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Lord Mackay of Drumadoon: I rise briefly to support the amendment as a probing amendment. I pose this question: what activities that a supervising officer might carry out is the subsection designed to exclude? As I understand it, he is limited to activities which will enable him "to report" in the first two instances and "to determine" in the third instance. What activities might he carry out which would be a mischief which the subsection seeks to prohibit?

Lord Hardie: As I understand it, the intention of the noble Earl's amendment appears to be to ensure that an offender will comply with the terms of a drug treatment and testing order. However, if the amendment were accepted, it would place a specific obligation on the local authority's supervising officer to ensure that the offender complies. That would be contrary to the main thrust of the order, which is not primarily about supervision, but rather about the provision of treatment to eliminate or reduce the offender's dependency on drugs. An order may not be made unless the offender agrees to comply with the terms of the order. It is a little like a probation order: the offender has to agree to comply with it. We hope that by doing so he is indicating a willingness and a preparedness to endeavour to break his drugs habit.

The onus of compliance rests with the offender and it is not necessary or appropriate to seek to place an additional burden on the supervising officer to ensure compliance. In any event, giving practical effect to such an additional requirement would almost certainly be problematic. The supervision element of the drug treatment and testing order exists only to allow the supervising officer to report back to the court on the offender's progress. If the court--this is the point I want to emphasise--considered either at the beginning or in the course of the monthly reports that the offender required closer supervision, it would be open to the court to make or to alter the order in conjunction with another order with a more specific supervision requirement. It may be a probation order, to which the noble Earl has referred. In light of that explanation I invite the noble Earl to withdraw his amendment.

I turn to the point raised by the noble and learned Lord, Lord Mackay of Drumadoon. I am not sure how I can indicate the particular functions that may not be covered. Subsection (8) of the clause indicates that supervision is to be carried out for the specific purpose of enabling the supervising officer to report on progress to the court and to report any failure on the part of the offender or recipient of treatment to comply with the specific terms of the order, as would happen with a

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probation order where a breach would be reported to the court. The supervising officer has an obligation to consider whether he should apply to the court for variation or revocation. One example would be where he believed that closer supervision was required and that perhaps an additional order such as a probation order should be imposed to provide additional support or encouragement to the recipient of treatment to break the habit. I hope that that answers the question posed by the noble and learned Lord, but I suspect not.

Lord Mackay of Drumadoon: The noble and learned Lord may suspect wrongly. As I understand his answer, the clause specifies the purposes for which the supervising officer shall carry out inquiries. The purpose is not to exclude him from any activity that he can reasonably be anticipated to pursue. If that is correct I suggest that perhaps further thought be given to the way in which lines 19 to 21 are framed. As I read them they appeared to limit the way in which the supervising officer went about his duties. However, as I understand the response that I have received I may be wrong about that.

The Earl of Mar and Kellie: I am grateful to the noble and learned Lord the Lord Advocate for spelling out that drug treatment and testing orders are focused on the drugs element of a person's life and do not deal with his or her offending behaviour. Perhaps the situation that I describe in which a probation order with an additional condition of drug treatment is the more onerous of the two community disposals is right. Perhaps that is the way it is supposed to be. I believe that those who read Hansard will be keen to understand what a drug treatment and testing order is all about and how closely focused it is.

This is a new task for the sheriff. He does not normally review progress on orders. Usually the sheriff ends up hearing about the failures in the sense that breaches of probation appear before him. One wonders whether this is a new era in the supervision of community sentences by sheriffs or whether it will be unique to drug treatment and testing orders. Following those one or two wee comments, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 73 agreed to.

Clauses 74 to 77 agreed to.

9.30 p.m.

Schedule 5 agreed to.

Clause 78 [Interpretation provision in relation to drug treatment and testing orders]:

Lord Hardie moved Amendment No. 223:

Page 66, line 37, leave out ("234D to 234G") and insert ("234B to 234J").

The noble and learned Lord said: This amendment rectifies an error which was made when the Bill was drafted. The reference to drug treatment and testing orders in Clause 78, which concerns interpretation

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provisions, is inaccurate because it does not include all relevant parts of the Bill. This amendment rectifies that. I beg to move.

On Question, amendment agreed to.

Clause 78, as amended, agreed to.

Clause 52 [Reprimands and warnings]:

Lord McNally moved Amendment No. 224:

Page 40, line 36, at end insert ("or
(c) where the offender has previously been warned, the constable considers that to continue a rehabilitation programme arranged under section 53(2)(b) below would be more likely to prevent the commission by the offender of further offences than prosecuting him for the offence and the constable considers the offence to be not so serious as to require a charge to be brought;").

The noble Lord said: The amendment provides for a greater discretion for young offenders to receive a second warning for a minor offence when the police consider that continuing with a programme of guidance and rehabilitation would be more likely to prevent reoffending than prosecuting the young person for a further offence.

This could be appropriate in cases where the young person has committed a further minor offence but the police and the youth offending team nevertheless consider the work being done with the child and family, under a programme of guidance and rehabilitation, is showing signs of success which it would be unfortunate to jeopardise.

It could also be appropriate where a minor offence, committed before the earlier warning, comes to light only after the young offender has received a warning and begun a programme of guidance and support.

The clause, as drafted, would apparently also require prosecution in these circumstances. The National Association of Probation Officers welcomes the inclusion in the Bill of the possibility of a repeat warning in appropriate cases. It supports a second warning on the specific ground that the police consider persisting with a programme would be a better option than a prosecution for a further minor offence.

NAPO is surprised--in my amendment I commit the same sin--that the term "offender" is used throughout this clause when there has not yet been a finding of guilt. It would welcome its revision.

Lord Northbourne: I support the amendment. I recognise that we are on the horns of a dilemma here. Repeated cautions have proved counter productive and have led to cautions becoming a mockery. On the other hand, many young offenders have got into the habit of habitual offending before they are caught for the first time, and it takes time for them to get out of that habit during the process of rehabilitation.

To make one warning the only warning they can have before they become criminalised is a mistake. In Toynbee Hall we run a befriending programme and we have a very high rate of rehabilitation. It takes time and during the process of intensive befriending--six hours a week, one-to-one befriending--sometimes the children

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slip back once or twice. Usually, by the end, it is successful. Therefore this amendment is enormously helpful.

Lord Williams of Mostyn: The noble Lord, Lord McNally, made the point about the use of the term "offender". That is because by virtue of Clause 52(1)(a) the offender is defined as a child or young person who has committed an offence. That can only lead to a caution where the child or young person has admitted the commission of the offence. So it is not unreasonable, the offence having been proved by way of admission, to call that person an offender.

I take the points made by both noble Lords. We are resolved to avoid the dangers mentioned by the noble Lord, Lord Northbourne, about repeated cautions or--it is just as fundamental--the opportunity that a final warning will not really be such. We share a deep public unease about repeated cautions, which are very often linked to delays in the system.

Repeated cautions and delays are counter-productive for many young people. We need to provide a clear, unambiguous message that offending is wrong and that continued offending will be met by a progressively tougher response. We want to have a system that is straightforward and well understood, and which we believe therefore would be properly respected, which cautioning, by many young people at the moment, is not. There should be clarity within the youth justice system if we are to get young people to respect the criminal justice system and to have the opportunity of early intervention on their behalf by way of support and assistance.

The amendment moved by the noble Lord, Lord McNally, gives an additional ground for issuing a second warning. I concede that there is already provision for a second final warning in the tightly defined circumstances in the Bill. We believe that that discretion would be too wide. Apart from the point of principle, we believe that it would be cumbersome for a police officer to have to come to a conclusion about rehabilitation, and time would therefore pass. In many circumstances, delay is the enemy of the offender as well as the enemy of the system.

We have pondered about this carefully, and thought that we should draw the line in this way. Having reflected on the lessons of the past, we have come to the conclusion that many young people are just not helped at all by too flexible an approach. We believe that we have struck the balance about right. I cannot claim that we think that we have done more than that, but that is the response that I offer the noble Lord.

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