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Viscount Brentford: My Lords, I, too, thank the noble Lord for his letters, which were gratefully received. I believe that Clause 1 would be improved if it included the concept of sentencing. That is a new thought and I look forward to hearing the Minister's comments on it.

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Turning to Amendment No. 1, I wonder what kind of offences my noble friend Lord Cope has in mind for which electronic tagging would be appropriate. My view is that the more cases that can be remitted to the panel, the better for these young offenders. I should not like the existence of an option of electronic tagging to result in offenders not being referred to a panel. On the other hand, in cases of offences where a custodial sentence would be awarded and where a panel would not be involved, I should be happier if a sentence of electronic tagging could be awarded instead of a custodial sentence. I should be interested to know what kind of offences would be appropriate for a sentence of electronic tagging rather than a custodial sentence.

Lord Campbell of Alloway: My Lords, I have been in this arena before and I have referred to my abhorrence of mandatory sentencing. I received the answer that it was not a sentence anyway. Having looked at the Bill, that argument does not, with respect, seem wholly viable. I return to the matter because I so much agree with everything said by my noble friends Lord Windlesham and Lord Renton. This is a serious problem. One reverts to the point, which the Government will not accept, that the sentence should be left to the discretion of the magistrates and not be the subject matter of a mandatory penal regime. There is no reasoned answer to that. The process of leisurely, constructive debate, which the noble Lord, Lord Williams, always entertained with such grace and charm, has come to an end. His brief says, in effect, "This is what we are going to do, and we are going to do it because we want to." We have driven into a cul-de-sac. The only way out is that suggested by my noble friend, Lord Renton, with his years of experience. We should return to the matter at Third Reading, try to put it straight and do away with the mass of verbiage in Clause 1(1) and (2) which is wholly unnecessary. Of course, it is necessary to keep the substance of the structure, but it does not have to be so complex and circumscribed with conditions. This is a matter for the discretion of the magistrates. We are in a cul-de-sac and can only seek to bale out of the vehicle and walk our own ways, unless the matter can be dealt with at Third Reading.

Lord Thomas of Gresford: The noble Lord, Lord Windlesham, has helpfully widened slightly the scope of the amendment, which deals with electronic tagging, in an important respect. At Second Reading I complained about the lack of flexibility shown in the provisions for youth offender panels and referral orders. Your Lordships have already pointed out that the sentence is mandatory, but it is mandatory in extremely limited circumstances; namely, where a person is before the court who has pleaded guilty, who has never been convicted previously and who has never been bound over in criminal proceedings previously. That would exclude persons who were subjected to mandatory sentencing for burglary, drug offences or rape, because those are repeat offences and consequently would not come within the scope of these provisions.

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My complaint is the lack of flexibility and the imposition of a mandatory referral under the Bill. I believe that this is a matter that must be dealt with at Third Reading.

The Minister of State, Home Office (Lord Williams of Mostyn): My Lords, I do not treat myself to reading old copies of Hansard, but I have a fairly clear recollection, first, that I did not say "full stop" and, secondly, that what I was saying, in answer to the reasoned points put by the noble Lord, Lord Campbell of Alloway, was that this was not a sentence in the conventional sense. I invite noble Lords, not least the noble Lord, Lord Windlesham, to turn over from page 1 to page 2 where one sees abundant support for what I was--I dare say fallibly--trying to suggest. We find there:

    "the court may sentence the offender for the offence by ordering him to be referred to a youth offender panel".
So one has the words,

    "ordering him to be referred",
in the Bill itself.

On a more fundamental matter, I entirely understand the point of principle which has been referred to by four noble Lords; namely, what is claimed to be the objectionable aspect of mandatory sentences. I respectfully agree with what the noble Lord, Lord Campbell of Alloway, said. If that is the argument of principle, this is not the amendment to attach it to. This amendment gives a further alternative by way of tagging.

On a point of drafting, there is no such thing as a sentence of electronic tagging, so the amendment would be defective. But that is not the fundamental point, of course.

Coming to the general points about mandatory sentences, life imprisonment for murder remains the only sentence fixed by law. The provision in Section 2 of the Crime (Sentences) Act 1997 is not fixed by law because it is possible for the court, in exceptional circumstances, not to impose the sentence. The same applies to Sections 3 and 4. I do no more than simply point to them; that is the fact.

The noble Lord, Lord Campbell of Alloway, is right. We have a difference of approach. He said that we were driving the vehicle up a cul-de-sac and we ought to bale out. I am not sure that I want to follow that advice, for fear of damage to neighbouring houses. I believe I have made it plain that in the policy we have arrived at we are looking to a fundamental shift in the way the youth court deals with young, first-time offenders. One sees this not only on page 2 of the Bill but also at the bottom of page 1 where Clause 1(2)(b) states:

    "the court shall sentence the offender ... by ordering him to be referred to a youth offender panel".

It is our policy conclusion--I cannot put it more gracefully because we have reached that conclusion and we intend, unless voted down, to stick to it--that, except where a custodial sentence is imposed or where there is an absolute discharge, all offenders within the category, which, as the noble Lord, Lord Thomas of Gresford,

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rightly said, is a limited category, should have the benefit of being referred in the way that the Bill provides. The only exceptions are absolute discharge or custody. Plainly, in some cases custody will be necessary, and there may well be cases in which absolute discharge is the appropriate outcome. We do not believe that there is any persuasive or compelling argument to allow curfew orders to be used in the same way. At the moment they are being trialled. They have been trialled since 1995 for offenders aged 16 and over. The power in respect of 10 to 15 year-olds has been trialled since the beginning of last year. Those trials will continue until June of this year. No decision has been made on the extension of those powers nationally. With the greatest respect to the point of the amendment-- I put on one side the infelicity of drafting--we do not believe that the point of the sentence should be varied in the way suggested by the noble Lord. We want referral, which means an in-depth consideration at an early stage of an offender within that limited category. Effectively, that means a first-time offender who has pleaded guilty. Experience demonstrates that early intervention can be effective. We do not want it to be an option or something that can be considered. Except in the circumstances of custody or absolute discharge, we want the court to sentence by ordering referral to the youth panel.

I have listened carefully to the arguments that have been put forward. I understand the points of principal difference. As the noble Lord, Lord Campbell of Alloway implies, the probability is that we shall be unable to agree. I hope that I have put that as tactfully as I may. I cannot see any possibility of agreement, unless noble Lords are wholly persuaded by the case that I have put forward.

5 p.m.

Lord Cope of Berkeley: My Lords, this has turned into a rather wider debate than my proposed amendment. I am grateful to my noble friend Lord Windlesham for causing that widening. I apologise for the infelicitous nature of the drafting of the amendment. However, the noble Lord was kind enough not to oppose the amendment solely on those grounds. In response to my noble friend Lord Brentford, I view curfew orders--tagging--as an alternative to custody rather than as an alternative to referral to a panel, although obviously there will be marginal cases in which if the court has flexibility the decision will be based on one of the three options, or any two of them. However, in view of the drafting it is unwise to pursue this amendment too far.

But we are still in a position in which curfew orders are being trialled. Trials have recently been extended to other categories, and the question as to whether or not they will be of great use has not yet been settled. But for certain categories of offenders this Bill rules them out before the trial of the curfew orders has been completed. That arises because of the compulsory nature of this provision in certain circumstances such as those explained by the noble Lord, Lord Thomas. I argued against compulsion at Committee stage. Perhaps we should return to that argument since it is the underlying one.

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As to whether a referral of this kind is or is not a sentence, I cannot put my finger on the particular passage in Hansard but my recollection is that the Minister said rather later in the Committee stage that it could be regarded as a sentence if one so wished. Whatever the legal niceties of the wording, I believe that offenders will regard being sent to a panel that requires them to have to pay money--admittedly in reparation rather than by way of an ordinary fine, but they still have to pay money--as a sentence. Alternatively--perhaps in some cases as well--they will be confined to their homes for part of the day and be subject to a curfew, whether or not an electronic tag is attached. For that matter, they must avoid going to other places. All of these matters are available as parts of the contract. They are in the nature of a sentence and will be seen by offenders as such. Whatever the legal niceties, these will be regarded as sentences by the public at large, even if they are not viewed that way by legal minds or the courts themselves. However, I seek leave to withdraw Amendment No. 1.

Amendment, by leave, withdrawn.

Clause 2 [The referral conditions]:

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