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Lord McCluskey: It appears to me that under Section 42 of the Criminal Procedure (Scotland) Act 1995, no court other than the High Court or sheriff court shall have jurisdiction over a child under the age of 16 years for an offence. I thought that that provision covered the matter, but perhaps the Lord Advocate will make it clear if I have misunderstood the situation.
The Earl of Mar and Kellie: The amendment rightly seeks to exclude restriction of liberty orders from the district courts even if there is, with respect, a stipendiary magistrate. I presume that that is only in Glasgow. I believe that tagging is appropriate only for offenders for whom at the time there is presumed to be no hope and as an equivalent to imprisonment. I accept that there is a phase in some people's offending careers when they are quite unrepentant, still on an offending high and enjoying every minute of it. I accept that tagging may then be appropriate for those described in the popular press as "hardened criminals"--that is, those who are quite oblivious to what they are doing to others and who believe that they are right to be doing it. At that stage of deviant development, the offender should be appearing before a sheriff or in the High Court. I cannot accept that this form of partial detention is appropriate for the minor or summary charges arising in district courts.
Lord Hope of Craighead: I hope that the noble and learned Lord the Lord Advocate will give the amendment careful consideration. I speak from a background of having attended training courses for sheriffs and district court justices. We must remember that although the sheriffs and High Court judges are professional judges and one can therefore expect reasonable consistency of decision, the district court judges are lay judges. Indeed, some of them do not serve all that often--perhaps no more than several times during a six-month period--and they sometimes find it difficult to know when to make use of the various powers available to them.
The Lord Advocate described a pilot scheme. One can understand the wisdom of having a pilot scheme when introducing such measures, but if the philosophy is to proceed by stages, I suggest that it would be wiser to exclude district courts at the moment. No doubt the matter can be dealt with later by an amending Act when the time is right. If the clause is left as it is and if the piloting is done area by area, it would seem to follow that district justices would be entitled to make use of the power. I see risks of inconsistency and unfairness and I believe that it would be wiser to avoid those risks at the moment.
Lord Mackay of Drumadoon: The point at issue is comparatively narrow. As the noble and learned Lord, Lord McCluskey, pointed out, Section 42 of the 1995 Act restricts the courts in which children can be prosecuted. My understanding, although I shall certainly reflect on this further, is that the only children who can be prosecuted in the district court are those who are over 16 but who are still subject to supervision by the children's panel. Therefore, we are dealing with a select group of individuals. In practical terms, not very many people are likely to be affected by the provision one way or another.
I should make it clear that there are no plans at the moment to mount a pilot scheme in a district court. Such plans would require regulations under new Section 245A(10), which is to be inserted by Clause 4. The regulations would have to be laid before Parliament and would be subject to annulment. Therefore, there is no possibility of a pilot scheme coming along unexpectedly or unannounced.
However, referring to what will be new Section 245A(16), it appears that we may be in the somewhat curious position of having conflicting definitions of child offenders in two Acts of Parliament, with both being relevant for the purposes of prosecution. The matter will have to be considered further. On that basis, I believe that the amendment should not be pressed.
Lord Macaulay of Bragar: Before the noble and learned Lord sits down, perhaps he can explain what is meant by "pilot scheme". I have never understood the phrase. If a person agrees to be part of a pilot scheme, what are the consequences if the pilot scheme does not work out? Is that person looked upon as a volunteer helping with the administration of justice? What are the consequences of somebody being involved in a pilot scheme? I do not understand the phrase. Perhaps it is my ignorance, but I have never seen the phrase defined.
Lord Mackay of Drumadoon: I assure the Committee that we are not asking for volunteers to appear in the criminal courts. Plenty are coming along without us placing advertisements in the papers.
By "pilot scheme" I mean that in particular courts, subject to regulations, the power to impose a curfew order will be available. That disposal will be open to the court and if the individual offender consents to it he can be made subject to it. The pilot scheme will be monitored by researchers who will question sheriffs, the offenders and anybody else who has dealings with the offender, such as parents and teachers, to see whether it proves to be a successful disposal. In the light of the results of the research, the Secretary of State will decide whether to proceed with further courts having that power, or whether to depart from the proposal altogether.
Lord Macaulay of Bragar: I am sorry, I still do not understand what is the legality of the pilot scheme so far as concerns the alleged offender.
Lord Mackay of Drumadoon: The legality is that it will be a valid option open to the sentencing court rather than sending the young offender to the appropriate institution or imposing any other form of community disposal. It will be a competent disposal. It has the full force of law. The offender will be required to adhere to its conditions. If he acts in breach of it, he will be dealt with in accordance with the provisions set out in the Bill. It is not an optional extra for him. It is an alternative community disposal for the court, which it is hoped courts will feel free to use in the hope that fewer children under the age of 16 end up in institutions, in many instances with people older and more experienced in criminal ways.
Lord McCluskey: Does the Lord Advocate agree that, because the clause envisages the consent of the offender, the pilot scheme can work?--there have been many such schemes in the past in relation to intoxication and so on. However, there is just one point: I have read Section 42 along with Section 245A(16), which excludes the possibility of tagging a child offender as defined in Section 42 or Section 245A(16). The Lord Advocate has indicated that there are other people who are children for other purposes who are not covered by Section 42. Would he care to indicate whether he intends that such people should be liable to be tagged?
Lord Mackay of Drumadoon: My understanding is that they would be liable to that disposal. I have already indicated that I intend to look at those two sections together, and I understand that that is acceptable to the noble Lord, Lord Sewel.
The Earl of Mar and Kellie: Will the restriction of liberty orders be official alternatives to custody and therefore restricted to offences for which imprisonment is an alternative?
Lord Mackay of Drumadoon: They will be restricted to offences for which community-based disposals are a possibility. There are certain statutory offences where Parliament has set out that only certain disposals are available. If it does not apply to one of them, clearly it could not be imposed. For any common law offence, such as theft, malicious damage, assault, or an offence of that nature, it would be a competent disposal. It would be one of a number of alternatives to custody that should be available to the sentencing judge.
Lord Sewel: I am content that the Lord Advocate has said that he will take it away and look at it. There may be a number of people covered by this who may fall potentially under the jurisdiction of the district court. That being said, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCluskey had given notice of his intention to move Amendment No. 67A:
The noble and learned Lord said: I make it clear that I do not intend to move the amendment, which is grouped with others, in the light of what has already taken place. Nor shall I move Amendment No. 68.
[Amendment No. 67A not moved.]
Lord Sewel moved Amendment No. 69:
The noble Lord said: The amendment requires the court to ascertain certain information from the offender before imposing a restriction of liberty order; namely, the court should find out where the person lives and whether he intends to move during the currency of the order; whether he works, attends school or any other educational establishment; whether he owns or rents his accommodation, and whether his religion or beliefs require him to be present at a defined location for a specified period of time. All those are appropriate and necessary pieces of information for the court to have before deciding whether a restriction of liberty order is appropriate. It is designed to give a degree of clarity to the court by ensuring that such information is before the court before such an order is made.
The provisions reflect the terms of Section 12(3) of the English Criminal Justice Act 1991, which provides that the regulations of an English curfew order shall avoid any conflict with the offender's religious beliefs or any other community order, and any interference with work or school. I understand that at an earlier stage in another place the Government accepted that they wished to look in particular at the religious belief aspect in the amendment. I hope that the Lord Advocate is now in a position to go further. I beg to move.
Lord Mackay of Drumadoon: As the noble Lord indicated, this issue arose when the Bill was before another place. There is clearly no dispute between us that the issues covered by the amendment are relevant issues for the sentencing court to have before it. In England, Section 12(3) of the Criminal Justice Act 1991, provides that certain aspects relating to an offender's life should be taken account of. Those include his religious beliefs, his employment and his educational obligations.
In the context of Scottish criminal procedure, however, we doubt whether it would be sensible to set out on the face of the Bill criteria of that nature. With any list, there is a danger that the list may omit, by implication, other criteria and downgrade other criteria.
I do not offer this as any form of criticism, but that is implicit in the amendment. The amendment omits a criterion which is presently in the legislation--the need to take account of possible conflicts with other existing community orders. We believe the way forward is to leave it to the court to have regard to the circumstances. Clearly, when pilot schemes are introduced, judicial training for those judges who will be involved will be required to take account of that factor. It will need to instruct the judges as to the reports they should seek, the need for an offender's consent and the need to take account of his home circumstances, his educational responsibilities or commitments, and so forth.
Those are factors which are taken into account at the moment in dealing with other community-based disposals, such as probation and community service orders. That is a practice with which Scottish judges are conversant. I have made it clear that the present proposal is that those disposals should be available only to sheriffs or High Court judges. There is no reason to believe that, given the appropriate guidance, they will not have regard to all that is covered in the amendment, and all that Members of the Committee would wish to have covered. On the undertaking that the issue will be addressed by training, I hope that the amendment will not be pressed.
Page 7, line 14, leave out from ("months") to end of line 20.
Page 7, line 22, after ("shall") insert ("ascertain from the offender--
(a) where he lives and if he intends to move during the currency of the order;
(b) if he works, attends school or any other educational establishment;
(c) if he owns or rents his accommodation;
(d) if his religion or beliefs require him to be present at a defined location for a specified period of time;
and shall").
5.15 p.m.
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