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Viscount Brentford: My Lords, I wish to make a couple of points on this group of amendments. First, I strongly support the remarks of my noble friend Lord Renton about removing the word "sentence" from this part of the clause. I believe that an "order" should be made; that would give the right impression.

Secondly, my aim, which is for the maximum number of youth offenders to be referred to a youth panel, would be hindered by this amendment. I certainly look forward to the time when regulations are laid for the widening of the use of youth panels. While I do not consider that the amendment drives a carriage and four through the Bill, I also do not consider that the use of the compulsory order is "dynamite", as my noble friend said.

It seems to me that the situations in which an order must be made are very strict and limited in their use. I therefore have doubts about the amendment so far as the reduction of that compulsory element is concerned. We have discussed mandatory sentencing. However, I do not believe that this context is the same as the context in which we normally discuss mandatory sentencing. It is rather like a red rag to a bull which is side-tracking us from our aim here. As others have said, that aim is to break with the past as regards youth offenders. I should like to see the maximum number of first time offenders being passed immediately to the youth panel. I see no reason for removing the very limited compulsory part of the provision. There is a discretionary part where there is scope for doubt. Therefore, I wish to see the limited part remaining compulsory.

Lord Renton: My Lords, before my noble friend sits down, perhaps he would allow me to intervene. If the amendments are accepted there will still be the opportunity for the court in a non-mandatory way to refer as many cases as they like to the youth panels.

Viscount Brentford: Yes, my Lords, that is obviously correct.

Lord Hylton: My Lords, I speak as a mere layman in these matters. Nevertheless, I wish to say to my

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noble friend Lord Tenby and others who also have doubts about the amendment that if Clause 2(3) and (4) remain in the Bill the Secretary of State will retain the power to deal with a situation where some magistrates may be tempted to hold on to cases which they should not in the general context of the Bill. I support the amendment and trust that the Government will accept it.

The Earl of Mar and Kellie: My Lords, I believe the amendments will make it too easy for magistrates to avoid making a referral order. Unlike within the children's panel system in Scotland, the young offender in England and Wales will only get one chance of a youth offender contract. There is a danger that young people will slip through the net. There are so many magistrates that I fear it will be too difficult to have a uniform approach to ensuring the imposition of a referral order for a second and potentially qualifying offence.

I believe that in 1968 the 100 sheriffs were happy to give up their juvenile court duties which are now restricted to proving cases where the grounds of referral in the children's panel have been disputed. I wonder whether the magistrates are being a wee bit touchy. I cannot support the amendments.

Viscount Runciman of Doxford: My Lords, I regret that I also was unable to attend the House during the early stages of the Bill. I am conscious that my experience of the criminal justice system is limited to chairing the Royal Commission from 1991 to 1993, whose terms of reference explicitly--and we were glad that it was so--excluded sentencing.

I feel bound to speak in support of the amendment. There is a point of principle here. I have not been persuaded by speakers who have opposed the amendment that it is not a point of principle--that it is not an important point of principle or that it does not matter that it is a point of principle--because we are dealing in a different context with something which is not quite a sentencing option in the ordinary sense or dealing with relatively minor offences.

I find it difficult to understand the objections to the amendment along the lines that the Bill as drafted is not imposing a rigid rule. It is imposing a rigid rule and I entirely endorse what many speakers said--including the noble and learned Lord, Lord Lane, who speaks with far more authority than I could ever do--about the dangers of seeking to fetter the discretion of the courts by statute anywhere in the system, however trivial or serious the offence and whatever the nature of the offender. It is precisely because of the enormous variation in circumstances across the cases that come before the court that it is not only dangerous in principle but counter-productive in practice to attempt to fetter the discretion of judges or magistrates by statute. For that reason, I support the amendment by the noble Lord, Lord Windlesham.

4.15 p.m.

Lord Cope of Berkeley: My Lords, this point was discussed on amendments that I moved at the Committee

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stage and again in the modified form at the Report stage. I support the new formulation moved by my noble friend Lord Windlesham.

In Committee, the Minister saw compulsory referral as what he described as a fundamental point of principle. It was the opposite point of principle from that just set out by my noble and learned friend Lord Carlisle. The Minister's principle seemed to be that magistrates should not be allowed to deal with first offenders who plead guilty to all the offences for which they are before the court. I do not think that that is a good or fundamental principle.

Throughout the Bill we have all supported restorative justice which will be implemented by these panels. We all hope and believe that it will work well and in due course will be extended, if that seems to be right.

The Minister said in Committee that restorative justice could be obtained only by a panel. I accept that, too. But his next sentence was:


    "That is why it is mandatory"--[Official Report, 18/1/99; col. 379.]
That did not seem to me to follow at all from the earlier sentence. I believe that magistrates are the best people to decide in each case, and in the particular circumstances of each case, whether restorative justice through the panel system is the best sentence to pass. I use the word "sentence" with due deference to my noble friend Lord Renton. It seems to me that whatever word might be used in the legislation-- I think the official word for it is "disposal"--many of those youths who are affected by it will see it as a sentence. It imposes, or in many cases will impose, a financial penalty on them. It imposes, or can impose, restrictions on their movements and so on. It has the nature of a sentence in the way it will ultimately work through the contract system.

I agree that the contract is supposedly voluntary, but it is only voluntary if the young person does not wish to go back before the magistrates for refusing to agree to a contract at all. It has something of the nature of a sentence within it. That is one reason I think it best for the magistrate to make the judgment in each case.

The Minister also said at another stage in our discussions that pilot schemes would be necessary in different parts of the country and then the model would be developed until it covered the whole of England and Wales. That is entirely correct and presupposes that the model will be improved. In the early stages it seems to me that magistrates will in some cases be a little reluctant to send all cases on. But as they gain more confidence that the panels work and as the panels themselves work better as a result of the pilots and of experience, magistrates will gain confidence in the panels and we hope they will see that they work. They will send more and more eligible young people to the panels to be dealt with by them.

After all, the Bill gives the Secretary of State discretion, by allowing the conditions for both compulsory and voluntary referral to be varied by order at a later stage. We all believe that they will be extended, as both the noble Lord, Lord Thomas and the noble Viscount, Lord Tenby, pointed out. They may be extended a very long way; well away from first offenders, for example. There is nothing to say that ultimately this will not be extended to every offender under 18. In theory, under the Bill it could be

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compulsory for every offender, if the appropriate orders were laid by the Secretary of State, although I do not think that is likely to happen.

The Minister is also giving magistrates a little discretion, as has been pointed out, in the sense that they can impose a custodial sentence at one end or an absolute discharge at the other end, or a hospital order. However, the Bill gives no discretion in between. The amendment seeks to remedy that fault. I believe that the magistrate should have discretion. I also believe that the panels would work better, particularly in the early stages, if the magistrates used their discretion to send what they thought were the most appropriate cases to the panels, where they would be most effective, so as to build up experience and make the panels gain experience and work better. We want them to work better; we want them to work well; and that is why I think we should trust the magistrates and support this amendment.

Lord Williams of Mostyn: My Lords, essentially, this has nothing to do with whether or not one trusts the magistrates. Perhaps I might be allowed a personal observation, which is to say how great a pleasure it is to all of us to see the noble and learned Lord, Lord Lane, as former Lord Chief Justice, contributing to this debate from his usual place, despite the fact that I respectfully disagree with his view.

When one listens to a debate of this kind, one appreciates the very great care and thought that has gone into every contribution. A thought not entirely ignoble also struck me, which is how, on listening to various contributions, one reflects how deeply conservative many lawyers are, even some who have been former Home Office Ministers. It was not until the noble Baroness offered her contribution that I said, not even sotto voce but to myself, "at last"--because here was a contribution which not only supported the stance that I was about to adopt, but which actually took an independent reflective view of what was being proposed. There was no shibboleth, no historic baggage: just a calm, reflective view.

One or two myths have been regularly resurrected, and they ought now to have a decent and fairly prompt burial. The objection to mandatory sentence as a practice in principle is as identified, I think, by a number of your Lordships--certainly by the noble and learned Lord, Lord Lane, and also by the noble Lord, Lord Thomas of Gresford. They were pointing, I think, to the essential disadvantages as being undue rigidity--I think I quote--and possible injustice.

Perhaps we may spend a moment looking at the scheme. The scheme in fact requires in most circumstances--not where a custodial sentence is appropriate and not where an absolute discharge is right and just, but in most circumstances--the youth court to deal with those under 18 who are a particular category of offender: they are first-time offenders who have pleaded guilty. Notoriously, as the noble Lord, Lord Warner, was indicating, that is the class of offender, attention to which is likely to be most productive, to use his phrase, in preventing re-offending.

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They have not become accustomed to crime. They have not been playing the system, because they have pleaded guilty. I take entirely the point that was made by the noble Earl, Lord Mar and Kellie, that this is a distinct category of young offender, as regards whom our purpose must be to have an intervention at the earliest possible stage. I come back to the objection, putting it in inverted commas, "in principle", which I mentioned a moment or two ago. The point of this referral system is to afford abundant flexibility: indeed, I suggest, accurately I believe, more flexibility than the courts have at present.

The power is there to create an appropriate forum which is rather less legalistic than the magistrates can be--it is not the magistrates' fault: it is the rigidity of the present system--with more information, pace the noble Lord, Lord Taylor of Warwick, more informed input and knowledge than the youth court can presently be given. Why is that? It involves the young offender directly in the development of a contract which is to affect his life. Again, notoriously, large numbers of young offenders in this class have never actually been obliged--I use the word deliberately--to have any responsibility for their lives, nor encouraged appropriately to think that responsibility truly lies with them. That is why they re-offend.

The decision, which will be obligatory in most cases, is that the young person will be obliged to go to the panel. It is much more difficult, I contend, for a young offender to have to look at his or her own behaviour, to examine properly the consequences of what, after all, is a crime. Even though the crime may have had a label which renders it apparently insignificant as a statistic, many of these crimes are not at all insignificant if one considers the offender. It obliges them for the first time to do that difficult thing: actually to look at what they have done and recognise the consequences.

That is why we are looking for a new device. It is the crown jewel. It is a forum which involves--sometimes obliges--parents, guardians, other family members, other influential adults and, where they wish it after appropriate thought, the victims also. That is a spectrum which is not available to the magistrates, and because one has the flexibility of the ultimate remedy--that is the contract--the flexibility of the ultimate remedy is in fact what tells against the apparently attractive proposition that this is inflexible and over-rigid.

It is not. There will be infinite flexibility available to the panels: I repeat, far more than the magistrates have at present. This is intended to be a fundamental shift in the way in which we deal with young people. Should anyone ask the question: "Is such a shift required?", I would simply say "Look at the figures; look at the system that we have at the moment. It has not been working over the past 25 years."

We believe that if one has this obligatory reference--it does not matter for the present purpose whether one calls it, pace the noble Lord, Lord Campbell of Alloway, an order or a sentence--that obligatory reference is intended to be restorative, in the sense that the noble Lord, Lord Cope, indicated. He said that restorative justice is not open to the magistrates, but we require panels in every case to consider that aspect of restorative justice. Is it in

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fact taking away all discretion from the court? No, it is not. If one looks at Clause 3(1)(c), the length of the period is for the determining or sentencing court; namely, the youth magistrates' court. It is a period of from three to 12 months, so that flexibility and lack of rigidity is there even at the earlier stage. Perhaps it is worth bearing in mind that if one looks--


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