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Lord Mackay of Drumadoon: As the noble Lord will be aware, it is common practice in Scottish criminal procedure to require an offender's consent to a community-based disposal before it is imposed on him. However, none of those orders currently requires that to be done in writing. I am unaware of any experience which suggests that there is a need for the offender to agree in writing to probation or to a community service order. After such a sentence is imposed, the appropriate official makes contact with the offender and the necessary arrangements are set in place for compliance with that order. So it would be with restriction of liberty orders. In any of those instances, if the offender did not comply with the official who had responsibility, that would no doubt be reported back to the court. We see no need to distinguish between those orders and community service and probation orders. However, in the spirit of co-operation which I hope is breaking out, if the noble Lord has any
evidence which is contrary to my understanding of practice, I should be happy to look at that before Report stage.
The Earl of Mar and Kellie: I am concerned about that, because probation and community service orders are always well explained beforehand. They cannot be imposed unless a social work report has been produced which recommends such a disposal. If, as I think the noble and learned Lord has told us, a social work report would not be required before imposing a restriction of liberty order, it is perhaps more important that the offender should agree in writing at the time.
Lord Sewel: Having heard the noble and learned Lord's reply, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Sewel moved Amendment No. 73:
The noble Lord said: This amendment allows the court to hear representations by those affected by the restriction of liberty orders. The court would be required, in making a restriction of liberty order, to obtain information about the locality to which the order would apply and the attitude of people likely to be affected by the enforced presence of the offender.
The provisions of new Section 245A do not presently allow the offender's neighbours to make direct representations to the court. That is the important difference. This amendment will enable such representations to be made to the court so that the neighbour can be properly heard.
Those of us who have perhaps had some experience of what are often referred to as anti-social tenants will be fully aware of the havoc which can be created for neighbours if there is a particularly difficult case of an anti-social tenant and his family.
If I were a neighbour of some of the families of whom I have had direct experience, I should not take it kindly that the court had imposed a restriction of liberty order on members of that family, because it would ensure that they would be at home even more and that might make life totally intolerable.
There is a difficulty that we shall be imposing upon the neighbours a situation almost amounting to hell worse confounded. If that is a possibility, those people should have the opportunity to make direct representations to the court as to how they are likely to be affected by the imposition of a restriction of liberty order. I beg to move.
Baroness Carnegy of Lour: I believe that this amendment is proposed after discussion with the Law Society of Scotland. But I am rather surprised that it expresses that view. Perhaps the noble Lord, Lord Sewel, will agree that neighbours can often cause problems. There are often families who have difficulties with their children. But to set up a legal process on the face of the Bill whereby people can object because they live next door to a child subject to a restriction of liberty order is
Lord Sewel: I ask the noble Baroness to reflect on that. If she were the neighbour of a troublesome and disruptive child who was going to be confined to the neighbouring house, I wonder how she would feel if she had not had an opportunity to make representations to the people making the order which would affect her. I believe that she would be rather disappointed.
Lord Monkswell: I support my noble friend's amendment. It may be useful to point out that if neighbours have a right, following acceptance of this amendment, to make representations, it is quite possible that information which would not necessarily be before the court would then be put before it. If the neighbours who have been subjected to difficulties by their neighbours have the ability to make direct representations to the court, it is quite likely that the court will then be privy to information which it would not otherwise have. Therefore, bearing in mind the arguments of my noble friend, I believe that that is added cause for support.
Lord Hope of Craighead: It would be of some assistance if the noble and learned Lord the Lord Advocate could say more about the Government's thinking as to how this provision would work. The onus of obtaining the information is placed on the court and not on the prosecutor. Presumably, the court would have to have some means of obtaining the information through a report or some mechanism of that kind. It is not immediately clear to me how the court would exercise its functions. Therefore, some guidance from the noble and learned Lord the Lord Advocate might help to reassure those who support the amendment. I hope that some guidance to that effect will be given either today, or perhaps at a later stage.
Lord Mackay of Drumadoon: As the noble and learned Lord has just observed, the proposed subsection (7) of the new Section 245A to the 1995 Act would place an obligation on the court to obtain certain information. It says that,
that is, the place where the offender is required to remain--
As I believe I indicated earlier, my understanding is that it is not mandatory to obtain a social inquiry report. That is clearly one way in which information could be obtained, although there may be others. Whether a court would wish to appoint its own reporter to investigate the matter or whether it would be content for the local authority to do so is a practical issue which will need to be addressed before a pilot scheme becomes operational.
In response to my noble friend Lady Carnegy of Lour, I should point out that the view is taken that it would be wrong to set out on the face of the Bill a procedure by which representations on behalf of individuals who might
The concern about allowing representations of any kind is that that would establish what we believe to be an undesirable precedent; namely, that someone who was not the prosecutor or the accused would have a right to make representations to the court before sentence was imposed. I am unaware of any precedent for that occurring up until now and we would not want, as part of introducing these provisions, to establish one.
One could imagine a number of people who might seek to qualify such a right in other cases. The most obvious of course is the victim of a crime but, equally, they might be relatives of the victim or members of the public who are involved in other cases where curfew orders are not in question. Perhaps I may take the case of a bad neighbour committing breaches of the peace, say, once a week. One could imagine that people would love to go along to the local court and tell the sheriff on a face-to-face basis how that repeat offender was affecting their life. Up until now, we have not considered that to be the right way forward and we would not wish to alter that principle.
On the other hand, the Bill makes it quite clear that the court has to be satisfied as to,
That matter will need to be addressed before a pilot scheme can be set up and start operating. The initial solution is obviously a social inquiry report prepared by social workers. However, as social workers are not to be involved in the enforcement of the restriction of liberty order, that may not be the only solution.
Again, there is nothing between us as to the desirability of having regard to the interests of those covered by the amendment. However, there is a matter of principle between us as to the best way to achieve the desired aim. Having regard to the existence of other provisions in the 1995 Act which enable the court to obtain reports in a variety of circumstances and appoint reporters to find out such information as is necessary before sentence is imposed, I hope that the amendment will not be pressed.
Lord McCluskey: As I listened to the debate I became rather more disturbed than I was when it started. The idea that the court can somehow use social workers and send them round to consult the neighbours, the family and, indeed, the possible victims or past victims of persons who are to be the subject of such orders, appears to me to be likely to impose an extraordinary burden on social work departments.
I am very worried about the Explanatory and Financial Memorandum to the Bill and its failure to address the financial and manpower consequences of the provisions. For example, on page ix of the memorandum, no element is included in the first complete paragraph for the cost of using social workers to make inquiries among the neighbours, possible victims and family of offenders. When one looks specifically at the section headed Effect of the Bill on public service manpower, which can be
Page 8, line 3, after ("information") insert ("or representations").
"the court shall obtain and consider information about that place"--
"or those places, including information as to the attitude of persons likely to be affected by the enforced presence there of the offender".
"the attitude of persons likely to be affected by the enforced presence there of the offender".
5.45 p.m.
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