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Lord Williams of Mostyn: We come back to the difference of approach underlying many of the noble Lord's amendments. I repeat that the referral order is intended for use with first time offenders. It is not available for those who have already been through the system, in particular in the context of those who have had a conditional discharge.

It may be of assistance to the noble Lord to bear in mind that in future conditional discharges for first time young offenders will not be available if the compulsory referral conditions have been met. Therefore the problem will not arise when the Act is fully in force.

As regards the amendment of the descriptions which we touched on earlier, Clause 2(4) sets out the descriptions which may be varied subject, as the noble Viscount, Lord Colville, said, to Clause 1(1) which

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limits the availability to those under the age of 18. Those can be changed by regulation, as we find in Clause 2(4)(e). That may reassure the noble Lord that the provision is not set in stone forever. When we have had pilot schemes and have rolled out the scheme in England and Wales, we may well consider that conditionally discharged persons might be available for the new orders. But for the moment we want a precise, defined focus.

Lord Cope of Berkeley: I understand that requirement. It applies not only to England and Wales but to Northern Ireland as well, as I am sure the Minister realises. However, the longer subsection (5) remains in force, the less effect it will have. The provision will wear out, if I understood the Minister correctly. In that sense, it is a matter that the Secretary of State should consider altering sooner rather than later subject to what I said earlier about not fiddling too much with the law immediately one has passed it. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Mar and Kellie moved Amendment No. 19:


Page 3, line 13, at end insert
(( ) A referral order shall be entered on a young person's criminal record only if the young person is referred back to the appropriate court under section 12(4) of this Act. ).

The noble Earl said: The amendment introduces new words to the Bill about the recording of criminal convictions. It probes the status of a referral order with regard to the Rehabilitation of Offenders Act and other criminal records which are kept. I hope to argue that there will be merit and incentive in making the referral order an unrecorded disposal in the event of its successful conclusion. The merit would be that a referral order with an active programme of restorative justice designed by a youth offender panel can be seen as sufficiently virtuous as to be exempted from criminal conviction recording; and an incentive to the young person and his or her family to achieve whatever is deemed necessary in the context of restorative justice.

The amendment does not affect the recording of any failed contract. To do so would be wholly wrong. In most cases a failed contract would be evidence of a lack of motivation to make the necessary changes. There is a limited case where that would not be true: when the young person moves home to an area where the youth offender panel system is not yet available. I beg to move.

Lord Northbourne: I support the noble Earl. I had understood that that was the position. I defer to the noble Earl's greater wisdom. It is most important that that is the position.

Lord Cope of Berkeley: I have sympathy with the amendment. However, I did not quite follow the noble Earl when he stated that the amendment would not affect the recording of a failed contract. I understand that the consequence of a contract failing--by which I

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believe the noble Earl to mean that the conditions were not fulfilled in some way; that the young person fell short of the requirements of the contract--is that the matter is referred back to the court. Would that not lead to it being entered into the young person's record, under the noble Earl's amendment? If it is a failed contract, I believe that it should be so entered, and I think that it probably would be. However, I am slightly confused about the way in which the noble Earl put the issue. Perhaps I have not appreciated fully the effect of the amendment.

The Earl of Mar and Kellie: I did not make myself clear. I believe that failed contracts would lead to the recording of the referral order. My amendment suggests that a successful contract would not be recorded.

Lord Williams of Mostyn: Perhaps I may persist because I share the sympathy expressed by the noble Lord, Lord Northbourne. The amendment would stop a referral order from being entered on to a criminal record except on referral back to court following a breach. The amendment is flawed in that as presently drafted it would affect all referrals back to court regardless of whether the court had agreed that a breach had occurred.

I reassure the noble Lord, Lord Northbourne, that he is right; the referral order will appear on the criminal record. That is important because the order is not an easy way out. Part of restorative justice in its fullest sense means the recognition that a criminal offence has been committed and the understanding by the offender--even though he be a first offender pleading guilty--that he has committed a crime. But when the young person satisfactorily completes the contract the referral order is considered spent by virtue of the Rehabilitation of Offenders Act. That is found in Schedule 3 paragraph 5(3). Therefore, the Bill as presently drafted meets the concerns which have been rightly expressed and with which I sympathise.

Baroness Carnegy of Lour: If an offender reoffends and reappears in court will this penalty count as a previous conviction? Will the referral order that has been spent be put before the judge before sentencing?

Lord Williams of Mostyn: Spent convictions are contained on criminal records which are put before sentencing tribunals with an annotation at the side that they are spent. After satisfactory completion of the contract the referral order is considered spent. If the young offender breaches the contract the court may re-sentence. If there is a re-sentence for the relevant offence where there has not been a satisfactory completion, the rehabilitation on the re-sentence is the same as that of any other disposal. In other words, there is no saving for the re-sentence for the original offence.

The important point is that if you commit an offence your referral order appears on your criminal record. You have the clear inducement and legitimate protection that if you complete your contract properly by virtue of

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Schedule 3, paragraph 5(3) it is regarded as spent. I believe that I have met the noble Earl's proper concerns.

The Earl of Mar and Kellie: This has been a useful micro-debate. I believe that all Members of the Committee are much clearer about the issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3 [Making of referral orders: general]:

Viscount Astor moved Amendment No. 20:


Page 3, line 34, leave out ("each, or each of two or more,") and insert ("more than one").

The noble Viscount said: This is a drafting amendment. There are some confusing words at the end of Clause 3(4) and we have attempted to make the provision easier to understand. It reads:


    "Subsections (5) to (7) apply where, in dealing with an offender for two or more associated offences, a court makes a referral order in respect of each, or each of two or more, of the offences".
That seems to be a complicated way of saying "more than one", which seems to be simpler language. In an effort to make the Bill as short as possible and the drafting as clear as possible, I beg to move.

Lord Williams of Mostyn: The consequence of the noble Viscount's amendment would be that if there were more than one offence there would be a single referral order for all offences. We do not want to do that. We have thought about the matter and believe that there should be a referral order in respect of each of the offences. That makes plain to the offender that each offence is unacceptable and forms a different basis for the referral. It is the position that however many referral orders are made on a single occasion they cannot exceed 12 months in total. We have done this deliberately and there will be a separate referral order for more than one offence.

Viscount Astor: I am grateful to the Minister for that explanation and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 [Making of referral orders: effect on court's other sentencing powers]:

Viscount Astor moved Amendment No. 21:


Page 4, line 16, leave out from ("him") to end of line 17.

The noble Viscount said: This is a probing amendment. I understand that under Clause 4 a court cannot order discharge for one offence and order a referral in respect of others. I may be wrong, but the court does not appear to have that freedom. I should be grateful for the Minister's comments. I beg to move.

Lord Williams of Mostyn: The noble Viscount is right in the context of a conditional discharge. A court could give an absolute discharge together with a referral, but it would not be able to consider the option of a conditional discharge. We say that that is perfectly sensible because there is no virtue in having a referral

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order with a conditional discharge. All one would do is signal wrongly to the offender that the penalty is in the category of a conditional discharge. It is intended to be much more structured and disciplined than anything which could be provided by a conditional discharge. We see no virtue in being able to give someone a conditional discharge as well as a sentence of referral.


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