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The Earl of Balfour: Obviously the direction is mostly to the sheriff court or the district court. Could guidelines be put forward by the Secretary of State for Scotland in the form of statutory instruments rather than the primary legislation which is being established in the Bill? I feel that perhaps we are being a little dictatorial here.

Lord Fraser of Carmyllie: No, I am afraid that I cannot agree at all with that proposition. I wish to have no part in giving guidelines, nor does my right honourable friend the Secretary of State for Scotland wish to have any part in giving guidelines to the judiciary, at whatever level, on what sentences they should impose. It is for Parliament to set out the maxima and, within that, it is for the courts themselves to determine. I have no doubt that the matter must be left to the court.

However, I hope that the clause will encourage the High Court to take opportunities, as it feels appropriate, to set out guidelines in particular cases. It may not be of great significance to those who impose the most severe sentences in our courts, but I believe that, if that approach were to be taken, it would be warmly welcomed in the inferior courts.

Lord McCluskey: In leaving the matter, I should say that, of course, all judges—and that must include those who sit in the law courts—would welcome a solution to their problems. We must search for certainty. If the High Court were to set forth not so much guidelines as strong indicators of what should be done, that would rob the

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local judges of their duty to exercise a discretion based on the facts of the case and the circumstances of the locality. So it is important that they should not be provided with solutions which they can dial up on a computer.

At an earlier stage, I mentioned the SIS, the sentencing information system, which is currently being studied by the judges in the High Court. That could reach a stage at which it would be possible to dial and input the data relating to a particular type of case, a particular type of offence and a particular type of offender. Then one would end up with an average or a median solution to the problem. I think it would be a pity if we went down that road, either by that means or by this one. Then judges in the inferior courts—and I use the term technically—might feel that they no longer needed to exercise their own discretion.

However, having said that, I am sure that the Government will reflect on the wisdom of putting such matters into the statute. I would not accuse the noble and learned Lord, Lord Fraser of Carmyllie, of wanting to erect a kind of Fraser of Carmyllie monument in the law of Scotland in the shape of this Bill. There are many other monuments—some built on sand—which he has already enacted into law. I say no more about that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28 agreed to.

Clause 29 [Supervised attendance orders]:

Lord Fraser of Carmyllie moved Amendment No. 89:


Page 19, line 36, at end insert:
("( ) In subsection (3) (a), for the word "16" there shall be substituted "18".").

The noble and learned Lord said: In speaking to Amendment No. 89, I wish to speak also to Amendment No. 90. These are minor and technical amendments, their purpose being to clarify the position with respect to the use of supervised attendance orders as an alternative to imprisonment for fine default. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 90:


Page 19, line 41, leave out ("16") and insert ("18").

On Question, amendment agreed to.

Lord Macaulay of Bragar moved Amendment No. 91:


Page 21, line 6, leave out ("shall") and insert ("may").

The noble Lord said: For the convenience of the Committee, I shall speak to Amendments Nos. 91, 92 and 93 together, as they form part of the same parcel. The objective behind them is to introduce a higher degree of judicial discretion as to whether fines should be imposed on a person at the age of 16 or 17.

The view has been expressed that the court should have a discretion regarding the penalty. At the moment, the court can only allow 28 days for any fine to be paid. At this time of financial stringency it is very difficult for young people of that age to find the money readily.

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Twenty-eight days is not a long time to find the fine. Indeed in some cases there may be a compensation order attached to the fine. I hope that the Government will give these three amendments some consideration and perhaps come back at a later stage of the proceedings to indicate what are their final views.

8.30 p.m.

Lord Fraser of Carmyllie: From what the noble Lord has said I am rather concerned that he may have misunderstood what is our purpose behind these provisions. The policy underpinning the provisions is very simple. It is to avoid wherever possible imprisonment for an offender who is 16 or 17 years old where the court considered that the offence of which he was convicted did not merit a custodial sentence in the first place. As a matter of policy I assume that he would think that that was desirable.

The proposals in the Bill mean that, where an offender is 16 or 17, a supervised attendance order would be available in the first instance instead of a fine. Alternatively, the court could impose a fine to be paid within 28 days and, if the offender defaulted, an SAO would be imposed automatically. Imprisonment for fine default would therefore not be available for offenders of this age group even at first instance.

Experience shows that offenders in this age group more often than not have no income or other means to pay a fine. Consequently, they default and are then caught up in the laborious and often fruitless process of fine enforcement. Some are imprisoned—in 1993, 102 16 and 17 year-olds were sent to prison for fine default. In the vast majority of these cases the amount of unpaid fine was less than £200. I question whether there is any gain to be secured in imprisoning such youngsters.

Supervised attendance order schemes are a positive substitute for such a sanction but it has been recognised that the court must retain some discretion as respects the choice of disposal at first instance. That is why our proposals will enable the court to retain the sanction of a fine where it thinks that there is a reasonable chance that it will be paid.

I hope that I do not need to elaborate on my policy. If the noble Lord would like to consider what I have said, I am sure that this is at least one clause in the Bill which, knowing his background and his interest in such matters, he will indeed warmly welcome.

Lord Macaulay of Bragar: I am obliged to the noble and learned Lord for what was an explanation of a rather circuitous form of justice, if that is the correct word; namely, that once the young person gets on the circuit he may or may not fall off or end up at the final destination. I shall read with interest what the Minister said, and I am obliged to him for paying attention to the amendments in the way in which he has done. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 92 and 93 not moved.]

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Lord Fraser of Carmyllie moved Amendment No. 94:


Page 21, line 35, at end insert (", subject to paragraph 1 of Schedule 6 to the 1990 Act,").

The noble and learned Lord said: This clause will place courts under a duty to make a supervised attendance order in certain circumstances. Clearly we would not wish that duty to apply if no relevant scheme is in operation where the offender resides. This amendment will ensure that that is the case. I beg to move.

On Question, amendment agreed to.

Clause 29, as amended, agreed to.

Clauses 30 to 32 agreed to.

Clause 33 [Probation orders requiring treatment for mental condition]:

Lord Macaulay of Bragar moved Amendment No. 95:


Page 23, line 22, after ("or") insert ("clinical or").

The noble Lord said: For the convenience of the Committee, perhaps I may in speaking to this amendment refer also to Amendment No. 96. This is a fairly minor amendment which ensures that, say, a clinical psychologist can provide treatment for a person subject to a probation order who suffers from a mental condition. There is a view that is expressed that only properly qualified clinical psychologists should be able to provide treatment in terms of Sections 184 and 385 in the 1975 Act. That should not be the exclusive prerogative of practitioners registered with the British Psychological Society. I beg to move.

Lord Fraser of Carmyllie: Clause 33 was introduced to allow offenders suffering from a mental condition which, while not thought to require treatment through detention under a hospital order, might benefit from treatment by or under the direction of a chartered psychologist to receive such treatment as a condition of a probation order. I am sure that the noble Lord will agree that this is a positive step towards improving facilities for the treatment of mentally disordered offenders.

The amendment that is proposed by the noble Lord, while at first glance it seems to clarify who may provide the treatment, could in fact cause some confusion, the term "clinical psychologist" having no clear, generally accepted definition. The term "chartered psychologist" as defined in the clause, in effect covers registered clinical, educational and forensic psychologists. To include specifically "clinical psychologist" in the clause is unnecessary. On that basis, and given that short explanation, I hope that the noble Lord will feel that he can withdraw the amendment.


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