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(1) The following is inserted after section 29 of the Criminal Justice and Court Services Act 2000 (c. 43) (disqualification from working with children: juveniles)—
(1) This section applies where—
(a) an individual aged 18 or over is convicted of an offence against a child, and
(b) neither a qualifying sentence nor a relevant order is imposed by a senior court in respect of the conviction.
(2) If a senior court is satisfied, having regard to all the circumstances, that it is likely that the individual will commit a further offence against a child, it must order the individual to be disqualified from working with children.
(3) If a senior court makes an order under this section, it must state its reasons for doing so and cause those reasons to be included in the record of the proceedings."
(2) In section 30 of the Criminal Justice and Court Services Act 2000 (c. 43) (sections 28 and 29: supplemental) after the words "sections 28 and 29" there is inserted ", 29A".
(3) In section 33 of the Criminal Justice and Court Services Act 2000 (c. 43) (conditions for application under section 32) after subsection (2) there is inserted—
"(2A) In relation to a disqualification order made under section 29A, as if the order were a sentence passed on him for the offence of which he has been convicted.""

The noble Baroness said: My Lords, in moving Amendment No. 228, I shall speak also to Amendment No. 229. Amendment No. 228 returns to a matter of great importance; namely, the orders introduced by the Criminal Justice and Court Services Act 2000, which disqualify from working with children those people who have committed sexual or violent crimes against children or who have dealt class A drugs to

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children. I raised that issue in Committee at col. 891 of the Official Report of 14th October. The amendment seeks to address points raised by the Government on that occasion.

At present, offenders can be given disqualification orders only if they commit one of the relevant offences set out in the 2000 Act and are sentenced to 12 months' imprisonment or more. In Committee, I raised the issue of those who commit offences against children but do not receive a 12-month sentence. One hears daily of offenders who receive very short prison terms or even community sentences for very serious offences against children—in particular, for child pornography offences. Such people are clearly unsuitable ever to work with children but, under the law as it stands, there is no means by which they can be given a disqualification order.

In Committee, the Minister resisted my amendments on the ground that automatic disqualification for all sex offenders, or all those sentenced to imprisonment for fewer than 12 months, might include some cases where disqualification might be inappropriate; in particular, minor child-on-child cases—a point made by the noble Baroness, Lady Walmsley. I recognise that the Minister's point has some force. The amendment would not make it mandatory for disqualification orders to be imposed in all such cases; it would require disqualification only where the court considered it likely that an offender would commit further offences against children.

Therefore, as the noble Baroness, Lady Walmsley, said in Committee, the amendment focused on,

    "the propensity of the people concerned".—[Official Report, 14/10/03; col. 894.]

I hope that the Minister will accept the revised amendment, which would provide additional protection to children from those offenders who are clearly a potential danger but who, for whatever reason, receive relatively light custodial sentences or even community sentences, possibly as a result of a guilty plea.

I ought to remind the House that I proposed a similar amendment to the Criminal Justice and Court Services Bill on 4th October 2000, which was rejected by the noble Lord, Lord Bassam, speaking for the Government. He said,

    "this is an issue which we may wish to revisit at a later stage, perhaps when we see the scheme and system properly kick in".—[Official Report, 4/10/00; col. 1531.]

I hope that the noble Baroness will not simply repeat the arguments put forward three years ago by the noble Lord, Lord Bassam, which were formulated prior to the introduction of the scheme. His case included the curious argument that such an amendment would,

    "serve only to dilute and weaken the scheme".—[Official Report, 4/10/00; col. 1529.]

I continue to believe that my amendment would strengthen the scheme. The Government promised three years ago that they would revisit the point in the light of the scheme's operation. Again, I hope that the Minister will say that there has been a change of mind on the Government Front Bench.

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I should also like the noble Baroness to clarify for the record some of her responses in Committee. In Committee, I referred to the comments made last month in the Court of Appeal by Lord Justice Kay about trial judges failing to impose disqualification orders on offenders on whom such orders are required to be imposed by the 2000 Act. Those comments were made during the course of argument in the Court of Appeal. I have had the opportunity to read the judgment, given on Wednesday 15th October just a few hours after I had made my speech in Committee.

The case concerned was that of Michael Wheeler, the paedophile who groomed two young girls over the Internet. He deliberately waited until very soon after they had turned 13 years old before engaging in sexual intercourse with them. The result was that the maximum sentence for each act of unlawful sexual intercourse was two years rather than life imprisonment. Noble Lords may recall that both the trial and the appeal were the subject of much comment in the press. At the conclusion of the Court of Appeal's judgment, Lord Justice Kay said:

    "The judge's order requiring registration under the Sex Offenders Act remains unaltered. In addition there was a requirement on the judge to disqualify the offender from working with children pursuant to section 28 of the Criminal Justice and Court Services Act 2000. That order was mandatory unless the judge concluded that it was unlikely that the offender would commit any further offence against a child. Where a judge reaches such a conclusion he is bound to explain his reasons. The judge in this case made no such order and gave no explanation for not doing so. We must, therefore, consider the matter ourselves. It is wholly impossible to conclude in the circumstances of this case that the offender will not commit a further offence against children. There is a clear risk that it may happen. Accordingly we are obliged to, and do, make such an order under section 28".

If a disqualification order is not imposed by a trial judge in such a serious and high-profile case as this, where it is manifestly obvious that it should have been, how many other offenders during the past three years have escaped without the ban on working with children being imposed when it should have been? Had the noble and learned Lord the Attorney-General not sought to appeal the length of prison sentence passed on Wheeler, a disqualification order would never have been imposed. As I understand it, the issue of whether a disqualification order ought to have been imposed in Wheeler's case was raised not by counsel for the noble and learned Lord but by the Court of Appeal.

Will the Minister indicate what has come of the inquiries that she and her noble and learned friend have made into those maters and whether there are cases in which disqualification orders have not been imposed due to an error in the Crown Court? I would particularly appreciate clarification from the noble Baroness about the case of the paedophile, Sadowski, which I raised in Committee.

In Committee, I asked the Minister whether it would be possible to impose disqualification orders on those offenders who should have been disqualified but were not due to such errors as obviously occurred in the case of Wheeler. The noble Baroness said:

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    "I said that I believed we had received a very recent ruling that would allow the retrospective application of this procedure. I have not yet looked at the ruling myself. The number of cases will still be limited. I would quite like to see the authority myself to verify that it does what we hope it will do. I shall write to the noble Baroness to clarify the matter. I believe that I can reassure her that we can seek to put it right".—[Official Report, 14/10/03; col. 902.]

I have not had an indication of what that investigation found.

I believe that the noble Baroness may have been referring to the case of R v Field, a decision of the Court of Appeal given on 12th December last year and reported in Volume 1 of the Weekly Law Reports of 2003 on page 882. That ruling was concerned not with the imposition of disqualification orders on those offenders who were erroneously not sentenced to them in the first place but with whether the orders could be imposed on those convicted after the commencement date of offences committed before commencement. That was the point about retrospective application with which the court was dealing. The court held that they could be imposed in such cases.

However, that judgment does not address the point I was seeking to make in Committee, which is whether we can now impose the orders on those offenders who have escaped them during the past three years since the 2000 Act came into force, as Wheeler did, because of errors in the trial process. Can the noble Baroness say what the outcome of the Government's reflection on that point has been since the Committee stage?

Can the noble Baroness also put on the record the Government's position regarding disqualification orders being imposed by magistrates' courts? Clause 136 increases magistrates' sentencing powers to allow them to impose a sentence of 12 months' imprisonment. In cases of offences against children, such offenders would have to be sentenced to disqualification orders if they were sentenced by the Crown Court, but magistrates' courts have no powers to impose disqualification orders as the law stands.

The Minister said in Committee,

    "we believe that it would be proper to leave the balance where it is. Given the very serious nature of the disqualification order and its lifelong consequences, we consider it more appropriate to continue to restrict its use to the Crown Court".—[Official Report, 14/10/03; col. GC 898.]

I believe that that is an unfortunate conclusion to arrive at, as it creates a potential lacuna. Someone sentenced to 12 months by the magistrates' court for an offence against a child cannot be disqualified from working with children, but someone receiving the same sentence for the same offence in the Crown Court could be disqualified.

When I pressed the point, the Minister then said:

    "When dealing with this sort of application—we are talking about a lifelong ban—the appropriate level of judicial office to impose that ban will be the Crown Court. In due course it may be deemed appropriate for those cases to be transferred to the Crown Court to be dealt with there".—[Official Report, 14/10/03; col. GC 902.]

I thought this Bill was about making more rational the judicial system and making it possible that where the court has the increased power to award a sentence of up to 12 months, it would be able to apply a

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disqualification order in appropriate cases. Can the Minister or the noble and learned Lord the Attorney-General give the House an assurance from the Dispatch Box that, in all cases of offences against children tried in the magistrates' courts, the magistrates will be reminded by the Crown Prosecution Service that, if there is any question of a 12-month sentence being passed, they ought to commit the case to the Crown Court for sentence so that a disqualification order can be imposed?

The Government rejected my amendment in Committee. It would have provided a legislative solution to this problem, and it is important that some sort of solution, even an administrative one, is put in place to close that loophole. I invite the Government to give that assurance now, based on the Minister's remarks in Committee that I have just quoted.

I believe that this amendment is clearly needed to address a lacuna in the existing legislation. I also hope that the Minister will be able to provide a very full assurance to the House on the other points I have raised and to set out what action the Government propose to take to rectify the problems that have come to light.

Amendment No. 229, which also stands in my name, raises a point that occurred to me when I read the recent judgment of the Court of Appeal in the case of Michael Wheeler. He was sentenced to a number of consecutive sentences of imprisonment for several offences. Section 28 of the Criminal Justice and Court Services Act 2000 states that an individual convicted of an offence against a child must be disqualified from working with children if,

    "a qualifying sentence is imposed by a senior court in respect of the conviction".

In practice, that means if a sentence of 12 months or more is imposed by the Crown Court.

My Amendment No. 229 raises the issue of consecutive sentences. Let us suppose that an offender is sentenced at the Crown Court to 18 months for three offences against children, but the 18-month sentence is made up of three consecutive six-month sentences or even two consecutive nine-month sentences. Would such an offender be liable to be disqualified from working with children because of that technicality? The sentence imposed in respect of each conviction is less than 12 months, although the overall sentence is substantially more.

When I looked at Section 28 of the 2000 Act, my initial reaction was that it stated that the 12-month sentence had to be imposed in respect of at least one individual conviction. In that case, a person given an overall sentence of 12 months or more, made up of consecutive sentences shorter than 12 months, would not be covered. If that is the case, it is clearly wrong, and the legislation needs to be corrected.

I hope that the Minister will be able to clarify the position when she comes to the Dispatch Box. Unless these concerns are addressed, either by accepting my amendments or by promising that they will be dealt with in full at Third Reading, I give notice that I shall return to these important matters. I beg to move.

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6.45 p.m.

Baroness Anelay of St Johns: My Lords, I fully support all that my noble friend has said. I look forward to hearing my noble friend Lady O'Cathain speaking in support of these amendments.

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