| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Baroness Seccombe: I have the greatest sympathy with the thrust of this amendment and I am sure that fellow magistrates will have experienced the frustration of having to separate offences before the court, sending the substantive offences to the Crown Court while withholding the more minor ones. It seems to me that if the Crown Court can on one occasion pass sentence for all offences that occurred at the same time, that would lead to a much more just outcome.
The Lord Advocate (Lord Mackay of Drumadoon): I am sorry to have to inform the noble Viscount that my noble friend Lady Blatch and her robust common sense are taking a rest on this amendment. It has been left to me to seek to explain our response to it. The Government certainly share the spirit behind the amendment.
This amendment seeks to extend the application of Clause 37 to all classes of offence, rather than to offences triable either way only. The effect of the clause as it stands is to extend the circumstances in which a magistrates' court may commit a person convicted of a triable either way offence to the Crown Court for sentence. If he pleads guilty in a magistrates' court, and is convicted, and if he is also being committed for trial
for a related offence or offences, he may be committed to the Crown Court for sentence in relation to the offence of which he has already been convicted.The effect of the amendment would be to widen magistrates' existing powers to commit for sentence in respect of any offence in cases where there are related offences that are to be dealt with by the Crown Court. We share the concern that, where appropriate, sentencing for related offences, of whatever class, should not be split between the courts. However, the view of the parliamentary draftsman is that the necessary powers already exist to enable this to take place.
I shall now seek to explain why that is and why there is at least one technical objection to the amendment. However, in view of the fact that this is a matter of practical importance, I shall certainly reflect further on what the noble Viscount has said.
Clause 37 as currently drafted is not concerned with the general powers of a magistrates' court. It is included in the Bill to remedy a specific practical difficulty which may arise when Section 49 of the Criminal Procedure and Investigations Act 1996 is implemented--
Lord McIntosh of Haringey: Aha!
Lord Mackay of Drumadoon: I am glad to hear that I have woken up the noble Lord, Lord McIntosh--
Lord McIntosh of Haringey: I was already awake.
5.45 p.m.
Lord Mackay of Drumadoon: That provision invites defendants charged with offences triable either way to indicate their plea before the mode of trial decision is taken. A magistrates' court must then either sentence or commit for sentence any defendant who indicates a guilty plea. This procedure enables those wishing to plead guilty to do so at the earliest opportunity and to be dealt with by the magistrates' court rather than be committed for trial to the Crown Court. Research has shown that many defendants so committed would have been willing to be dealt with finally by the magistrates' court. The effect of the provision, when implemented, will be to spare victims, witnesses and defendants the further delay of awaiting a Crown Court trial, and to retain appropriate business in the magistrates' court and thereby save the expense of remitting the matter to the Crown Court.
However, the provisions in the 1996 Act do not take into account any other offences with which a defendant might have been charged and on which he is anyway to be tried at the Crown Court. In certain circumstances, that might lead to the undesirable outcome that he would have to be sentenced by different tribunals at different times. Sentencing anomalies would be inevitable, resulting on the one hand in potential unfairness to the defendant and the possibility of appeal and on the other to the imposition of a sentence in the Crown Court which could well be too lenient.
As I have said, the purpose of Clause 37 is to seek to remedy that potential difficulty. As I have also said, it is believed that there are already sufficient general
powers to enable the Crown Court to deal with all matters outstanding against an offender, including summary offences. Section 56 of the Criminal Justice Act 1967, as amended, allows the magistrates' court to commit an offender for sentence to the Crown Court for certain summary offences if the court is also committing him for sentence under other enactments, which will include Section 38A of the Magistrates' Courts Act 1980, as it will be inserted by Clause 37. In addition, Section 40 of the Criminal Justice Act 1988 enables counts for certain summary offences to be included in an indictment where they are related to an indictable offence for which the accused has been committed for trial. In such cases, the defendant will be tried at the Crown Court for both offences. Section 41 of the 1988 Act enables a magistrates' court, when committing a defendant for trial on a charge for an offence triable either way, to commit him to the Crown Court for any associated summary offence provided that such offence is punishable with imprisonment or carries disqualification.The advice of counsel is that these existing general powers ensure that, where appropriate, the Crown Court can deal with all matters outstanding against an offender at the same time. As I said earlier, however, I shall reflect carefully on all the points made by the noble Viscount.
In conclusion, perhaps I may draw to the noble Viscount's attention the technical problem with his amendment as currently drafted. It arises because, as I have explained, Clause 37 as drafted is designed to remedy a specific difficulty with the existing plea before venue provision. That requires that two other conditions must also be satisfied for the provisions to apply. They will be met only where the magistrates' court has proceeded under Section 17A or Section 17B of the Magistrates' Courts Act 1980, these having been inserted into the 1980 Act by Section 49 of the Criminal Procedure and Investigations Act 1996. Sections 17A and 17B apply only to offences triable either way. That is why this technical problem has arisen. However, that is not why I oppose the amendment. I do so because it is believed to be unnecessary. With that assurance and with the undertaking that I have given, I hope that the noble Viscount will beg leave to withdraw his amendment.
Lord McIntosh of Haringey: I said "Aha!", not because I had been asleep--I had been fanatically attentive to the words of the noble and learned Lord the Lord Advocate--but because when he spoke of Section 49 of the Criminal Procedure and Investigations Act I was drawn back to the short debate on the Statement on the review of delay in the criminal justice system. He will recall that the proposals in the review which were referred to by the noble and learned Lord the Lord Chancellor were in conflict with the undertaking given by the Government that they would not make changes to the election for trial by jury until they had completed their review of Section 49--the plea before venue clause--of the criminal procedure and investigations Act. I reminded the noble and learned Lord the Lord Chancellor, as I now remind the noble and learned Lord
the Lord Advocate, that Section 49 had not yet been brought into effect. It seems to me that in these matters the Government in their haste to show activity are tripping over their own feet.
Lord Mackay of Drumadoon: As a Scots lawyer who has been brought up in a jurisdiction that has never had the right to elect for jury trial and, to my knowledge, has never been criticised for its failure to do so, I am tempted to intervene in the discussion. Although the noble Lord now provides me with the opportunity to do so, I will resist the temptation for the moment. I take note of what the noble Lord has said about the position as explained by my noble and learned friend the Lord Chancellor. Nothing that I have said in explaining to the noble Viscount Lord Tenby why his amendment is unnecessary in any way conflicts with the Statement of my noble and learned friend the Lord Chancellor earlier today. However, as I am in a very accommodating mood, I shall draw the noble Lord's comments to the attention of my noble and learned friend.
Viscount Tenby: I shall strike while the iron is hot! I am grateful for the exchange of the robust common sense of the noble Baroness for the Scottish warmth of the noble and learned Lord the Lord Advocate. I understood him to say that these powers already existed; for example, in Section 56. I hope that the forces of obfuscation have not triumphed yet again. I am encouraged by his kindness in saying that he will look at this matter. Accordingly, I will retire to a very quiet place with six tonnes of ice and, I hope, the advice of numerous people and reserve the right to come back to this matter perhaps at a later date. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 40 shall stand part of the Bill?
The Earl of Mar and Kellie: I am not keen on the inclusion in the Bill of Clause 40. The extension of curfew orders to children under 16 leaves a lot of questions unanswered. While I see the desirability of a curfew being imposed on youngsters who have committed many very annoying offences, I am still unsure and unconvinced about the efficiency of using electronic and remote monitoring for children on a stand-alone basis. If the monitoring is being done by a human monitor, perhaps in conjunction with an electronic tag, possibly there is some good in it, but I do not believe that the human monitoring element will be there. I assert that everything done with children must be backed up with human guidance. The Committee does not need to be told about the state of flux and disorganisation in which many young offenders tend to live.
My other concern is about the process of tagging and its effect on the usually low self-esteem of the young offender. I start from the basis that low self-esteem
allows the young person to do bad things to others because the young offender already feels bad about himself or herself. In his or her eyes there is no reputation to defend. The social work task is to build up self-esteem so that the young offender does not want to lose his or her reputation, and hence does not want to do bad things to others. The presence of an electronic tag has all the marks of permanence and confirmation of outlaw status or a new offender identity. This argument concedes that electronic tags on a stand-alone basis could be used on high self-esteem individuals who would be ashamed of having to wear them and therefore would be reasonably happy to comply with a curfew. However, high self-esteem offenders are few and far between. For this reason, I oppose Clause 40.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |