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Baroness Scotland of Asthal: It seems to me that comity has broken out all over the Committee. It gives me great pleasure to agree with the noble Lord, Lord Carlile, the noble Baroness, Lady Anelay, the noble Lord, Lord Renton, and, indeed, the noble Lord, Lord Goodhart. I am coming very quietly and it did not need quite so many noble Lords to bring me to this point!
It gives me pleasure to add my name to those of the noble Baroness, Lady Anelay of St Johns, and the noble Lords, Lord Goodhart and Lord Dholakia, in seeking to remove from the Bill the Secretary of State's order-making power to increase magistrates' sentencing
We have always recognised the need to monitor and evaluate the increase to 12 months provided for in Clause 146 and to assess the impact of this increase on sentencing practice and on the number of cases allocated to the Crown Court for trial before any further increase is provided for. The noble Lord, Lord Goodhart, is right to say that it is sometimes difficult to see where the dividing line between the affirmative resolution procedure and primary legislation should be drawn. We are very happy to draw the line in a slightly different way. As the noble Baroness said, there are a number of amendments consequential on removing Clause 148 from the Bill, mainly linked with the changes to offence maxima. I hope that the Committee will forgive me if I do not burden it with the detail of those consequential amendments which will be moved in due course.
In its present form the clause permits a court to impose a discretionary custodial sentence on a young offender without the safeguard of obtaining a pre-sentence report. We believe that that is a dangerous provision which does not properly take into account the provisions of Section 44 of the Children and Young Persons Act 1933 which requires every court dealing with a child or young person to have regard to the welfare of the child or young person. We suggest that in the case of offenders under the age of 18 years all relevant information ought to be contained in a pre-sentence report. I beg to move.
As the noble Lord will know, the current provisions in the Criminal Justice Bill derive from Sections 156 and 157 of the Powers of Criminal Courts (Sentencing) Act 2000, which are a consolidation of provisions in the Powers of Criminal Courts Act 1973 and the Crime (Sentences) Act 1997.
Clauses 152 and 153 of the Bill provide for the disclosure of pre-sentence reports in court where the defendant is a juvenile, as the noble Lord indicated. In particular, subsection (3) of Clause 143 and subsection (3) of Clause 144 provide that if the defendant is under the age of 17 and is not represented by counsel or a
In the light of the response of the Joint Committee on Human Rights (JCHR) and amendments proposed by the Opposition and withdrawn at Committee stage in the other place, we wish to amend the existing provisions on the circumstances in which pre-sentence reports from youth offending teams and other sentencing reports are disclosed to young defendants.
We propose that the courts should provide the juvenile with a full copy of the pre-sentence report or other report irrespective of whether they are represented or accompanied by a parent or guardian unless the courts consider that to do so would place the juvenile at risk of significant harm. I note that the noble Lord nods his assent in that regard as it is a perfectly proper step to take in terms of protection. We further propose that the courts should provide the parent or guardian with a full copy of the report unless the court considers that to do so would place the juvenile at risk of significant harm. That would be in line with the existing Youth Justice Board and Department of Health good practice.
Our aim is to ensure that the juvenile's right to fair trial is upheld by generally providing them with a copy of their pre-sentence or other report while also providing courts with the necessary discretion to make assessments on the disclosure of information on a case by case basis. In addition, we also wish to involve parents or guardians at an early stage encouraging them to take part in the court process. We want the definition of parent or guardian to encompass anyone who retains parental responsibility over the child including the local authority for children in care, where necessary.
We have defined "significant harm" in this context in accordance with Section 31 of the 1989 Act where "harm" means ill treatment or the impairment of health or development. We take the view that we also need to take into account the parent's rights under the ECHR. A parent's access to the reports is within the ambit of parental rights under Article 8. The parent's rights need to be weighed against the child's right to a private life under Article 8.
With regard to the opposition amendment tabled by the noble Lord, Lord Dholakia, and the noble Baroness, Lady Walmsley, they have rightly pointed out that for cases where a community sentence or custody is being considered, the court needs to see pre-sentence reports where the offence is summary or either way, but not where it is indictable. We agree that the issue needs further consideration, and we will return to it on Report. With that assurance, I hope that the noble Lord will be content.
One reason for the previous approach is because the indictable offences were the more serious, and the court would have had to make proper inquiries. In relation to more minor offences, we want to guarantee that that happens by routine, but we know from experience that the courts have ordered appropriate reports where they have determined that they were necessary.
The noble Baroness said: In moving the amendment, I shall speak also to Amendment No. 161H, which is in the group. They were tabled in my name, and the noble Lord, Lord Dholakia, has signified his agreement to them.
I tabled the amendments to ask the Government whether they have considered the drafting of the clause further since debates on the matter in another place in February, much earlier this year. My honourable friend Dominic Grieve raised the matter then in Committee, asking why the Government appeared to have drafted the clause so that subsections (1) and (2) in effect cancelled each other out. Subsection (1) states that, in the case of a mentally disordered offender,
It is difficult to consider circumstances in which it would be right for a court to proceed without such a medical report. However, my objection is simply to the drafting itself, which underlies the problem. The Minister in another place sought to explain away the matter on the basis that it was simply a copy of the original drafting in Section 82 of the Powers of Criminal Courts (Sentencing) Act 2000, but I am not persuaded by that. I hope that the noble Baroness has been able to reflect and will come forward with a further explanation. The fact that drafting is not helpful in a previous Bill does not mean that we should not try to get it right now. I beg to move.
Lord Dholakia: The amendment, which we support, is grouped with a number of amendments tabled in my name. If Amendment No. 161GA were made, the clause would suggest that where the offender was or appeared to be mentally disordered or mentally vulnerable, the court must obtain and consider a medical report. That is necessary because there is sometimes failure to recognise people with learning disabilities and other vulnerabilities as mentally disordered. The category of those appropriate for a medical report should be the same as the category recognised as requiring safeguards under the Police and Criminal Evidence Act.
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