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Viscount Brentford: I am not very happy about Amendment No. 61 for the reasons put forward by my noble friend Lord Renton. It reduces the options open to the court, which I should like to see remain as flexible as possible.
I am intrigued by Amendment No. 62 which was tabled by my noble friend Lord Cope. I can see the frustration in the behaviour of certain young people in breaching the terms of the referral contract. Does the Minister think that being able to add to the punishment because of such a breach will change the atmosphere surrounding the contract so that it has more of a legal basis--indeed, it does have a legal basis--or rather, more of a court structure about it, which is exactly what we are trying to avoid? I like the idea, but I wonder
Viscount Bledisloe: Amendment No. 61 appears to me to make a most amazing proposition. We have a situation where a serious offence has been committed and by eloquent pleading of how extremely sorry the young offender is, how he intends to live a wonderful life thereafter, and how deeply sorry he is for the pain that he has inflicted upon the victim, the court says to him: "By the skin of your teeth, you have just escaped a custodial sentence". He then goes to the panel where, in extreme bloody-mindedness, he entirely refuses to do anything that is suggested and he is referred back to the court. Thereafter, we are told that the court who said, "You have escaped by the skin of your teeth, because you are so penitent", will not be allowed to send him to prison on the grounds that he is not really repentant at all. That seems to me to be extraordinary.
Lord Williams of Mostyn: It is not so extraordinary if one actually considers what the noble Viscount, Lord Brentford, correctly identified as a new beginning in dealing with first offenders--and the noble Earl, Lord Mar and Kellie, also pointed this out--who have pleaded guilty and who are under the age of 18.
We are trying to set out new measures for dealing with offenders in that particularly limited category. At present, the Bill allows the court to sentence the young offender for the original offence using the full range of sentencing options which would have been available to it if it were not for the mandatory referral. In doing so, the court must take into account the extent to which the offender had already complied with the terms of the contract and the reason given for the breach. As Members of the Committee have rightly observed, the Bill makes no provision for the circumstances of the breach or the extent of compliance to be used as aggravating factors; it is not intended that they should be.
Perhaps I may set out our thinking and try to reconcile the different themes that have been expressed in noble Lords' observations. Our thinking is that this is a completely new way of dealing with young offenders whose limited category I have already described. I support the principle and the thinking behind the amendment of the noble Lord, Lord Dholakia, but I do not believe that the provision is necessary.
I turn now to the important question of this being a fettering of discretion, as argued by the noble Lord, Lord Renton. It is not. The sentencing discretion has already been exercised. All offences made the subject of a referral order will already have been the subject of the court's discretion. I say that because, in its discretion, it comes to the conclusion that the offence in question--the index offence, if I may call it so--does not warrant a custodial sentence. The circumstances of the breach are not to be used as aggravating factors and, therefore, the situation about which the noble Lord was concerned should not be capable of arising. I hope,
In recognising that this is a new form of disposal, the noble Lord, Lord Cope, has taken a different approach by seeking to penalise the young offender further in the light of time wasted by the panel. We do not wish there to be a sanction for failing to comply with a referral order in the sense of added days' custody, or whatever the noble Lord has in mind. The young offender is bound to realise the consequence of non-compliance because he or she will be called back to court for a new sentence to be passed. It is not to be overlooked. I recognise, of course, that this will not be foremost in the minds of those who are under 18, but the time taken for conviction to be spent under the Rehabilitation of Offenders Act will be more than if they complied with the contract because, as we established on an earlier occasion, the conviction is spent as soon as the contract is successfully signed off.
I turn now to the other questions raised, one of which came from the noble Baroness, Lady Carnegy of Lour, and related to whether or not the court, on referral back to it, would take into account the original offence when dealing with the offender. The answer is to be found in paragraph 5 of Schedule 1 which says that the court,
I believe that I also dealt with the spirit of the points raised by the noble Earl, Lord Mar and Kellie. Again, I believe that we are at one. I simply reiterate the thinking expressed by the noble Viscount, Lord Brentford, that this is a new remedy and a new approach. It is, I believe, a breaking of the mould in many ways as regards the way we have dealt with this particular group of people. I stress again the fact that this is a very particular group. They are first-time offenders who have pleaded guilty and who are under 18 years of age. It is notoriously well known that, if we stop reoffending by that group, we will have made a very important start on stopping the endless recidivism which is so dismal and such a feature of our criminal justice system for young people. I hope that I have explained the Government's thinking on the matter. This is intended to be new. What happened in the past has not been universally successful.
Lord Renton: Before the noble Lord, Lord Dholakia, replies, perhaps I may put this proposition to the Minister. Although the offence which the youthful offender committed was very serious, let us suppose that the court decided not to use its power but to make a referral order instead. Let us further suppose that, as has been said, there was a complete lack of co-operation on the part of the youthful offender. In those circumstances, are we to be told that the court is not allowed to have
Viscount Bledisloe: Before the Minister answers, perhaps I may press the point that I made which is slightly stronger. If the young offender's subsequent behaviour reveals in effect that he lied to the court or misled it in saying that he was penitent and that, therefore, he only avoided a custodial sentence by so doing, it seems extraordinary that the court has to go on acting in the way that it would only have done on the basis of the lies that the young offender told the first time round.
Lord Williams of Mostyn: I return to my original proposition: we are dealing with a very limited group of people. The noble Viscount used words like, "Lied in the first place", but these are people who have committed crimes and pleaded guilty. They are first-time offenders. If the court was originally over-lenient, in many ways that is perhaps a reproach on the original court's sentencing.
I am coming back to the point of principle. It is not a fetter on the discretion of the court because it exercised its discretion in the first place. If things do not work, it can use the armoury of weapons that it had in the first place, but may not impose a custodial sentence. The reason is that it made its inquiries and came to the conclusion that a custodial sentence was not appropriate for that offender. It is possible that the referral order will in effect be breached by the commission of further offences. If further offences are committed, there is no reason at all why the court should not consider re-sentencing in that context. Indeed, it would be obligatory for the court.
As I said, we believe that this is a new beginning. We need to wrench our sentencing minds away from a regime which did not work well in the past in the context of the very limited description attached to these offenders. I am not saying that they will be limited in number, but the description attached to them at present is quite limited. I believe that we have got it right. We must see whether or not we can get a productive, co-operative referral scheme working which is far more imaginative, far more reflective and far more thoughtful about the needs of young people and the way to deal with them than anything we have had in the past.
Viscount Colville of Culross: The noble Lord, Lord Williams, has said something which concerns me greatly. I refer to paragraph 5(5) of Schedule 1. Assuming that Section 1 had not applied, on the face of the schedule as it stands I can see no fetter on the powers of the magistrates' court to use youth custody if that is the proper thing to do. The noble Lord has suggested that having made up its mind it would not do so in the first place, it then cannot do that if there is a referral back to it. That appears to me to ignore the words in brackets in paragraph 5(5)(a) whereby the court can deal with the person concerned as if Section 1 was not in force. Therefore it seems to me that the
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