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Lord McNally: In the light of that full and reassuring explanation, I shall be pleased to beg leave to withdraw my amendment. The key word in my amendment is "consultation". I hope that that is what the noble and learned Lord means when he refers to various inquiries. All this can be intimidating for a victim and there can be an element of bounce if an official comes along and suggests a way ahead.
The Solicitor-General was clear that the provisions mean genuine consultation and that if the victim is not willing, that path will not be pursued. As I have said, the evidence that I have received from a wide range of sources suggests that reparation orders could have an important impact on juvenile crime. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Baroness Nicol): We now come to Amendment No. 235. I must inform the Committee that if this amendment is agreed to, I shall be unable to call Amendment No. 235ZA or Amendment No. 235A.
Lord Henley moved Amendment No. 235:
The noble Lord said: I should stress that I have no intention of pressing this amendment, so there is no danger that noble Lords who wish to speak to the other amendments grouped with this will be denied their opportunity to do so in due course.
Amendment No. 235 has been tabled in a spirit of inquiry. I should like to know, first, why a reparation order cannot be made when, as subsection (4) puts it, the court passes a custodial sentence on an offender. If the reparation order was intended to force the offender to do certain things, he would not be able to do those things if he was locked up--that is, unless he was only required to pay some compensation. That brings me to my second question: where in the Bill are we told exactly what a reparation order is? There is a reference to a "reparation order", and subsection (4)(b) of Clause 54 also refers to a "compensation order". I presume that "compensation" implies financial compensation to the victim, whereas "reparation" implies something else. I would be grateful to receive an explanation as to where in the Bill "reparation" is precisely defined. I beg to move.
Baroness Hilton of Eggardon: With the leave of the Committee, I speak to Amendment No. 235ZA in the name of my noble friend Lady David. The amendment has a similar purpose to the previous one but is intended to give the courts the flexibility to make a compensation order in addition to a reparation order. The noble Lord, Lord Henley, may be assisted if I paint the scenario of an Asian family that has suffered racial harassment. Perhaps the windows of the family home have been broken and graffiti scrawled on the walls. It may be of benefit if the court can make a compensation order to pay for the broken windows to be mended as well as a reparation order to make the offender remove the graffiti from the house. As I understand it, reparation orders include practical work like gardening, mending fences or cleaning up graffiti, whereas compensation orders provide for financial compensation. It is a pity that the Bill as drafted does not allow for a court to make a compensation order as well as a reparation order. Clearly, one does not want to overburden an offender with heavy financial penalties and make him do some useful work, but I believe that there are situations in which a small amount of reparation and compensation may go hand in hand.
Viscount Tenby: I do not know whether I am speaking to Amendment No. 235, or to Amendment No. 235ZA or Amendment No. 235A which have not yet been moved. I associate myself with the comments of the noble Lord, Lord Henley, and the noble Baroness, Lady Hilton. I support the concept of compensation orders. The concept of a reparation order is an admirable one. I very much endorse the warm support given to it by the noble Lord, Lord McNally. I believe that we are on to something here. It is very good. It is to be hoped that, more than anything else, its implementation will
To exclude the possibility of a compensation order also being made may be to do only half the job. In any event it may do an injustice to the very same aggrieved. After cleaning off the graffiti, why should the perpetrator not pay also for the broken window or the damaged stock in the shop? In the senior courts, although a compensation order can be a disposal in its own right surely it is far more common to find it tied to a criminal damage or ABH case. Accordingly, I ask the Government to think again about this matter.
Lord Falconer of Thoroton: I believe that effectively two separate questions are raised by the discussion. First, what is the definition of a reparation order? Secondly, with what other penalties should a reparation order be combined? As to the first question, the only definition in the Bill is in Clause 54(2) which states that,
Apart from that, the Bill not is intended to be proscriptive.
What in practice does it mean? My noble friend Lady Hilton and the noble Viscount, Lord Tenby, have got it exactly right. The reparation required may consist of a simple apology and an explanation, either in person or in a letter. It may also include simple tasks which are related to the type of offence committed--repairing a broken fence, weeding flower beds, washing a car or cleaning graffiti. That sort of small matter brings home to the offender what he has done and, to some extent, provides reparation to the victim for what has happened. That, in legal and practical terms, is what a reparation order means.
Clause 69(1) defines a reparation order as having the meaning given to it in Clause 54(2), which does not really help but I am grateful to the officials for telling me. That is the position in relation to what it means in practice. I again emphasise to the noble Lord, Lord McNally, that it is intended to make the offender face up to what he has done.
As to which orders it should be combined with, Clause 54(4) presently indicates that it cannot be combined with a custodial sentence and a number of other sentences referred to in Clause 54(4)(b)--those being a community service order, a combination order, a supervision order, which includes requirements, an action plan order or a compensation order. Those
As for a community service order, national standards require that the element of reparation to the community be taken into account in formulating what community service the offender has to do. That would overlap with the proposed reparation order. A combination order includes in part a community service order. A supervision order with requirements can include requirements for reparation. An action plan order can include provision for reparation. A compensation order, which is the one that the noble Viscount, Lord Tenby, mentioned, is in effect reparation in financial terms.
In considering what compensation order to make, the court is obliged to take into account the level and the nature of the victim's suffering. In those circumstances, if you made both a reparation order and a compensation order you would potentially be punishing the offender twice for the same thing. In those circumstances it is inappropriate to permit the court to make both a reparation order and a compensation order.
As to custodial sentences, it is inappropriate to combine reparation with somebody who is going to prison, and there has been no real dispute about that. That is the thinking behind the way that the combinations are dealt with and that deals with all the points that have been made. I invite noble Lords to withdraw their amendments.
Lord Henley: I am grateful to the noble and learned Lord for his explanation and for referring us to Clause 69(1) with its useful definition of reparation order.
I have one further question. Am I right in thinking that a reparation order could not require financial compensation? A compensation order is something different and refers to financial compensation. A reparation order is all the other things the noble and learned Lord referred to, but not financial compensation.
Page 42, line 31, leave out subsection (4) and insert--
("(4) The court shall not make a reparation order in respect of the offender if it proposes to pass on him a custodial offence.
(4A) Subject to subsection (4) above a court may make a reparation order under subsection (2) above instead of or in addition to dealing with him in any other way.").
10.30 p.m.
"the court by or before which the offender is convicted may make an order ... which requires the offender to make reparation specified in the order to a person or persons so specified; or to the community at large".
"Subject to subsection (5) above, requirements specified in a reparation order shall be such as in the opinion of the court are commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it".
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