Select Committee on Delegated Powers and Deregulation Third Report



ANNEX 2

YOUTH JUSTICE AND CRIMINAL EVIDENCE BILL [HL]

Memorandum by the Home Office

1  This Memorandum describes the powers to make subordinate legislation which will be conferred by the Youth Justice and Criminal Evidence Bill. The Bill makes provision for a new sentencing disposal in the youth court, and measures in connection with the giving of evidence or information in criminal proceedings.

Part I: clause 2(3)

2  Clause 2(3) confers power on the Secretary of State to alter by regulations the descriptions of young offenders who may receive the new sentence of referral to a youth offender panel. Initially, provided the conditions in clause 1 are met, the new sentence will be available on a mandatory basis for young offenders with no previous convictions who plead guilty, and on a discretionary basis for young offenders with no previous convictions who plead guilty to one or more offences, and not guilty to other associated offences. The new sentence will be tested in pilot areas before going nationwide. In the light of experience it may be concluded that the referral conditions, for either mandatory or discretionary orders, need to be altered to focus on those young offenders for whom the new sentence is considered to be likely to have the desired effect of preventing further offending. Clause 2(4) gives examples of the kind of amendments which might be made by the regulations.

3  Such regulations would be made by statutory instrument and subject to the agreement of Parliament by affirmative resolution procedure. We think that this is the appropriate level of control on a matter which is quite central to Part I of the Bill. Restricting or increasing the availability of the sentence will alter the sentencing regime. See clause 59(3)(a).

Clause 6(4)

4  Some of the members of youth offender panels will be directly recruited from the community by the youth offending team. Clause 6(4) provides that they should be selected in accordance with qualification criteria: these have not yet been identified and agreed, and may need to change from time to time to reflect changes in the way qualifications are described or according to which type of person is found to be most effective on the panels. The clause therefore provides that the criteria should be set out in regulations, to be made by the Secretary of State by statutory instrument under negative resolution procedure. We think this level of Parliamentary control appropriate to what are likely to be non-contentious measures. See clause 59(2).

Paragraph 13(8) of Schedule 1

5  Schedule 1 (paragraphs 10-12) describes the circumstances in which a court may decide to extend an existing referral order. Paragraph 13(8) provides that the Secretary of State may vary by regulations made by statutory instrument the circumstances in which an extension to a referral order may be made. Because restricting or increasing the availability of the disposal will alter the sentencing regime, we consider that any such amendment would be made by regulation subject to the affirmative resolution procedure. See clause 59(3)(b).

Part II: Chapter I: clause 18(4)

6  Clause 18(4) empowers the Secretary of State to make appropriate amendments to Chapter I of Part II of the Bill. Chapter I enables the court to make directions in respect of vulnerable or intimidated witnesses providing for special measures to apply to their evidence. The power in clause 18(4) extends to altering the special measures provided for by Chapter I, whether by modifying measures already available in relation to a vulnerable or intimidated witness, by the addition of new measures or making existing measures available to both types of witness, or by the removal of any measure. By virtue of clause 59(3)(a), this power is subject to the affirmative resolution procedure in order to reflect the width of the power. The power is considered necessary in the light of possible future experience of the operation of new measures, possible future changes to court procedures or likely technical advances.

Clause 20(6)

7  Clause 20(6) sets out procedural provisions in connection with special measures to be made under rules of court. These make it clear that such rules may make provision for the determination of uncontested applications without a hearing, for preventing the renewal of unsuccessful applications for a special measures direction in the absence of a material change of circumstances and in connection with expert, confidential or sensitive information. Rules of court are defined for these purposes as Magistrates' Courts Rules, Crown Court Rules and Criminal Appeal Rules. See clause 60(2). Clause 60(1) also makes general provision for rules of court to be made where necessary or expedient for the purposes of the Bill, without prejudice to the generality of the enactment conferring the rule-making power.

8  In relation to Magistrates' Court Rules, this power is contained in section 144 of the Magistrates' Courts Act 1980 (c.43). The power to make such rules is exercisable by the Lord Chancellor by statutory instrument and is subject to the negative resolution procedure, on the advice of or after consultation with the rule committee established under section 144. Section 145 of the 1980 Act is also relevant for these purposes. The power under section 144 is to regulate and prescribe the procedure and practice to be followed in magistrates' courts and by justices' clerks.

9  Crown Court Rules are made under section 84 of the Supreme Court Act 1981 (c. 54). The power is exercisable by statutory instrument subject to the negative resolution procedure. Section 86 of the Act provides that the power to make rules is exercisable by the Lord Chancellor and four or more members of the Crown Court Rule Committee established by that section. The power in section 84 is to regulate and prescribe the practice and procedure to be followed in the Supreme Court.

10  Criminal Appeal Rules are made under the same power as Crown Court Rules.

11  It is considered that the matters covered by clause 20(6) of the Bill are appropriate for rules of court.

Part II: Chapter II: clause 36(5)

12  Clause 36(5) makes provision for rules of court made in connection with directions made by the court prohibiting the accused from cross-examining a particular witness. The matters which may be covered by such rules are the same as those set out under clause 20(6). It is considered that the matters covered by clause 36(5) are appropriate for rules of court.

Clause 37(6)

13  Clause 37 makes provision for defence representation where an accused is prevented from cross-examining a witness in person by virtue of clause 33, 34 or 35. In such a case, the accused is required under subsection (2) of that clause to notify the court whether a legal representative is to act for him in cross-examining the witness, within a time specified by the court, in accordance with rules of court. Subsection (6)(a) provides the necessary power for the rules to make provision as to the time when, and the manner in which, subsection (2) is to be complied with. It is considered that this is a matter appropriate to be dealt with in rules of court.

14  Where it appears that no legal representation has been arranged for the accused by the end of the period referred to above, the court must consider under clause 37(3) whether it is necessary in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused. If it is necessary, the court must choose and appoint such a representative. Subsection (6)(b) of that clause provides for rules to make provision in connection with that appointment, and in particular for securing that the representative is provided with evidence and the material relating to the proceedings.

15  Subsection (7) of clause 37 provides that rules made under subsection (6)(b) may make provision for the application, subject to any specified modification, of Part I of the Criminal Procedure Investigations Act 1996 (c.25) or the Sexual Offences (Protected Material) Act 1997 (c.39). Part I of the 1996 Act introduces a regime for the disclosure of material in connection with criminal proceedings. The 1997 Act regulates access by defendant and others to certain categories of material disclosed in proceedings relating to sexual offences, and in doing so places certain duties on the legal representative acting for the defendant in such proceedings.

16  It is considered that the matters dealt with in clause 37(6)(b) are appropriate to be addressed in rules of court.

Chapter II: Part III: clause 41(2)

17  Chapter III imposes restrictions on evidence or questions adduced or asked in cross-examination, by or on behalf of the accused, about past sexual behaviour by the complaint. Chapter III only applies in relation to sexual offences, which are to be construed in accordance with clause 57(1) and (2) for these purposes by virtue of clause 41(1)(d). Clause 41(2) empowers the Secretary of State by order to add or remove any offence from the list in clause 57(1) and (2), for the purpose of clause 40. It is clause 40 which imposes the restrictions described above. The power is exercisable by statutory instrument and is, by virtue of clause 59(3)(b), subject to the affirmative resolution procedure. This is considered appropriate, given the importance of the list of offences to the rights of the accused and the complainant in the context of Chapter III.

Clause 42(3)

18  Clause 42(3) provides for rules of court to make provision in connection with applications for leave to admit evidence or questions to which the restrictions described above apply. Such provision may require applications for leave to specify particulars of the grounds on which it is asserted leave should be given under clause 40 in relation to each item of evidence or question to which the applications refer. The rules may also enable a court to ask a party to the proceedings to provide the court with further information in order to determine the application for leave. The rules may also make special provision in connection with confidential and sensitive information.

Part II: Chapter VI: clause 55(5)

19  Clause 55(5) inserts a new subsection (2A) into section 38 of the Criminal Justice and Public Order Act 1994 (c.33). This relates to the new provisions inserted by clause 55 into sections 34, 36 and 37 of the 1994 Act to restrict the circumstances in which inferences may be drawn from a refusal or failure by the accused to answer questions, or to account for certain matters, in specified circumstances. The restrictions have the effect that inferences may not be drawn under the sections mentioned above where the accused has not been allowed an opportunity to consult a solicitor before being questioned or requested to account for certain matters. The restrictions only apply where the accused was at an authorised place of detention at the time of his failure or refusal.

20  Section 38 (2A) defines an authorised place of detention for the purposes of each of section 34, 36 and 37 as a police station or any other place prescribed for the purposes of that provision. The power to prescribe is exercisable by the Secretary of State by order made by statutory instrument subject to the negative resolution procedure. This procedure is appropriate because the power will be used to specify the equivalents of police stations used for detention by immigration officers, officers of HM Customs and Excise, etc in accordance with powers conferred by other legislation.

Part II: Chapter VII: clause 56(1)

21  Clause 56(1) provides that the Secretary of State may by order direct that any provision of Chapters I to III and V of Part II of the Bill, and related supplementary provisions, shall apply to proceedings before a service court (as defined in clause 58(1)) subject to such modifications as he may by order specify. The power is exercisable by statutory instrument and is, by virtue of clause 59(2), subject to the negative resolution procedure. This reflects the essentially technical modifications needed to reflect the difference between service courts and other courts to which Part II applies.

Clause 56(2)

22  Clause 56(2) provides that Chapter IV of Part II of the Bill, and related supplementary provisions, shall have effect subject to any modifications which the Secretary of State may by order specify. The power is exercisable by statutory instrument and subject to Parliamentary procedure in the same way, and for the same reason, as the power under subsection (1) of the clause, described above.

Clause 56(3)

23  Clause 56(3) provides that the existing power to make an order under section 39 of the Criminal Justice and Public Order Act 1994 to apply sections 34 to 38 of that Act to the armed forces shall be exercisable in relation to any of those provisions as amended by clause 55. The power is exercisable by the Secretary of State by statutory instrument and is subject to the negative resolution procedure, which is considered a suitable procedure in these circumstances.

Part III: clause 59

24  Clause 59(1) provides that any power of the Secretary of State to make any regulations or order under this Bill shall be exercised by statutory instrument. Subsection (4) of that clause provides that such regulations or order may make different provisions for different cases, circumstances or areas and may contain incidental, supplemental, saving or transitional provisions. Given the extent of powers to make subordinate legislation under this Bill, it is considered that this provision is necessary.

Clause 60

25  This has already been described in connection with clause 20(6) above.

Clause 61

26  Clause 61 makes provision for the extension of Part II of this Bill to Northern Ireland by Order in Council subject to the negative resolution procedure. The only exception to this relates to clauses 43 to 45 and 47, which already extend to Northern Ireland by virtue of clause 63(4).

27  Section 85 of the Northern Ireland Act 1998 (c.47) makes provision for dealing with certain reserved matters by Order in Council. Subsection (3) requires such Orders in Council to be subject to the affirmative resolution procedure and subsection (4) requires draft Orders laid under subsection (3) to have been considered by the Assembly.

28  Disapplying section 85(3) allows an Order in Council to be subject to negative resolution procedure and, therefore, not to require a period of consultation. As a negative resolution Order may differ from the parent provisions only in technical particulars the occasion for the policy debate is in the Parliamentary stages of the Bill. It is appropriate, therefore, that the period of scrutiny and consultation in section 85(4) should be disapplied in this case.

December 1998


 
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