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Lord Carlisle of Bucklow: My Lords, since I was not able to take part in the earlier stages of the Bill, I should perhaps make clear to the Minister that although I want to say a few words in support of the amendment moved by my noble friend Lord Windlesham, I wholly support and approve of the

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general thrust and principles of Part I of the Bill. I fully support the powers of the court to refer people to the youth offender panel.

This Bill contains the framework for imaginative means for dealing with young offenders. I fully support the suggestion that through reparation young offenders should be made to face up to what they have done. I believe that is an admirable move towards tackling the causes of crime among young people. I have read the speeches made by the Minister at each stage of these debates and I applaud what he has said about the purpose of the Bill. However, I believe there is a principle here as stated by my noble friend Lord Windlesham. The principle is surely that the courts should always have the necessary discretion to allow them in all the diverse kinds of cases and as regards the diverse kinds of offenders who appear before them to do that which they believe is justice.

I am opposed to mandatory sentences. As I say, I believe this is a matter of principle. I have made clear on other occasions in this Chamber during the passage of other Bills my strong opposition to mandatory sentencing. It could be said that this is only a small intrusion into the principle of mandatory sentencing, but nevertheless it is an intrusion. I understand that the noble Viscount, Lord Tenby, fears that if this amendment is passed it would drive a coach and horses through the purpose and intention of Part I of the Bill. I put the following point to the noble Viscount. Does that not in a way show a lack of confidence in those who serve as magistrates under the noble Viscount and are members of the Magistrates' Association? I believe that in the vast majority of cases covered by the present proposals, referrals will be made. I believe that magistrates should be encouraged to make referrals, just as in sentencing in the higher courts the Court of Criminal Appeal lays down guidelines for courts to follow.

I believe that inevitably there are bound to be cases which although they meet the criteria set out for compulsory referral do not require it. I cannot see what advantage there is to those who are referred that delay should be caused by the referral of cases that need not be referred. I believe that this Bill would be a better Bill if it retained that degree of discretion. It is for that reason that I support my noble friend Lord Windlesham in what he has said.

3.45 p.m.

Lord Thomas of Gresford: My Lords, I made it clear at Second Reading of this Bill that I was a wholehearted supporter of the youth offender panels that are now proposed. Indeed I made the comment that I felt the measure was far too restrictive and that the youth offender panels should be introduced--as in Scotland--as soon as possible to cover the whole range of juvenile offending. The Bill as now drafted has a rigidity about it which is completely unacceptable. I am wholly a supporter of the principle to which the noble and learned Lord, Lord Carlisle of Bucklow, referred a moment ago; namely, that discretion must remain with the sentencer, the

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magistrates' court. As experience shows, it is impossible for this Parliament to envisage all the circumstances which can arise which bring a young person before the court. It is right that a magistrate who knows all the facts should have the opportunity of imposing such order or sentence as he thinks fit.

I recall the history of the suspended sentence. When the concept of suspended sentences was first introduced, so anxious were the promoters of that idea to ensure that it took a hold upon the judiciary of this country that the sentences were made compulsory. However, it was not long before the injustices which arose from compulsory suspended sentences became clear. As a result of that there was a relaxation of the compulsory conditions. The irony is that the previous government were anxious to tighten up sentencing, but they effectively removed the suspended sentence from the armoury of the court. It can now be imposed only in exceptional circumstances which have been defined as to be so far outside the normal run of things as to occur rarely indeed. Since those provisions were brought in I can recall only one case in my experience where a suspended sentence has been imposed.

While rigidity is imposed upon the courts it is curious to note that under Clauses 2, 3 and 4 there is a built-in mechanism for the Secretary of State, by regulations, to change the compulsory and discretionary referral conditions which are set out in Clauses 1 and 2. Therefore as this Bill comes before us it is already envisaged that changes will have to be made. If one looks at Clause 2(4), one can see that the Secretary of State at some future time has to consider such matters as the offender's age, how he has pleaded, what he is being convicted of, his previous convictions and so on. Therefore the mechanism for change in order to cope with the injustices that will arise is built into the Bill. Why should the Secretary of State have this power by regulation to do something at a future stage when a magistrate who has the young offender before him can impose the necessary order or sentence by which justice will be done? It seems to me that the Government's thinking on this matter is far too rigid. I support these amendments.

Lord Taylor of Warwick: My Lords, I support the proposed amendment of my noble friend Lord Windlesham. I make it clear that I welcome the proposal to refer young, first-time offenders to youth offender panels. I regard that as a positive alternative to the other disposals available to magistrates. However, it is the compulsory nature of the referral order which I oppose. I share the view that the order should be optional and not mandatory. As presently drafted, the clause will be seen as an attack on the discretion of magistrates. They will be given no choice and no chance to exercise their own view. I ask the rhetorical question: who is in a better position to decide a case than magistrates who hear the individual facts of the offence and the personal background of the offender?

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In Committee the Minister described the importance of the youth offender panel as the "triggering of an inquiry". But in seeking to exercise their discretion as to sentence, magistrates are already able to order a variety of reports, including, of course, one from the Probation Service. That would require a quite proper delay during which time a detailed inquiry would be carried out. I believe that one of the strengths of our Lay Bench in particular is that it comprises responsible people drawn from a variety of backgrounds. I particularly welcome the fact that there are now more magistrates from the ethnic minority communities. They should be encouraged, not discouraged, to use their own common sense and judgment. As presently drafted, this measure is the antithesis of that.

I once represented a youth in Birmingham who was before the court for the first time. He had boasted that he could do 100 meters in record time. That sounds impressive, but he was talking about breaking into electricity meters! He was on a determined course and to pursue a youth panel contract with him would have caused more harm than good. At the very time when this Government are trying to encourage more people to come forward as magistrates surely it is unwise to give the signal that they cannot be trusted to use this new form of sentence intelligently.

Baroness Carnegy of Lour: My Lords, at the risk of producing a discord in this great harmony of conviction that the magistrates must have discretion in this matter--I have to say that I am not familiar with the working of the youth courts south of the Border and I do not in any way pretend to be--it seems to me that what the Government are proposing is not the imposition of a rigid rule on magistrates but the moving of the responsibility for the flexible approach to what happens to a young offender from the magistrates to the panel. It is completely moving it, with limited exceptions.

The problems of keeping first offenders from offending again have been intractable and very difficult to solve. It seems to me that there is justification in trying something quite different. If the magistrates have discretion a particular sentence would be quite different, but they would still possibly do what they have done before. It seems to me--I may have misunderstood--that young people will come to know that if they offend for the first time they will, virtually inevitably, find themselves before a panel having to discuss in a way that they have never been able to discuss with magistrates what they have done, why they have done it, whether they should make reparation and what they will have to do in order to get out of the bit, as one might say. They will have to do that possibly with a parent or two parents present. They will have to do all the things which are described in the Bill. If that is not the inevitable consequence of a first offence they will see it as they saw it before.

I think there is something in what the Government are suggesting. I think the traditional defence of the freedom of a magistrate to do what a magistrate wills

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is not the right response to what the Government are proposing at the moment. I do not think--unless I change my mind in the course of the discussion--that I will be able to support my noble friend's amendment.

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