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Lord Fraser of Carmyllie: My Lords, I understand what the noble and learned Lord says with regard to the side note. The word "guidelines" does not appear in either of the two clauses but what is desired in those circumstances is clearly indicated. While it may well be, as has been the case for many years, that the courts will give some indication one way or another of what are appropriate sentences in some types of cases, I believe that the provision by the court of such guidelines will be widely welcomed by the public at large—I think that there is support for that—and also, as I indicated on a previous occasion, the majority of those who responded were in favour of the proposal: two of the three police organisations, the Faculty of Advocates, the Scottish Law Commission and a majority of the district courts. There is public concern about inconsistency and it would be desirable if that could be eliminated. It may be that from press reports the public fail to appreciate that there are good reasons for variations in sentencing. However, if there are inconsistencies that can be eliminated, so much the better.

It is the inferior courts which are looking for guidelines. I would not envisage that the Court of Appeal in offering any sentence guidelines would find that there was much application for such an approach in relation to High Court cases. However, those inferior courts look for that clear guidance from the superior court. I hope that by taking advantage of this provision they will receive it.

The noble and learned Lord has said that the clause is unnecessary. I would suggest that it represents a modest and flexible reform intended to improve consistency in sentencing. Nevertheless, it will also continue to allow discretion for sentencers to take

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account of all the circumstances in particular cases. I hope that the noble and learned Lord will be satisfied that it has a proper purpose.

Lord McCluskey: My Lords, I am satisfied with the answer which I have now heard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 [Offences committed by persons under supervision etc: provision of local authority report]:

Lord Fraser of Carmyllie moved Amendment No. 59:


Page 22, leave out lines 42 to 44 and insert:
(" .—(1) After section 179 of the 1975 Act there shall be inserted the following section—").

The noble and learned Lord said: My Lords, in moving Amendment No. 59, perhaps I may speak also to Amendments Nos. 60, 61 and 92. Clause 31 requires a social work report to be made before disposal in cases where an offender, while subject to statutory supervision, commits a further offence. This report takes into account the circumstances of the offence and the behaviour of the offender during supervision and is intended to help inform the disposal of the case. At present the clause extends to cases dealt with in the district court where a mandatory report is considered unnecessary and the court should be allowed to exercise its judgment in requesting reports where they are considered desirable. I should indicate that I envisage that there may have to be some further amendment of this provision to take account of stipendiary magistrates and not just the lay participants in the district courts. However, I shall return to that at a later stage.

In addition, there are other amendments which extend Clause 31 to cover two new classes of persons subject to community supervision being inserted by Clause 55. These classes cover those subject to a supervision and treatment order and young offenders who commit a further offence. The last amendment is minor and entirely technical. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendments Nos. 60 and 61:


Page 23, leave out from beginning of line 1 to ("of") and insert ("179A. Where a person specified in section 27(1) (b) (i) to (vi)").
Page 23, line 10, at end insert:
("(2) After section 380 of that Act there shall be inserted the following section—

"Offence committed by person under supervision etc.: provision of local authority report.

380A.—(1) Where a person specified in section 27(1) (b) (i) to (vi) of the Social Work (Scotland) Act 1968 commits an offence, the court shall not dispose of the case without obtaining from the local authority in whose area the person resides a report as to—
(a) the circumstances of the offence; and
(b) the character of the offender, including his behaviour while under the supervision, or as the case may be subject to the order, so specified in relation to him.
(2) In subsection (1) above, "the court" does not include a district court.".").

On Question, amendments agreed to.

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Clause 35 [Leave to appeal]:

Lord McCluskey moved Amendment No. 62:


Page 25, line 35, leave out ("if") and insert ("unless").

The noble and learned Lord said: My Lords, I draw your Lordships' attention to page 25, line 35 of the Bill. In this clause we are concerned with inserting a new section into the basic 1975 Act. That new section is concerned with the obtaining of leave to appeal before an appeal is heard. I do not want to go into the background any more fully than I have done already. I do not wish to repeat what I said at an earlier stage on this matter.

The present wording to which I am proposing an alteration, appears in lines 35 onwards. It follows the provision:


    "The decision whether to grant leave to appeal... shall be made by a judge of the High Court who shall—


    (a) if he considers that the documents ... disclose arguable grounds of appeal".

I simply wish to change the emphasis so that it reads,


    "The decision ... shall be made by a judge ... who shall —(a) unless he considers that the documents do not disclose arguable grounds of appeal".

In other words, the emphasis has changed. One reason why I have sought to change the emphasis is that the Lord Advocate himself, when we discussed this matter in Committee, used the expression which I now use. I believe that there is a difference between the manner in which it appears in the Bill and the way in which it is put forward by me.

The noble and learned Lord the Lord Advocate said:


    "There is no question of these new arrangements reducing the level of scrutiny of appeals in general since only appeals which are clearly without merit—those which are unarguable is the way it is expressed—would be refused leave to appeal".—[Official Report, 16/1/95; col. 481.]

In fact that is not the way it was expressed, but if noble Lords accept my amendment, that will become the way it will be expressed. Therefore, the amendment goes to meet the Lord Advocate's position.

In my version the judge does not positively have to find arguable grounds as the Bill requires. He simply grants leave unless he positively concludes that there are no arguable grounds. It is a quite deliberate change of wording and not without some significance in the light of what the noble and learned Lord the Lord Advocate said in Committee. I beg to move.

Lord Rodger of Earlsferry: My Lords, I do not think that it would be very profitable to discuss my own particular wording on a previous occasion. I accept what the noble and learned Lord says, that his amendment would introduce a slightly different emphasis. Nonetheless, I believe that the way in which it is put in the clause before us is correct. It is a strong direction in that the judge shall grant leave to appeal and shall do so if he considers that the documents disclose arguable grounds of appeal. It is not a high test. It requires that the judge considers that the documents disclose grounds of appeal which are arguable—that is to say, about which an argument can be properly advanced to the court.

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I believe that that is correct and the test that should be applied. Although I understand entirely the point which the noble and learned Lord has put forward, I believe that whatever gloss I may have put on it on a previous occasion, the test as expressed in the Bill provides the appropriate approach. It is when there are arguable grounds that the matter should be argued in front of the court. I cannot accept the amendment which is put forward on this occasion.

6.15 p.m.

Lord McCluskey: My Lords, despite the negative tone of that answer I have been encouraged by the Government's willingness to respond to comments and suggestions which have been made since the consultation process properly got under way and during the course of the progress of the Bill through the House. Although I heard a great many "No"s I believe that in the background there is the possibility of a faint "Yes". With that hope I look forward to the return of the Bill from another place perhaps with the wording I have suggested appearing in place of that which now appears. In the meantime, I beg leave to withdraw the amendment. I shall not move Amendment No. 63.

Amendment, by leave, withdrawn.

[Amendment No. 63 not moved.]

Lord Rodger of Earlsferry moved Amendment No. 64:


Page 25, line 37, after second ("appeal") insert ("and make such comments in writing as he considers appropriate").

The noble and learned Lord said: My Lords, I speak also to Amendments Nos. 69, 75 and 76. At Committee stage I commented that I would reflect on the point raised by the noble and learned Lord, Lord McCluskey, about the options available to the single judge or the High Court if when considering an application for leave to appeal they were to detect a fundamental nullity from the papers. In my view the correct approach would be for leave to appeal to be granted since the clause requires the single judge to grant leave if any of the documents before the judge, not just the note of appeal, disclose arguable grounds of appeal. For example, if a minute of proceedings revealed a fundamental defect, that would be one of the documents in the case. I accept, however, that in such circumstances it would be appropriate for the judge to be able to comment on the reasons for granting leave. The intention of these amendments is to make it clear that the judge can do so. I beg to move.

On Question, amendment agreed to.


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