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The Earl of Mar and Kellie moved Amendment No. 215:

Page 34, line 28, after ("court") insert (", and with his legal representative,").

The noble Earl said: Amendments Nos. 215 and 216 seek to improve and clarify what is intended in the Bill. The use of live television links at preliminary hearings is a sensible administrative measure which, among other things, eliminates the often complicated procedure of making remand prisoners available to the court, usually so that they can be remanded for a further period. As the court appearance may take moments, the effort involved in making them available is disproportionate.

The two amendments clarify what the prisoner may do in connection with a television-linked court appearance. He should clearly have some discussions with his defence agent, and he should be given the chance to consent to the televised process. There seems to be some tension in subsection (1) between,


    "direct that the accused shall be treated as being present".

I wish to find out whether the court can make a direction to use the televised link only if both parties, and not just one of them, agree to its use. I beg to move.

Lord Falconer of Thoroton: As the noble Earl pointed out, the purpose of Clause 45 is to reduce the delay and the associated costs caused by defendants in custody travelling back and forth between prison and court for what are preliminary hearings often lasting only a few minutes. By reducing the number of journeys between prisons and courts the measure is also expected to contribute to greater security. Indeed, it is an outstanding recommendation of the Learmont Report.

The effect of the amendments would be to give the defendant a veto on whether or not the television link is used. That is not the intention of the present draft. So the answer to the noble Earl's question as to whether the consent of both parties--that is, prosecution and defence--is required that it is not.

I should make clear that it is the Government's intention, before introducing the measure more widely, to pilot the arrangements. The pilots will be designed to ensure that defendants are not disadvantaged by the new procedure. Early trials of the TV-linked equipment have satisfied us that the necessary technology is available and good enough to allow all parties to participate fully

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in the hearings. If, despite that, defendants were allowed to veto such arrangements for no good reason, the real gains to be made for the court and prison services would be seriously undermined.

The noble Earl spoke also to Amendment No. 216. It has always been the intention that the defendant would be able to communicate with all relevant parties to the proceedings, including his or her legal representatives. We recognise that advocates often use preliminary hearings for further discussions with their clients, and that those need to be confidential. Although it is not directly relevant to the measure itself, the pilot projects will be looking at ways to allow such discussions to take place. One possibility is the availability of a confidential telephone line. Obviously, for open questions during the hearing itself the advocate will be able to use the TV link, along with any other party to the proceedings.

It is important to remember that the court retains a discretion as to whether to allow the use of the television link. If there is a good reason for the defendant to be present physically, the court can hear representations from the defendant or his legal representative and can then exercise that discretion and require the defendant to be produced from custody. I hope that my explanation answers the noble Earl's questions, and allays his concerns, and that in those circumstances he will feel able to withdraw the amendment.

5.45 p.m.

The Earl of Mar and Kellie: I am grateful to the Solicitor-General for that answer. I am certain that those who encouraged me to table the amendments will be interested in what he had to say. I do not intend to press the amendment. The pilot projects will produce some interesting results. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 216 not moved.]

Clause 45 agreed to.

Clause 46 [Sentences extended for licence purposes]:

Lord Windlesham moved Amendment No. 217:

Page 35, line 12, leave out ("custodial").

The noble Lord said: Amendments Nos. 217 and 218 are the first amendments which refer to Part IV of the Bill. In dealing with offenders, the side note to Clause 46 refers to:

    "Sentences extended for licence purposes".

The two amendments may appear to be somewhat arcane and technical. They call for some explanation, which I shall attempt to give as clearly as possible.

The purpose is to avoid the confusion that can result from using the same description to refer to what are two essentially different types of sentence. Until abolished by the Criminal Justice Act 1991, the courts had a power to impose a sentence of imprisonment longer than the maximum prescribed for a particular offence if certain conditions were satisfied.

The provision fell into the category of what had seemed to some in Parliament at the time of its original enactment--although not to many in the judiciary--to

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be a good idea, but it was little used in practice. By 1991 it had become virtually obsolete, and the provision was repealed in that year.

Now the same description has been resurrected in Clause 46(2) to refer, not to an extended period in prison, but to an extension in the length of time a person convicted of a sexual or violent offence would be subject to supervision on licence after release from custody.

The reasoning, as set out in what I think we must all regard as the complicated drafting of Clause 46, is that the custodial term represents the penal element in the sentence--that is, the proportionate punishment deserved by the circumstances of the crime--whereas the extended period spent on licence in the community after release, and subject to recall to prison, is intended to prevent the commission of further offences, and, in the wording of the clause, to secure the offender's rehabilitation. One might note that it is good to see that word coming back into criminal justice statutes.

The purpose of my amendments is to clarify the distinction by deleting the word "custodial" in line 12 of Clause 46(2) and substituting the word "duration" for the word "term" in the same line. It may not have escaped the notice of some of your Lordships--certainly, I hope those on the Front Bench--that the amendments are supported by the noble and learned Lord, Lord Bingham of Cornhill. Since his public duties do not enable the Lord Chief Justice to be present in person, and in order to avoid the risk of misrepresenting his views, I shall quote his words when writing to indicate his support for the amendments. He stated:

    "The point to be made is that the second component of the sentence described in Clause 2(b) as the 'extension period' should not be described as a 'custodial' sentence because it is not a period spent in custody, unless of course the offender breaks the terms of his licence and is recalled. For the same reason the expression 'duration' is preferable to 'term', again making it plain that during 'the extension period' the offender is not in custody".

It will be seen that the amendments do not strike at the intention of the Government's policy, nor do they alter in any way the manner of its implementation. They are solely designed to clarify the wording of a new law which the courts, the Probation Service, the Parole Board and others will have to apply.

Ministers on the Front Bench have invariably been patient and courteous in their responses to more than 200 amendments. But, government amendments apart, few or possibly none have been accepted as they stand. This is the time to show what they can do, even if the brief is marked "resist". Often, parliamentary draftsmen do not have the most open minds, and I stress that this is purely a matter of drafting. Although there is an important distinction behind the amendment, it is a drafting amendment. Bearing in mind the fact that the noble and learned Lord the Lord Chief Justice has given his support in the words which I have quoted, and the respect which we understand is accorded by the

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Government Front Bench to the views of the higher judiciary, I hope that the amendments will be accepted. I beg to move.

Lord Ackner: This application for leave to amend, so to speak, should be an undefended application. The opening words of the clause make the position, so admirably explained by the noble Lord, perfectly clear. It states:

    "This section applies where a court which proposes to impose a custodial sentence for a sexual or violent offence considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation".

Therefore, right from the outset the clause is contemplating extending the licence period, not the custodial period. From that, all else follows.

Lord Mackay of Drumadoon: I offer a measure of support to the amendment and perhaps a face-saving way out of the dilemma which will undoubtedly face the Minister who is to reply. Clause 70 deals with the proposed new Section 210A of the Criminal Procedure (Scotland) Act 1995, which seeks to introduce a similar provision into the law of Scotland. The approach followed by the draftsman in that clause goes a long way to meeting what is sought by my noble friend and supported by the noble and learned Lord, Lord Ackner. In particular, it makes it clear that the custodial description is applied only to the term of imprisonment and not to the whole sentence.

It may well be that further reflection by the draftsman, having regard to what his colleague has done in drafting Clause 70, may meet the point.

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