Gresford, said, who are covered by Clause 16(1). It would therefore exclude those who are covered by Clause 17(1).

It is important to remember that, because every critical observation made about interviewing and hearsay, and all the criticisms which the noble Lord made about the introduction of a Clause 26 video-recorded interview in the context of Clause 17, would, it seems to me, apply also, with equal force, to Clause 16. But there is no attempt to remove the possibility of giving Clause 26 interviews in evidence in Clause 16. So there is an inconsistency there.

I anticipate that this measure would be used mainly for witnesses who are eligible under Clause 16, whether because they are children or they have a disability or disorder which may affect their evidence. I do not anticipate it being widely used for witnesses eligible under Clause 17. I believe that it would be quite difficult to convince a court that the measure should be used.

Also, one needs to remember that the party calling the witness must consider whether the witness's evidence would have more impact if given live at trial, whether by live television link or in the courtroom itself. There may be witnesses who are subject to such intimidation or who have such distress that they would give better evidence if kept completely away from the court on the day of the trial and could give better evidence in a relaxed setting soon after the events. This provision merely seeks to give the court discretion to allow that if it considers it appropriate.

In Committee, the noble Lord, Lord Thomas, said that that is tipping the balance too far against the defendant. I disagree. I return to my point. If it is fair and keeps the appropriate balance in the context of Clause 16, I suggest that is quite fair and is an appropriate balance by virtue of Clause 17.

I repeat what I said in Committee. For those who are intimidated by threats or fear of violence, the written statements of absent witnesses can be put before the court. In some circumstances, witnesses can be given anonymity on a public interest immunity certificate. We are not going that far here. We are merely giving the courts the discretion to make a direction that video-recorded evidence from a relevant witness should be admitted where the court is persuaded that the measure is needed to put important evidence in its best form before the court.

In Committee, the noble Lords, Lord Thomas and Lord Cope, raised the issue of whether the police have proper training to interview a witness. They have now been doing it in relation to child witnesses since the implementation of the Criminal Justice Act 1991. Nothing in the Bill affects the powers of the courts to admit documentary hearsay when the circumstances are appropriate under the Criminal Justice Act 1988, and one should not overlook that point. Section 23 provides for the admissibility of hearsay in extreme circumstances; in other words, when it is the only way of getting the evidence from the witness.

The purpose of the Bill is quite different. We are trying to improve the completeness, coherence and quality of oral evidence given by the witness. I would suggest that that is more of a safeguard in many circumstances than the admissibility of witness statements in writing without the opportunity of any cross-examination. Clause 30(5) does not affect the operation of the law relating to hearsay.

I repeat that in the context of Clause 17 this power is likely to be rarely used. It is more likely to be used in the context of Clause 16.

The noble Lord, Lord Thomas of Gresford, raised the question of how strongly the views must be expressed by the witness and how they are to be expressed. The witness's views are taken into account. It is for the court of trial, whether magistrates or a judge presiding in a jury trial, to come to its own conclusion as to whether or not such views are persuasive. That is an exercise with which the courts are familiar at present.

I express my appreciation of the care with which the noble Lord has raised his objections. However, I believe them to be unfounded. I repeat that in the context of Clause 17 this is a power which is likely to be used quite sparingly.

Lord Thomas of Gresford

My Lords, my objection to the way in which Clause 26 is framed is its breadth, referring to any witness in any case. I suggest there is no inconsistency in conceding that in the case of a child or a person suffering from mental incapacity, special provisions should and could be made. One is broadening the whole scope of the clause to people who are not simply intimidated—the word used by the Minister—but those who can claim eligibility for having their videoed interviews shown by way of evidence-in-chief through distress at giving evidence. It is very much a weakening of the existing position where fear has to be proved before a statement can be read to the court.

I am grateful to the Minister for his usual courtesy in dealing with the amendment. However, he has not addressed the fact that there is no criterion that the courts should act in the interests of justice nor has he addressed the lack of sanction that applies to a videoed interview. In my view, these matters are important and must be returned to at Third Reading. For the moment, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hoyle

My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion I suggest that the Report stage begins again not before 8.25 p.m.

Moved accordingly, and, on Question, Motion agreed to.

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