Joint Committee On Human Rights Seventh Report

Criminal Justice Bill

36. When initially considering the Criminal Justice Bill, we raised with the Government the risk that provisions in clauses 143 and 144 (now clauses 144 and 145 of the Bill as amended in Committee in the House of Commons) which could have denied some unrepresented defendants under the age of 17 the right to see pre-sentence reports prepared on them. Only their representatives, and their parents or guardians (if present in court), would have been entitled to see the reports. Unrepresented child defendants would have had no right to see reports on them, and might be dependant on parents or guardians to represent their interests. Those people might have been inappropriate or unable to represent the children's interests effectively. We took the view that this gave rise to a risk of violating the defendants' right to a fair hearing under ECHR Article 6, the right to respect for private life under ECHR Article 8, and the right to participate in decisions under Article 12 of the CRC.

37. The Government initially responded by undertaking to propose amendments to clauses 143 and 144 (now clauses 144 and 145) so that they would not prevent the disclosure of reports to defendants aged 14 and over, leaving parents (who would have had access to the reports) to protect the interests of children aged under 14. In our Report on the Bill, we accepted that this would have substantially alleviated our concerns, as long as independent legal representation were to be available to children under 14 even if the children's parents did not want the children to be independently represented.[27] However, we still had concerns in relation to the right of unrepresented children under the age of 14 to a fair hearing. We pointed out that parents have no duty to conduct the case on behalf of an unrepresented child defendant, and many parents would not be well suited to such a task. We therefore suggested that it would be desirable to amend clauses 143 and 144 to require the court to appoint a legal representative for unrepresented child defendants.[28]

38. In a letter dated 3 March 2003, Lord Falconer informed our Chair that the Government had reconsidered the clauses. It proposed that there should be a general principle in clauses 143 and 144 (now clauses 144 and 145) that copies of pre-sentence and other reports should be given to all offenders under the age of 18, and to their parents or guardians, whether or not the defendant is legally represented, unless the court believes that disclosure to either the defendant or to the parents or guardians would put the defendant at risk of serious harm.[29] The Government also observed that courts have power to order a grant of legal representation to a juvenile where it would be in the interests of justice to do so.[30]

39. The Government's proposal would in our view allow courts to avoid the risk of violating ECHR Article 6 through a failure to disclose reports to defendants. We welcome the proposal on human rights grounds, and draw it to the attention of each House.

27   Joint Committee on Human Rights, Second Report of 2002-03, Criminal Justice Bill, HL Paper 40/ HC 374, pp 15-16, paras 31-33 Back

28   ibid., p 16, paras 34-35 Back

29   The letter from Lord Falconer is published as an appendix to this Report, Ev 10-11 Back

30   Access to Justice Act 1999, Sch. 3, paras 2 and 5; Criminal Defence Service (General) (No. 2) Regulations 2001 (S.I. 2001/1437), reg 7 Back

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