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Youth Justice and Criminal Evidence Bill [H.L.]

These notes refer to the Youth Justice and Criminal Evidence Bill [H.L.] as brought from the House of Lords on 24th March 1999 [Bill 74] YOUTH JUSTICE AND CRIMINAL EVIDENCE BILL [H.L.] EXPLANATORY NOTES INTRODUCTION 1.     These explanatory notes relate to the Youth Justice and Criminal Evidence Bill as introduced in the House of Commons on 24th March 1999. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given. BACKGROUND 3.     The Bill is in two main parts. The first deals with a new sentencing disposal for the youth court, and the second contains measures connected with giving evidence in criminal proceedings. Part I 4.     Part I of the Bill provides further reform to the youth justice system. 5.     The White Paper No More Excuses (CM 3809 November 1997) included a range of proposals to improve the effectiveness of the youth court in preventing offending by children and young people. This is now the principal aim of the youth justice system. 6.     The Crime and Disorder Act 1998 gave effect to a number of the White Paper proposals, including new sentences for young offenders and a final warning scheme to replace juvenile cautions. 7.     The Youth Justice and Criminal Evidence Bill gives effect to further reforms to the youth court proposed in the White Paper. It creates a new sentence of referral to a youth offender panel. This option is available for young people convicted for the first time and its primary aim is to prevent re-offending. 8.     The youth offender panel will work with the young offender to establish a programme of behaviour for the young offender to follow. The programme will be guided by the following three principles ('restorative justice'): Making restoration to the victim Achieving reintegration into the law-abiding community Taking responsibility for the consequences of offending behaviour Part II 9.     Part II of the Bill contains a range of measures designed to help young, disabled, vulnerable or intimidated witnesses give evidence in criminal proceedings. 10.     The measures include: a change to the definition of who is competent to give evidence; further restrictions on publishing information which might reveal the identity of a witness; physical measures to reduce the stress of giving evidence at trial (such as informal dress, screens, live link CCTV and the use of pre-recorded interviews); restrictions on the freedom of defendants to cross-examine their alleged victims personally; and further restrictions on what evidence about an alleged victim's sexual behaviour can be considered relevant in a trial for a sexual offence. 11.     These new measures were proposed by Speaking Up for Justice (June 1998), the report of an interdepartmental review of the treatment of vulnerable or intimidated witnesses in the criminal justice system. 12.     Part II of the Bill also includes amendments to the legislation governing the inferences that can be drawn at trial from a defendant's silence in response to police questioning during the investigation stage of a criminal case. It also restricts the use that can be made at trial of answers obtained under compulsion during an investigation. SUMMARY Part I - Referrals to Youth Offender Panels 13.     This introduces a new power for magistrates to sentence young offenders by way of a referral to a youth offender panel. 14.     It sets out the circumstances in which the new power will be available to the courts and the administrative arrangements for referral to a youth offender panel. It amends the Crime and Disorder Act 1998 to add to the functions of youth offending teams by giving them specific responsibilities for setting up youth offender panels and monitoring and recording the progress of young offenders subject to referral orders. 15.     It describes the arrangements for meetings between the panel and the young offender and for agreeing a contract between the panel and the young offender. The contract will set out a programme for the offender to follow. 16.     It describes the arrangements for monitoring the contract and the consequences for a young offender who fails to comply with the terms of the contract (and thus the referral order). It addresses the position of someone who is convicted of another offence during the referral period. 17.     It gives the Secretary of State the power to make regulations to extend the cases in which referral orders may be made and to issue regulations and guidance on such matters as the qualifying criteria for youth offender panel members and the possible components of the contract to be agreed with the young offender. Part II: The giving of evidence or information for the purposes of criminal proceedings 18.     This part of the Bill makes a number of measures available to help witnesses (other than the defendant) who otherwise might have difficulty giving evidence in criminal proceedings or who might be reluctant to do so. 19.     The first Chapter sets out who is eligible to apply for special measures to help them give their evidence in court. There are three categories: children under the age of 17; those suffering from a mental or physical disorder, or having a disability or impairment, that is likely to affect their evidence; and those whose evidence is likely to be affected by particular fear or distress in connection with giving evidence in the proceedings. 20.     It is for the court to determine whether a witness falls into any of these categories, although a witness alleged to be the victim of a sexual offence will initially be presumed to need assistance in giving evidence. The court must also determine whether making certain special measures available to an eligible witness is likely to improve the quality of the evidence given by the witness. 21.     Both the prosecution and defence will be able to apply, normally before the trial, for the court to make a special measures direction authorising the use of special measures to help a witness they are calling to give evidence. The court may also decide to make a direction even though no such application has been made. 22.     The special measures that can be authorised, once the Secretary of State has notified a court that it can make them availablefor the purposes of the Bill, are: Screens, to ensure that a witness does not see the defendant. Allowing an interview with a witness which has been video-recorded before the trial to be shown at trial as the witness's evidence. The Bill creates a presumption that young witnesses will give their main evidence in this way. Allowing a witness to give evidence from outside the court by live television link. The Bill creates a presumption that young witnesses will give any further evidence in this way. Clearing members of the press and public from the court so that evidence can be given in private. Not wearing the court dress of wigs and gowns. Allowing a witness to be cross-examined before the trial about their evidence and a video recording of that cross-examination to be shown at trial instead of calling the witness. Allowing an approved intermediary to help a witness communicate with legal representatives and the court. Allowing a witness to use communication aids. 23.     The second Chapter affects how far defendants, in certain circumstances, can conduct their own defence. A defendant must not personally cross-examine a witness, and must make other arrangements for the cross-examination, in the following circumstances: When the witness is the alleged victim of a sexual offence. When the witness is a child who is either the alleged victim or witness (including a witness who is a co-defendant ) in cases involving sexual offences, kidnapping or abduction, cruelty or physical assault. In other cases, when the court is satisfied, upon an application or on its own initiative, that the circumstances of the case merit it. 24.     In such circumstances, the defendant must appoint a legal representative to conduct the cross-examination on his behalf. Where the defendant refuses or fails to do so, the court must consider whether to appoint a legal representative to test the witness's evidence in the defendant's interests. 25.     The third Chapter amends the statutory framework for allowing evidence to be presented, or questions to be asked, about an alleged victim's previous sexual behaviour in sexual offence trials. The defence will have to apply to introduce evidence or ask questions on this subject, and the circumstances where it will be allowed to do so will be strictly limited. 26.     It will no longer be possible to invite conclusions to be drawn from information about the alleged victim's sexual behaviour in relation to an issue of consent except as follows: Where the information relates to sexual behaviour that allegedly took place at or about the same time as the alleged offence. Where the evidence relates to behaviour that is so similar to the defence version of the events at the time of the offence that the similarity can not reasonably be explained as a coincidence. So far as necessary to rebut evidence called by the prosecution about the complainant's sexual behaviour.      Sexual behaviour evidence can also be introduced in relation to the defendant's honest but misguided belief in the alleged victim's consent, since that belief is not treated as an issue of consent but as a separate issue in the case. 27.     The fourth Chapter extends the restrictions on the reporting or publishing of information allowing the identification of alleged juvenile offenders and witnesses to criminal offences. Restrictions will now apply from the moment a criminal investigation into an alleged offence begins, and will extend more widely than at present (i.e. UK wide). 28.     Courts will also be able to order reporting restrictions to prevent a witness from being identified in the press, if they are satisfied that the witness would otherwise be in such fear or distress as to affect the quality of their evidence. 29.     The fifth Chapter provides that everyone is competent to give evidence in criminal cases if they can understand the questions put to them and can answer those questions in a manner which enables the court to understand the evidence they have to offer. 30.     All witnesses aged 14 and over are to be sworn before giving evidence unless the court is satisfied that they do not have a sufficient appreciation of the solemnity of the oath. In such a case their evidence, like that of witnesses aged under 14, can be given unsworn (if they are competent to give evidence). 31.     The sixth Chapter prohibits inferences from being drawn from silence when a suspect is questioned at a police station while denied access to legal advice, and restricts the use that can be made of answers obtained under compulsion. Part III 32.     The remainder of the Bill contains supplementary and consequential provisions. COMMENTARY ON CLAUSES Part I: Referrals to youth offender panels Clause 1: Referral of young offender to youth offender panel 33.     Clause 1 introduces a new power for magistrates' courts of making referral orders in respect of first time offenders under the age of 18. Under a referral order the offender is referred to a youth offender panel. The clause sets out when the new sentencing power will be available. A referral order is intended to be the main disposal for young offenders who have not previously been convicted, but there are certain circumstances in which it would not be appropriate. These circumstances include cases where a custodial sentence is appropriate to reflect the seriousness of the offence or to protect the public. It is also recognised that there will be cases where it will be appropriate for the courts to order an absolute discharge. The new power is not intended to replace sentences which are already fixed by law. Nor should it preclude courts from ordering hospital admission in respect of mentally ill offenders. The circumstances that are expected to take precedence over the making of a referral order are set out in subsection (1) (but see paragraph 38). 34.     The effect of the new order is to refer a young offender to a youth offender panel to be set up and administered by the local youth offending team. Multi-agency youth offending teams, which are currently being piloted, are provided for by the Crime and Disorder Act 1998. The teams are responsible for co-ordinating the delivery of local youth justice services. The availability of the new disposal will depend on whether a local youth offending team has been established to set up the youth offender panel. Accordingly subsection (4) limits the availability of the new order to those courts that have been notified by the Secretary of State that arrangements are in place for a youth offending team to implement referral orders. It is intended that the new orders will be introduced at different times across the country, also on a pilot basis, so that their effectiveness and the resource implications can be fully assessed in advance of nation-wide implementation. 35.     The order-making power is available in the youth court and the adult magistrates' court. It is not available in the Crown Court, although, where the Crown Court is dealing with a young offender who may be suitable for a referral order, the case may be remitted to the youth court for sentencing. However, the Crown Court will have the same powers to award punishment as the lower court appealed against when sitting in its appellate jurisdiction (section 48(4) of the Supreme Courts Act 1981) and so may make referral orders in cases where it allows an appeal against the sentencing of the youth court or adult magistrates' court. Clause 2: Referral conditions 36.     Clause 2 sets out the conditions which have to be satisfied before a referral order may be imposed by the court. Subsection (1) describes the conditions required to trigger a 'mandatory' referral order although, following amendments to clause 1 agreed by the House of Lords, there are no circumstances in which a referral order must be made. In circumstances other than those described in clause 1(1), any young offender who has never previously been convicted (or bound over) and who pleads guilty to the offence (and any associated offences, i.e. any other offences for which the offender is being dealt with at the same time: clause 15(2)) may be referred by the court to a youth offender panel. This appears to be the group most likely to benefit from this type of sentence. 37.     Subsection (2) sets out a further category of young offender for which the court may consider using its powers to make a referral order. Again, the terminology reflects the original intention that there should be circumstances in which the referral order is a mandatory disposal. As with those cases referred to in subsection (1) the conditions in clause 1(1) apply and it must be the first time that the young offender has been convicted. It allows the court to use its discretion to order a referral where a young offender pleads guilty to one or more offences but not guilty to others (of which he is, however, convicted). 38.     The drafting of clauses 1 and 2 is under review. Amendments to clause 1, agreed in the House of Lords, have left references in both clauses to both compulsory and discretionary referral order conditions, despite the removal from the Bill of any duty to order a young offender to be referred to a youth offender panel. 39.     The intention is to pilot the new provisions in selected areas across the country. It may be that in the light of the experience of the pilots, or following full implementation across the country, it will appear that there are other categories of young offender who could also benefit from the availability of this new sentence. Subsection (3) allows the Secretary of State to amend the categories of offenders eligible for the new sentence subject to the agreement of Parliament by affirmative resolution procedure. This means that Parliament must discuss and approve the Secretary of State's amendments. Subsection (4) gives examples of the kind of amendments which might be made. 40.     Subsection (5) ensures that young offenders who have previously been given a conditional discharge are treated for the purposes of considering whether they qualify for a referral order as if they have a previous conviction. This is in line with the concept of limiting the arrangements, in the first instance, to those young offenders dealt with by a court for the first time. Clause 3: Making a referral order 41.     Clause 3 sets out the practical and administrative arrangements for making an order. To ensure that the young offender fully understands the effect of referral, the contents of the order are prescribed in subsection (1) and a requirement is contained in subsection (3) to explain the order, and the consequences of not complying with it, in clear language. 42.     The order must specify the length of the period for which any youth offender contract will have effect (subsection (1)(c)). This will be between 3 and 12 months. It will be set by the court on the basis of the seriousness of the offence to ensure that the sentence is proportionate to the offence. Where referral is being ordered for two or more offences, the court will make a referral order for each offence. However, each order will be supervised by the same youth offender panel (subsection (5)) and there can only be one youth offender contract. Although the period specified in each order may be of a different length, the total time for which any youth offender contract has effect will not exceed 12 months (subsection (6)). 43.     The order must also specify the youth offending team responsible for ensuring that a youth offender panel is set up to deal with the offender (subsection (1)(a)). Subsection (2) requires that the youth offending team identified in the order should be the team responsible for the young offender's home area or the area where he or she is expected to reside in the future. Clause 4: Effect of referral order on availability of other sentences 44.     When a referral to a youth offender panel is made it will constitute the entire sentence for the offence (and any associated offences) with which the court is dealing. The referral is not to be treated as an additional sentence to run alongside others (subsections (2) and (3)) (although the referral may be accompanied by certain ancillary orders such as orders for costs, compensation, forfeiture of items used in committing an offence, exclusion from football matches, etc.). Subsection (5) prevents the making of bind overs in respect of either the young offender or his or her parents and also prevents the making of parenting orders. But, as set out in subsection (3)(a), the court may order an absolute discharge in respect of an associated offence. 45.     When a referral order is required or considered appropriate the court cannot defer sentence under the powers in section 1 of the Powers of Criminal Courts Act 1973. The 1973 Act specifies that the court can defer sentence for the purposes of enabling it to have regard, in dealing with the offender, to his conduct after conviction (including where appropriate, the making by him of reparation) or to any change in his circumstances. This does not affect the court's ability to defer sentence in a range of other circumstances where it might be appropriate, including the power to adjourn sentence for the purposes of remitting the case to another court for sentence or to adjourn for pre-sentence reports (where, for example, it is considering a custodial sentence) (subsection (6)). Clause 5: Making of referral orders: attendance of parents etc 46.     Referral to a youth offender panel is intended to provide an opportunity for the young offender to consider, with his or her parents and the panel, how best to address the offending behaviour and prevent its re-occurrence. The supportive role of the young offender's parents will be a particularly important element of this process. Clause 5 regulates when the court may, and when it must, order parental attendance at meetings. 47.     For those under 16 years of age at least one parent or guardian will be required to attend all youth offender panel meetings. This duty on parents and guardians is set out in subsection (2)(a). Subsection (1) also allows the court to place similar requirements on parents and guardians of young offenders of 16 or over (where this is considered to be appropriate). Subsections (5) and (6) recognise that a local authority may have a role to play in cases where young offenders are in their care or otherwise "looked after" by the authority. Here "looked after" has the meaning given by section 22 of the Children Act 1989. The requirement to attend will always be notified in writing if the parent or guardian, or local authority representative, is not present in court when the order is made (subsection (7)). 48.     In subsection (3) it is recognised that there will be limited circumstances in which it would be unreasonable to expect the parent or guardian's attendance (for example, in the case of serious ill health). However, those parents, guardians or representatives who fail to attend the meeting against the order of the court without good reason may be brought before the court for contempt, in accordance with section 63 of the Magistrates' Courts Act 1980. Clause 6: Youth offender panels 49.     Clause 6 sets out how the youth offender panel should be set up (subsection (2)), who should sit on it (subsections (3) and (4)), who is responsible for arranging its meetings (subsection (1)) and what happens if the offender moves to a different area part-way through his referral (subsections (5) and (6)). 50.     Arrangements for the panel and its meetings will be the responsibility of the youth offending team. The panel will include a member of the youth offending team and at least two other members. It is intended that these other members will be directly recruited from the community by the youth offending team in accordance with qualification criteria to be set out in regulations to be issued by the Secretary of State under negative resolution procedure (which offers both Houses of Parliament an opportunity to object to the criteria chosen). 51.     National standards will be devised, and issued in the form of guidance from the Secretary of State, to ensure that the first meeting between the offender and the panel charged with dealing with him takes place promptly following the making of the order. Clause 7: Attendance at panel meetings 52.     Clause 7 describes how the youth offender team will be responsible for requiring the offender and others to attend panel meetings (subsection (1)) and sets out the arrangements for dealing with non-attendance (subsection (2)). If the young offender fails to attend a meeting, it may be adjourned. Alternatively, the youth offender panel may consider that this merits referring the offender back to court (as to which see Schedule 1). 53.     The action taken by the panel following an offender's non-appearance will no doubt depend on a number of factors, including whether or not a reasonable explanation for non-attendance has been put forward and the general attitude of the young offender up until that point. These issues will be addressed in the guidance to be issued by the Secretary of State. 54.     Apart from the duty to attend the meetings which may be imposed on the young offender's parents or guardian, there are no requirements on other adults participating in the meetings. Guidance from the Secretary of State is likely to suggest that it may be helpful for some of those present to play a specific role in the identified programme of behaviour with which the young offender agrees to comply (the 'contract'). However any such participation will be voluntary. 55.     The clause also describes who else may be invited to each meeting. It is intended that the youth offender panel should consult the victims of the young offender's offending as to whether they also wish to attend. This might include anyone affected by the offence or, where appropriate, a representative of the community at large. Meetings may also be attended by an adult supporter invited by the offender with the panel's agreement; and the panel may invite to meetings persons capable of having a good influence over the offender. Clause 8: First meeting: agreement of contract with offender 56.     Clause 8 governs the drawing up of a programme of behaviour with which the young offender agrees to comply (the 'contract'). Subsection (1) specifies the purpose of the first meeting as being the agreement of the contract and states that the principal aim of the programme for which the contract is to provide is to be the prevention of re-offending. This reflects the principal aim of the youth justice system introduced by the Crime and Disorder Act 1998. 57.     Guidance on the contents of programmes will be published. It is intended that the programme should always include an element of reparation to those affected by the offence, if those individuals consent. Depending on the nature of the offence and the views of the victim, this may involve a direct apology or financial or other reparation. Where there is no identifiable victim, reparation may be made to the community at large. Any additional elements of the programme will depend on the factors which appear to have led to the offending behaviour and may include a range of activities or requirements. Subsection (2) includes a suggested list of the provisions which might be included, but the list is not exhaustive. 58.     A referral order is not a custodial sentence. Accordingly subsection (3) precludes the inclusion in the programme of electronic monitoring or any form of custody. 59.     Subsection (5) requires that, once the contract has been devised and agreed, it should be set out in writing and explained in clear language. Subsection (6) requires that it should be signed by both the offender and a member of the youth offender panel. The offender will be given a copy of the contract.

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Prepared: 25 March 1999