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Lord Thomas of Gresford: What is the function of the magistrates' court at the end? All the discretions have been exercised for a prosecution and on the analysis of the noble and learned Lord, that is it. The magistrates' court simply rubber stamps the decision to prosecute. That is an absolute offence once the decision to prosecute has been made. We are merely seeking to leave a discretion with the court to decide whether there was a reasonable excuse for a breach of the order. If the matter just ends with the prosecutor, the magistrates have no function.
When the prosecution is brought, it is for the magistrates' court to decide what to do. It can impose a fine of £1 or £1,000, which is the maximum. Let us assume that the court has before it all the family circumstances. The court will make a decision as to what is the appropriate fine. Let us assume that that is done and there is a failure then to pay the fine. It is within the discretion--not the obligation--of the magistrates' court in those circumstances to consider what to do next. It does not have to send the defaulter to prison. It can impose a community service order in relation to a failure to pay a fine or, in certain circumstances, remit the fine altogether if a proper excuse for non-payment of the fine was pointed out.
In relation to the points made from the Cross-Benches, it would be open to the court to say, "Here is somebody who is not paying a fine. We are not happy with the excuses advanced but there are four children at home who will suffer if the mother or father or both are sent to prison. Therefore, we shall not do that". I believe that the magistrates' courts are capable of dealing with those problems. Although the points were very effectively and forcefully put, if one understands all the protections that are built in, I believe that, while mistakes will be made, there are enough safety nets in place to reduce the chances of that
I turn, finally, to the point made by the noble Lord, Lord Thomas of Gresford, regarding "without reasonable excuse". If, for example, a parent failed to turn up for the guidance session or the classes in parenting that had been provided because, say, his or her children or parents were ill, I would hope that the responsible officer would not report that to the police. Indeed, if he were to do so, the Crown Prosecution Service would regard it as absurd to prosecute in such circumstances.
Nevertheless, in a situation where the process had gone through all those filters, the noble Lord has a point regarding whether or not there should be an opportunity on the part of the parent to say, "The excuse for me failing to comply was because I was run over on the way to the parenting classes", or something of that nature. I see the force of that argument and it seems to be a point well worth considering. I can give the noble Lord the undertaking that we will consider the matter. However, I can give him no further assurance in that respect. I cannot promise to return to the matter with any sort of reasonable excuse. Nevertheless, I can give the noble Lord that assurance. I hope that my response has answered the point in relation to the two amendments and that, on the basis of what I have said, the noble Lord will feel able to withdraw the amendment.
The Earl of Mar and Kellie: Before the noble and learned Lord sits down, perhaps I can come to his aid once again, while making the aside that, perhaps, I ought to go into private practice. I should point out to Members of the Committee that the decision on any social work project to recommend breach proceedings is taken as a last resort. In other words, the person must have demonstrated a determined failure before one does so. It is recognised that people may be somewhat reluctant to get started in the process. It is important for us to keep that fact in mind.
Lord Thomas of Gresford: I know that the noble and learned Lord the Solicitor-General is not used to the kick and rush of the magistrates' court. However, he left out one particular point of my argument. In his analysis of the situation, the noble and learned Lord did not leave it open for the magistrate to find the person who is alleged to have breached the order not guilty. Indeed, in his analysis, all the magistrate had to do was to consider the penalty--that is, whether it should be a fine, imprisonment, or whatever. Surely the magistrate should decide whether the person concerned is to be convicted.
Lord Falconer of Thoroton: I should, perhaps, have made it clearer. I am sure that I have been to a magistrates' court more recently than the noble Lord, Lord Thomas. I apologise for not saying so. I assumed that most, if not all, Members of the Committee knew that, before one reached the sentencing stage, there is a point in the magistrates' court where consideration is given to the question of guilt or innocence. However, for those noble Lords who did not know, that is the position.
I went straight to the question of a fine because the point that had been made with sincerity and force was: what happens when a fine is imposed? Plainly, if there was a finding of not guilty--and that is a possibility because, for example, it could be established that there had been no failure to comply with the direction--then the problems that have been raised to my right would not have arisen because there would not have been a fine. I apologise for not spelling out that point.
Lady Saltoun of Abernethy: I am most grateful to the noble and learned Lord for his very lengthy and thorough answer to what I said. I think that I am satisfied in that respect. Having met and talked to children who had been in care, I am now of the opinion that few worse fates can befall a child than being taken into care. That is why I have been very concerned lest the ultimate sanction against the parents should be imprisonment. I shall read carefully everything that has been said this evening, particularly by the noble and learned Lord, Lord Falconer. However, I am always a little worried about legislation which relies upon good intentions because we all know what the road to Hell is paved with. Meanwhile I beg leave to withdraw the amendment.
Viscount Colville of Culross: I am sorry to go back to this. We have had a most enlightening discussion about what happens at the end, but I have not had an answer about what happens at the beginning. As I understand Clause 9, subsections (3), (4), (5), (6) and (7) apply to all parenting orders from whatever source they arise, whether they arise under Clause 8(1)(a), (b), (c) or (d). All of them are covered by subsections (3) to (7) inclusive. Subsection (2) requires a court to obtain the necessary information only where a person has been convicted of an offence and that person is under the age of 16. I entirely understand why the age of 16 is chosen but I cannot understand why it is only in those circumstances that there is a statutory requirement to obtain the necessary information. I should have thought that it was a prerequisite of making any parenting order. The limitation in that subsection--in other words,
Lord Falconer of Thoroton: The point that has been made by the noble Viscount concerns why Clause 9(2) provides an obligation only in relation to people under 16. I apologise if I have not understood that.
Viscount Colville of Culross: I have not explained it. The parenting order can arise from a complaint to the magistrates' court, for instance, in the proposition that an antisocial behaviour order or a sex offender order has been made, and then the parenting order follows--that
Lord Falconer of Thoroton: That seems to me to be a fair point and one which we should take away and think about. I shall give the noble Viscount what seems to me to be the answer to this. One can make an order only if one is satisfied that one or other of the relevant conditions is fulfilled. Any court acting in accordance with the law would therefore need to have before it such information as would be necessary for it to form a view as regards the satisfaction of the relevant condition. I see that leads to a strange anomaly when there is the obligation under Clause 9(2) in respect of the under-16s but not in relation to those who are over 16. However, I should have thought that is a drafting point rather than a point of substance. One still needs to be satisfied that the relevant condition is fulfilled. Therefore, one needs to know something about the circumstances of the family. As I say, I see the force of the point. We shall take it away, think about it and write to the noble Viscount.
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