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Sixth Standing Committee
on Delegated Legislation
Thursday 5 June 2003
[Mr. George Stevenson in the Chair]
Draft Referral Orders
(Amendment of Referral Conditions) Regulations 2003
The Parliamentary Under-Secretary of State for the Home Department (Paul Goggins): I beg to move,
That the Committee has considered the draft Referral Orders (Amendment of Referral Conditions) Regulations 2003.
It is a pleasure to see you, Mr. Stevenson. These draft regulations have been laid in order to make a simple adjustment to the referral order scheme. They have been widely consulted on and have been welcomed by all those involved in the process, including magistrates, youth offending teams and community panel members. At present the courts are obliged to make a referral order in cases involving people who are under 18 where the following criteria apply. It must be a first offence, they must plead guilty and neither an absolute discharge nor custody is appropriate.
The change will give the courts more discretion. They will not be obliged to make a referral order in respect of non-imprisonable offences, but will have discretion to make one where they think fit. The intention is that magistrates may still make referral orders for such offences, but in future they will have discretion to choose an alternative sentence where they judge that to be more appropriate.
As originally intended by Parliament under the Youth Justice and Criminal Evidence Act 1999, the referral order will remain the primary disposal for young people convicted for the first time and pleading guilty. But this change will give more flexibility when it comes to minor offences. It may be helpful if I remind the Committee about the main features of the referral order, which is a form of restorative justice. This is an innovative new sentence for young offenders that directly involves members of the local community in tackling youth crime in their neighbourhood.
The court specifies the period for which the referral order is to last—between three and 12 months—and the young person is then referred to a youth offender panel. The panel is chaired by a community member, with another community member and the youth offending team officer in support. The victim will be invited, although attendance is not obligatory. Others with a significant investment in the young person's life, such as a family member or a teacher can also attend.
Neither you, Mr. Stevenson, nor the Committee will mind if I take the opportunity to put on record our gratitude for the important contribution that is made by community panel members. More than 5,000 people have so far volunteered and been trained for this role. Two thirds of them are women and there is a strong ethnic minority involvement. Parliament can
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legislate, the Government can put in the resources but the referral order scheme would simply be impossible if panel members did not come forward.
The panel meetings provide the opportunity for young people convicted for the first time and who have admitted the offence, to be dealt with away from the formality of the court. With the help of the panel the young person is encouraged to face up to the consequences of what they have done, find a way to repair the harm and to agree a contract with a programme to minimise the risks of reoffending. The aim is to reintegrate the young person back into the community and, if the order is successfully completed, the conviction is spent immediately and they can put the offending behind them. If the programme does not work out they go back to court for re-sentencing.
It is important to emphasise that this is not a soft option. In what is sometimes an uncomfortable procedure the young person is put on the spot and made to answer to other people in their community for their behaviour. It tackles victim and community concerns at the same time. Where victims are willing and able to attend, they can tell the young person at first hand what impact the offence has had on them. They can also express their view on the form of activity they would like the young person to undertake by way of reparation. There have been many cases where victims of offences, such as burglary, assault or criminal damage, have benefited from participation in this process.
After an initial pilot programme, referral orders were implemented across England and Wales in April 2002, so they have been in force nationally for just over a year. We have evaluated the first year of operation and I can confidently say that they are a practical and successful demonstration of community justice in action. The evaluation shows that referral to a youth offender panel can be a very positive experience for all concerned: the young offender, the parents, who often find this a very supportive process, and the victim.
Drawing on experience so far and after listening to those involved in the process, Ministers believe that the time is now right to make a small but significant adjustment to the scheme to make it more responsive to the needs both of sentencers and offenders. While in most cases referral orders have a direct and beneficial impact, experience has shown that they can be a disproportionate response in less serious cases, such those involving minor theft or less serious incidents of criminal damage. Offenders who might be dealt with more effectively with a fine are coming before a panel. Offences such as fare evasion or driving a moped without a helmet can sensibly be dealt with by the court there and then without the need for the more intensive input of a community panel.
This amendment will give magistrates the flexibility to pass an alternative sentence in such cases. It will enable the resources required for referral orders to be focused better on the cases that tend to be more complex in terms of their causes or possible solutions. I should stress that we are not saying that referral orders will never be appropriate for non-imprisonable offences. Some traffic offences, for example, could
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have serious consequences. It may be necessary to bring home to a young driver the significance of their offence and their responsibility to other road users. But there will also be minor infringements that do not merit the involvement of community panels. These regulations will give courts the choice so that the magistrates can make an alternative disposal if they see fit. These regulations make a sensible adjustment to the operation of referral orders and I commend them to the Committee.
Mr. Dominic Grieve (Beaconsfield): I thank the Minister for his brief, but clear exposition of the purpose of these amendment regulations. I can reassure him at the outset that I have no intention of opposing them. Indeed, I would go further: I approve of them. The way that the Government are approaching this problem of fine-tuning the referral system, which has been working quite well, should be beneficial.
I have one point that I should like to put on the record. Oddly enough it arose from reading the explanatory memorandum from the Home Office. I fully appreciate that a referral order would be disproportionate for quite a large number of offences. It would be a classic example of overkill for someone whose offence was to ride a motorcycle without a helmet, especially if it was a first offence. I was a little bit more surprised to hear the Minister refer to non-payment of a bus fare, which is an offence of dishonesty that has a clear and immediate impact on the victim: the bus company is deprived of its revenue. If referral orders are to be beneficial, there is good scope for applying them to quite small offences where it is quite clear that the intention is dishonest. Riding without a motorcycle helmet may merely be an example of a certain degree of insouciance. I do not want to take up the Committee's time unnecessarily and that is the only point that I would put to the Minister.
Referral orders can be important in quite minor matters. After all, their purpose is to nip criminal behaviour in the bud because it is a first offence. They take a step at an early stage to try to ensure that a young person does not reoffend.
At one time, I did quite a lot of juvenile court work and, indeed, general criminal court work. If I remember anything from my time as a barrister, it is the depressing fact that young offenders who had been treated far too leniently were finally treated rather harshly. There was a tendency to let first offences and minor offences pass without taking a proactive role in tackling the underlying problems. When something more serious eventually happened, and I as a barrister was brought in, one discovered that the person already had a track record of three, four or five minor convictions. When one looked at what had happened—it may have been 10, 15 or 20 years ago—one often felt that someone should have intervened far earlier.
With that in mind, I welcome the flexibility for which the proposals will provide. I certainly do not intend to stand in their way.
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Mr. David Heath (Somerton and Frome): I welcome you to the Chair, Mr. Stevenson, and I welcome the Minister to what I think is the first statutory instrument Committee that we have served on together since he took up his post. I also thank him for his lucid explanation of the purpose of the regulations, which I shall not oppose. Referral orders are a useful weapon in the armoury that we give our courts to deal with young offenders. I welcome the flexibility provided by the regulations. It will give the courts extra discretion and I trust them to find the disposals appropriate to the circumstances of the case and the person involved.
Given the glowing testimonial that the Minister gave referral orders, it is important that the extra discretion that we are giving courts does not lead to a significant reduction in the number of referral orders. I hope that some care will be taken to monitor what happens across the country and to ensure that the orders, which are an effective tool, do not fall into disuse because they are not compulsory in so many cases. It is also important that we give courts guidance on the appropriate use of the various disposals.
If I have one quibble, it is that the Minister is introducing the measure by regulation. There is no doubt that he has powers to amend the conditions, and section 17(3) of the Powers of Criminal Courts (Sentencing) Act 2000 makes it explicit that he has the power to do so. However, there is also the matter of getting our legislation in good order and in an understandable form. Some of us spent an inordinate amount of time in recent months discussing the Criminal Justice Bill and many matters associated with sentencing. Schedule 26 of that Bill deals with amending the Powers of Criminal Courts (Sentencing) Act 2000 and matters associated with referral orders. The Government rewrote the Bill in the very last stages of its passage through the House. The issue before us might therefore—I say this only as a suggestion—have been considered a little earlier and dealt with in primary legislation, rather than in secondary legislation. I say that because I have a preference for primary legislation, which sets out clearly for those who need to use statutes what the situation is and where the law lies. There is no need to refer to later statutory instruments. The Home Office, therefore, had a vehicle that would have allowed it to undertake some good housekeeping and it is a shame that the Minister preferred to use regulations. None the less, I do not oppose them. Indeed, I support the Minister's suggestion.