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Lord Mackay of Drumadoon: My Lords, perhaps I should indicate that, in view of the lateness of the hour, I do not intend to press the amendment. However, I think it appropriate to respond briefly to one or two of the points that the Lord Advocate has made.
First, it was suggested that in some way the comments I made involved a criticism of, or a lack of faith in, the ability of the police or the procurator fiscal service to investigate crimes properly. I made no such suggestion explicitly and I hope that no such suggestion was implicit in anything I said. However, I take the same view as the Lord Justice-General took in his letter that such a motive may emerge during the course of evidence. In my experience as both a prosecutor and as a defence solicitor and counsel, I have had occasions when it was abundantly obvious to all the lawyers in the room that a piece of evidence which had emerged, whether from a Crown witness or a defence witness, had come as a surprise to all concerned. It is that which I had in mind in making the suggestion that I did.
So far as the need to label and prove such aggravations and how it would be inappropriate for a judge to take account of such aggravations in questions of sentence, I cannot get away from a point that has been made on more than one occasion in our debates on the Bill that none of this would be relevant were the offence to be one which was religiously motivated as opposed to one which was racially motivated. Therefore, I remain concerned that this will lead to practical difficulties.
I note that the noble and learned Lord the Lord Advocate did not respond to my invitation to inform your Lordships as to what the court thinks of these proposals, thinks of this clause and thinks of these amendments in view of what was said by the senior judge, the Lord Justice-General, in his letter.
However, having regard to the lateness of the hour, it would not be appropriate to press the amendment to a Division. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hardie moved Amendment No. 131A:
The noble and learned Lord said: My Lords, I have spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 132 to 139 not moved.]
Lord Hardie moved Amendment No. 139A:
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 140 not moved.]
Clause 81 [Remands and committals of children and young persons]:
The Deputy Speaker: My Lords, if Amendment No. 141 is agreed to, I shall not be able to call Amendments Nos. 142 or 143.
[Amendment No. 141 not moved.]
Lord Falconer of Thoroton moved Amendment No. 142.
The noble and learned Lord said: My Lords, the Government are grateful to the human rights organisation, Liberty, for drawing the Government's attention to this potential anomaly relating to the legal representation of juveniles awaiting remand to secure accommodation. Clause 81 makes provision for the implementation of court-ordered secure remands. Clause 82 makes alternative arrangements for 15 and 16 year-old boys. In the latter case the current relevant legislation is Section 23 of the Children and Young Persons Act 1969 as modified by the transitory arrangements in Section 62 of the Criminal Justice Act 1991.
Subsection (4A) of Section 23 as modified by those provisions provides that a court shall not remand a 15 or 16 year-old boy to prison who is not legally represented unless he has applied for legal aid and the application was refused upon the grounds he had sufficient means, or having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply. The legal representation restriction is carried forward in Clause 82.
Clause 81, however, is based upon Section 23 of the 1969 Act as substituted by Section 60 of the 1991 Act, without the modifications in Section 62. That version does not contain a legal representation restriction comparable to subsection (4A). The result is that 15 and 16 year-old boys would need to be legally represented before they can be remanded by a court direct to secure accommodation while 12 to 14 year-olds and 15 and 16 year-old girls would not.
These four amendments correct this anomaly so that all juveniles facing the prospect of a court-ordered secure remand will need to be legally represented. I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendment Nos. 143 and 144:
On Question, amendments agreed to.
Clause 82 [Remands and committals: alternative provision for 15 or 16 year old boys]:
Lord Falconer of Thoroton moved Amendment No. 145:
On Question, amendment agreed to.
Clause 83 [Power to release short-term prisoners on licence]:
Lord Williams of Mostyn moved Amendment No. 146:
The noble Lord said: My Lords, in moving Amendment No. 146, I speak also to Amendment Nos. 147, 149, 150, 152 and 211. These amendments relate to those released from prison under home detention curfew on an electronic monitoring basis. Amendments Nos. 146, 149 and 150 restrict release under curfew to those aged 18 or over but with a power to amend that restriction. As regards Amendment No. 147, prisoners who are in custody as a result of breach of an electronically monitored curfew order will not be eligible for release on home detention curfew. Amendment No.152 establishes a means for offenders recalled to prison to be given the reasons for their recall and provides that they can make representations against the decision. Amendment No. 211 provides the phasing in of home detention curfew.
I undertook to respond to the amendment of the noble Baroness, Lady David, which would have made 10 to 15 year-olds ineligible for home detention curfew. We recognised at the time the special considerations applying to them. That is why we are trialling court ordered monitoring orders for 10 to 15 year-olds separately from those for offenders aged 16 and over. We do not want to rule out the possibility that juveniles may at a future date be assisted by being considered
Amendments Nos. 149 and 150 provide, subject to affirmative resolution, that that restriction can be repealed. We shall not take such a step before the trials of the curfew orders on 10 to 15 year-olds have been fully evaluated.
Clause 83 has a list of categories of offenders who will not be eligible for release. I made the point in a letter to the noble Lord, Lord Henley, a copy of which is in the Library, that those who fail to comply with a court ordered electronically monitored curfew order and as a result receive a custodial sentence should not benefit from release. That is the purpose of Amendment No. 147. I believe that I have explained Amendment No. 152 sufficiently.
Amendment No. 211 deals with providing a tapered introduction of the home detention curfew, so that there is not an unmanageably large number of releases on the first day of the scheme. With those explanations, I beg to move.
Lord Goodhart: My Lords, I am sorry at this hour to rise in response to the Minister's introduction of this group of amendments. I welcome the fact that by tabling these amendments the noble Lord has done what he undertook to do, which is to provide for pilot schemes to see whether tagging will work for under-16s. In the amendment which the noble Baroness, Lady David, moved in Committee, and which I supported, we pointed out the problems which might arise with the tagging of juveniles under 16. What concerns me is the fact that if the pilot schemes do not work, it appears to be the Government's intention to rule out altogether the possibility of the release on licence of the juveniles who are undergoing such sentences. Therefore, I must express more of a reservation than a welcome to the Minister's amendments, although this is not something on which I would seek to divide the House.
On Question, amendment agreed to.
Page 69, line 17, leave out ("to the satisfaction of any court").
Page 69, line 26, at end insert--
("and evidence from a single source shall be sufficient evidence to establish, for the purposes of this subsection, that an offence is racially aggravated.").
Page 69, line 35, leave out ("(5)") and insert ("(4)").
Page 69, line 36, after ("accommodation),") insert ("for the words "Subject to subsection (5) below," there shall be substituted the words "Subject to subsections (5) and (5A) below,".
( ) In subsection (5) of that section").
Page 69, line 39, at end insert--
("( ) After that subsection there shall be inserted the following subsection--
"(5A) A court shall not impose a security requirement in respect of a child or young person who is not legally represented in the court unless--
(a) he applied for legal aid and the application was refused on the ground that it did not appear his means were such that he required assistance; or
(b) having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply." ").
Page 70, line 12, leave out ("and (5)") and insert ("to (5A)").
Page 71, line 30, after ("prisoner") insert ("aged 18 or over").
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