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Lord Williams of Mostyn: The noble Baroness is quite right in saying that the two options included in the consultation paper, which she described as A and B, were respectively the provision in the Bill and what the noble Baroness contends in Amendment No. 231.
The consultation paper highlighted the fact that there is a cost in giving the police more information upon which to base their decisions. The costs are: slowing down the process, introducing delays and therefore, for the reasons I mentioned on a number of occasions earlier in this general context, significantly reducing the impact of both the warning and the intervention. Responses to the consultation paper suggested that, in practical terms, there is or may be no clear distinction between the assessment and implementation phases of the youth offending teams' work. A number of respondents suggested that assessment may well take considerably longer than the two weeks suggested in the paper. We considered those comments extremely carefully. The noble Baroness said that the consultation paper invited comments and we considered them carefully. The Government decided that in the light of the comments the benefits of allowing for assessment before issuing a warning did not outweigh the crucial importance of providing a swift response to the young person's offending behaviour.
I need not repeat the observations I made earlier on related amendments. The second amendment, Amendment No. 232, removes from the Bill the proposed restrictions on the use of conditional discharge following a final warning. We believe that those restrictions are an essential component of the final warning scheme and should be retained.
If a young offender offends again after receiving a final warning, having taken part in a rehabilitation programme, effective action must be taken to break the cycle of offending behaviour. A conditional discharge would have quite the opposite effect, we think. It tells the young person that the court regards his or her continuing offending behaviour as insufficiently serious to warrant substantial punishment. It would do nothing actively to divert the young person from crime. We
Viscount Tenby: Perhaps I may interpose before the noble Baroness, Lady David, makes her response to the Minister. I am always reluctant to endorse any measure which restricts sentencing options. Over the years, a conditional discharge has proved its value. I understand entirely what the Minister said about a person who has been subject to all the reprimands and various stages of the reprimand process not being perhaps susceptible to conditional discharge. But nevertheless I feel that it has earned its way over the years.
The point is that it has been used so much in the past because there has been no alternative. But we now have an alternative in the form of the reparation order. Surely the problem about the over-use of the conditional discharges can be easily overcome by making courts state the reasons for giving conditional discharges at any given time. I am sorry to interpose at this delicate stage of the amendment, but I urge that we come back to the point at a later stage.
Lord Williams of Mostyn: Perhaps I may respond to the noble Viscount. As the Bill is drafted at present, the conditional discharge as a sentencing option will be available but only in exceptional circumstances relating to the offence or offender so that flexibility is retained there. I shall not trespass on a further amendment about the giving of reasons, Amendment No. 232A, but I take the noble Viscount's point.
Baroness David: We are getting used to having not very good responses--or not very satisfactory responses, should I say. I am disappointed. I think that Amendment No. 231 and Option B are superior to what is in the Bill. I was glad to have the noble Viscount's support for keeping the conditional discharge. It can be used in exceptional circumstances, but I shall not ask the Minister to give me a list of what those possibly are at this time of night. I am not satisfied with the answer, so although I shall withdraw the amendment at the moment, I am likely to come back to it at the next stage of the Bill. I beg leave to withdraw the amendment.
Baroness Anelay of St Johns: I raised objections to Clause 53 on Second Reading, and I am grateful to the noble Lord, Lord Williams, for writing to my noble friend Lord Henley, on these issues. However, I have to say that he has not quite allayed my anxieties just yet. Of course, like other noble Lords, I support the objective of preventing reoffending and securing the rehabilitation of young people, but I believe that Clause 53 goes substantially beyond the current local schemes for cautioning. I believe it is important that the new proposals should be as fair and workable as possible now that they are being put into a statutory framework. I gave notice that I would oppose Clause 53 stand part simply so that I could raise specific points which have been put to me by individual lay magistrates and by individual justices' clerks. I ask the Minister tonight to address the following points which they have made.
It has been put to me that it is plainly wrong for an offender to be sentenced by anyone other than a court and it is believed that this is effectively what can happen under Clause 53. Quite apart from the main principle involved, a number of other questions have been raised. For example, suppose that the requirements of the rehabilitation programme are unreasonable, disproportionate or objectionable. If the offender declines to co-operate is it then really fair or acceptable that such disinclination is to be recorded and notified to others as a failure within the terms of this clause? Let us suppose that the offender does have a reasonable excuse: is there really to be no independent arbiter of that?
In future criminal proceedings of course the failure may be cited. What notice is the court expected to take of that citation? Is it right or acceptable that the citing of the failure should increase the severity of the sentence for later and different criminal proceedings? The implication of Clause 53(5)(c) is indeed just that. What if the offender challenges the correctness, or the whole basis on which the failure was itself recorded? What is the court to do then?
It has been put to me by two separate people that the potential for unfairness is incalculable and I respect their views because they are closely involved in the running of the court system. It is worth noting at this stage that subsequent clauses impose statutory constraints upon the court's powers to make an action plan order; yet at this stage the Bill imposes no restraints on the youth offending team and their activities under Clauses 52 and 53.
Clause 53(3)a) appears to make any constraints which might be imposed dependent solely upon the decision of the Home Secretary of the day. Far be it from me to argue against the Home Secretary playing a role in determining sentences. To do so would be to run counter to the arguments I myself put in the Unstarred Question asked by the noble Earl, Lord Longford, just last Wednesday. However, surely such action should be reserved for only the most serious offences which carry
Lord Williams of Mostyn: I am most grateful for the way in which those questions have been put. The first question is: how is it to be fairly safeguarded so that only unreasonable non-compliance should draw a sanction? I can assure the noble Baroness that guidance will be issued to youth offending teams to make sure that only unreasonable non-compliance is recorded. There are always going to be some circumstances where a young person may well be unable to fulfil some aspect of a rehabilitation programme for reasons beyond his or her control. The guidance will also make clear--and I hope this will find approval in the Committee--that the young offending teams would be obliged to inform the young person and his or her family in writing of the consequences of continued non-compliance, so that the young person has an opportunity to comply before the non-compliance is recorded.
Why should reprimands and warnings be cited in court? We believe that to come to a just conclusion the court should be aware of offending history--as is commonplace at present. The response of the youth justice system to young people's offending behaviour ought to be progressive and it is important that a court be aware of previous reprimands and warnings. The Home Office circular indicates that cautions issued for offences committed by a person before the present relevant offence may be cited in court. We therefore see no difficulty in principle, although I understand that the guidance needs to be carefully considered.
We believe that failure to complete a rehabilitation programme should be a relevant factor in subsequent proceedings and, subject to the proviso I made earlier, it is only unreasonable non-compliance which ought to be the basis of subsequent consideration by a court. A court may vary considerably in the weight that it pays to the failure to comply. It may come to the conclusion that some of the compliance requirements were over-onerous which may lead it to the conclusion that it was not unreasonable not to comply; or it may come to the conclusion that, if it was unreasonable, it should not feature large if at all in the determination of the sentence passed. Those are the sort of difficult, subtle problems with which magistrates in youth courts regularly deal at the moment.
One question that was the subject of discussion concerned the fact that, if reprimands and warnings can be cited and are part of a criminal record, what is the relationship to the Rehabilitation of Offenders Act? That is a useful point to make at this stage; it is part of the general anxieties that the noble Baroness and others have had. I can say to the noble Baroness, I hope helpfully, that the Government are considering whether any changes to the Rehabilitation of Offenders Act are necessary in the light of the new arrangements in the Crime and Disorder Bill. Currently, the Bill does not provide for police reprimands and final warnings to be subject to the Rehabilitation of Offenders Act 1974. We are therefore looking at the situation in the context of that Act.
The curiosity of the moment is that cautions are not covered. We believe that that is substantially because the Rehabilitation of Offenders Act is now over 20 years old and perhaps has not kept pace with changing police practice as to cautions. Cautions are now used by all police forces as standard practice and we need to look at that in the context also of the rehabilitation of offenders. I am not giving any guarantee, but it is recognised by the Home Office that the Act of 1974 needs to be looked at in the context of cautions, reprimands and warnings.
Amendments to the 1974 Act will be complicated and we need to give the matter careful consideration before coming to a conclusion as to the final form of any amendment to that Act. I hope that my response has been of assistance to the noble Baroness.
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