Referral Orders (Amendment of Referral Conditions) Regulations 2003 (Hansard, 13 June 2003)

§ Lord Davies of Oldham
rose to move, That the draft regulations laid before the House on 1st May be approved [19th report from the Joint Committee].
The noble Lord said: My Lords, these draft regulations have been laid in order to make a simple adjustment to the referral order scheme. They have been widely consulted upon and have been welcomed by all those involved in the process, including magistrates, youth offending teams and community panel members.
At present, the courts are obliged to make a referral order in most cases involving under 18 year-olds who have been convicted for the first time and plead guilty. This change will give the courts greater discretion. They will not be obliged to make a referral order in respect of 514 non-imprisonable offences but will have discretion to make one where they think fit. The intention is that magistrates may still make referral orders for such offences, but in future they will have discretion to choose an alternative sentence where they judge that to be more appropriate.
As originally intended by Parliament under the Youth Justice and Criminal Evidence Act 1999, the referral order will remain the primary disposal for young people convicted for the first time and pleading guilty. But this change will give more flexibility when it comes to non-imprisonable offences, especially minor and road traffic offences.
It may be helpful if I remind the House about the main features of the referral order. This is an innovative new sentence for young offenders in that it directly involves members of the local community in tackling youth crime in their neighbourhood. The court specifies the period for which the referral order is to last—between three and 12 months—and the young person is then referred to a youth offender panel—a form of restorative justice. This is chaired by a community member, with at least one other community member and the youth offending team officer in support. The victim will be invited—attendance is not obligatory—and anyone else with a significant investment in the young person's life, such as a family member or maybe a teacher, will also be invited.
The panel meetings provide the opportunity for young people convicted for the first time, and who have admitted the offence, to be dealt with away from the formality of the court. With the help of the panel the young person is encouraged to face up to the consequences of what he has done, find a way to repair the harm and to agree a contract with a programme to minimise the risks of re-offending. The aim is to reintegrate the young person back into the community and, if the order is successfully completed, the conviction is spent and they are able to put the offending behind them. It it does not work out, they go back to court for re-sentencing.
This is no soft option—it puts the young person on the spot and makes him answer to other people for his behaviour and play a central part in working out solutions; and it tackles victim and community concerns at the same time. Where victims are willing and able to attend, they can tell the young person at first hand what impact the offence had on them and express their view on what they would like to see in the form of reparation. There have been many cases where victims of offences such as burglary, assault or criminal damage have benefited from participation in this process.
After piloting, referral orders were implemented across England and Wales in April 2002, so they have been in force nationally for just over a year. We have evaluated the first year of operation and I can confidently say that they are successfully demonstrating community justice in action. The evaluation shows that referral to a youth offender panel can be a positive experience for all concerned—the young offender, the parents who find this a very supportive process and, as I have said, on occasions the victim.
515 But drawing on experience so far, and after listening to those involved in the process, we need to make a small adjustment to the scheme to make it more responsive to people's needs. Referral orders involve the direct engagement of all parties and are very beneficial in most cases, but experience has shown that they can be a disproportionate response in some cases involving road traffic offences and the less serious general offences.
Offences are coming to panels which would be better dealt with more simply; for example, by a fine. Offences such as a 40p fare evasion or driving a moped without a helmet can sensibly be dealt with by the court there and then without the need for input by a community panel—which requires more organisation, is slower and takes up people's valuable time. This amendment will give magistrates the flexibility to pass an alternative sentence in such cases. It will enable the resources required for referral orders to be focused better on the cases which tend to be more complex in terms of their causes or possible solutions.
I should stress that we are not saying that referral orders will never be appropriate for non-imprisonable offences. Some traffic offences, for example, could have serious consequences and there may be a need to bring home to a young driver the importance of the Highway Code and their responsibility to other road users. But there will also be minor infringements, such as I enumerated earlier, which do not merit the involvement of community panels. By the same token, some minor fare evasions, which constitute dishonesty, may benefit from a referral order. These regulations will give courts the choice, so that the magistrates can make an alternative disposal if they see fit.
The regulations make a sensible adjustment to the operation of referral orders and accordingly I commend them to the House.
Moved, That the draft regulations laid before the House on 1st May be approved [19th report from the Joint Committee].—(Lord Davies of Oldham.)

§ Lord Roper
My Lords, I thank the Official Opposition for giving way. We on these Benches welcome the order. Referral orders are useful weapons in the armoury available to the courts in dealing with young offenders. It is good that although they were initially drafted in a limited and restricted way, the Government now propose to build in a degree of flexibility, thereby giving the courts additional discretion.
However, we need to be careful that the discretion will not lead to a reduction in the use the courts make of the orders. That would be most unfortunate. I do not believe that it will be the case, but the Government should monitor any changes in the use made of them. We may need to reconsider the matter, but at this stage the order provides additional flexibility to the courts and will enable them to use referral orders with a greater range of appropriate young offenders. We welcome it.

§ Lord Cope of Berkeley
My Lords, for a long time, I have been on the record making speeches in favour of 516 restorative justice. It has played a valuable part in the criminal justice system. I, too, welcome the greater flexibility provided by the regulations.
The Minister said that they were not a soft option. That is an important element because they should not be. He also raised the possibility of the victims being present during the process. That can be important in bringing home to offenders the consequences of their actions, but I hope that it is clear that no pressure is brought on the victims to attend such sessions. It can he a traumatic experience for them, having suffered the consequences of an offence.
Ultimately, it is important that the operation of all such schemes is thoroughly evaluated, particularly in terms of re-offending, to ensure that the best use is being made of them and that appropriate cases are being dealt with. The flexibility which the regulations provide is important, but as a result magistrates and others will need guidance on appropriate cases based on the working of youth offender panels in their area.

§ Lord Davies of Oldham
My Lords, I am grateful for the response from the noble Lords, Lord Roper and Lord Cope of Berkeley. I indicate to the noble Lord, Lord Roper, that we expect the reduction in the number of referral orders to be about 10 per cent. As regards the point emphasised by the noble Lord, Lord Cope, we expect guidance to be given to magistrates, recognising the flexibility but in no way, shape or form changing the nature of referral orders and their general use for under 18s who have committed a first offence and pleaded guilty.
While recognising that emphasis, I want to reassure the noble Lord, Lord Cope, that it can be a most salutary lesson for the perpetrator of the crime to come face to face with his victims. However, it would be wrong for any pressure to be put upon victims to play their part. If they are willing to do so, we have no doubt that it will contribute significantly to the young person's awareness of the consequences of his crime. It would be wrong for pressure to be put upon victims and they contribute only if they want to do so. As we gain experience, people may begin to realise the valuable role which victims can play in restorative justice.
I emphasise that there is no question of the regulations being a soft option. The noble Lord, Lord Cope, is right in saying that they should not be. They are designed to provide an improved opportunity for those who have committed crime to realise the consequences of their actions. However, we hope that they will result in a reduction of the recommittal of offences, for which we all strive, particularly for first-time offenders. That is why the regulations apply directly to them. I commend them to the House.