7.Letter from Lord Falconer, Minister
of State, Home Office to the Chairman
PROPOSALS
TO
AMEND
CLAUSES
143 AND
144 IN
THE
CRIMINAL
JUSTICE
BILL
I am writing in response to the comments on clauses
143 and 144 of the Criminal Justice Bill that the Joint Committee
on Human Rights made in its Report published in January.
Clauses 143 and 144 of the Criminal Justice Bill
deal with circumstances in which pre-sentence reports and other
sentencing reports are disclosed to defendants. They are a re-enactment
of existing provisions.
Currently clause 143 (2) of the Criminal Justice
Bill lays down a general principle that, where a court obtains
a pre-sentence report on an offender, copies of it should be given
to the offender, his counsel or solicitor, and subject to 143
(4), to the prosecutor. However the duty to give a copy of the
report to the offender is subject to an exception under clause
143 (3) where the offender is under 17 and is not represented
by counsel or solicitor. In this case, a copy does not need to
be provided for the offender, but one must be given to the parent
or guardian if they are present in court. Clause 144 makes a similar
provision in relation to reports to the court by probation officers
or members of youth offending teams.
Prior to the publication of your report you wrote
to me and queried these clauses. We agreed in response, to introduce
an amendment to bring the age at which a parent must be given
a copy of their child's PSR down from 17 to 14. However at Committee
stage, having considered the Opposition amendments which had been
tabled and took, a different approach, we withdrew our tabled
amendments in favour of undertaking a review of the provisions,
with a commitment to come back with further amendments at Report
stage
Our new proposal is that the Bill should be amended
so that there is a general principle that copies of pre-sentence
and other reports are given to all offenders under the age of
18 and their parents or guardian, regardless of whether there
is any legal representation. There would be an exception to this
general rule whereby the report could be withheld from either
the parent or the offender where the court believed that to provide
a copy would put the offender at risk of serious harm. I hope
you will feel that this approach is more flexible and allows the
court to balance the rights of parent and child. While meeting
the point the Joint Committee raised, we think the proposed amendments
will clarify the process for the disclosure of pre-sentence and
other court reports, and bring the legislation in line with current
Department of Health and Youth Justice Board best practice.
In your report you subsequently suggested that clauses
143 and 144 of the Bill might violate article 6 of the European
Convention on Human Rights where a child did not have legal representation
and the child's parent was unwilling or unable to safeguard the
child's interests. You suggested the court should be required
to appoint a legal representative for the child in such circumstances.
We think that this ground is already covered by existing
law. Paragraphs 2 and 5 of Schedule 3 to the Access to Justice
Act 1999 and regulation 7 of the Criminal Defence Service (General)
(No. 2) Regulations 2001 (5.1. 2001/1437) have the effect that
the court can order a grant of legal representation to a juvenile
where this would be in the interests of justice to do so. In our
view, this is sufficient to ensure compliance with article 6 of
the European Convention. The court, as a public authority, will
be obliged to grant representation where article 6 requires it.
In any event, the test for compliance with article 6 is likely
to be very similar to the interests of justice test.
We would not wish to go further than the current
law because we do not wish to undermine the existing principle
that representation is not granted unless the court considers
it necessary and in the interests of justice to do so. This would
be a significant departure from existing policy. Concern has also
been raised that enforcing legal representation would undermine
the freedom of defendants, or those who speak for them, to decide
whether to apply for representation. In practice youth magistrates
are proactive in ensuring that unrepresented juvenile defendants
are aware of their rights to legal representation and where necessary
are referred to court duty solicitors.
3 March 2003
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