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"DISQUALIFICATION FROM WORKING WITH CHILDREN
Schedule (Disqualification from working with children) (which contains amendments of Part 2 of the Criminal Justice and Court Services Act 2000 (c. 43) relating to disqualification orders under that Part) shall have effect."

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The noble Baroness said: My Lords, I am pleased to move government Amendment No. 74. I shall speak to all the government amendments in this extensive group; that is, Amendments Nos. 80, 81, 92, 113 and 123. The amendments have been tabled in response to concerns raised previously in debate. I must again thank the noble Baroness, Lady Blatch, and other noble Lords for raising these important issues with the Government.

Disqualification orders are provided for under Part 2 of the Criminal Justice and Court Services Act 2000 so that offenders convicted of a specified violent or sexual offence involving a child and receiving a sentence of imprisonment of 12 months or more can be disqualified from working with children in the future. These are important safeguards and it is essential that they work effectively to protect children.

New Clause 29A provides senior courts with a discretionary power to make a disqualification order on an offender, whether an adult or a child, convicted of one of the specified offences against a child, but whose sentence does not meet the sentence threshold of 12 months. The court will need to be satisfied that the offender is likely to commit a further offence against a child. This will enable the court to disqualify someone who poses a continuing risk to children from working with them, regardless of the sentence passed. This amendment builds on one proposed on Report by the noble Baroness, Lady Blatch, and I believe it strengthens the raft of measures to safeguard children. I hope that the noble Baroness will be pleased to see that the seed of her idea has flourished into so robust a plant.

New Clause 29B will provide a means of making applications for disqualification orders at any time after sentencing on individuals who meet the qualifying criteria, but in relation to whom the court appears not to have considered the question of an order. Noble Lords will recall that, currently, such matters have to be brought back before the court within 28 days. We believe that a better formula is that which is now being proposed, enabling the matter to be brought back at any time.

It will apply solely to cases in which the court was under a duty to consider the issue of a disqualification order but appeared not to do so—that is, where the individual committed one of the offences specified in Schedule 4 of the Criminal Justice and Court Services Act 2000 and the sentence threshold specified in the Act is met. The amendment has the effect that the prosecution will have a discretion to go back at any time to the court and apply for a disqualification order to be made.

Amendment No. 114 would provide that proposed new Section 29B applied to cases sentenced after the disqualification order provision came into force on 11th January 2001, as well as to any cases that might occur in future. Because the consideration of the order is one which should have taken place at the time of sentencing, and because disqualification orders are preventive measures rather than being punitive in

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nature, proposed new Section 29B as drafted already means that the provisions apply to such cases and there is no need to make this explicit.

Amendments Nos. 74, 80, 81, 92 and 123 are consequential amendments.

The noble Baroness, Lady Blatch, drew the House's attention to some examples of cases where it appeared that the court had failed to consider disqualification orders when it was under a duty to do so. It is extremely regrettable that consideration was not apparently given by the sentencing court at the time of originally sentencing those offenders, but proposed new Section 29B would provide a potential means of remedying such cases. Whether an application under proposed new Section 29B is made in a particular case will be a question for the Crown Prosecution Service. The additional advice to be issued by the Judicial Studies Board and the Crown Prosecution Service to sentencers and prosecutors, to which I alluded on Report, should also be of great assistance in ensuring that the occurrence of such cases is minimised.

The noble Baroness, Lady Blatch, also raised previously the question of monitoring the operation and impact of these orders and we are actively considering how best to do this.

I trust that your Lordships will agree that these government amendments serve to strengthen the raft of provisions in place to deter those who have already offended against children from posing a risk to them through work. I invite the House to accept these amendments and, because it is unnecessary, to reject Amendment No. 114. I hope that the noble Baroness, Lady Blatch, will feel that the comprehensive amendments brought forward by the Government have fully dealt with the mischief she sought to cure.

Baroness Blatch: My Lords, I am enormously grateful to the Minister for introducing these amendments today. Three years is a long time. I know it has been difficult to get the clauses right but they are now pretty well where I want them to be. I personally thank the noble Baroness because she and her colleague, the noble and learned Lord the Attorney-General, have both been sympathetic to the points raised. Indeed, the noble Lord, Lord Bassam, at an earlier stage expressed sympathy with the points we raised. It is good that these very important points are being addressed.

I seek clarification from the noble Baroness on two points. First, am I correct in thinking that where the Crown Prosecution Service takes the view from the outset of a case that there is a probability of a disqualification order being awarded, the case can be allocated to a senior court from the start? Will it be free to deal with a case in that way?

However, it is not always possible at the outset to make such a judgment. A case could go to the magistrates' court and it could subsequently transpire,

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after all the evidence has been considered, that a disqualification order is indeed appropriate. Proposed new paragraph 2(1)(b) in Amendment No. 113 states:


    "the individual is sentenced by a senior court".

Would it be possible at the point of sentencing for the magistrates' court to refer the sentencing to the senior court so that the original sentence could be dealt with on the basis of what had happened in the magistrates' court and in addition, if appropriate, a disqualification order could be awarded? If not, if the magistrates award the sentence, then sentence would not have been dealt with in the senior court. It would be helpful if that point could be clarified.

As for the issue of retrospection, I listened very carefully to what the noble Baroness said. My understanding is that I should not worry about retrospection because legislation for that is in place. However, there remains the vexed case of Sadowski. I still do not know whether a disqualification order was even considered or, if it had been considered, whether one would been awarded. From all that we know about the Sadowski case it would appear that a disqualification order would have been appropriate.

Do I understand correctly that, from here on, if a court omits to consider and/or award a disqualification order where appropriate, such an omission can be dealt with retrospectively at any time? Do I further understand correctly that if it transpires that a disqualification order should have been considered in Sadowski but was not considered, that cannot be dealt with under the amendment?

I shall not be churlish and refuse to support the amendments—they go a huge way towards achieving what I want—but there would be an important lacuna if a case as serious as that of Sadowski, where there would be a danger if such an offender was allowed to work with children in the future, could not be dealt with. I do not argue that we should go back through all the cases considered in a senior court where it would not have been appropriate to either consider or award a disqualification order, but where a sentence has been passed and one should have been automatically applied, there is a case for considering that person unfit to work with children.

Having said that—I understand that a reply is winging its way to the Minister as I speak—I again thank the Minister and her officials for the enormous amount of work that has been carried out on these amendments. I am deeply grateful.

Baroness Scotland of Asthal: My Lords, I reiterate our gratitude for the way in which the noble Baroness has pressed the issue. She is absolutely right—enormous effort has been put in by our officials and others to produce this provision rapidly. We had to grapple with quite complex legal issues in order to introduce a robust provision which would not transgress against any of the proper restraints imposed by the Human Rights Act and other initiatives.

Let me make it plain that where a relevant case is determined by a magistrates' court it can be referred to the Crown Court for sentencing, including a

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disqualification order, under the dangerousness provisions of the Bill. If it appears to the Crown Prosecution Service that a case could attract disqualification, that would be a reason for it to go to the Crown Court. If, because of the way in which a case develops in the magistrates' court, it subsequently becomes clear that it falls into that category, it could then go to the Crown Court. If there was some mistake, some misunderstanding, and a disqualification was not made, then when the mistake was identified it would be possible to utilise the Bill's provisions to cure that mistake. That is how we see the provisions working. That is why we considered it appropriate that we could go back at any time.

The noble Baroness knows that the previous Bill refers to bringing back a case within 28 days. We believe that there may be difficulties in future about that and so we have crafted the provision in a more open way so that the mischief may be addressed. Any case involving sentence and disqualification can be caught by the provisions of the clause.

I turn to the noble Baroness's second question, about Sadowski. I hope that she understands that, after the general remarks I have made on proposed Section 29B, it would be quite inappropriate for me to comment on whether an application should be made under that section in relation to any particular case. That would be a matter for the independent prosecution authorities to consider. From the Dispatch Box, I would not like to say anything at all that might be construed subsequently as improperly impinging on the exercise of a prosecutor's discretion.

However, the noble Baroness asked for a response on the question of Sadowski, and I should like to say what happened in that case. Previously, she asked me why Luke Sadowski was not subject to a disqualification order although he appeared to meet the qualifying criteria. I understand that the question of the disqualification order was overlooked at the time of sentencing, but that was realised the following day. Urgent attempts were made to bring the matter back before the court under Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000, but the legislation requires that the application be heard by the sentencing judge within 28 days of the sentence being passed. That was not possible, for various reasons, so Sadowski is not therefore currently subject to a disqualification order.

I hope that I have said enough to give the noble Baroness comfort that situations such as these can be cured, although I reiterate that I say nothing about the particular case, as to do so would be improper. I hope that I have given her the real relief that she sought.

5.30 p.m.

Baroness Blatch: My Lords, do I understand correctly that the provision of proposed Section 29B would allow the courts to revisit the Sadowski case? My understanding of what the Minister said at the beginning was that, from hereon, in the case of anyone sentenced where the courts omitted to consider and/or to award in appropriate cases a disqualification order,

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the courts could return at any time subsequently and put that right. My understanding was that retrospection did not go quite as far as the case of Luke Sadowski. I understand and totally accept that the Minister cannot talk about individual cases. However, if the retrospection catches that sort of person, in cases that happened prior to the Bill going on the statute book, I am a very happy bunny indeed.


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