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