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Session 2006 - 07 Publications on the internet General Committee Debates Criminal Justice and Immigration Bill |
Criminal Justice and Immigration Bill |
The Committee consisted of the following Members:Alan
Sandall, Committee
Clerk
†
attended the Committee
Public Bill CommitteeThursday 25 October 2007(Afternoon)[Sir Nicholas Winterton in the Chair]Criminal Justice and Immigration Bill1
pm
From time to
time, I remind hon. Members that I do not like knives, and I hope that
there will not be any during our proceedings, but we have an out date.
This is nothing to do with the Whip, who has been affable and
agreeable, and has put no pressure on the Chair, as he should not.
However, I ask the Committee, particularly the Opposition parties,
whose contribution to a Bill is critical, to bear in mind that we have
an out
date.
Schedule 2Breach,
revocation or amendment of youth
rehabilitation
orders
The
Minister of State, Ministry of Justice (Mr. David
Hanson):
I beg to move amendment No. 30, in
schedule 2, page 113, line 11, leave
out ‘that sub-paragraph’ and insert ‘sub-paragraph
(1)’.
Mr.
Hanson:
I welcome you to our afternoon sitting, Sir
Nicholas. These are drafting amendments to paragraph 10(3) and (4) of
schedule 2. They clarify the order-making power in sub-paragraph
1.
Amendment agreed
to.
Amendments
made: No. 31, in schedule 2, page 113, line 14, leave out
‘(2)’ and insert
‘(1)’.
No.
32, in
schedule 2, page 117, line 15, leave
out ‘Where the offender is aged 14 or
over,’.
No. 33,
in
schedule 2, page 117, line 22, leave
out ‘who is aged 14 or over’.—[Mr.
Hanson.]
Question
proposed,
That this schedule, as amended, be the Second
schedule to the
Bill.
Mr.
Edward Garnier (Harborough) (Con): I shall be as brief as
I sensibly can, but as the Bill consists predominantly of schedules
rather than clauses, it is incumbent on us to spend a little
time—not an excessive time—considering what clause 2
does. I shall not ask the Committee to divide on whether the schedule
should stand part of the Bill, but this is an opportunity to consider
what we are doing. I said on Second Reading that this is predominantly
a schedule Bill. For example, clause 2 does nothing except to bring
schedule 2 into effect. I want to highlight a number of issues, which
might even touch on other schedules.
With regard
to procedural matters, first, when a court comes to consider a sentence
involving the breach, revocation or amendment of a youth rehabilitation
order, it will have to examine the schedule closely to work out where
it stands, almost as if it were in a game of snakes and ladders. I
would urge, if at all possible, that simplicity enter into the drafting
process—I dare say that it is too late for this Bill. I
appreciate that the Government do not want to miss anything out or to
produce legislation that leaves a court in doubt as to its powers or to
how the sentencing regime is to be governed.
For example, in respect of the
powers of both the magistrates court and the Crown court, the schedule,
on page 113, in part 3, at paragraph 11(2)(a) and (b), essentially
provides the court with the power to revoke the existing sentence, to
re-sentence for the original crime, and to deal with the breach. Rather
than a court going all through the detailed paragraphs of part 3, it
would be far simpler as a matter of drafting, and therefore as a matter
of efficient use of court time, and our own, if a straightforward power
to revoke, re-sentence for the original offence and deal with the
breach could be built into the Bill and replicated across each of the
jurisdictions—be it the summary jurisdiction or the Crown court
jurisdiction.
The
Government may be fearful that if they do not set the measures out in
such complicated detail, no one will fully understand the powers that
apply to each respective court or to particular sorts of breaches and
what a court can do. However, I have a suspicion that, when those who
are training magistrates or Crown court judges come to look at this on
Judicial Studies Board courses—of which I have been on a
few—they will ask why it is like this and why it could not be a
little simpler.
My
second point touches on some of our earlier debates in relation to
schedule 1. It is essential to build into the system a flexibility to
allow a judgment to be made about each breach so that the court, be it
the magistrates or the Crown court, does not feel boxed in by too rigid
a framework, and the discretion referred to by my hon. Friend the
Member for Enfield, Southgate is left in the hands of the
court.
Other points
that need tightening up include paragraph 3, in relation to the warning
system. Clearly, it is sensible to give to a young person who is about
to commit or has committed a breach, a warning that if he continues in
that way, something worse could happen. I would ask the Committee to
bear in mind what sort of person we are likely to be dealing with. They
will not be very organised or responsible for their own lives, by
virtue of the fact that they are before the criminal justice system at
all. Some of them may have no contact with formal schooling; some of
them may be riddled with substance abuse; they simply may not be very
clever people, in the loosest sense of the word. Therefore, any warning
must be clear and there is no better way of achieving that than in
writing. Although other provisions deal with notices and certificates
later in the schedule, it might be worth considering whether warnings
should be given in writing, because it brings a little more
authority.
Mr.
Garnier:
Good—I am glad. I do not suggest that we
amend the schedule, but it should be made quite clear to the
supervisors of these youngsters, in practice notes, protocols or some
other form of guidance, that they must give warnings in writing and
copy them to the responsible adult. It may be that the parent of the
child in question is not very responsible either, but it is important
that no provision is built into the system that allows for any excuse
for failure by the criminal justice system or the individual
offender.
Another
practical question that needs to be addressed concerns the summons that
can be issued by a court for failure to appear, which is set out on
page 108. We must be careful that we are not just passing optimistic
legislation in the absence of a knowledge of what normally happens. If
a person does not appear in answer to a summons, a judge can issue a
bench warrant. No doubt a magistrate can do so too; my hon. Friend the
Member for Enfield, Southgate will be able to tell me about that. That
power is fine, but very often there are not enough police officers to
go and find that person. Such people do not necessarily stand around on
the street corner advertising the fact that they are late or do not
intend to appear. We must ensure that the personnel and resources are
available for bench warrants and summonses of this nature to be not
only issued but
implemented.
Paragraph
6, on powers of magistrates courts, deals with the fining of young
offenders under the age of 14. There may be some offenders of that age
who have £250 in their accounts that can be extracted and given
to the court, but I do not suppose that many of the sorts of people who
unfortunately come in front of the courts will have that sort of money
at that age. Essentially, we are fining the parent or guardian. We need
to be careful that we are not just airily writing legislation that
looks good on paper but provides an empty remedy. Even if the parent is
the one who pays, we should bear it in mind that the benefits system
might actually pay, not an individual, so the force of the penalty
might be limited to some extent. I am not making a fundamental
criticism, merely urging us to be
careful.
Paragraph
6(4)
states:
“In
dealing with the offender under sub-paragraph (2), the court must take
into account the extent to which the offender has complied with the
youth rehabilitation
order.”
That is repeated
throughout the schedule. Surely, any court will look at the
circumstances of the person in front of it. That does not need to be
spelled out in black and white. Sub-paragraph (5)
states:
“A fine
imposed under sub-paragraph (2)(a) is to be treated, for the purposes
of any enactment, as being a sum adjudged to be paid by a
conviction.”
I wonder
whether that is a typo or a term of art. Are we intending to say,
“on a conviction” or “by a convicted
person”, or is the expression “by a conviction” an
accepted legal term in such
circumstances?
Paragraph
7(2)
states:
“The
court may instead ... commit offender in
custody”.
There is a word
missing. I suggest that it should say “commit the
offender”. More importantly, in relation to that sub-paragraph,
surely all that we need to say is that the court may remand the
offender in custody or in bail to the Crown
court.
Mr.
Hanson:
I am grateful for the comments
of the hon. and learned Gentleman. I am inquiring as to the logic of
not tabling amendments to the schedule, as they could have been
discussed. There was an opportunity to do so. I am quite happy to look
at the concerns that he has, but these are issues that could have been
subject to discussion and amendment, and we could have reflected on
them before
Committee.
Mr.
Garnier:
I am trying to speed up the
process. I am hurling at the Minister a number of small and
medium-sized points along with some fundamental
points.
1.15
pm
This
is not an attack on the Government. The Minister need not worry; the
Government will not fall this afternoon as a result of these points. I
am simply asking us to be careful as we rush together to create
legislation. The Committee is under time pressure, as you reminded us,
Sir Nicholas. I could have tabled any number of amendments, but
sometimes one loses the will to live. [
Laughter.
]
However, I think that it is important that I chuck the occasional
pebble into the Government pond. I just ask the Minister to take these
ideas away. I do not expect a detailed response. I realise that if I
had tabled an amendment, he would have a ministerial brief and so could
comfortably respond, but I am not after that this afternoon. I am
instead quietly tugging at the prefect’s spats. We will see how
we get on.
There are a
number of areas in this schedule which are susceptible to the greater
or lesser criticisms that I have addressed so far, but bearing in mind
your strictures, Sir Nicholas, and bearing in mind my need to remain on
very friendly terms with the Minister of State, I shall finish on this
one point. It relates to page 115 and part 4 of the schedule. It says
something that we have not just a schedule, but a schedule that is
divided into many parts. It has more parts than Caesarean Gaul, one
might add. But there we are.
Paragraph 13
is headed “Amendment by appropriate court”. This is a
perfectly sensible suggestion. If an offender moves from one local
court jurisdiction to another, it is important that the order should
follow him and can be applied in the new area. However, we must ensure
that the communication and co-operation systems are available to ensure
that this happens. Far too often—I say this from my experience
in sitting in courts in London—even within a petty sessional
division, things do not get done because nobody bothers to tell the
person who needs to implement the thing that has been decided. Will the
Minister please ensure that an adequate communication system is in
place before the Bill becomes law, so that the force of order can
follow the offender geographically as he moves
about?
I am beginning
to feel inhibited from making further remarks, for no better reason
than that the clock is ticking. If I do not continue to talk about
schedule 2, I do not want anyone—particularly the
Government—to think that I have no further things to say in
relation to it. I
do.
Mr.
Garnier:
You are very kind, Sir Nicholas. In that case, I
shall just say two more things. Taking a random example, paragraph
22(5)
states:
“The
powers of a magistrates’ court under this paragraph may be
exercised by a single justice of the peace, notwithstanding anything in
the Magistrates’ Courts Act 1980”.
In many ways that is a sensible thing to
do to avoid having to bring together two or three magistrates to make a
decision that could be made by one, but it underlines the point that
the hon. Member for Leyton and Wanstead made on Tuesday about the need
for adequate representation of youngsters within the criminal justice
system. When decisions about the future of young offenders are being
made by a smaller court, which is in the interests of efficiency, we
must be careful that the offender is not left alone in the court. I
suspect that no humane magistrate would want to do that, but we need to
take care.
Furthermore, on the issue of
making sure that these young people are dealt with properly, if copies
of the revoking or amending order are to be provided to the parent or
guardian of someone under the age of 14, as stated at the top of page
122, why are they not to be provided to the parent or guardian of any
other minor who comes before the
court?
Finally,
paragraph 25, “Power to amend maximum period of fostering
requirement”, gives the Secretary of State quite a big power in
terms of the disposal of youngsters. It is not simply a question of
raising or lowering the limit of a fine or the number of hours of
unpaid work; the paragraph deals with the length of time for which a
child can be taken away from its natural parents and handed over to the
local authority. It can happen for all sorts of good reasons, as we
discussed on Tuesday, but we ought to be careful. Such a power should
not be exercised without far greater parliamentary
intervention.
As
always, I am deeply grateful to you, Sir Nicholas, for your patience
and forbearance as I seek to tease the Government into producing better
legislation. I look forward to hearing from the Minister either now, or
in writing in due course.
Mr.
Hanson:
I hope to reassure the hon. and
learned Gentleman that I am relaxed about discussing any aspect of the
Bill. If he wishes to spend time on schedule 2, that is fine by me. The
point of my intervention was that if even moderate drafting changes are
to be made, the purpose of the Government and the Opposition is to
ensure that those changes make good legislation. As part of that
process, we must consider the potential legislative impact of drafting
changes with parliamentary counsel outside Committee. I know that he
will understand that, but I am genuinely relaxed and willing to go at
whatever pace the Committee wishes. We do not have any knives in the
process. I am content for us to consider anything.
I shall read
Hansard when it is published for the hon. and learned
Gentleman’s points. If he has made valid points about the
detailed aspects of potential amendments, we are always willing to
consider them if they will improve the Bill. The purpose of Committee
is to have political arguments, but also to ensure that the Bill is
clear and usable and achieves the desired objectives. I did not mean to
criticise him. I am sure that we will get on as far as possible within
the constraints of Opposition
politics.
I
shall respond to a couple of the hon. and learned Gentleman’s
points. To reiterate my point about warnings given directly to young
people by the officer responsible
for the order, I confirm that it would be appropriate for the
responsible officer to make an internal record of any warnings and
normally to confirm those warnings in writing for the individual. That
is in line with the current good practice of the Youth Justice
Board’s national standards for the enforcement of orders and
will provide a balance between the need for compliance with an order
and the individual’s circumstances, as well as ensuring that the
individual understands the message. I hope that that reassures
him.
The
hon. and learned Gentleman mentioned the danger that combining
provisions to cover magistrates and Crown courts could lead to more
complex provisions. The schedule’s merits lie in setting out
separate provisions for each court. For example, magistrates will need
to digest only those provisions relating to youth courts. We are trying
not to over-complicate the schedule, which is why we have drafted it as
we have. The separate provisions will assist each court in
turn.
The hon. and
learned Gentleman mentioned bench warrants. I take on board his points.
I accept that such warrants must be executed quickly, and I hope that
that will be the normal practice.
I am happy to reflect on the
points that the hon. and learned Gentleman made. In general, he
mentioned a number of drafting points. I am happy to consider them in
light of his comments. Different drafting styles impact legislation
differently. If hon. Members prefer that the detail should be settled
in a broad order-making process, perhaps we can do that next time
around rather than this time. I will consider the hon. and learned
Gentleman’s points, because there are details that need
reflection. However, given those brief comments and the assurances I
have offered on a couple of his substantive points, I hope that the
Committee will agree to the schedule.
Question put and agreed
to.
Schedule 2,
as amended, agreed
to.
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