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Baroness Blatch moved Amendment No. 102:
Before Clause 37, insert the following new clause--
(" .--(1) This section applies where a court obtains a pre-sentence report within the meaning of Part I of the 1991 Act.
(2) Subject to subsections (3) and (4) below, the court shall give a copy of the report--
(a) to the offender or his counsel or solicitor; and
(b) to the prosecutor, that is to say, the person having the conduct of the proceedings in respect of the offence.
(3) If the offender is under 17 and is not represented by counsel or a solicitor, a copy of the report need not be given to him but shall be given to his parent or guardian if present in court.
(4) If the prosecutor is not of a description prescribed by order made by the Secretary of State, a copy of the report need not be given to the prosecutor if the court considers that it would be inappropriate for him to be given it.
(5) No information obtained by virtue of subsection (2)(b) above shall be used or disclosed otherwise than for the purpose of--
(a) determining whether representations as to matters contained in the report need to be made to the court; or
(b) making such representations to the court.
(6) The power to make order under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble Baroness said: The proposed new clause requires courts to give a copy of a pre-sentence report to prosecutors. At present, when a court obtains a pre-sentence report, the defence are given a copy but the prosecution are not, even though they are present at the time of sentence. This inhibits the prosecution from fulfilling their responsibility to correct any misleading or inaccurate information put before the court. It also inhibits the prosecution from challenging any assertions contained in a pre-sentence report about witnesses which may not be warranted according to the prosecutor's knowledge, or which may be detrimental to the defendant. The Government can see no justification, in the vast majority of cases, for denying the prosecution access to a report commissioned by the court. Indeed, the Crown Prosecution Service has for some time sought access to pre-sentence reports.
The proposal to allow prosecutors to see pre-sentence reports was included in the White Paper Protecting the Public which was published in April last year. It received overwhelming support from prosecuting agencies. Responses from probation services, probation committees and their representative bodies were mixed: there was much support, but also some concern expressed about which prosecutors would get a copy of the pre-sentence report and what use they could make of it. In drafting this clause we have taken account of those concerns and have built in the following safeguards.
First, pre-sentence reports will only be given to prosecutors in proceedings which are prescribed in an order made by the Secretary of State by statutory instrument and so will be subject to parliamentary approval. We envisage that such an order will include the main prosecuting agencies, like the Crown Prosecution Service, but that it will exclude private prosecutors. Where a prosecutor conducts proceedings who is not automatically entitled to receive a copy of the pre-sentence report, the court will have the discretion not to disclose, if it thinks it inappropriate to do so.
Secondly, prosecutors will only be able to use or disclose information obtained from a pre-sentence report when determining whether to make representations to the court about matters contained in the report, or when making such representations.
This clause strikes a good balance. It will enable the prosecution to perform its role more effectively but it will be subject to necessary statutory and judicial safeguards. We will be consulting with the Lord Chancellor's Department, the main prosecuting agencies, Probation Service representatives and other interested bodies about the details of implementation to
Lord Gladwin of Clee: As the Minister knows, there is some disquiet about this proposal. I am sure she will accept that courts regard the pre-sentence report as being their property. They have asked for it to assist in helping them determine the most suitable method of dealing with a convicted offender. If the facts of the offence outlined in the PSR are materially different to those of the prosecution case, and if that difference could affect the sentencing process, then a Newton hearing can be held in order to determine the facts in dispute.
Subsection (5)(a), as currently worded, has the potential to give the prosecution power to comment on any aspect of the pre-sentence report including the probation officer's assessment of an offender's response to a particular sentence. That may not have been the intention, but that is the power which the clause would give to the prosecution. I do not believe that provision will be welcomed by the Crown Prosecution Service.
There is a danger that convicted defendants, knowing that the PSR is to be routinely given to the CPS--a number of defendants still regard the CPS and the police as being part of the same organisation--would be inhibited and less co-operative with the Probation Service. That could mean that the pre-sentence report would be a less valuable document for use by the courts.
After 28 years' experience as a magistrate, my perception is that, eight times out of 10, when considering what used to be the "social inquiry report", now the pre-sentence report, the author of that report is not present in court. So if a prosecutor wants to comment on the pre-sentence report, an adjournment is inevitable. That increases the cost and means further delay.
I question the need for this change. When a Bench decides that it needs a pre-sentence report there has been a conviction. The job of the prosecution is finished. It should not be involved in the sentencing process. If, in the interests of justice and the protection of the public it was felt that a pre-sentence report should be shown to the prosecution, then that should be a decision for the court in each case. A pre-sentence report should not routinely be handed to the prosecution in every case. I therefore hope that the Minister will re-examine this proposal.
Earl Russell: I have some misgivings about the wording of the amendment. Subsection (3), dealing with offenders under 17, states that,
If the word "may" had been used, I should not have raised this point. But, as the Minister knows, there are cases of young offenders where a great deal is likely to come out in the pre-sentence report in cases of estrangement, for example, which may be extremely prejudicial to the parent. Indeed, on occasion the parent may wish to argue with it. There will be great difficulty in getting frank statements, say, in cases of alleged but
Subsection (4) begins with the words,
I thought that the Government were hostile to over-prescribing. I understand the intention behind this as the noble Baroness stated it; namely, to exclude private prosecutors. I have no quarrel with that intention, but the power to prescribe, once it is there, may be used for all sorts of purposes by future governments other than the one for which it is intended. So far as I can see, there is nothing but our hybrid instruments procedure which stops this power from being used to say that it shall be disclosed to the prosecutor provided he is not Mr. Mike Mansfield, QC.
A much more serious concern is that I simply do not see what the prosecution has to do with the business of sentencing. The prosecution's job is to attempt to establish guilt. There is here a real separation of powers. When the prosecution has established guilt, then it is for the court, not the prosecutor, to establish the sentence. If people make disclosures in a pre-sentence report which may perhaps involve some other offending behaviour and that will come into the hands of the prosecution, there is a real risk of self-incrimination, and that really does worry me.
When I was a boy, I used to read in the papers reports of trials from Eastern Europe. I used to read that the prosecutor "asked for the death penalty". It always used to give me a great sense of shock. I used to think: what business is it of the prosecution to have these statements? I do not understand that.
Viscount Tenby: I am not entirely clear about the purpose of this amendment despite the Minister's concise statement. There seem to be two principal objections to it. They have been admirably identified--the first by the noble Lord, Lord Gladwin of Clee. He is probably at least two years senior to me on the Bench (I have not quite worked it out yet). Anyone with experience of a magistrates' court knows that the duty probation officer on any given day may well not be the author of the PSR being considered by the court. Accordingly, if the Crown Prosecution Service wishes to question the author, unless he or she is on the premises (often they are not; they are out looking after their charges) there may have to be an adjournment. All that adds to the cost and to the delay in justice. We all know that delayed justice is justice denied.
The other reservation expressed in particular by the probation services is that offenders may be reluctant to unburden themselves freely to the person compiling the report if they feel that it will be seen by the prosecution. I can understand that. I do not say that it will happen on every occasion, but that feeling may well be there. I have not felt that any particular disadvantage was
"a copy of the report need not be given to him but shall be given to his parent or guardian if present in court".
"If the prosecutor is not of a description prescribed by order made by the Secretary of State".
5 p.m.
Lord Hylton: I am not a magistrate, but I have misgivings about the amendment. I take particularly seriously the criticism made by the Inner London Youth Court Panel of magistrates. The panel stated:
- "We believe the inhibiting effect upon those preparing PSRs of knowing that material which is disclosed in the report ... could fall into the hands of the prosecution will be deleterious to the interest of defendants, without in any way enhancing the need of the court to have a fair presentation of the Crown's case".
In her introductory remarks, the noble Baroness mentioned that certain safeguards were contained in the amendment, but I am not convinced that the safeguards deal with the point.
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