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On Question, amendment agreed to.
Clause 34, as amended, agreed to.
Clause 35 [Additional time limits for persons under 18]:
Lord Falconer of Thoroton moved Amendment No. 187:
On Question, amendment agreed to.
[Amendment No. 188 not moved.]
Clause 35, as amended, agreed.
Clause 38 [Powers of youth courts]:
Lord Williams of Mostyn moved Amendment No. 189:
The noble Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 189A not moved.]
Clause 38, as amended, agreed to.
Clause 40 [Powers of magistrates' courts exercisable by single justice etc.]:
Baroness Anelay of St Johns moved Amendment No. 190:
The noble Baroness said: The Committee may have noticed that a grouping was changed rather unexpectedly today. Amendment No. 195 had been grouped with this amendment and was inadvertently ungrouped this morning. I have sent a note to those on the Front Benches and others interested in this amendment. I hope that with the leave of the Committee I may speak to both amendments while moving Amendment No. 190.
Clause 40 authorises a number of powers of the magistrates' court to be exercised by a single magistrate and allows the noble and learned Lord the Lord Chancellor to make provision, following consultation with the justices and justices' clerks for an area, for any of the listed powers to be exercised by justices' clerks in that area.
I accept that it is appropriate for the powers which are listed in Clause 40 to be exercised by a single justice and that these changes would speed the flow of cases. However, I am concerned to make sure that there is the tightest possible quality control--as it were--exercised when a single justice is sitting. Therefore I have tabled Amendment No. 190 which makes it a requirement that any justice sitting alone to exercise the powers within Clause 40 should be on the list of those approved by the bench chairmanship committee. This would mean that one could be guaranteed that those who sat as a single justice had been approved, having followed the system of appraisal and in-built assessment and training which is required for all newly appointed magistrates and, on a rolling programme, has been applied to all magistrates already appointed. Therefore there would be the guarantee that even if one were very experienced or less experienced, one had met the requirement of the bench chairmanship committee by reaching a certain standard.
At Second Reading I made clear my objections to some of the aspects of this clause. I gave my support for the statement made at that stage by the noble and learned Lord the Lord Chief Justice at col. 561 that,
I believe that this is a matter of constitutional importance and public confidence. Assessing the defendant and the seriousness of his offence is essentially a judicial matter. The Magistrates
My Amendment No. 195 seeks to prevent such judicial acts being delegated to justices' clerks. I have read carefully the submissions made upon this clause by the Magistrates Association and by the Justices' Clerks' Society and I am grateful to the latter for making available to me detailed information about the early administrative hearings pilot scheme at Bexley Magistrates Court. I take note of the fact that there is divergence on some points between these two bodies about the acceptability of the changes proposed by this clause.
Subsection (1)(a) refers to extending bail or imposing or varying conditions of bail and would indeed devolve this either to a single justice or to a justices' clerk. But this is indeed a judicial act. It has been argued by the Justices' Clerks' Society that police officers already have power to grant or vary bail with conditions; and it makes the point that justices' clerks are just as competent as police officers. I do not dispute that. But it is not a matter of competence. There simply is not an alternative to the police granting bail after an arrest. This is intended to be a short-term arrangement to keep the defendant in touch until proper arrangements are made. When arrangements are made for proper bail a court should deal with them so that the process is conducted in a judicial setting. My arguments against extending bail under subsection (1)(a) apply also to subsection (1)(p) which grants powers to adjourn a hearing under Clause 41 and, on doing so, to remand the accused in custody or on bail.
Subsection (1)(e) grants the power to request a pre-sentence report following a plea of guilty and for that purpose to give the probation service an indication of the seriousness of the offence to both the single justice and the clerk. Before a person can make a decision to call for a pre-sentence report, he must go through processes which are in themselves judicial in nature. He must consider the seriousness of the offence. Does it warrant a pre-sentence report; or can one proceed directly to sentence? And if a report is required, one should give an indication about the level of seriousness. That in itself means one has to go through almost a quasi-sentencing procedure in deciding what sentence might be appropriate.
The Justices' Clerks' Society and the Magistrates' Association are at one on this issue. I quote from the Justices' Clerks' Society paper to us that,
Subsection (1)(f) refers to the power,
Again this requires the exercise of judicial judgment. I note that the Justices' Clerks' Society states that,
When one is considering whether or not to order a medical report, one has to pose questions that are not only relevant to the consideration of the case but also as to whether it is essential that an unconvicted defendant should be forced to undergo an interview to prepare those reports; and indeed such a decision could involve custody to ensure that the report is obtained. In such circumstances, bail is commonly granted only on the basis that conditions are attached--again simply to make sure that the defendant complies with the necessity for the report to be compiled.
I am grateful to the noble Lord, Lord Williams of Mostyn, for writing to my noble friend Lord Henley on this point. But I am afraid I am not persuaded by his arguments at this stage. In his letter the noble Lord states that,
First, will the Minister confirm that it is his position that it would not be appropriate for a clerk to grant bail in those circumstances? We should not pass a provision in the Bill allowing powers to be delegated to clerks which plainly should not be delegated to them in the hope that rules will be issued which will prevent them from exercising that power at some stage in the future. All should be absolutely plain in this Bill on so important a matter.
Lastly, I refer to paragraph (o), which would give powers to a clerk,
I shall be brief on this provision; everything that has to be said was said by the Lord Chief Justice at Second Reading, at col. 562. I would argue, as he did then, that this is a judicial decision which should be reserved to magistrates.
In this country we have a proud history of service by lay magistrates performing judicial duties. Until recently, I was proud to be counted as one of them. I resigned from that task only because I found that the duties and enjoyment of being in this House meant that I was no longer able to sit regularly on a Friday, which was the only day of the week left to me to sit as a magistrate. So, with regret, I retired from the Bench. The respect that I have for all those who perform that task is unbounded, and I am sure will remain so.
I also have great respect for those who carry out the task of a magistrates' clerk. The role of the clerk is to complement the work of magistrates, not to compete with it. Nor, I suggest, is it to supplant that work. The
Page 26, line 35, at end insert--
("( ) In subsection (7) of that section, after the words "time limit," there shall be inserted the words "or to give a direction under subsection (6A) above,".
( ) In subsection (8) of that section, after the words "time limit" there shall be inserted the words ", or to give a direction under subsection (6A) above,".").
Page 27, line 5, leave out from ("person") to ("as") in line 6 and insert ("convicted of an offence who was under that age at the time of his arrest for the offence or (where he was not arrested for it) the laying of the information charging him with it,").
Page 29, line 39, leave out ("Magistrates' Courts Act 1980 ("the 1980 Act")") and insert ("1980 Act").10.45 p.m.
Page 30, line 30, after ("peace") insert ("who is approved by the bench chairmanship committee").
"a clear and categorical distinction be preserved between the role of the justice as judicial decision maker and the role of the justices' clerk as objective, professional legal adviser and, on occasion, administrator".--[Official Report, 16/12/97; col. 561.]
"Although it is good practice for a report, where appropriate, to be prepared as soon as possible after a guilty plea is entered, the Society is of the opinion that a clerk should not make a judicially binding judgment as to the seriousness of the offence".
12 Feb 1998 : Column 1374
"to request a medical report and, for that purpose, to remand the accused in custody or on bail".
"Clerks do not wish to be concerned with remands in custody".
"In providing for these powers to be extended in this way clause 40 allows them to be restricted ... it is appropriate when requesting a medical report a single justice should be able to remand the defendant in custody, but it would not be appropriate for a clerk to do so, and any rules extending that power to clerks would take account of that fact".
"to give, vary or revoke orders for separate or joint trials".
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