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Lord Falconer of Thoroton moved Amendments Nos. 265 to 269:


Page 70, line 40, at end insert ("for the time being").
Page 70, line 41, after ("place") insert ("for the time being").
Page 70, line 44, at end insert ("for the time being").
Page 71, line 11, after ("periods") insert ("for the time being").
Page 71, line 28, leave out from ("State") to second ("the") in line 30 and insert (", as regards a person released on licence under section 34A(3) above--
(a) that he has failed to comply with the curfew condition;
(b) that his whereabouts can no longer be electronically monitored at the place for the time being specified in that condition; or
(c) that it is necessary to do so in order to protect the public from serious harm from him,").

The noble and learned Lord said: I have already spoken to these amendments. I beg to move.

On Question, amendments agreed to.

3 Mar 1998 : Column 1173

[Amendment No. 270 had been withdrawn from the Marshalled List.]

Clause 83, as amended, agreed to.

On Question, Whether Clause 84 shall stand part of the Bill?

Lord Belstead: I wish to ask a question about Clause 84. Does subsection (1) of Clause 84 mean that short-term prisoners will be recalled henceforth, when the Bill becomes law, by the Parole Board and not by the courts? If I have that right, does subsection (1) also mean that a short-term prisoner henceforth can be recalled for not complying with the terms of his or her release licence whereas now a short-term prisoner must have reoffended in order to be recalled? I am perfectly happy if the Minister would like to write to me on that point.

I raise it because, if I have it right, Clause 84 marks a very substantial step forward with regard to the recall of prisoners. If I am not too far out of order, perhaps I may also say that Clause 85 undoubtedly marks a very substantial step forward with regard to the recall of all prisoners. That clause, which the Deputy Chairman of Committees will be calling in just a moment, shows that the Government have observed a major lacuna in the present arrangements and are putting it right by providing that a prisoner who has been recalled will, under the Bill, be released at the three-quarters point of his sentence, but under supervision to the end of his sentence, which is not the case at the present time.

I raise these points because, in terms of public protection and the rehabilitation of prisoners, I believe that the Government have got Clauses 84 and 85 absolutely right. Speaking from the opposite side of the House from the Government, it gives me pleasure to be able very respectfully to say so.

Lord Falconer of Thoroton: I am grateful to the noble Lord for his remarks. He is correct in the description he gives of the effect of Clause 84. I should point out that there are transitional provisions in Schedule 8 to the Bill to enable Clause 84 to be introduced later than other provisions in this part of the Bill. His remarks on Clause 85 were not a question but a congratulation. While I am on my feet, perhaps I may indicate that the letter I was so generously offering to send everyone--the letter of 29th January 1998 from my noble friend Lord Williams of Mostyn to the noble Lord, Lord Henley--is in the Library and so can be looked at.

Clause 84 agreed to.

Clauses 85 to 87 agreed to.

Schedule 6 [Pre-consolidation amendments: powers of criminal courts]:

Lord Falconer of Thoroton moved Amendment No. 271:


Page 95, line 40, leave out from second ("of") to end of line 41 and insert ("a relevant order (within the meaning given by that Schedule) or of a combination order);".").

3 Mar 1998 : Column 1174

The noble and learned Lord said: Perhaps I may, with the leave of the Committee, speak also to Amendments Nos. 272 to 287, 322, 324 to 329, 331 and 334. These are all technical amendments. There are 26 in all. They have been identified in consultation with the Law Commission. They are necessary to facilitate the consolidation of certain enactments relating to the powers of the courts to deal with offenders or defaults. The amendments are required before a consolidation Bill can be introduced in a future Session of Parliament. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 272 to 287:


Page 96, line 15, at end insert--
(". In section 12 of the 1969 Act (power to include requirements in supervision orders), after subsection (3) there shall be added the following subsection--
"(4) Directions given by the supervisor by virtue of subsection (2)(b) or (c) above shall, as far as practicable, be such as to avoid--
(a) any conflict with the offender's religious beliefs or with the requirements of any other community order (within the meaning of Part I of the Criminal Justice Act 1991) to which he may be subject; and
(b) any interference with the times, if any, at which he normally works or attends school or any other educational establishment."").
Page 96, line 28, at end insert--
(" . In section 16(11) of the 1969 Act (provisions supplementary to section 15), the words "seventeen or" shall cease to have effect.").
Page 97, line 7, at end insert--
(" . In section 1(8) of the 1973 Act (deferment of sentence), for paragraph (a) there shall be substituted the following paragraph--
"(a) is power to deal with him, for the offence for which passing of sentence has been deferred, in any way in which the court which deferred passing sentence could have dealt with him for that offence; and".").
Page 97, line 11, leave out ("In section 14(7)") and insert ("Section 11 of the 1973 Act (which is superseded by the paragraph 8A inserted by this Schedule in Schedule 2 to the 1991 Act) shall cease to have effect.
.--(1) For subsection (2) of section 12 of the 1973 Act (supplementary provision as to probation and discharge) there shall be substituted the following subsection--
"(2) Where an order for conditional discharge has been made on appeal, for the purposes of this Act it shall be deemed--
(a) if it was made on an appeal brought from a magistrates' court, to have been made by that magistrates' court;
(b) if it was made on an appeal brought from the Crown Court or from the criminal division of the Court of Appeal, to have been made by the Crown Court."
(2) In subsection (3) of that section, for the words from "any question whether a probationer" to "period of conditional discharge," there shall be substituted the words "any question whether any person in whose case an order for conditional discharge has been made has been convicted of an offence committed during the period of conditional discharge".
(3) For subsection (4) of that section there shall be substituted the following subsection--
"(4) Nothing in section 1A of this Act shall be construed as preventing a court, on discharging an offender absolutely or conditionally in respect of any offence, from making an order for costs against the offender or imposing any disqualification on him or from making in respect of the offence an order under section 35 or 43 of this Act or section 28 of the Theft Act 1968."

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.--(1) In subsection (7) of section 14").
Page 97, line 13, at end insert--
("(2) Subsection (8) of that section shall cease to have effect.").
Page 97, line 28, at end insert--
(" . In subsection (3) of section 22 of the 1973 Act (suspended sentences of imprisonment)--
(a) for the words "make a probation order in his case in respect of another offence" there shall be substituted the words "impose a community sentence in his case in respect of that offence or any other offence"; and
(b) at the end there shall be inserted the words "; and in this subsection "community sentence" has the same meaning as in Part I of the Criminal Justice Act 1991."").
Page 97, line 36, at end insert--
(" .--(1) In subsection (2) of section 32 of the 1973 Act (enforcement etc. of fines imposed and recognizances forfeited by Crown Court), for the words "section 85(1)" there shall be substituted the words "section 85(2)".
(2) In subsection (3) of that section, after the words "to the Crown Court" there shall be inserted the words "(except the reference in subsection (1)(b) above)".
(3) For subsection (4) of that section there shall be substituted the following subsection--
"(4) A magistrates' court shall not, under section 85(1) or 120 of the Magistrates' Courts Act 1980 as applied by subsection (1) above, remit the whole or any part of a fine imposed by, or sum due under a recognizance forfeited by--
(a) the Crown Court,
(b) the criminal division of the Court of Appeal, or
(c) the House of Lords on appeal from that division,
without the consent of the Crown Court."
(4) Subsection (5) of that section shall cease to have effect.").
Page 97, line 36, at end insert--
(" . For subsection (5) of section 57 of the 1973 Act (interpretation) there shall be substituted the following subsection--
"(5) Where a compensation order or supervision order has been made on appeal, for the purposes of this Act (except section 26(5)) it shall be deemed--
(a) if it was made on an appeal brought from a magistrates' court, to have been made by that magistrates' court;
(b) if it was made on an appeal brought from the Crown Court or from the criminal division of the Court of Appeal, to have been made by the Crown Court."").
Page 98, line 33, leave out ("In section 13(3)") and insert ("In section 3(1) of the 1982 Act (restriction on imposing custodial sentences on persons under 21 not legally represented)--
(a) in paragraph (a), the words "under section 1A above" shall cease to have effect;
(b) in paragraph (c), for the words "section 8(2)" there shall be substituted the words "section 8(1) or (2)"; and
(c) in paragraph (d), for the words "section 53(2)" there shall be substituted the words "section 53(1) or (3)".
.--(1) In subsection (3) of section 13").
Page 98, line 36, at end insert--
("(2) In subsection (6) of that section, for the words "section 8(2)" there shall be substituted the words "section 8(1) or (2)".").
Page 98, leave out line 40 and insert (".--(1) In subsection (1) of section 17 of the 1982 Act (attendance centre orders), after paragraph (b) there shall be inserted the following paragraph--
"(bb) has power to deal with a person under 16 years of age under that Part of that Schedule for failure to comply with any of the requirements of a curfew order, or".
(2) For subsection (8) of that section").

3 Mar 1998 : Column 1176


Page 99, line 11, leave out ("section 12(5)(c)") and insert ("subsection (5)(c) of section 12").
Page 99, line 12, at end insert--
("( ) After subsection (6A) of that section there shall be inserted the following subsection--
"(6B) The court by which a curfew order is made shall give a copy of the order to the offender and to the person responsible for monitoring the offender's whereabouts during the curfew periods specified in the order."").
Page 99, line 15, at end insert--
(" .--(1) In subsection (3) of section 40 of the 1991 Act (convictions during currency of original sentences), for the words from "for sentence" to the end there shall be substituted the words "to be dealt with under subsection (3A) below".
(2) After that subsection there shall be inserted the following subsections--
"(3A) Where a person is committed to the Crown Court under subsection (3) above, the Crown Court may order him to be returned to prison for the whole or any part of the period which--
(a) begins with the date of the order; and
(b) is equal in length to the period between the date on which the new offence was committed and the date mentioned in subsection (1) above.
(3B) Subsection (3)(b) above shall not be taken to confer on the magistrates' court a power to commit the person to the Crown Court for sentence for the new offence, but this is without prejudice to any such power conferred on the magistrates' court by any other enactment."
(3) In subsection (4) of that section, for the words "subsection (2)" there shall be substituted the words "subsection (2) or (3A)".").
Page 99, line 20, leave out from beginning to ("for") in line 21 and insert (".--(1) In paragraph 1 of Schedule 2 to the 1991 Act (enforcement etc. of community orders), after sub-paragraph (3) there shall be added the following sub-paragraph--
"(4) Where a probation order, community service order, combination order or curfew order has been made on appeal, for the purposes of this Schedule it shall be deemed--
(a) if it was made on an appeal brought from a magistrates' court, to have been made by a magistrates' court;
(b) if it was made on an appeal brought from the Crown Court or from the criminal division of the Court of Appeal, to have been made by the Crown Court."
(2) In each of paragraphs 3(1) and 4(1) of that Schedule, for paragraph (c) there shall be substituted the following paragraph--
"(c) where--
(i) the relevant order is a probation order and the offender is under the age of twenty-one years, or
(ii) the relevant order is a curfew order and the offender is under the age of sixteen years,
and the court has been notified as required by subsection (1) of section 17 of the 1982 Act, it may (subject to paragraph 6(6) below) make in respect of him an order under that section (attendance centre orders); or".
(3) In paragraph 4(1) of that Schedule--
(a) after the word "failed" there shall be inserted the words "without reasonable excuse"; and
(b) in paragraph (d), for the words "by or before the court" there shall be substituted the words "before the Crown Court".
(4) In paragraph 6 of that Schedule, in sub-paragraph (1),").

3 Mar 1998 : Column 1177


Page 99, line 22, at end insert--
("(5) After sub-paragraph (3) of that paragraph there shall be inserted the following sub-paragraph--
"(3A) A community service order shall not be made under paragraph 3(1)(b) or 4(1)(b) above in respect of a person who is under the age of sixteen years."
(6) For sub-paragraph (5) of that paragraph there shall be substituted the following sub-paragraph--
"(5) Where the provisions of this Schedule have effect as mentioned in sub-paragraph (4) above in relation to a community service order under paragraph 3(1)(b) or 4(1)(b) above--
(a) the power conferred on the court by each of paragraphs 3(1)(d) and 4(1)(d) above and paragraph 7(2)(a)(ii) below to deal with the offender for the offence in respect of which the order was made shall be construed as a power to deal with the offender, for his failure to comply with the original order, in any manner in which the court could deal with him if that failure to comply had just been proved to the satisfaction of the court;
(b) the reference in paragraph 7(1)(b) below to the offence in respect of which the order was made shall be construed as a reference to the failure to comply in respect of which the order was made; and
(c) the power conferred on the court by paragraph 8(2)(b) below to deal with the offender for the offence in respect of which the order was made shall be construed as a power to deal with the offender, for his failure to comply with the original order, in any manner in which the court which made the original order could deal with him if that failure had just been proved to the satisfaction of that court;
and in this sub-paragraph "the original order" means the relevant order the failure to comply with whose requirements led to the making of the community service order under paragraph 3(1)(b) or 4(1)(b)."
(7) After sub-paragraph (5) of that paragraph there shall be added the following sub-paragraph--
"(6) The provisions of sections 17 to 19 of the 1982 Act (making, discharge, variation and breach of attendance centre order) shall apply for the purposes of paragraphs 3(1)(c) and 4(1)(c) above but as if there were omitted--
(a) subsection (13) of section 17;
(b) from subsection (4A) of section 18 and subsections (3) and (5) of section 19, the words ", for the offence in respect of which the order was made," and "for that offence"; and
(c) from subsection (6) of section 19, the words "for an offence"."
(8) In paragraph 8(2) of that Schedule, for paragraph (b) there shall be substituted the following paragraph--
"(b) revoke the order and deal with the offender, for the offence in respect of which the order was made, in any manner in which the court which made the order could deal with him if he had just been convicted of that offence by or before the court which made the order."
(9) After paragraph 8 of that Schedule there shall be inserted the following paragraph--
"8A.--(1) This paragraph applies where a probation order is in force in respect of any offender and on the application of the offender or the responsible officer it appears to a magistrates' court acting for the petty sessions area concerned that, having regard to circumstances which have arisen since the order was made, it would be in the interests of justice--
(a) for the probation order to be revoked; and
(b) for an order to be made under section 1A(1)(b) of the 1973 Act discharging the offender conditionally for the offence for which the probation order was made.

3 Mar 1998 : Column 1178


(2) No application may be made under paragraph 7 above for a probation order to be revoked and replaced with an order for conditional discharge under section 1A(1)(b) of the 1973 Act; but otherwise nothing in this paragraph shall affect the operation of paragraphs 7 and 8 above.
(3) Where this paragraph applies and the probation order was made by a magistrates' court--
(a) the magistrates' court dealing with the application may revoke the probation order and make an order under section 1A(1)(b) of the 1973 Act discharging the offender in respect of the offence for which the probation order was made, subject to the condition that he commits no offence during the period specified in the order under section 1A(1)(b); and
(b) the period specified in the order under section 1A(1)(b) shall be the period beginning with the making of that order and ending with the date when the probation period specified in the probation order would have ended.
(4) Where this paragraph applies and the probation order was made by the Crown Court, the magistrates' court may send the application to the Crown Court to be heard by that court, and if it does so shall also send to the Crown Court such particulars of the case as may be desirable.
(5) Where an application under this paragraph is heard by the Crown Court by virtue of sub-paragraph (4) above--
(a) the Crown Court may revoke the probation order and make an order under section 1A(1)(b) of the 1973 Act discharging the offender in respect of the offence for which the probation order was made, subject to the condition that he commits no offence during the period specified in the order under section 1A(1)(b); and
(b) the period specified in the order under section 1A(1)(b) shall be the period beginning with the making of that order and ending with the date when the probation period specified in the probation order would have ended.
(6) An application under this paragraph may be heard in the offender's absence if--
(a) the application is made by the responsible officer; and
(b) that officer produces to the court a statement by the offender that he understands the effect of an order for conditional discharge and consents to the making of the application;
and where the application is so heard section 1A(3) of the 1973 Act shall not apply.
(7) No application may be made under this paragraph while an appeal against the probation order is pending.
(8) Without prejudice to paragraph 11 below, on the making of an order under section 1A(1)(b) of the 1973 Act by virtue of this paragraph the court shall forthwith give copies of the order to the responsible officer, and the responsible officer shall give a copy to the offender."
(10) After paragraph 11 of that Schedule there shall be inserted the following paragraph--
"11A. Where under this Part of this Schedule a relevant order is revoked and replaced by an order for conditional discharge under section 1A(1)(b) of the 1973 Act and--
(a) the order for conditional discharge is not made in the circumstances mentioned in section 1B(9) of the 1973 Act (order made by magistrates' court in the case of an offender under eighteen in respect of offence triable only on indictment in the case of an adult), but
(b) the relevant order was made in those circumstances,
section 1B(9) of the 1973 Act shall apply as if the order for conditional discharge had been made in those circumstances."").

On Question, amendments agreed to.

3 Mar 1998 : Column 1179

Schedule 6, as amended, agreed to.

Clauses 88 and 89 agreed to.


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