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Youth Justice And Criminal Evidence Bill [H.L.]

These notes refer to the Youth Justice and Criminal Evidence Bill [H.L.] as introduced in the House of Lords on 3rd December 1998 [HL Bill 7] Youth Justice And Criminal Evidence Bill [H.L.] EXPLANATORY NOTES INTRODUCTION 1.     These explanatory notes relate to the Youth Justice and Criminal Evidence Bill [H.L.] as introduced in the House of Lords on 3rd December 1998. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given. BACKGROUND 3.     The Bill is in two parts. The first deals with a new sentencing disposal for the youth court and the second with measures to help witnesses to give evidence. Part I 4.     Part I of the Bill provides further reform to the youth justice system. 5.     The White Paper No More Excuses (CM 3809 November 1997) included a range of proposals to improve the effectiveness of the youth court in preventing offending by children and young people. This is now the principal aim of the youth justice system. 6.     The Crime and Disorder Act 1998 gave effect to a number of the White Paper proposals, including new sentences for young offenders and a final warning scheme to replace juvenile cautions. 7.      The Youth Justice and Criminal Evidence Bill gives effect to further reforms to the youth court proposed in the White Paper. It creates a new sentence of referral to a youth offender panel. This option is available for young people convicted for the first time and its primary aim is to prevent re-offending. 8.     The youth offender panel will work with the young offender to establish a programme of behaviour for the young offender to follow. The programme will be guided by the following three principles ('restorative justice'): Making restoration to the victim Achieving reintegration into the law-abiding community Taking responsibility for the consequences of offending behaviour Part II 9.     Part II of the Bill contains a range of measures designed to help young, disabled, vulnerable or intimidated witnesses give evidence in criminal proceedings. 10.     The measures include: a change to the definition of who is competent to give evidence; further restrictions on publishing information which might reveal the identity of a witness; physical measures to reduce the stress of giving evidence at trial (such as informal dress, screens, live link CCTV and the use of pre-recorded interviews); restrictions on the freedom of defendants personally to cross-examine their alleged victims; further restrictions upon what evidence about an alleged victim's sexual behaviour can be considered relevant in a trial for a serious sexual offence. 11.     These new measures were proposed by Speaking Up for Justice (June 1998), the report of an interdepartmental review of the treatment of vulnerable or intimidated witnesses in the criminal justice system. 12.     Part II of the Bill also includes an amendment to the legislation governing the inferences which can be drawn at trial from a defendant's silence in response to police questioning during the investigation stage of a criminal case. SUMMARY Part I - Referrals to Youth Offender Panels 13.     This introduces a new power for magistrates to sentence young offenders by way of a referral to a youth offender panel. 14.     It sets out the circumstances in which the new power will be available to the courts and the administrative arrangements for referral to a youth offender panel. It amends the Crime and Disorder Act 1998 to add to the functions of youth offending teams by giving them specific responsibilities for setting up youth offender panels and monitoring and recording the progress of young offenders subject to referral orders. 15.     It describes the arrangements for meetings between the panel and the young offender and for agreeing a contract between the panel and the young offender. The contract will set out a programme for the offender to follow. 16.     It describes the arrangements for monitoring the contract and the consequences for a young offender who fails to comply with the terms of the contract (and thus the referral order). It addresses the position of someone who is convicted of another offence during the referral period. 17.     It gives the Secretary of State the power to make regulations to extend the cases in which referral orders may be made and to issue regulations and guidance on such matters as the qualifying criteria for youth offender panel members and the possible components of the contract to be agreed with the young offender. Part II: Measures for facilitating the giving of evidence for the purposes of criminal proceedings 18.     This part of the Bill makes a number of measures available to help witnesses (other than the accused) who otherwise might have difficulty giving evidence in criminal proceedings or who might be reluctant to do so. 19.     The first Chapter sets out who is eligible to apply for special measures to help them give their evidence in court. There are three categories: children under the age of 17; those suffering from a mental or physical disorder, disability or impairment that is likely to affect their evidence; and those whose evidence is likely to be affected by particular fear or distress in connection with giving evidence in the proceedings. 20.     It is for the court to determine whether a witness falls into any of these categories, although a witness alleged to be the victim of a sexual offence will be presumed to need assistance in giving evidence. The court must also determine whether making certain special measures available to an eligible witness is likely to improve the quality of the evidence given by the witness. 21.     The prosecution and defence will be able to apply, normally before the trial, for the court to make a special measures direction authorising the use of special measures to help a witness they are calling to give evidence. The court may also decide to make a direction even though no such application has been made. 22.     The special measures which can be authorised, once available for the purpose, are: Screens, to ensure that the witness does not see the accused. Allowing the witness to give evidence from outside the court by live television link. It will be presumed that juvenile witnesses should be allowed this. Clearing the press and public from the court so that evidence can be given in private. Not wearing the court dress of wigs and gowns. Allowing an interview with the witness which has been video-recorded before the trial to be shown at trial as the witness's evidence. It will also be presumed that young witnesses should be allowed this. Allowing a witness to be cross-examined before the trial about their evidence and a video recording of that cross-examination to be shown at trial instead of calling the witness. Allowing an approved intermediary to help the witness communicate with legal representatives and the court. Allowing the witness to use communication aids. 23.     The second Chapter affects how far defendants, in certain circumstances, can conduct their own defence. A defendant must not conduct in person the cross-examination of a witness, and must make other arrangements for the purpose, in the following circumstances: When the witness is the alleged victim of a sexual offence. When the witness is a child who is either the alleged victim or witness (including any co-accused) in cases involving sexual offences, kidnapping or abduction, cruelty or physical assault. When the court is satisfied, upon an application or on its own initiative, that the circumstances of a case merit it. 24.     In such circumstances the defendant must appoint a legal representative to conduct the cross-examination. Where the defendant refuses or neglects to do so, the court must consider whether to appoint a legal representative to test the witness's evidence in the interests of the defendant. 25.     The third Chapter amends the statutory framework within which information about the alleged victim's previous sexual behaviour may be asked for or presented as evidence in trials for sexual offences. The defence will have to apply to introduce evidence or ask questions on this subject, and the circumstances where they will be permitted to do so will be strictly limited. 26.     It will no longer be possible to invite conclusions to be drawn from information about the alleged victim's sexual behaviour in connection with an issue of consent except as follows: Where the information relates to sexual behaviour which allegedly took place at or about the same time as the alleged offence. For the purpose of justifying a claim of honest but misguided belief in the alleged victim's consent. So far as necessary to rebut evidence called by the prosecution about the complainant's sexual behaviour. 27.     The fourth Chapter extends the restrictions on the reporting or publishing of information allowing the identification of alleged juvenile offenders and witnesses to criminal offences. Restrictions will now apply from the moment it is alleged that an offence has been committed and will extend more widely than at present (i.e. UK wide). 28.     The court will also be able to order restrictions on the publishing of information about proceedings which could lead to the identification of a witness if the court is satisfied that the witness would otherwise be in fear or distress sufficient to affect the quality of evidence given. 29.     The fifth Chapter provides that everyone is competent to give evidence in court if they can understand the questions put to them and can answer those questions in a manner which enables the court to understand the evidence they have to offer. 30.     All witnesses aged 14 and over are to be sworn before giving evidence unless the court is satisfied that they do not have a sufficient appreciation of the solemnity of the oath. In such a case their evidence can be given unsworn (if they are competent to give evidence). 31.     The sixth Chapter prohibits inferences from being drawn from silence when a suspect is questioned at a police station while denied access to legal advice. 32.     The remainder of the Bill contains supplementary and consequential provisions. COMMENTARY ON CLAUSES Part I: Referrals to youth offender panels Clause 1: Referral of young offender to youth offender panel 33.     Clause 1 introduces a new power for magistrates' courts of making referral orders in respect of first time offenders under the age of 18. Under a referral order the offender is referred to a youth offender panel. The clause sets out when the new sentencing power will be available. A referral order is intended to be the main disposal for young offenders who have not previously been convicted, but there are certain circumstances in which it would not be appropriate. Courts will still be able to impose custodial sentences if an offence is serious or to protect the public, and they will still be able to order an absolute discharge. The new power will not replace sentences which are already fixed by law. Nor will it prevent courts ordering hospital admission in respect of mentally ill offenders. The circumstances which rule out the availability of the new sentencing power are set out in subsection (1). 34.     The effect of the new sentence is to refer a young offender to a youth offender panel to be set up and administered by the local youth offending team. Multi-agency youth offending teams, which are currently being piloted, are provided for by the Crime and Disorder Act 1998. The teams are responsible for co-ordinating the delivery of local youth justice services. The availability of the new sentencing power will depend on whether a local youth offending team has been established to set up the youth offender panel. Accordingly subsection (4) limits the availability of the new order to those courts that have been notified by the Secretary of State that arrangements are in place for a youth offending team to implement referral orders. It is intended that the new orders will be introduced at different times across the country, also on a pilot basis, so that their effectiveness and the resource implications can be fully assessed in advance of nationwide implementation. Clause 2: Referral conditions 35.     Clause 2 sets out the conditions which have to be satisfied before a referral order must or may be imposed by the court. Subsection (1) describes the conditions required to trigger a mandatory referral order. In circumstances other than those described in clause 1(1), every young offender who has never previously been convicted (or bound over) and who pleads guilty to the offence (and any associated offences, i.e. any other offences for which the offender is being dealt with at the same time: clause 15(2)) must be referred by the court to a youth offender panel. This is the group most likely to benefit from this type of sentence. 36.     Subsection (2) deals with the conditions required before the court may consider using discretionary powers to make a referral order. Again, the conditions in clause 1(1) apply and it must be the first time that the young offender has been convicted. It allows the court to use its discretion to order a referral where a young offender pleads guilty to one or more offences but not guilty to others (of which he is, however, convicted). 37.     The intention is to pilot the new provisions in selected areas across the country. It may be that in the light of the experience of the pilots, or following full implementation across the country, it will appear that there are other categories of young offender who could also benefit from the availability of this new sentence. Subsection (3) allows the Secretary of State to amend the categories of offenders eligible for the new sentence subject to the agreement of Parliament by affirmative resolution procedure. This means that Parliament must discuss and approve the Secretary of State's amendments. Subsection (4) gives examples of the kind of amendments which might be made. 38.     Subsection (5) ensures that young offenders who have previously been given a conditional discharge are treated for the purposes of considering whether they qualify for a referral order as if they have a previous conviction. This is in line with the concept of limiting the arrangements, in the first instance, to those young offenders dealt with by a court for the first time. Clause 3: Making a referral order 39.     Clause 3 sets out the practical and administrative arrangements for making an order. To ensure that the young offender fully understands the effect of referral, the contents of the order are prescribed in subsection (1) and a requirement is contained in subsection (3) to explain the order, and the consequences of not complying with it, in clear language. 40.     The order must specify the length of the referral (subsection (1)(c)). This will be between 3 and 12 months. It will be set by the court on the basis of the seriousness of the offence to ensure that the sentence is proportionate to the offence. Where referral is being ordered for two or more offences, the court will make a referral order for each offence: each referral may be of a different length, but all the referrals will be to the same panel (subsection(5)) and the total time spent referred to the panel will not exceed 12 months (subsection (6)). 41.     The order must also specify the youth offending team responsible for ensuring that a youth offender panel is set up to deal with the offender (subsection (1)(a)). Subsection (2) requires that the youth offending team identified in the order should be the team responsible for the young offender's home area or the area where he or she is expected to reside in the future. 42.     National standards will be devised, and issued in the form of guidance from the Secretary of State, to ensure that the first meeting between the offender and the panel charged with dealing with him takes place promptly following the making of the order. Clause 4: Effect of referral order on availability of other sentences 43.     When a referral to a youth offender panel is made it will constitute the entire sentence for the offence (and any associated offences) with which the court is dealing. The referral is not to be treated as an additional sentence to run alongside others (subsections (2) and (3)) (although the referral may be accompanied by certain ancillary orders such as orders for costs, compensation, forfeiture of items used in committing an offence, exclusion from football matches, etc.). Subsection (5) prevents the making of bind overs in respect of either the young offender or his or her parents and also prevents the making of parenting orders. 44.     But, as set out in subsection (3)(a), the court may order an absolute discharge in respect of an associated offence. 45.     When a referral order is required or considered appropriate the court cannot exercise its usual power to defer sentencing (usually exercised in order that conduct after conviction, or the effect of a change in circumstances, can be assessed) but it may still adjourn for pre-sentence reports (where, for example, it is considering a custodial sentence) (subsection (6)). Clause 5: Making of referral orders: attendance of parents etc 46.     Referral to a youth offender panel is intended to provide an opportunity for the young offender to consider, with his or her parents and the panel, how best to address the offending behaviour and prevent its re-occurrence. The supportive role of the young offender's parents will be a particularly important element of this process. Clause 5 regulates when the court may, and when it must, order parental attendance at meetings. 47.     For those under 16 years of age a parent or guardian will be expected to attend all youth offender panel meetings. This duty on the parent or guardian is set out in subsection (1) which also allows the court to place a similar requirement on the parent or guardian of a young offender of 16 or over (where this is considered to be appropriate). Subsections (4) and (5) recognise that the local authority will have parental responsibility for those young offenders in its care. The requirement to attend will always be notified in writing if the parent, guardian or local authority representative is not present in court when the order is made (subsection (6)). 48.     In subsection (2) it is recognised that there will be limited circumstances in which it would be unreasonable to expect the parent or guardian's attendance (for example, in the case of serious ill health). However, those parents, guardians or representatives who fail to attend the meeting against the order of the court without good reason may be brought before the court for contempt, in accordance with s 63 of the Magistrates' Courts Act 1980. Clause 6: Youth offender panels 49.     Clause 6 sets out how the youth offender panel should be set up (subsection (2)), who should sit on it (subsections (3) and (4)), who is responsible for arranging its meetings (subsection (1)) and what happens if the offender moves to a different area part-way through his referral (subsections (5) and (6)). 50.     Arrangements for the panel and its meetings will be the responsibility of the youth offending team. The panel will include a member of the youth offending team and at least two other members. It is intended that these other members will be directly recruited from the community by the youth offending team in accordance with qualification criteria to be set out in regulations to be issued by the Secretary of State under negative resolution procedure (which offers both Houses of Parliament an opportunity to object to the criteria chosen). Clause 7: Attendance at panel meetings 51.     Clause 7 describes how the youth offender team will be responsible for requiring the offender and others to attend panel meetings (subsection (1)) and sets out the arrangements for dealing with non-attendance (subsection (2)). If the young offender fails to attend a meeting, it may be adjourned. Alternatively, the youth offender panel may consider that this merits referring the offender back to court. 52.     The action taken by the panel following an offender's non-appearance will no doubt depend on a number of factors, including whether or not a reasonable explanation for non-attendance has been put forward and the general attitude of the young offender up until that point. These issues will be addressed in the guidance to be issued by the Secretary of State. 53.     Apart from the duty to attend the meetings which may be imposed on the young offender's parents or guardian, there are no requirements on other adults participating in the meetings. Guidance from the Secretary of State is likely to suggest that it may be helpful for some of those present to play a specific role in the identified programme of behaviour with which the young offender agrees to comply (the 'contract'). However any such participation will be voluntary. 54.     The clause also describes who else may be invited to each meeting. It is intended that the youth offender panel should consult the victims of the young offender's offending as to whether they also wish to attend. This might include anyone affected by the offence or, where appropriate, a representative of the community at large. Meetings may also be attended by an adult supporter invited by the offender with the panel's agreement; and the panel may invite to meetings persons capable of having a good influence over the offender. Clause 8: First meeting: agreement of contract with offender 55.     Clause 8 governs the drawing up of a programme of behaviour with which the young offender agrees to comply (the 'contract'). Subsection (1) specifies the purpose of the first meeting as being the agreement of the contract and states that the principal aim of the programme for which the contract is to provide is to be the prevention of re-offending. This reflects the principal aim of the youth justice system introduced by the Crime and Disorder Act 1998. 56.     Guidance on the contents of programmes will be published. It is intended that the programme should always include an element of reparation to those affected by the offence, if those individuals consent. Depending on the nature of the offence and the views of the victim, this may involve a direct apology or financial or other reparation. Where there is no identifiable victim, reparation may be made to the community at large. Any additional elements of the programme will depend on the factors which appear to have led to the offending behaviour and may include a range of activities or requirements. Subsection (2) includes a suggested list of the provisions which might be included, but the list is not exhaustive. 57.     A referral order is not a custodial sentence. Accordingly subsection (3) precludes the inclusion in the programme of electronic monitoring or any form of custody. 58.     Subsection (5) requires that, once the contract has been devised and agreed, it should be set out in writing and explained in clear language. Subsection (6) requires that it should be signed by both the offender and a member of the youth offender panel. The offender will be given a copy of the contract. Clause 9: Duration of contract 59.     The contract runs from the date that it is agreed (subsection (2)) and lasts for the period specified by the court in its referral order (subsection (3)), except where the order is subsequently extended by the court following a further offence or is terminated by a court after the offender has been referred back to the court by the youth offender panel (subsections (5) and (6)). 60.     Where the court has made two or more referral orders, the contract may not continue in force for more than 12 months after it is agreed (subsection (4)). Clause 10: First meeting: failure to agree contract 61.     The clear intention is for the contract to be agreed at the first meeting of the youth offender panel. The meeting may be reconvened in order to reach agreement, but clause 10 provides that where there seems to be no prospect of reaching agreement, or where an agreement appears to have been reached but the young offender refuses to sign the contract, the youth offender panel must refer the young offender back to the court for re-sentencing. Clause 11: Progress meetings 62.     Clause 11 enables the youth offender panel to hold progress meetings during the course of the contract, as considered appropriate to monitor the young offender's progress. The number of meetings is not prescribed since it will depend on the length of the referral and the level of support the young offender appears to need in order to comply with the contract and complete the programme successfully. Progress meetings will also be required if a young offender wishes to vary the terms of the contract in any way or if there appears to a breach of the contract. 63.     In the event of an apparent breach, the purpose of the meeting will be to discuss with the young offender what has happened so that the youth offender panel can assess whether it will be appropriate to continue with the contract, perhaps varied to take account of any genuine difficulties that may be preventing compliance. If the breach is without good reason the panel may consider it to be sufficiently serious to refer the young offender back to court for re-sentencing. 64.     Where it is considered appropriate to vary the terms of the contract, subsections (6) and (7) provide that, as with the original contract, the revised version should be explained in clear language, signed by both the offender and a member of the youth offender panel and then copied to the offender. Subsection (9) provides that the same general rules governing content should apply to the varied contract as to the original.

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Prepared: 4 december 1998