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The Earl of Sandwich: My Lords, what is the Government's assessment of public opinion in the former Yugoslavia? What proportion of the public does she believe is behind a negotiated settlement?

Baroness Symons of Vernham Dean: My Lords, in a war-torn country I do not believe that public opinion polls and focus groups are necessarily foremost in people's minds. One can imagine what public opinion must be in a country which must witness on an almost weekly basis the most appalling atrocities involving unarmed civilians, the elderly and children. Very often, there is not a man of fighting age in sight. Whether we are government Ministers or watching these appalling events unfolding in our own living rooms on the television, if we look at the faces of those involved, we can know fairly well what public opinion is at the moment.

Baroness Strange: My Lords, I thank the Minister for repeating the Statement. Does she agree that

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violence begets violence; it breeds violence? Does she agree also that everybody in this House has their breath held and fingers crossed that the talks at Rambouillet will work?

Baroness Symons of Vernham Dean: My Lords, we all know that on occasions, sadly, military action is necessary. But military action by itself rarely solves the world's difficulties and wrongs. There is a particular difficulty when it involves a single country and an internal conflict. I am sure that the noble Baroness speaks for the whole House when she says that she wishes to see the discussions at Rambouillet going ahead on the most constructive basis possible.

Youth Justice and Criminal Evidence Bill [H.L.]

4.20 p.m.

Lord Williams of Mostyn: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.--(Lord Williams of Mostyn.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (The Countess of Mar) in the Chair.]

Schedule 1 [Youth offender panels: further court proceedings]:

[Amendment No. 59 had been withdrawn from the Marshalled List.]

Viscount Colville of Culross moved Amendment No. 59A:


Page 45, line 21, leave out from ("court") to end of line 27 and insert ("that the circumstances set out in the report by the panel under paragraph 2 of this Schedule accord with the provisions for a referral back in section 7, 10 or 11 of this Act,").

The noble Viscount said: I am glad that the Committee stage was adjourned when it was last week in order for me to transform a somewhat cryptic note to the noble Lord, Lord Williams, into an amendment for his consideration. I am concerned with the formulation in paragraph 5 of the first schedule and the situation that will arise. There will have been a referral to a youth panel of an offender who falls into the right kind of categories which are set out in the Bill. Then something will have gone wrong and the question will arise as to whether that offender should be referred back to the youth court in order that the matter can be reconsidered.

The modern analogy for what now appears in Paragraph 5 is the provision in Schedule 2 to the Criminal Justice Act 1991 for breaches of community sentences such as probation orders and community service orders. In those circumstances the court, whether it be a magistrates' court or the Crown Court, has to be satisfied about certain matters, but they are nothing like as specific as they are here. It then can have the power

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to deal with the matter afresh, as if it had not previously made a community order, but taking into account of course the extent to which any such order has been complied with.

In this Bill the matter has been spelt out in some considerable detail. If the panel wishes to refer an offender back, the court has to go through an elaborate set of considerations. It has to look upon the finding of fact by the panel and decide whether the panel was entitled to make that finding or, if it was a matter of discretion, whether the panel reasonably exercised that discretion.

I suggest to the Committee that the relationship between a youth court and the local youth offender team, who I am sure will be a part of the panel system, will be one of mutual trust. Certainly in my experience, when dealing with my own probation service, one does not expect the probation service to bring back to court a breach of a community sentence unless there is good reason for it. And although there is technically a reason, unless there is a requirement that the court should be satisfied, there is no spelling out of the details as to what the court has to be satisfied about. I therefore wonder why it has to be spelt out in such detail in Paragraph 5.

My amendment probably does not take account of all the drafting niceties because no amendment drafted by a Back Bencher ever does, but I draw the noble Lord's attention to the circumstance of some of these referrals back, particularly those in Clause 11(4), and particularly where, in effect, the system--the contract--has broken down and it is being taken back to the court so that it can be looked at afresh.

Why, in those circumstances, should a court question the exercise of discretion by the panel? Perhaps I may ask the noble Lord the following question. Supposing it goes into the details set out in the text as it now appears, and comes to the conclusion that the finding of fact is not justifiable or that the exercise of discretion was not reasonably carried out, what then is to occur? There will have been a referral back; the youth panel will have decided that the matter will not proceed; the contract will not work; and the court to whom it is referred back will really be put in an impossible situation. I suggest to the Committee that the way in which it is put at the moment is too elaborate and it could be left to a much more simple formula which will reflect the trust that will arise between the court and the youth offender team. I beg to move.

Lord Cope of Berkeley: I should like to give rather diffident support to the approach adopted by the noble Viscount. There is a small problem which occurred to me. It is a slightly related matter, and I raise it with diffidence, but it seems to arise out of these matters. If an offender is referred back, either under the wording in the Bill at present or under the wording proposed, and the court decides that it was properly referred back, then the order is revoked in any case and the court can then proceed if it wishes, and thinks it right, to sentence the offender further.

However, if it is referred back and the court decides, for whatever reason, that it was not properly referred back by the panel and the time of the contract has

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expired by that time then, as I understand it, the order is automatically discharged rather than revoked and no further penalty can presumably be imposed in those circumstances. That seems to be an awkwardness which arises from the wording of this particular part of the schedule.

Lord Williams of Mostyn: I am most grateful, as always, for the courtesy with which the noble Viscount approaches these matters, in writing to me as he said. I sympathise with his view that the procedures for the court, the panel and the young offender should be set out as simply as possible. Also, there must be no question that the actions of the panel are put on trial in any sense at a breach hearing. However, we have to bear in mind that the court does have a role as a supervisory jurisdiction and in the circumstances it is of the greatest importance.

There are a few circumstances which may prompt a panel to refer a young offender back to the court. Clause 7(2), as your Lordships will know, gives the panel the discretion to refer the young offender back to court if he or she fails to attend a panel meeting. Under Clause 10(2) or (3) the panel shall refer the young offender back to court if there appears to be no prospect of agreeing a contract or where a contract appears to have been agreed but the young offender refuses to sign it.

Under Clause 11(5) again the panel may refer a young offender back to court following a breach of the terms of the contract. Under Clause 11(8) or (10) the panel may refer the young offender back to court if he or she fails to sign a variation of the contract, or indicates that there is a change of circumstances such as to warrant a revocation of the order. Under Clause 12(4)--and I think the noble Viscount is right, because his amendment does not deal with this but it is a drafting point, as he says--the court shall refer the offender back to court if at the end of a contract period he or she has failed to comply.

In some of these circumstances, such as failure to agree a contract from the outset, the youth offender panel has a positive duty to refer the young offender back to court. The young offender is unable or unwilling to comply with the terms of the referral order, and the court must be given the opportunity to consider an alternative sentence. The court will be able to do so as soon as it is satisfied that the circumstances did indeed take place.

In other circumstances, of course, the panel has a choice. Perhaps the most obvious example is where a breach of the terms of the contract has taken place. In those circumstances the panel may refer the young offender back to court and that is the element of discretion to which I referred earlier. This must be right, because further inquiry may be needed and the breach may be minor. Alternatively, it may have happened only once and although it may be a slip on the part of the young offender there is every belief that he or she will comply in the future. It may further have been a breach beyond the control of the young offender brought about by ill health or the actions of others, and so those

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circumstances need to be investigated by the panel before a decision on whether to bring breach proceedings is reached.

In such circumstances, it will not be enough for the court simply to make a finding of fact that a breach has taken place. The young offender may well agree that he failed to comply on a certain occasion but may not agree that his or her actions were sufficient to discredit the contract entirely. It is important that there should be an opportunity for the court to hear arguments on this point from the young offender, or his or her legal representative. This is not a matter of putting the panel on trial but of ensuring that the young offender has a chance to have his say.

For those reasons it is important that the court is asked to consider not only the facts--that is to say, whether or not a breach occurred--but also whether the response to that breach was reasonable and proportionate in the particular circumstances of the case. The noble Lord, Lord Cope, asked a specific question as to what would happen if the period had expired. The answer is in paragraph 7(3) where we see that it will be discharged.

I turn now to the question of the noble Viscount: that, is, what would happen if the court concluded that there was no breach. If the court concludes that there is no breach, the young offender remains subject to the referral order. The court may suggest some variation to the order to enable the offender more easily to comply. I appreciate that there is a good deal of detail set out here. In the context of the new method of disposal, we feel that that is right. It gives discretion and mandatory duty to the panel. I hope that with that explanation the noble Viscount will feel sufficiently content not to press his amendment.

4.30 p.m.

Viscount Colville of Culross: I am grateful to the Minister for that explanation. I suspect that in practice it will not matter much, but I make two points which the noble Lord and his advisers may wish to consider.

First, the magistrates do not sit only in relation to these sorts of proceedings; they deal with a whole range of matters, including ordinary community sentences. They will wonder why Parliament set out different tests and what it is they are supposed to do that is different from the other circumstances when a breach is referred back to them. All I suggest to the Minister is that there will be confusion as to the role they have to play.

Secondly, if paragraph (5) has to be explored in the detail which will be necessary to establish to the satisfaction of the court that the facts or the discretion have been rightly dealt with, then the youth court will have to go into quite a lot of delicate negotiations and arrangements between the young offender and the people who are trying to set up a positive regime to look after him. Those are not usually susceptible to a positive solution by public discussion in a court. It is unlikely that progress will be made in that forum and it is much better, on the whole, for the matter to be dealt with by the youth offending team and only in extremis, at the end, if a breach is thought to be impossible to resolve in any other way, should it be taken back to the court.

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The explanation of the noble Lord is perfectly reasonable in terms of the legal drafting, but when it comes to the reality of what is going to happen as between a court, a very young offender and the youth offending team which is supposed to be looking after him, the wording will not produce anything different from the straightforward and simple situation suggested in my amendment.


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