4.37 p.m.
My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—( Lord Williams of Mostyn.)
On Question, Motion agreed to.
Commons Amendments
[ The page and line refer to Bill 74 as first printed for the Commons]
Commons Amendment
1 Clause 1, page 1, line 21, leave out ("may order the offender") and insert ("shall sentence the offender for the offence by ordering him").
Motion Moved On Consideration Of Commons Amendment No 1
1A That the House do disagree with the Commons in their Amendment No. 1.
My Lords, I beg to move that the House do disagree with the Commons in their Amendment No. 1. I shall speak also to Amendment No. 2 which deals with the same point.
Let me rehearse briefly the background to these amendments. Earlier in the Session, at Third Reading the House made a small but significant change in the wording of the opening clause of the Bill. The purpose of that clause is to enable a youth court or other magistrates' court to refer certain categories of young offender under the age of 18 to youth offender panels. The new power is not intended to be available where an offence is one for which the sentence is fixed by law, nor where the court is proposing to impose a custodial sentence, or to make a hospital order, or is proposing to make an absolute discharge. Moreover, to be eligible for referral the young person before the court needs to have pleaded guilty, and never to have been previously convicted of a criminal offence, nor bound over to keep the peace or be of good behaviour. I wish to stress that none of these requirements is affected in any way by the amendment. It has been made clear that the policy objective of the legislation is one that we can all accept; that is, to prevent reoffending by as many young people as possible who are appearing in court for the first time. Rather than attending the court in a detached, resentful, and often uncomprehending manner, the aim is to divert young first offenders away from the procedural formalities inherent in the penal system. Instead, they will be referred to youth offender panels designed to help young people to understand the effects of their actions on the victims and on a wider community. The ideals of reparation and taking personal responsibility are far from new. But now, under the general rubric of restorative justice, it is a concept whose hour has come. The proposed referrals complement the provisions of the Crime and Disorder Act 1998 and form part of what we should acknowledge as a carefully thought-out series of policies designed to combat the widespread harm done by youth offending. All of that is common ground and is welcome. The only aspect which divided the House on Third Reading was whether the referral orders should be mandatory, provided that certain conditions were met, or the sentencing court should have discretion whether or not to make such an order, taking account of all the circumstances of the actual case once the facts had been established. After a full debate the House agreed, albeit by a narrow majority of four, on a vote in which 293 Peers took part, to an amendment moved by myself and supported by four leading counsel—the noble Lords, Lord Carlisle of Bucklow, Lord Renton, Lord Campbell of Alloway and Lord Thomas of Gresford, from the Liberal Democrat Front Bench. All, save the noble Lord. Lord Carlisle of Bucklow, are present in the Chamber this afternoon, and all have experience of sentencing as Recorders in the Crown Court. The effect of the amendment was to leave the making of a referral order within the discretion of the court. Other notable speeches in support were made from the Cross Benches by the noble and learned Lord, Lord Lane, former Lord Chief Justice of England, and by the noble Viscount, Lord Runciman, Chairman of the Royal Commission on Criminal Justice. The debate continued in the House of Commons and covered much of the same ground. It was the subject of a full-day session in Standing Committee and later occupied some two hours of debate on the Floor of the House on Report. On each occasion Ministers declined to make any concession to meet the objections of principle that had been raised towards mandatory sentencing, and the Lords' amendment was reversed on a Division in Standing Committee. Earlier this month, on 8th July, some carefully drafted alternative wording was proposed from the Opposition Benches for Clause 1. But that, too, was rejected in another place, once again on a Division at the Report stage. In the course of that debate the Home Secretary declared that he accepted the case for flexibility. But his speech concentrated on the way in which referral orders are to be drawn up in the form of a contract with the offender. These details will be important, especially as it is intended that the duration of the order may vary between three to 12 months, with the actual term being specified by the sentencing court. The noble Lord. Lord Williams of Mostyn, may recall that he used the same example in his unsuccessful attempt to head off defeat the last time we debated this matter. The Home Secretary took the reasoning further when he replied to the debate on Report in another place. He pointed out that if what he referred to as "unanticipated inflexibilities" should arise, the Secretary of State would have power under Clause 2(3) of the Bill to make such amendments by regulation as he considered necessary to vary the descriptions of the offenders to whom the compulsory or discretionary referral conditions should apply. But varying the conditions does not go to the heart of this dispute. Whatever criteria are adopted to describe the categories eligible to be referred to youth offender panels, and however carefully constructed the contract that is drawn up by the panel for each individual young person, the reality remains that the court must—not "may"—make a referral order when sentencing any offender to whom the Act applies. This is the central feature of the procedure which remains objectionable for the reasons that have already been comprehensively rehearsed in both Houses. As the Bill stands, the first two clauses attempt to define the sort of person it is envisaged should be subject to the new order. The objection is that sentencing in a just society is not, or should not be, directed towards categories of people at all. Once guilt has been established, the court should treat each offender as an individual and decide on the penalty appropriate to the harm done and other relevant factors. Treating people before the courts by category inevitably produces hard cases at the margin. I submit that we should heed the warning of the noble and learned Lord, Lord Lane, with his great experience of sentencing over a long period of time. In the previous debate he said:I beg to move."the sad fact is that the mandatory sentence or mandatory disposal order will inevitably he a potential miscarriage of justice".—[Official Report, 23/3/99; col. 1159]
Moved, That the House do disagree with the Commons in their Amendment No. 1.—( Lord Windlesham.)
My Lords, I hope that I am allowed to comment at this time. I am concerned about the wording of the Commons amendment; it somewhat blows a hole in the definition of the difference between a sentence and an order with which I grew up. As a social worker in the criminal justice field, I learnt that the difference was that if one was sentenced, that was the end of it; if one was placed on an order. one had to complete a programme. If the programme was not satisfactorily completed, one could be referred back to the court and another punishment imposed. The Commons amendment seems to do away with that definition. Clearly someone who has been placed on a referral order can, under Clause 13, be referred back. Therefore, I make the simple point that if the Commons amendment is included in the Bill, the definition that we have grown up with will no longer be valid.
My Lords, my noble friend Lord Windlesham has put forward the case fully and with great clarity, so one can be brief. Those of us who have had judicial experience know that mandatory sentences and even mandatory probation orders—anything mandatory—fetters the discretion and should be avoided especially when dealing with young first offenders where the circumstances can be very unusual and not necessarily warrant any kind of mandatory sentence.
In case they are wrong I suppose that the Government are relying on Clause 2(3) which enables the Secretary of State to put the matter right and alter the provisions as regards mandatory sentences in Clause 1 by making a regulation. That is a sign of weakness. Bearing in mind the vast experience already obtained in the courts, it is far better that we avoid mandatory sentences and enable the courts, with all the facts before them. including the personality of the accused, to do the right thing. Under the Bill as it stands, a number of injustices occur and that is unfortunate. It would not be worth waiting for a regulation. In any event, as I have said on previous occasions. it is far better that the Government should get the primary legislation right first time instead of using the power to fall back on regulations which neither House would have power to amend. Therefore, I strongly hope that what my noble friend Lord Windlesham said will be accepted by the noble Lord, Lord Williams of Mostyn. I remember very well the answer he gave at Report stage. I very often agree with him on legal matters. On this occasion I hope that he will realise that it would be unwise for the Government to fetter the courts in the way that the House of Commons was advised to do and to which he was then a party. One of the signs of greatness in our parliamentary system is the ability of Ministers to change their minds. I hope that on this occasion the noble Lord will believe it right to do so.My Lords, as I have supported this amendment with my noble friend Lord Windlesham on more than one occasion, I compliment him on the way he presented it today. There is very little more one can add. I know that the noble Lord, Lord Williams of Mostyn, understands the argument. We agreed long ago that he could not change his attitude towards it so that the matter should he put to the House. The argument is simply put. There should be some flexibility to avoid injustice, which must occur from time to time if one has a mandatory regime.
As I understand it, the issue brings to light a misconception perhaps on the part of the Home Secretary that inflexibility can be cured by Clause 2(3). I believe that the noble Lord, Lord Williams of Mostyn, will agree that it cannot. It relates to the referral conditions in Clause 2. We are essentially concerned with Clause 1. So we are landed with what is a mandatory regime. As this matter has been to another place, I do not believe that it will be possible for the noble Lord, Lord Williams of Mostyn, to change tack. I wish that he could and would. I can well understand that he cannot and he will not. As a parting shot over the bows, one can say, as Sir Nicholas Lye11 said in another place when my noble friend's amendment was rejected, it was a constructive amendment to an otherwise thoroughly sensible proposal. That echoes the way in which those who support the amendment put it forward. This matter has been fully debated in your Lordships' House in which the Opposition command no overall majority and in another place where the Government command a massive overall majority. The argument was narrowly won in fair debate in your Lordships' House, according to the Official Report. However, the amendment was rejected in the other place by 296 votes to 118. I speak only for myself, as usual, but it would seem ridiculous to jeopardise a good Bill by insisting on the amendment today. But it leaves a slight on the magistracy. It calls into question their experience, dedication and general competence. If the matter were put to a vote, I would abstain. Your Lordships have done a great service through this amendment and in supporting my noble friend Lord Windlesham today. In the course of time and in the light of experience, the Home Secretary may wish to recognise that.My Lords, on this occasion, as when your Lordships last discussed this issue, I disagree with my noble friend Lord Windlesham and other noble Lords and agree with the Government in their approach to this amendment.
In my view, the Government are not in any way casting a slight on magistrates, as my noble friend has just suggested. They are trying to widen the procedures we use beyond the present system. I believe that as the system develops, magistrates would understand that very well. Whether the new system will work, we do not know. That will be proved only over a period of time by trying it out. However, we do know that despite the best efforts of caring and experienced magistrates, who put everything they have into making judgments, the present system does not work as well as anyone would like, and far too many young people reoffend. Surely it is well worth trying a different approach. The Government know that many young offenders continue to have what is the awesome experience of appearing in court. However, they will then have the very different experience of appearing before a panel. The panel will require a great deal of them and will involve such young people in committing themselves. If they fail in what they undertake, they will then return to the court. My noble friends have explained that they are happy with the panel procedure itself but feel that the magistrates should have it simply as an option among other sentencing procedures. For most offences I would agree with that. Magistrates are the people on the spot. They have experience and skill and they should decide in their different jurisdictions. I have taken part in that procedure, and I have carried out a great deal of youth work. I know that while sometimes it does work, too often it does not. However, we must look at this matter from the point of view of young people themselves. When they talk over with their friends what happens when one is caught for the first time, the change, if the magistrate is to decide what happens, will not be great. Young people will know that another possible sentence will be added to the existing possibilities they will face. For the scheme to work, young people will need to see certainty in it—the certainty of appearing in court and then, for most of them, before a panel. The panel will have a list of unattractive elements to which those young people will have to agree and stick over a period of time. The news will soon get out among young people likely to offend as to what happens when one appears before the panel and if one fails to do what one has agreed to do. One will go back to court and even worse will follow. Whether it is left to the magistrates to choose the panel most of the time, one cannot tell. One simply does not know. However, what is important is that young people should know that the automatic procedure for most people will be to appear in the court, then face the panel and agree to all the elements set down by it. If they do not succeed, such young people will have to go back to the court. I do not call that mandatory sentencing. It is an extension of the possibilities for dealing with young people. I am sorry that great lawyers are so conservative that they cannot see this measure from the point of view of young people. They cannot admit that the present system does not work and they are being difficult about it. I hope that on this occasion the Government will stick to their guns.5 p.m.
My Lords, before my noble friend sits down, does she realise that we are not trying to defend the present system? We are saying that the Government are not correcting the present system in a rational way.
My Lords, before my noble friend sits down, we are not trying to be difficult merely because she disagrees with us.
My Lords, I listened with great care to the noble Lord, Lord Windlesham. He brings to the debate his vast experience of the criminal justice system. I have always admired his work in this field but on this occasion I part company with him. I support very much the views expressed by the noble Baroness, Lady Carnegy of Lour.
Noble Lords will recall that during the passage of the Youth Justice and Criminal Evidence Bill through your Lordships' House, I said that there was a need to introduce a little flexibility to the lower tariff of sentencing in the magistrates' courts. When at that time I spoke of flexibility, I sought not simply to restrict the provision to cases of absolute discharge. I was trying to ensure that people conditionally discharged were not referred to the youth offenders panel. The purpose of the amendment was to avoid, in almost all cases, the need for referral to the youth offenders panel. The amendment tabled by the noble Lord, Lord Windlesham, is designed to introduce a discretion in the process. I believe that discretion at the lower end of the sentencing process was, and perhaps is, appropriate. Unfortunately, that is not being offered today. As on previous occasions, I cannot support the total flexibility proposed by the noble Lord, Lord Windlesham. That would completely negate the primary aim of this imaginative new development by starving the new panels of referrals. I believe there is clarity in Clause 1. It clearly describes offences which do not require referral to the youth offenders panel: sentences that are fixed by law, sentences where a custodial option or a hospital order is envisaged or where an absolute discharge is appropriate. There is considerable variation in sentencing in magistrates' courts. Some are more punitive than others, despite sentencing guidelines which have been recommended by the Magistrates' Association. Such variation often brings the sentencing process into disrepute. For example, a court in East Anglia may sentence a young person to a conditional discharge whereas a London court may give an absolute discharge for the same offence. The effect of that is striking. In one case the individual will be referred to the youth offenders panel, while in the other that would not be required. The weakness of the present provision lies in the way magistrates exercise sentencing discretion, thus allowing some to form part of a contract with the young offenders team while others are exempted under Clause 1 of the Bill. A law is a bad law if it does not treat individuals with equity when they commit the same or a similar offence. The Government should look seriously at these variations in practice. Of course I appreciate that there is no single yardstick by which one can establish a uniform method of working in the courts and so allow trivial cases to be dealt with without having to refer them to youth courts. A little leeway at the lower end of the sentencing tariff will allow the use of discretion and thus introduce a more balanced approach to sentencing. Furthermore, it will reduce the workload of the youth offenders team. We must accept that some offences do not require youngsters to enter into a contract. I shall watch carefully the working of that part of the Act, and, if appropriate, shall return with amendments to future criminal justice legislation. I accept that it is not the intention of the noble Lord, Lord Windlesham, to undermine the youth referral panels. However, there is a real risk that more magistrates than we care to imagine will dislike the idea of losing control of the disposal of young offenders to a panel, and may not use the referral process as envisaged in the Bill. If that were to happen, it would undermine the aim of Clause 1, which is to provide a more suitable form of sentencing for most young offenders who appear in court for the first time than could be provided in court. Let us remind ourselves again of what would be lost if the proposed youth panel system were to be jeopardised by magistrates choosing to keep most cases in the youth court. The panel would be better able fully to involve the young person and the parents in discussing the offence, its impact on the victim and the steps that should be taken to make amends and ensure that there was no repetition. In the formal proceedings of the youth court, young offenders and their parents often fail fully to understand what is happening. The legal procedures can hinder the process of young people and their parents speaking and contributing fully to the discussion. A contract could be drawn up to concentrate on the best course of action to prevent reoffending, including attention to the welfare needs of the young person and his or her family; for example, family counselling, educational measures, and help to overcome drug abuse.My Lords, I have found this a difficult question to which to return. However, I have been fully persuaded by my noble friend Lady Carnegy of Lour that the amendment proposed by my noble friend Lord Windlesham should not be accepted.
Referral to a youth offender panel should be obligatory in the circumstances and situations set out in Clauses 1 and 2 because I fear that magistrates might be unwilling to use the new scheme to the full. As I have said previously, I am very keen on this new proposal. It has been in the pipeline for several years and, at last, we are placing it on the statute book. Every encouragement needs to be given for the referrals to be made. Magistrates do not always make the right decisions. I was in a police car earlier this year and watched a criminal event taking place. I recently heard that what I regarded as criminal behaviour was not so accepted by the magistrate and the person was let off. Therefore, I come down strongly on the side of acceptance of the Commons amendment, which I back, for the reasons more fully and eloquently explained by my noble friend Lady Carnegy.My Lords, I shall be brief. I was mainly in agreement with the noble Lord, Lord Windlesham. However, I wholly accept that there are arguments on both sides and I am sure we all support the objective of the legislation. I merely want to ask the Minister whether he will make clear what seems to be the strongest grounds on which the Government are insisting on maintaining their position; namely, not that they do not trust magistrates to do what they are there to do, but that in this particular instance the Minister is afraid that for some reason magistrates will be unwilling to use a power that has been placed in their hands precisely to meet the kind of cases in which we all agree that it should be used. It has not been clear to me in any of the previous discussions why it is the Minister's belief—which must be the case to be consistent with his position—that he does not think that magistrates will do what he feels the interests of justice require.
My Lords, the main issue is the simple one of the discretion of magistrates. We all support restorative justice and concur with the setting up of the new panels. We hope that they will he as successful as we all believe they may be. We should have preferred magistrates to preside over the panels and for the police always to be represented on them. However, we are not arguing about those matters today.
The noble Earl, Lord Mar and Kellie, pointed out that the description in the amendments before the House has altered slightly, so as to make this an act of sentencing, which previously it was not. That seems to be a secondary order point or, if anything, lower in the hierarchy of points that might be made. Nevertheless, I welcome the change of wording. Being sent to a panel, which can result in a loss of freedom for the young offender, or in that person having to pay money, will be seen by the young person as a sentence, and that is the correct description. The question that we are considering today is whether magistrates should be obliged to send young first offenders to the new panels in most cases, subject to the exceptions that have been set out. We should much prefer it to be an option for magistrates. There are two arguments in the opposite direction. The first is that some magistrates will not be happy with the idea of panels and will use any option that is given to them so as never to send young offenders in this category to the panels. Personally, I doubt that that will happen. My noble friend Lady Carnegy is right to say that we cannot be sure at this point whether the panels will do the job that we hope that they will do, or whether they will work as well as we hope in the form in which they are being set up. But if they do work, I believe that magistrates will be keen to send young offenders to them. They will not hold back from doing so if it is in the general interest that they should; namely, if it leads to less offending, particularly among youths—and we are all worried about the amount of youth crime and the way in which some youths move from small to larger crime. I do not believe that magistrates will in general hold back, provided that the process is seen to work. Of course there will be Benches of magistrates who will be keener on the idea from day one. If the process does not work very well, other magistrates will hold back from sending youths to the panel. But if the process works as we hope it will, magistrates will use it. That is one of the reasons why it is important to provide an option. The second argument is about sending a message to those who are likely to offend for the first time. I doubt whether the question of whether it is statutorily essential for magistrates to send young people to a youth panel or have an option to send them to the panel will be weighed in the balance with an first offender. I do not believe that appearing before a panel would be so much of a deterrent as would a conventional sentence. In any case, I do not believe that the nice point with which we are dealing will be weighed heavily in the balance. We on these Benches prefer this to remain an option in the way in which your Lordships changed this aspect of the Bill. This is not a party point. We support my noble friend Lord Windlesham.My Lords, once more I am most grateful for the way in which the noble Lord, Lord Windlesham, introduced this matter with his usual courtesy, accuracy and lucidity, which makes my task much easier. He set out the store so plainly that there is nothing I need add about the consequences of the order.
I have thought carefully about these matters. It is plain that there is a division of approach. Fundamentally, on all sides of the House everyone is agreed that the new referral order should be supported. Therefore, the question on which we disagree is what should be the triggering mechanism. The more I have reflected on what has been said the more I have concluded how lamentably little sentencers know in an area where they could know more. When one is at the point of sentence, the material available will necessarily be limited. That is not the fault of magistrates but a necessary consequence of the way that we sentence young people. It was said that a number of your Lordships who had spoken, from the former Lord Chief Justice down, for whom I have the greatest respect, had had great legal experience as sentencers. I agree. However, that body of past sentencing experience has not been enormously productive in the outcome experience of young first-time offenders who plead guilty. One needs to focus with great care on the component population of which we are speaking. We are concerned with young first-time offenders who have pleaded guilty. If we fail that component we know what will happen. Those young people will have arid and wasted lives, the prison population a few years later will rise and they will end up with unproductive, unhelped lives. The heart of the dispute has already been defined. The question is whether or not this target group should have referral orders in virtually every case. The exceptions have been properly described: custody; obligatory sentences in the circumstances described by the noble Lord, Lord Windlesham, or absolute discharge. In answer to the noble Lord, Lord Runciman, we want to ensure that every one of the target group I have defined is given the opportunity that attendance at a youth offender panel offers. We say that in those circumstances it should be virtually automatic. Very often the court system, particularly for young children who enter it for the first time, does not assist at all. The processes, structures, delays and procedures often militate against a young first time offender having the informed assistance and help that he or she wants. It is said that the magistrates have all the facts at their disposal when they come to pass sentence. In a deeper sense I do not believe that that is true. They are aware of the immediate circumstances of the offence, and they should retain responsibility in terms of proportionality in deciding whether custody or an absolute discharge should be imposed. As indicated earlier, they decide the length of the order. We believe that the present system denies sentencers the deeper understanding of the needs of children and young people. As a consequence, sentences have not been appropriate. Sometimes, the sentences have not been firm enough, not in the sense of being punitive but in the sense of giving directed assistance and support, which is the critical aspect of the new scheme. The referral order has built-in flexibility, as the noble Lord, Lord Dholakia, pointed out. It requires the offender to attend meetings and agree a programme of activity. Many of them have never had any structure to their lives at all. The terms of the contract can be infinitely flexible so that it is suited to different offenders and offences. We seek to take away the present limiting straitjacket from the sentencing process. It is interesting to see how views have crystallised. Everyone who has spoken has a deep involvement and interest in these matters, and there has been a virtually even—not in numerical terms—division in the way that we propose to proceed. The more I have thought about it the more certain I have become—not because we have said it once and, therefore, to say it three times makes it acceptable—that the views expressed by the noble Baroness, the noble Lord, Lord Dholakia, and the noble Viscount, Lord Brentford, among others, are right. There is one other minor point. It is always the one that is not of the greatest importance. I must remind the House that the amendment to Clause 1, which we agreed by a majority of four, was flawed in that the references to compulsory referral orders remain throughout Part I of the Bill. I simply put that to the House because it is my duty to do so. It does not bear on the validity of the argument. The more I have reflected on this matter the more I am convinced that the views expressed by the noble Lords I have mentioned are right.My Lords, I am sure that the whole House is grateful to the noble Lord for the way he has worded his reply. I suggest that here we have an instance of good intentions, which are not denied and have been expressed articulately, that can have adverse consequences. The Minister spoke about the target group being young first-time offenders who plead guilty. He said that every one of that group should be given an opportunity to take part in youth offender panels where they would receive informed assistance and help. Does not the expression "given an opportunity" suggest an element of free choice? Yet, there is no free choice in this instance. On the contrary, there is an intentional element of compulsion.
If we consider young first-time offenders who plead guilty, is it fanciful to believe that there could be pressure brought to bear to plead guilty when the circumstances of the actions that brought them before the court might not result in a criminal conviction? But the good-intentioned people who believe in the value of the panels have decided that those young people will be eligible only if they plead guilty. That will mean a conviction, and criminal record with which a young person must live for the rest of his or her life. That is a very serious matter. Conversely, the insistence on first offenders will make ineligible those who have previously been bound over for a lesser offence. Why can they, too, not benefit from referral to a panel? Because in attempting to define eligible persons by category they have been excluded. Consequently, human nature will continue to defy categorisation and definition in the way we see it set out in the first two clauses of the Bill. Contrary to what has been said by some speakers in the course of the debate, initially there were signs that the Government might be considering accepting the amendment tabled in this House. The Explanatory Notes that accompanied the Bill in the House of Commons stated that the drafting of Clauses 1 and 2 was under review. Yet that was not the response of the Home Secretary in moving the Second Reading in another place. He was the first speaker in the long drawn-out proceedings in the Commons. He stated bluntly that the Government would seek to reverse the Lords amendment which made referral discretionary rather than mandatory. There were lengthy exchanges in Standing Committee, and approximately two hours of debate when the Bill returned to the Floor of the House of Commons. But none of it counted for anything as the Home Secretary had already made clear that the Government intended to reverse the amendment. I remain convinced that this is a wrong turning of some significance in criminal policy. I accept that the issue divides opinion. Nowhere was the division more clearly demonstrated than on the Liberal Democrat Benches. On the previous occasion one of the sponsors of the amendment carried by the House was the Liberal Democrat Front Bench spokesman, but I shall embarrass him no further. As I do not intend to press the matter, he will not have to vote one way or the other. We have had a lengthy and valuable debate. It raises issues of principle. It is right that we should explore them again, as we have done today. However., I do not intend to press the motion. I beg leave to withdraw the motion.Motion, by leave, withdrawn.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1.
On Question, Motion agreed to.
5.30 p.m.
Commons Amendment
2 Page 2, line 2, leave out ("order the offender") and insert ("sentence the offender for the offence by ordering him").
[ Amendment No. 2A not moved.]
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2.
Moved, That the House do agree with the Commons in their Amendment No. 2.—( Lord Williams of Mostyn.)
On Question, Motion agreed to.
Commons Amendment
3 Clause 7, page 7, line 15, at end insert—
("() Where the panel allow any such person as is mentioned in subsection (4)(a) ("the victim") to attend a meeting of the panel, the panel may allow the victim to be accompanied to the meeting by one person chosen by the victim with the agreement of the panel.").
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. Amendments Nos. 10, 23, 26 to 39 and 49 are grouped together because they are technical or minor drafting amendments. Amendment No. 3 makes it clear that a victim attending a panel meeting may be accompanied by a supporter. Amendment No. 10 is a minor drafting amendment to ensure that witnesses are able to use communication aids if the court considers that it would improve the quality of the evidence. Amendment No. 23 is a minor drafting amendment. The original formula in Clause 52 could have resulted in someone who is able to understand questions put by the court but not to give answers that could be understood being deemed competent. Amendment No. 23 deals with that.
Amendment No. 26 is a technical amendment relating to Northern Ireland. There is no guarantee that the Northern Ireland Act provisions will necessarily be in effect by virtue of political agreement in Belfast by the time this Bill becomes an Act. We have, therefore, put in these provisions to ensure that the clause works in advance of devolution. Amendment No. 27 ensures that ministerial functions so far as exercisable under devolved competence would transfer automatically under Section 53 of the Scotland Act 1998 to Scottish Ministers. Amendment No. 28 omits subsection (10) of Clause 66 in the usual way so that public funds can be used to implement the Bill. Amendment No. 29 ensures that paragraph 6 covers all possible ways in which the court can deal with the offender. Amendment No. 30 makes it clear that paragraph 10(2), extension of referral for further offences, relates to paragraphs 11 and 12 to avoid any confusion that might otherwise arise. Amendments Nos. 31 and 49 replace references in the Sexual Offences (Amendment) Act 1992 to a convening officer with references to a "judge advocate" because "convening officers" are now out of date after the Armed Forces Act 1996. Amendments Nos. 32 to 39 extend the existing exceptions to the prohibition on the use of answers given under compulsion in criminal trials to the insolvency area.Moved, That the House do agree with the Commons in their Amendment No. 3.—( Lord Williams of Mostyn.)
My Lords, I agree with Amendment No. 3, which is welcome, and the other amendments for the most part. However, I wish to draw attention to Amendment No. 27 which refers to Scotland. It seems odd that we should be placing this action retrospectively on the statute book with regard to Scottish devolution before the Scotland Act 1998. The boundaries of issues devolved to Scotland are sometimes difficult to follow. That is potentially damaging. However, that is a larger question than the immediate issue here.
To say that this Act—in normal circumstances it is patently a post-commencement enactment as regards the Scotland Act—shall nevertheless be taken to be a pre-commencement enactment does not seem satisfactory in principle. It alters devolution in this one, I admit small and rather technical, respect after the event. I do not think it a good idea for Acts of Parliament to carry this kind of provision in future. It would be helpful if the Minister would explain further what is happening. Devolution has become an important matter. The boundaries of devolution between England and Scotland, England and Wales, and, it is to be hoped in due course, England and Northern Ireland, are different. They are not the same boundaries. The same items are not being devolved. They differ between the three countries within the United Kingdom. That makes the matter more difficult. It is an extremely small issue as regards this Bill. Nevertheless, I believe that a bad principle underlies the small amendment.My Lords, I am grateful to the noble Lord for giving me the opportunity to be fully instructed on this otherwise arcane matter.
I take the noble Lord's point, but it is a standard provision which enables Scottish Ministers to make the commencement orders in due course. I anticipate that there will be some occasions in the future when this will happen. I agree that one needs to be careful, but the amendment simply says that any provision of this Act extending to Scotland should be taken to be a pre-commencement enactment within the meaning of that Act. It is a mechanical device to give powers to the Scottish Ministers. I am grateful for the noble Lord's query.My Lords, I endorse the amendments. On Amendment No. 3, Clause 7 of the Bill allows for an offender to be accompanied by another person. I am somewhat horrified that the Bill passed through this Chamber without a proposal for the vulnerable victim also to have the opportunity to bring a person with him to the panel meetings. I can find no other reference to that. I believe that I should criticise myself and others if we did not insert that at this time. I warmly welcome the amendment.
I believe that Amendment No. 10 is a great improvement and clarifies the original version.My Lords, in his comments on Amendment No. 27, the Minister said that it was to enable Scottish Ministers to put down commencement orders. But are the matters referred to here matters for which Westminster has been legislating after the matter has been devolved to Scotland? If so, the House is doing a little more than the Minister said. Are we using the clause in the Scotland Act, which provides that Westminster can continue to legislate on any matter already devolved if it finds it necessary to do so?
My Lords, because your Lordships disagreed to certain matters and the timetable was disrupted, Clause 27 is necessary to enable the Scottish Ministers to make the commencement orders. There may be similar occasions in future, although they should diminish with time. As I said to the noble Lord, Lord Cope of Berkeley, this is simply the mechanism which allows the Scottish Ministers to make the commencement orders. I do not see anything wrong in principle in that.
On Question, Motion agreed to.
Commons Amendment
4 Clause 17, page 13, line 13, leave out ("section") and insert ("subsection").
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4. It is grouped with Amendment No. 5.
The purpose of these amendments is to strengthen the presumption that sexual offence complainants are eligible for assistance; in other words, they will be deemed eligible unless they specifically inform the court that they do not want to be considered as eligible. It is notorious that a good deal of material shows that many sex offence complainants who choose to report a sexual offence to the police decide not to go any further with it. We do not want the trial process to make it too difficult for complainants to take their case through to trial. It was suggested that the presumption in Clause 17 as originally drafted did not go far enough to assure rape complainants that they would receive help. Therefore, the amendments strengthen the initial presumption of eligibility for sex offence complainants. In other words, they will be considered eligible for help unless they tell the court they do not want to be helped. It is important that the court retains the discretion to decide which special measure or combination of measures will improve the complainant's evidence. That will include consideration of whether the measure might tend to inhibit the ability of the defence to test the complainant's evidence. I stress again that if the court decides that none of the special measures would improve the complainant's evidence, it will not make any available.Moved, That the House do agree with the Commons in their Amendment No. 4.—( Lord Williams of Mostyn.)
My Lords, I welcome the amendments. Your Lordships may recall that I spoke on the matter when the Bill was before the House. The Commons have improved the provision immensely. I shall say no more about it because there was an excellent discussion in another place, especially the contribution from my honourable friend the Member for South Swindon. The amendments considerably improve the complainant's position and I look forward to its implementation.
On Question, Motion agreed to.
Commons Amendment
5 Clause 17, page 13, line 36, leave out from ("offence") to end of line 39 and insert ("(or to that offence and any other offences), the witness is eligible for assistance in relation to those proceedings by virtue of this subsection unless the witness has informed the court of the witness' wish not to be so eligible by virtue of this subsection.").
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5.
Moved, That the House do agree with the Commons in their Amendment No. 5.—( Lord Williams of Mostyn.)
On Question, Motion agreed to.
Commons Amendments
6 Clause 20, page 15, line 29, leave out ("21(6)") and insert ( "(Special provisions relating to child witnesses)(8)").
7 Leave out Clause 21.
8 After Clause 21, insert the following new clause—
Special Provisions Relating To Child Witnesses
(".—(1) For the purposes of this section—
(2) Where the court, in making a determination for the purposes of section 19(2), determines that a witness in criminal proceedings is a child witness, the court must—
and for the purposes of section 19(2), as it then applies to the witness, any special measures required to be applied in relation to him by virtue of this section shall be treated as if they were measures determined by the court, pursuant to section 19(2)(a) and (b)(i). to be ones that (whether on their own or with any other special measures) would be likely to maximise, so far as practicable, the quality of his evidence.
(3) The primary rule in the case of a child witness is that the court must give a special measures direction in relation to the witness which complies with the following requirements—
(4) The primary rule is subject to the following limitations—
(5) However, subsection (4)(c) does not apply in relation to a child witness in need of special protection.
(6) Where a child witness is in need of special protection by virtue of subsection (l)(b)(i), any special measures direction given by the court which complies with the requirement contained in subsection (3)(a) must in addition provide for the special measure available under section 27 (video recorded cross-examination or re-examination) to apply in relation to—
(7) The requirement contained in subsection (6) has effect subject to the following limitations—
(8) Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of section 16(l)(a), then—
the direction shall cease to have effect at the time when the witness attains the age of 17.
(9) Where a special measures direction is given in relation to a child witness who is an eligible witness by reason only of section 16(l)(a) and—
then, so far as it provides as mentioned in paragraph (a)(i) or (ii) above, the direction shall continue to have effect in accordance with section 20(1) even though the witness subsequently attains that age.").
9 After Clause 21, insert the following new clause—
Extension Of Provisions Of Section (Special Provisions Relating To Child Witnesses) To Certain Witnesses Over 17
(".—(1) For the purposes of this section—
(2) Subsections (2) to (7) of section ( Special provisions relating to child witnesses) shall apply as follows in relation to a qualifying witness—
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 6 to 9.
We discussed at length, and quite rightly, the need for special protection for children involved in criminal cases. It was accepted by all who spoke that children need special help. They are better able to give evidence and suffer less distress if they are kept out of the courtroom. In particular, the sooner after the alleged offence they are allowed to give evidence the better their recollection of that offence is likely to be. That is why children in violent and sexual offence cases now routinely give evidence-in-chief on video, and further evidence at trial through a live television link. The Bill extends eligibility for protection to all child witnesses. But it requires the court to consider, for all children, whether special measures would actually improve their evidence. Several lobby groups told us that they were concerned that, for children in sex and violence cases, this Bill reduces the certainty they have under the current legislation that they will get help to give evidence. They were concerned that we were not making the best use of this opportunity to strengthen protection for child witnesses. So this group of amendments creates a new category of witness: those in sex and violence cases, who require special protection. These witnesses need and would have a high degree of certainty about how they are going to give evidence. All child witnesses in these cases would give their evidence in chief by means of a pre-recorded video unless it were not in the interests of justice for the recording to be admitted. Child witnesses in violent offence cases would then go on to give further evidence through live link at trial. When we are ready to implement the measure, children in sexual offence cases would be cross-examined on video before the trial unless they had told the court that they did not want to be cross-examined until the day of trial. This last provision is a target we are setting ourselves to work towards. We believe that video-recorded cross-examination can work, and we are committed to implementing it as the norm for child witnesses in sex offence cases. We have always been committed to making this measure available for witnesses who are most in need of protection. But, as we have discussed in earlier debates, there are a number of technical and procedural difficulties that we will need to work with all criminal justice agencies to overcome. We shall consider setting progressive targets for implementation, if that is what it will take. The implementation programme is a question for the multi-agency implementation steering group which is already hard at work on deciding the best approach. It may be that the working group decides that the best way to get this measure off the ground is first to bring it in for the Crown Court for very young witnesses, and we are prepared to consider that. If it is recommended that we wait until all eligible witnesses can be catered for nationwide, we shall consider that, too. In Clause 18(3), the Bill gives the Secretary of State flexibility to commence provisions for different types of cases, circumstances or areas as he thinks fit. That is designed to bring about a method of implementation that is realistic and workable. Video-examination will mean a hearing centred on the child, on a day set aside for the hearing, with the child kept completely away from the trial himself. We believe that that is a fair measure to enable children in these very difficult cases to give their best evidence and suffer the least distress. However, the hearing will be under the control of a judge. The questioning will be conducted by the lawyer for the opposing party, through an intermediary if the judge approves one, and cross-examination can be re-opened if further evidence becomes available or it is otherwise in the interests of justice.Moved, That the House do agree with the Commons in their Amendments Nos. 6 to 9.—( Lord Williams of Mostyn.)
On Question, Motion agreed to.
5.45 p.m.
Commons Amendment
10 Clause 29, page 22, line 45, after ("disorder") insert ("or other impairment").
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 10.
Moved, That the House do agree with the Commons in their Amendment No. 10.—( Lord Williams of Mostyn.)
On Question, Motion agreed to.
Commons Amendment
11 Clause 40, page 29, leave out lines 13 to 16 and insert—
("(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar—(i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or (ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event,
that the similarity").
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 11. I shall speak also to Amendments Nos. 12, 13 and 14.
These amendments to Clauses 40 and 41 correct a technical flaw in the amendments which I laid on Report. I am grateful to Ms Vera Baird, who brought the matter to our attention. On Report, I laid an amendment—significantly in response to the speech made by my noble friend Lady Mallalieu in Committee—to allow the defence to introduce evidence of the complainant's previous sexual behaviour if it was strikingly similar to the complainant's behaviour during the events constituting the alleged offence, or at or about the same time as the alleged offence. However, having thought about it, I realised that the amendment was defective in that it allowed evidence of previous sexual behaviour to be admitted if it was similar to the complainant's behaviour at or at about the same time as the alleged offence, but not if the: previous behaviour was similar to how the complainant behaved during the alleged offence itself. These amendments are designed to remedy that flaw. The amendment to Clause 41 completes the effect of the amendment to Clause 40. It also allows the defence to explain or rebut evidence which the prosecution claims relates to the alleged offence, but which the defence considers to be evidence of a complainant's previous sexual behaviour. That would not have been possible earlier, as only evidence which the prosecution claimed was evidence of previous behaviour could be rebutted under Clause 40(5). Therefore, we wanted to safeguard the interests of the defendant to allow them to rebut all prosecution evidence—if the judge gives leave—as a balance to the greater freedom the prosecution have to introduce evidence of sexual behaviour. The amendments to Clause 42 require judges and magistrates to give reasons for their decisions on admitting, or refusing to admit, sexual behaviour evidence. We received several representations and we thought that the points made were sensible and important. Therefore, we introduced these amendments. Clause 40 introduces a tight framework setting down what is relevant and what is not. We wished to get this framework right, in the interests of a fair trial for the defendant. During our debate on Report, we heard several persuasive speeches about the need for strikingly similar provision so that in extreme circumstances the defendant can support his claim that the complainant consented to the act constituting the alleged offence by reference to previous behaviour. The provision, in what will be—if it is agreed—Section 41(3)(c), is very narrowly drawn. Only information that cannot reasonably be explained as a coincidence can be admitted. All evidence would, therefore, have to be very unusual to be admitted. Commonplace events such as previous one-night stands, or having sex with someone of the same race, or in a car, would be inadmissible under this subsection, because they could reasonably be considered a coincidence. The Romeo and Juliet scene was the example offered by the noble Baroness, Lady Mallalieu, but even that example would only be admissible if it were very similar to defence evidence. The prosecution are not subject to the same restrictions as the defence under this clause. Unless the defence can challenge all prosecution evidence, through the provision in subsection (5), they may not be able to introduce evidence to explain or rebut certain pieces of prosecution evidence. We must allow the defence to suggest, where necessary to their case, that evidence the prosecution claim relates to the alleged offence—such as bruising, or other injuries—was caused as a result of the complainant's previous sexual behaviour. One example of the problem with the Bill as currently drafted is that, if a defendant in a rape case was running defence of mistaken identity—that he did not have sex with the complainant at all—he could not rebut the prosecution's claim that the complainant did not consent, because he would not be arguing that she did consent. However, the prosecution might have introduced evidence to support the complainant's lack of consent, such as bruising or cuts. The defendant could not challenge that under the Bill as currently drafted. But if the defendant knew that the bruising had been caused by the complainant's previous sexual behaviour, he should be able to introduce evidence showing that. Otherwise, the jury might be misled. That is the thinking behind the amendments, which I commend to your Lordships.Moved, That the House do agree with the Commons in their Amendment No. 11.—( Lord Williams of Mostyn.)
My Lords, I welcome the amendments. They do not go as far as I wanted, because I still think that the whole problem of sexual history that a woman has sometimes to recount deters women from bringing cases to trial. However, I welcome the narrowing of the criteria under which sexual history can be admitted.
My Lords, I also welcome the provisions as now drafted. We discussed them for a long time in Committee and on Report and Third Reading. They were modified in your Lordships' House and subsequently in the other place. It is difficult to get the wording precisely right, but I believe that it has been improved and that the changes that will be introduced by the Bill as a result are desirable.
On Question, amendment agreed to.
Commons Amendments
12 Clause 41, page 30, line 7, leave out ("other than") and insert ("but excluding (except in section 40(3)(c)(i) and (5)(a))").
13 Clause 42, page 30, line 35, after ("court") insert ("(but in the absence of the jury, if there is one)").
14 Page 30, line 36, leave out ("decision to give, or refuse,") and insert ("reasons for giving, or refusing,").
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 12 to 14.
Moved, That the House do agree with the Commons in their Amendments Nos. 12 to 14.—( Lord Williams of Mostyn.)
Commons Amendment
15 Clause 43, page 31, line 19, leave out ("when a minor shall while that person") and insert ("shall while he").
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 15. I wish to speak also to Amendments Nos. 18 to 22 and 53.
Amendments Nos. 15, 18 and 19 remove tautologies in Clauses 43 and 44. Amendment No. 20 defines whom, including those resident in Scotland, the courts should recognise as having authority to offer or veto the parental waiver provided in respect of reporting restrictions in relation to the identification of young victims and witnesses of alleged offences at the pre-trial stage of criminal investigations in England, Wales and Northern Ireland. Amendments Nos. 21 and 22 are consequential to Amendment No. 20. Amendment No. 53 is consequential to Amendments Nos. 62 and 63 moved on Lords Report on 8th March 1999. Amendments Nos. 15, 18, and 19 remove references to "a minor" in Clauses 43 and 44. They are not needed because the clauses already contain references to a person under the age of 18. Amendment No. 20 clarifies the question of parental waiver in respect of children allegedly involved as victims or witnesses. I beg to move.Moved, That the House do agree with the Commons in their Amendments No. 15.—( Lord Williams of Mostyn.)
My Lords, I wish only to say that it is somewhat a criticism of your Lordships' House, including myself, that we should have allowed the tautology corrected by the amendments to slip through. On reading the Bill, the problem is obvious and the other place is right to correct us.
n Question, Motion agreed to.
Commons Amendment
16 Clause 43, page 31, line 24, leave out from beginning to ("cease") in line 28.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 16, and I wish to speak also to Amendments Nos. 17 and 25. The amendments ensure that the reporting restrictions provided in the Bill, which bite during police investigations before a suspect is charged and which restrict identification of children who are alleged to be victims or witnesses to the commission of an offence, should only be implemented if the draft order to that effect has been approved by affirmative resolution in both Houses.
We had several discussions about these issues. The noble Lord, Lord Cope of Berkeley, and the noble Viscount, Lord Astor, raised matters which I said at the time were of genuine interest and importance to the public and to those who discharge a public function by proper reporting. When the Bill was in the other place it was put to us that the media's own regulatory arrangements to protect children could be strengthened in a way that is specific to children who might be harmed by publicity in connection with a crime and that this would be preferable to the provisions in the Bill which restrict pre-trial reporting about child witnesses and victims. For the print media at least, any change to the regulatory arrangements is a matter for the industry as a whole to consult upon. For the broadcast media it is a matter for independent regulators. I cannot fetter the discretion of this or any other Home Secretary by making any undertakings about what might happen if such regulatory changes were made. Our objective has not changed. We were prepared to consider the possibility that it might be achieved by other means, and we made these new amendments as a result. We shall need to keep the case for implementation under regular review. Should this, or any future Home Secretary, come to the conclusion in the light of the circumstances then prevailing that the provisions in Clause 43 should be extended to child victims and witnesses, a draft order to that effect will be laid before Parliament. Obviously, a most crucial consideration in such assessments will be whether we continue to have concerns about children being damaged by the media's reports of crime and can justify those concerns. These matters were raised by the noble Lord, Lord Cope of Berkeley and the noble Viscount, Lord Astor. It was worth having those debates, on more than one occasion if my memory serves. We have listened carefully to what has been said by those who discharge a public function, and I wish to make: it clear that we shall not implement the provisions unless circumstances make it necessary in our judgment.Moved, That the House do agree with the Commons in their Amendment No. 16.—( Lord William of Mostyn.)
6 p.m.
My Lords, can the Minister tell us whether the voluntary organisations concerned with the interests of the child, in particular the NSPCC, with which he has had a previous connection, have been satisfied? They made representations which were raised by myself, among others, in Committee. At the same time the Minister was in negotiation with the much more powerful representatives of the media. We have heard that the accommodation reached was acceptable to the media. Can the Minister tell us whether the Bill, as it now stands, is acceptable to the voluntary organisations?
My Lords, they were consulted. It is my best understanding that they were content on the basis which I have indicated. I do not regard the media organisations as being more powerful than the voluntary organisations. The voluntary organisations—particularly within the field of child protection—have been extremely influential; first, in the way in which we cast the Bill in general structure and in the very helpful amendments and thoughts which have been put forward.
It is an extremely difficult balance to cast. We cannot have a free society without a free press. We cannot justify a free press which is wholly enabled and entitled, as it were, to do damage to children. That is why I believe that we have the balance about right. I repeat that—and I hope it will be a comfort to your Lordships and to the noble Lord who has asked this question—we want to keep the matter under constant review. Pan: of that constant review is a readiness always to listen to the voluntary organisations of the kind which the noble Lord, Lord Windlesham, described.My Lords, as the Minister says, it is a difficult balancing act to frame the legislation so that it both gives the protection that we all want for vulnerable witnesses and, for that matter, vulnerable accused, while at the same time retaining a free press. That is not only in the interests of a free press, but also because, as emerged from our earlier debates, sometimes press publicity given to an offence and its immediate circumstances may enable the victim to be identified and may also assist to catch the offender.
We did not want to make it more difficult for the police to catch an offender and bring him before the courts while trying to protect the victims of or other witnesses to an offence. The balancing act has been difficult. I believe that the current wording certainly goes in the direction that we wished. As the Minister says, it provides, as it were, a sword of Damocles which will hang over the press to try to ensure that its voluntary codes achieve what we all want in terms of protection, without overstepping the mark in the other direction of making things too difficult for the police to pursue their valuable role in this. I am not keen on legislative swords of Damocles hanging over sections of the population, whether the. press or anyone else. Nevertheless, in this instance it provides a way out of an awkward drafting situation. I support the amendments.On Question, Motion agreed to.
Commons Amendments
17 Clause 43, page 31, line 32, leave out from ("to") to end of line 40 and insert—
except that paragraph (b)(i) does not include a person in relation to whom section 1 of the Sexual Offences (Amendment) Act 1992 (anonymity of victims of certain sexual offences) applies in connection with the offence.
(4A) Subsection (4)(b) applies to a publication if—
on or after such date as may be specified in an order made by the Secretary of State.").
18 Clause 44, page 33, line 13, leave out ("when a minor").
19 Page 33, leave out lines 40 to 42.
20 Clause 49, page 39, line 27, leave out subsection (9) and insert—
("(8A) In this section—
"an appropriate person" means (subject to subsections (8B) to (8D))—
"guardian", in relation to the protected person, means any person who is not a parent of the protected person but who has parental responsibility for the protected person within the meaning of—
(8B) Where the protected person is (within the meaning of the Children Act 1989) a child who is looked after by a local authority, "an appropriate person" means a person who is—
(8C) Where the protected person is (within the meaning of the Children (Northern Ireland) Order 1995) a child who is looked after by an authority, "an appropriate person" means a person who is—
(8D) Where the protected person is (within the meaning of section 17(6) of the Children (Scotland) Act 1995) a child who is looked after by a local authority, "an appropriate person" means a person who is—
21 Page 39, line 43, leave out ("subsection (9)") and insert ("subsections (8A) to (8D)").
22 Clause 51, page 40, line 43, leave out ("meaning given by section 49(9)") and insert ("same meaning as it has for the purposes of section 49").
23 Clause 52, page 41, line 8, after ("not") insert ("a person who is").
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 17 to 23.
Moved, That the House do agree with the Commons in their Amendments Nos. 17 to 23.—( Lord Williams of Mostyn.)
On Question, Motion agreed to.
Commons Amendment
24 After Clause 58, insert the following new clause—
Removal Of Restriction On Use Of Evidence From Computer Records
(". Section 69 of the Police and Criminal Evidence Act 1984 (evidence from computer records inadmissible unless conditions relating to proper use and operation of computer shown to be satisfied) shall cease to have effect.").
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 24. I speak also to Amendments Nos. 40, 42 to 48, and 50 to 52.
The amendments seek to implement the recommendation of the Law Commission that Section 69 of the Police and Criminal Evidence Act 1984 should be repealed. Amendments Nos. 42 to 48 and 50 to 52 are simply consequential. Section 69 of the Police and Criminal Evidence Act— PACE—provides that a document produced by a computer may not be adduced as evidence unless it is shown that the computer was operating properly and was not used improperly. There have been enormous advances in computer technology and networking in recent years. That has made Section 69 an increasingly difficult hurdle for either defence or prosecution to overcome. The burdens on business in providing Section 69 certificates for criminal trials and releasing members of staff to attend court to give evidence are believed to be significant. The Law Commission concluded that the present law served no useful purpose. It recommended that the provision should be repealed without replacement. The vast majority of those who responded to the consultation agreed that if a law has no useful purpose—or if this part does not—it ought to be repealed. I beg to move.Moved, That the House do agree with the Commons in their Amendment No. 24.—( Lord Williams of Mostyn.)
On Question, Motion agreed to.
Commons Amendments
25 Clause 62, page 45, line 39, leave out ("or 41(2)") and insert (", 41(2) or43(4A)").
26 Clause 64. page 46, line 26, at end insert—
("(3) Until the day appointed under section 3 of the Northern Ireland Act 1998 for the commencement of Parts II and III of that Act this section shall have effect with the substitution for subsection (1) of the following—
"(1) An Order in Council under paragraph 1(1)(b) of Schedule 1 to the Northern Ireland Act 1974 (legislation for Northern Ireland in the interim period) which contains a statement that it is made only for purposes corresponding to the purposes of any of the relevant provisions of this Act—
27 Clause 66, page 46, line 35, at end insert—
("() For the purposes of the Scotland Act 1998, any provision of this Act which extends to Scotland shall be taken to be a pre-commencement enactment within the meaning of that Act.").
28 Page 47, line 34, leave out subsection (10).
29 Schedule 1, page 50, line 9, leave out ("sentences") and insert ("deals with").
30 Page 51, line 8, leave out ("those paragraphs") and insert ("paragraphs 11 and 12").
31 Schedule 2, page 59, line 24, leave out from beginning to ("paragraph") in line 27 and insert—
("13.—(1) Section 7 (application of Act to courts-martial) is amended as follows.
(2) In subsection (1) (Act to apply with modifications where in pursuance of armed forces law a person is charged with an offence to which the Act applies), after "applies" insert "by virtue of section 2(1)".
(3) In subsection (2) (modifications with which Act applies to courts-martial)—
32 Schedule 3, page 61, line 40, at end insert—
("() an offence which is—(i) created by regulations made under any such rules, and (ii) designated for the purposes of this subsection by such regulations;").
33 Page 61, line 41, after ("section") insert ("1,").
34 Page 61, line 42. leave out ("otherwise than in judicial proceedings").
35 Page 62, line 18, at end insert—
("() an offence which is—(i) created by regulations made under any such rules, and (ii) designated for the purposes of this subsection by such regulations;").
36 Page 66, line 31, after ("regulations;") insert—
("() an offence which is—(i) created by regulations made under any such rules, and (ii) designated for the purposes of this paragraph by such regulations;").
37 Page 67, line 8, after ("regulations;") insert—
("() an offence which is—(i) created by regulations made under any such rules, and (ii) designated for the purposes of this paragraph by such regulations;").
38 Page 67, line 9, after ("Article") insert ("3,").
39 Page 67, line 10, leave out ("otherwise than in judicial proceedings").
40 Schedule 4, page 71, line 27, leave out ("In section 34(3) of the Criminal Justice Act 1988") and insert—
("The Criminal Justice Act 1988 has effect subject to the following amendments.
15A. In subsection (1) of each of sections 23 and 24 (first-hand hearsay; business etc. documents), al the end of paragraph (a) insert "and".
15B. In section 34(3)")
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 25 to 40.
Moved, That the House do agree with the Commons in their Amendments Nos. 25 to 40.—( Lord Williams of Mostyn.)
On Question, Motion agreed to.
Commons Amendment
41 Schedule 4, page 72, line 3, at end insert—
(".—(1) Section 51 (intimidation etc. of witnesses, jurors and others) is amended as follows.
(2) For subsections (1) to (3) (offences of intimidating, and of doing or threatening harm to, witnesses etc.) substitute—
"(1) A person commits an offence if—(a) he does an act which intimidates, and is intended to intimidate, another person ("the victim'), (b) he does the act knowing or believing that the victim is assisting in the investigation of an offence or is a witness or potential witness or a juror or potential juror in proceedings for an offence, and (c) he does it intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with.
(2) A person commits an offence if—
(3) For the purposes of subsections (1) and (2) it is immaterial that the act is or would be done, or that the threat is made—
(3) In subsection (8) (presumption in proceedings for offence under subsection (2))—
and that he did the act, or (as the case may be) threatened to do the act,"; and.
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 41.I speak also to Amendment No. 54.
The amendments clarify the drafting of Section 51 of the Criminal Justice and Public Order Act 1994, in relation to the intimidation of witnesses and others involved in criminal investigations and proceedings. A recent decision, relating to the intimidation of witnesses through a third party, although eventually overturned by the Court of Appeal, has raised some questions about the current wording of Section 51 of the 1994 Act. There seems to be a misunderstanding in relation to Section 51(3) of the 1994 Act which states that:It was suggested that a threat to harm the witness, relayed through a third party, would not be caught by the offence. We feel that we should not lose this opportunity to put the matter beyond doubt. The amendments simply seek minor drafting changes. They do not in any way intend to change what was understood to be the existing situation."A person does an act "to" another person with the intention of intimidating, or (as the case may be) harming, that other person not only where the act is done in the presence of that other and directed at him directly but also where the act is done to a third person and is intended, in the circumstances, to intimidate or (as the case may be) harm the person at whom the act is directed".
Moved, That the House do agree with the Commons in their Amendment No. 41.—( Lord Williams of Mostyn.)
On Question, Motion agreed to.
Commons Amendments
42 Schedule 6, page 75, line 32, at end insert—
("12, 13 & 14Geo. 6 Registered Designs Section 17(11)."). c. 88. Act 1949.
43 Page 76, line 13, at end insert—
("1977 c. 37. Patents Act 1977. Section 32(12).").
44 Page 76, line 21, at end insert—
| ("1979 c. 2. | Customs and Excise Management Act | Section 75A(6)(b). In section 118A(6)(b), 1979. the words "sections 69 and 70 of the Police and Criminal Evidence Act 1984 and".") |
45 Page 76, line 28, column 3, at beginning insert—
| ("Sections 69 and 70.") |
46 Page 76, line 37, column 3, at end insert—
| ("Schedule 3.") |
47 Page 76, line 37, at end insert—
| ("1985 c. 9. | Companies Act 1985. | In section 709(3), the words from "In England and Wales" onwards.") |
48 Page 76, line 38, column 3, at beginning insert—
| ("In section 23(1), paragraph (c) and the "and" preceding it. In section 24(1), paragraph (c) and the "and" preceding it."). |
49 Page 77, line 17, column 3, at end insert—
| ("Section 7(3).") |
50 Page 77, line 17, at end insert—
| ("1994 c. 9. | Finance Act 1994. | In section 22(2)(b), the words "sections 69 and 70 of the Police and Criminal Evidence Act 1984 and". |
| In Schedule 7, in paragraph l(6)(b), the words "sections 69 and 70 of the Police and Criminal Evidence Act 1984 and". | ||
| 1994 c.23. | Value Added Tax Act 1994. | In Schedule 11, in paragraph 6(6)(b), the words "sections 69 and 70 of the Police and Criminal Evidence Act 1984 and"."). |
51 Page 77, line 27, at end insert—
| ("1995 c. 38. | Civil Evidence Act 1995. | In Schedule 1, paragraph 10. |
| 1996 c. 8. | Finance Act 1996. | In Schedule 5, in paragraph 2(6)(a), the words "sections 69 and 70 of the Police and Criminal Evidence Act 1984 and".") |
52 Page 77, line 29, column 3, at end insert (", 27").
53 Schedule 7, page 79, line 20, leave out ("to allegations within subsection (1) of that section whether made") and insert ("in relation to an alleged offence whether the criminal investigation into it is begun").
54 In the Title, line 4, after ("proceedings;") insert ("to amend section 51 of the Criminal Justice and Public Order Act 1994;").
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 42 to 54.
Moved, That the House do agree with the Commons in their Amendments Nos. 42 to 54.—( Lord Williams of Mostyn.)
On Question, Motion agreed to.