Joint Committee On Human Rights Seventh Report

7.Letter from Lord Falconer, Minister of State, Home Office to the Chairman


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

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 21 March 2003