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Lord Williams of Mostyn: I repeat what I said earlier; namely, it is not intended that the circumstances of the breach should be not an aggravating consequence. The noble Viscount is right to say that there is no fetter. It is theoretically just possible in a limited number of cases that the balance may be tipped in favour of custody on resentence. However, I return to the point that the original sentencing decision has been made with knowledge of the facts and the appropriate reports. The court has come to the conclusion at the time of first sentence that it will not sentence this young person to custody; that is, a first time offender who has pleaded guilty. I shall consider these points carefully but I stress that the intention of the Government is that if a court has come to a conclusion that custody is not appropriate for a particular young person, it would be extremely rare--although theoretically it is just possible--that custody might then be imposed.

Lord Renton: I apologise for intervening yet again but in the light of what the noble Lord has said, what effect does he maintain is to be derived from the words in brackets on line 37,

Lord Williams of Mostyn: Section 1 applies in the distinct circumstances set out. The offence or any associated offence is one for which the sentence is fixed by law. The court is not proposing to impose a custodial sentence and was not proposing an absolute discharge. That is the cross-reference to Section 1.

Baroness Carnegy of Lour: I do not wish to prolong this discussion much longer. However, the Minister should think carefully about this matter. Much as one hopes that the whole matter will be positive for the young person involved, when one thinks of the young people who get into this position there is no question that one of the main questions they will bear in mind is what might happen if they do not do what is stated in the contract. That is the critical point. They will need to know whether there is a possibility of a custodial sentence being imposed. The phrase in their minds will not be the one that the Minister mentioned at the Dispatch Box a moment ago; namely, that a custodial sentence is theoretically possible. I do not think that is of much use to a 14 year-old who has been extremely naughty.

Lord Williams of Mostyn: I believe that the points that have been made are perfectly reasonable ones by way of probing and inquiry. I repeat what I said to the noble Viscount earlier. I shall give some thought as to whether the true answer is to reconsider the approach proposed by the noble Lord, Lord Dholakia, or whether one needs to rely on specific and firm guidance. I take

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the noble Baroness's point that what is to happen after sin has been committed in this world is a useful consequence to be considered.

Lord Cope of Berkeley: I do not wish to delay the Committee further. However, when the Minister reconsiders this matter I hope he will bear in mind that I also want the new system to work. I believe that it stands a good chance of working in a large number of cases. However, I think it will be more likely to work if there is a potential sanction for wasting the panel's time than if there is no sanction at all for so doing. Such a sanction will make the system more likely to work as we all wish.

Lord Dholakia: I am grateful to the Minister for his explanation. I believe that too much is made of the fact that the measure reduces the courts' sentencing options. I have sat as a magistrate for about 17 years and for some of that time in the youth court. As the Minister quite rightly pointed out, the primary aim is to consider the welfare needs of the youngsters who appear before the court. My amendment has precisely that aim. I accept that we are now discussing a new way of dealing with young offenders. I shall monitor how the courts deal with the provision. That will give us an opportunity to address this issue in future. Overall my analysis and the research evidence clearly indicate that although magistrates have custodial powers at the present time, on average they do not impose a sentence for longer than 2.3 months. Therefore I believed it was necessary to introduce this provision in this part of the Bill. However, as I said, I am grateful for the Minister's explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 62 not moved.]

Lord Williams of Mostyn moved Amendment No. 63:

Page 47, line 36, leave out ("and (4) do not affect the operation of paragraph 5") and insert ("to (5) do not affect the exercise of any power to deal with the offender conferred by paragraph 5 or 14").

The noble Lord said: The amendments in this group seek to clarify the position regarding the availability of parenting orders and bindovers when young offenders are referred back to court having breached the terms of a contract and it is decided to exercise the power of re-sentence. Our intention is that where the parent of the child is responsible for the breach, the court should have the option of issuing a parenting order and a bindover should also be available in these circumstances. I am grateful to the noble Lord, Lord Cope, as I believe he has raised this question on an earlier occasion. I accept readily that the Bill as currently drafted is not sufficiently explicit as regards the availability of these disposals. Therefore I propose amendments to Clause 4 and Schedule 1 which make it plain that the prohibition on the use of these disposals when making a referral order does not affect the ability to use them when the young person is being dealt with by the court. I believe

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they are entirely in harmony with the amendment tabled by the noble Lord, Lord Cope. I repeat that I am grateful to the noble Lord. I beg to move.

Lord Cope of Berkeley: I am grateful to the Minister for taking that point on board.

On Question, amendment agreed to.

Schedule 1, as amended, agreed to.

Clause 14 [Functions of youth offending teams]:

[Amendment No. 64 not moved.]

[Amendment No. 65 had been withdrawn from the Marshalled List.]

Clause 14 agreed to.

Lord Dholakia had given notice of his intention to move Amendment No. 66:

After Clause 14, insert the following new clause--

Ethnic monitoring of youth offender panels

(" . The Secretary of State shall make arrangements for the ethnic monitoring of--
(a) persons referred to youth offender panels;
(b) the decisions of such panels, including decisions to refer offenders back to a court; and
(c) decisions made by courts in respect of offenders referred back to them by youth offender panels.").

The noble Lord said: This matter has already been debated. Therefore I shall not move the amendment.

[Amendment No. 66 not moved.]

Clause 15 [Interpretation of Part I]:

[Amendment No. 67 had been withdrawn from the Marshalled List.]

Clause 15 agreed to.

Clause 16 [Witnesses eligible for assistance on grounds of age or incapacity]:

Lord Dholakia moved Amendment No. 68:

Page 12, line 27, leave out ("17") and insert ("18").

The noble Lord said: The purpose of the amendment is simply to probe as to precisely why the cut-off age is 17 rather than 18 when the provisions of the Children Act refer to the age factor as 18. Will the Minister explain that aspect of the provision? I beg to move.

Lord Cope of Berkeley: The question put by the noble Lord, Lord Dholakia, became more interesting to me when I examined the equivalent legislation for Scotland. The Criminal Procedure (Scotland) Act 1995 also provides for the protection of vulnerable witnesses. The age chosen in that Act is 16, not 17. That makes it all the more interesting that 17 has been chosen for this part of the Bill as opposed to 18 in the earlier part.

Lord Rix: I support these amendments. The Children Act 1989, the over-arching piece of legislation concerning the protection of children, specifies the age of 18 for the upper limit of childhood. As the guidance to the Children Act states that, "Children with

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disabilities are children first", that principle should apply to 18 year-olds with learning disabilities in this legislation too.

Lord Swinfen: I have my name to one of the amendments in this group. I support the amendment moved by the noble Lord, Lord Dholakia. One should of course protect children, no matter what age is defined as the age of maturity. As I understand it, 17-year-olds are still "children", and therefore should be treated as such under this Bill as they are under the Children Act.

I also find it odd that in the second part of this Bill the age is suddenly reduced to 17; whereas the Long Title of the Bill refers to "offenders under 18". Why is there this sudden change? It does not make sense.

Lord Williams of Mostyn: The age limit up to which child witnesses are eligible for assistance from special measures by virtue of their youth is based on the earlier child evidence provisions under the Criminal Justice Act 1991. Under that Act, certain measures are available for children up to the age of 17 in sexual offence cases, and up to 14 in cases involving violence.

For the purposes of this Bill, we considered that children under the age of 17 might need the special protection measures in the Bill whatever the alleged offence, simply on the grounds of their youth, and that it would be right to make them eligible for help on that basis and that basis alone.

I accept what has been said or implied. All age limits are to some extent arbitrary. A child can buy cigarettes at 16, drive at 17 but not buy alcohol until he or she is 18. A girl may be criminally responsible at 10, cannot consent to sexual intercourse until 16, but is not adult for the purposes of adult prison until she is 17. So there are varying age limits and, as the noble Lord has indicated, they vary within different jurisdictions in the United Kingdom.

The noble Lord, Lord Rix, is right. The Children Act 1989 set the age limit for a child at 18. But that age limit was for the purposes of that Act. It has not led to a general re-framing of other legislation.

That does not mean--this is an important point--that a 17 year-old witness cannot have access to special measures. Under Clause 16(1)(b) the Bill allows 17 year-olds to claim eligibility for special measures on the grounds of intimidation, disability or disorder, or the nature or circumstances of the offence, which might otherwise reduce the quality of the evidence that they have to give. So it is not a matter of a non-safeguard for those aged 17-plus.

If a young person has given evidence in chief, or has been cross-examined by way of a video recorded interview, that video recording will continue to be admissible in court even if the young person has passed the age limit in the meantime. And if the young person has the critical birthday in the middle of giving evidence, any special measures granted previously on account of youth will continue to apply.

Although there is not a perfect symmetry in any of these connections, 17 seems about reasonable, subject to the safeguard to which I have referred. It is not a

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disqualification thereafter. There are particular safeguards. We have had to set a balance. In our judgment 17 is about right.

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