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Mr. Humfrey Malins (Woking): I declare an interest as a recorder of the Crown court, a lawyer and one who has, for some years, sat as an acting metropolitan stipendiary magistrate. I suppose that that makes me a geriatric judge--
Mr. Malins: That is kind of the Minister. Nevertheless, I feel that I should apologise to my hon. Friend the Member for Billericay (Mrs. Gorman) for being a geriatric judge.
Over the years, I have had to sentence many young people and contend with many vulnerable witnesses, so I recognise that issues raised in the Bill are extremely important and I am happy to give the Bill a broad welcome. My hon. Friend the Member for Ryedale (Mr. Greenway) and the hon. Members for Don Valley (Caroline Flint) and for Basildon (Angela Smith) said that the vast majority of young people in this country behave impeccably, have nothing to do with the criminal courts and contribute greatly to our society. They were absolutely right to say so, but I believe that they would agree that young people today are growing up in a dangerous and difficult world--one more dangerous and difficult than it was, say, 30 years ago.
In today's world, young people are exposed, often too young, to aspects of life that would be better met when they are older. Influenced by an often malevolent and irresponsible media, they witness more family break-ups than ever before. They see fragmentation of community and family life--how many youngsters today live within a few yards of their grandparents? Housing conditions in our inner cities are often grim, and the prospects of obtaining or retaining a job are less sure than they were previously. Drugs--the greatest evil facing our criminal justice system--are commonplace.
That is why it is so important to prevent a child from embarking on a criminal career. A good home and family, a good education, the prospect of a job, plenty of sport at school, discipline, pride, self-esteem and, perhaps most important, literacy are all factors that can help youngsters to stay away from crime. The other side of the coin is the youngster who regularly appears before me in court. The odds are that he comes from a broken home, and, as happens so often, he has no parents in court to support him--a situation referred to by the hon. Member for Basildon. He is illiterate, he has no pride and no job and he has probably dabbled in drugs. At school, this typical young man truanted regularly. The prospects for him are bleak.
Anything that the House can do, not only to prevent offending in the first place, but to prevent re-offending by young people, must be done. Therefore, the Opposition approach the Bill in a spirit of co-operation with the Government, because it is important that we work together on those issues.
My hon. Friend the Member for Ryedale dealt at some length with the important new sentence of referral to a youth offender panel. We believe that is a sensible, forward-looking measure. The terms of the contract under clause 8 are sensible and will impose great obligations on a defendant. However, I must make two points. First,
I speak as a sentencer when I say that it is surely right that sentencers be given a wide discretion as to the circumstances in which that sentence is used.
It is quite wrong in principle to remove the court's discretion and impose the sentence of referral to a youth offender panel whenever there is a guilty plea by a first offender who is not to be given a custodial sentence or discharged absolutely. My hon. Friends the Members for Poole (Mr. Syms) and for North Thanet (Mr. Gale) made the same point. By the time they come to sentencing, lay magistrates, stipendiaries and judges have all the facts of the case before them. They have a feel for the case and for the defendant and his or her circumstances. It is almost inevitable that they will have ordered a pre-sentence report to assist them in forming a view about the sentence. As they know so much, they should surely be the ones to decide whether it is appropriate to implement this sentence in any one case rather than having Parliament apply a straitjacket to the courts. As I said earlier, that would be quite wrong.
Sentencers who may have decided to fine or conditionally discharge a young person who appeared before them will know that, if they do anything other than absolutely discharge or give a custodial sentence, they will have to pass the child to a panel. In those circumstances, they might be tempted to hand down what they believe to be the wrong sentence and opt for an absolute discharge--even though they wanted to do something else.
Secondly--and most important--the sentence must have teeth if it is to work. A problem associated with community sentences, such as community service, is that, if the defendant fails to co-operate and breaches the order, the court's powers are very limited when the defendant returns to court. Very little happens in practice. The court has been powerless to deal with a defendant who has breached a community service order--the Home Affairs Committee has said something about that problem--and has been able only to impose a fine or to order the order to continue.
What sanctions should be imposed if a young person fails utterly to co-operate with the youth offender panel? The hon. Member for Lancaster and Wyre (Mr. Dawson) mentioned that point in passing. He was clearly a social worker and, judging from his speech, knows a great deal about this topic. Hon. Members appreciated hearing his views. When a referral is made and the youth offender panel is organised, what will happen if the defendant says that he will not co-operate and turns his back on the whole idea? Under the Bill, it appears that he will simply be referred back to the court and sentenced in another way.
Despite the Home Secretary's remarks at the beginning of his speech, that sentence will almost certainly not include custody, as the youngster will have been referred to the panel in the first place only because a custodial sentence was considered inappropriate. By all means, let us give the young offender guidance and help. However, he should know that a failure to co-operate and play his part to the full will have severe consequences. In short, I believe that the breach of an order should mean an immediate return to court and an inevitable custodial sentence.
Mr. Bermingham:
I declare an interest in the debate. I have 30 years' experience in the courts, and I witnessed
Mr. Malins:
I pay tribute to the hon. Gentleman's distinguished career in the law and accept that he makes a serious point. However, I am saying that, when a court makes an order, be it a community service or a referral order, there must be a sanction against the person who, in effect, breaches that order wilfully. He should know that custody will result from breaching the order. By all means give a chance or give help, but there must be teeth. I hope that the hon. Gentleman accepts that argument. We need to drive home to youngsters the difference between right and wrong. I hope that, in Committee, the Bill will be amended to give the courts the strongest powers on any breach.
We must be careful that our youth justice system does not become too bureaucratic, too cumbersome and too expensive, thereby involving a disproportionate number of people. I think it was the hon. Member for Luton, South (Ms Moran) who expressed some concern about the extra work load involved not only in the implementation of this Bill but in the implementations of the Crime and Disorder Act 1998. It is well known that the volume of paperwork, including various reports, that shuffles round the youth court is far too much. The Crime and Disorder Act imposed a vast array of duties and thereby expenses on local authorities, the police and the probation service. Those bodies are already starved of funds. What implications does the Minister think that the Bill will have for those services? Will he talk about the Bill's financial and manpower implications? The matter was referred to by the hon. Member for Lancaster and Wyre when he talked about resources.
The second part of the Bill introduces a number of special measures to help witnesses in criminal proceedings. We are talking of witnesses who may find the process difficult, who may be overawed, or who may be reluctant, perhaps because of fear. A number of hon. Members have spoken about these measures with feeling. The hon. Member for Stretford and Urmston(Ms Hughes), who served with some distinction on the Select Committee on Home Affairs, had something to say about young witnesses. We valued her contribution. The hon. Member for Luton, South also feels strongly about witness protection measures.
Some of the measures--for example, the use of screens to shield the witness from the accused, evidence by live video link and the removal of wigs by judges--are already widely used in our courts, and to pretty good effect. Their extension is to be given a cautious welcome. I say "cautious" because a balance needs to be struck between competing rights. Yes, the witness has rights and should, as far as possible, be protected. Equally, the accused--let it never be forgotten that he is innocent until proved guilty--has rights, and so do the public. Was it my right
hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) who said that the most important person in a court case of a criminal nature is the defendant?
For those reasons, I think that we should approach with some care the issue of special measures to help witnesses in criminal proceedings. The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), who has a long and distinguished career as a solicitor dealing with criminal work, had something to say about the important issue of the rights of the various parties in a court case. The proposed measures need carefully to be examined in Committee.
I shall refer briefly to clause 27 and the video-recording of cross-examination. I feel that we are stepping into dangerous territory. My right hon. and learned Friend the Member for Sleaford and North Hykeham had something to say about the issue of cross-examination. There is no doubt that cross-examination is worth while only if it takes place live, with the counsel who conducts it being aware of what has happened in the case up to that moment. Cross-examination by video before the case started would not be a helpful development, as my right hon. and learned Friend argued. Let us consider those measures carefully in Committee, and let us hope that any extension of measures will be used sparingly by the courts when they come into force.
Again, we need to examine cost and practicalities. How many youth and Crown courts does the Minister plan to equip with screens and video links? How long will the process take? What is the expected cost of those measures? Will extra money be provided, or will it have to be found within existing budgets?
One of the most important clauses in the Bill is clause 33, which provides that defendants charged with rape or other sexual offences who choose to conduct their own defence may not cross-examine the alleged victim of the offence. Several hon. Members commented on that, not least my hon. Friend the Member for Billericay.
In general terms, the clause has our support, but the Minister should take on board the fact that concerns have been expressed not only in another place but by senior members of the legal profession. My hon. Friend the Member for Gainsborough (Mr. Leigh), my right hon. and learned Friend the Member for Sleaford and North Hykeham and the hon. Member for Meirionnydd Nant Conwy--perhaps I should apologise to the House for quoting three lawyers--expressed concern about clause 33 and succeeding clauses in terms of the rights of the defendant.
Some have argued that the provisions of clause 33and subsequent clauses are contrary to human rights legislation. Is the Minister satisfied that there is no such conflict? It may be worth introducing an amendment in Committee to the effect that the judge should have power in an exceptional case to grant leave to the unrepresented defendant to put his own questions. I urge the Minister to consider that with the greatest care. I recognise that, in the cases under discussion, the court will appoint a barrister to act for the defendant, but difficulties could arise if the defendant fails to co-operate with a barrister instructed on his behalf.
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