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Lord Cope of Berkeley: I rise briefly to express my view that the noble Viscount's proposal has merit. It seems to me that when young people come before the Crown Court in either of the circumstances which he outlined it would be an advantage if this new method of disposal were available to the Crown Court. The noble Viscount suggested that it might be more apt when a young person came before the Crown Court on their own, as a result of appeal, and so on. I do not disagree with anything the noble Viscount said, but it seems to me that it could also be extremely relevant in a case where a young person appeared before the court with an adult charged with the same offence and where, as presumably in most cases, the young person had been led into the offence by the adult. In those circumstances a disposal of this kind may be exactly the right way in which to deal with a young person. I think it is entirely apt that it should be available when a young person appears before the Crown Court with an adult on the same offence as well as when they appear on his own.
Lord Williams of Mostyn: Clause 1 of the Bill makes referral orders available in both the youth court and the adult magistrates' court. We did not propose to make them available to the Crown Court because by and large the Crown Court would not be dealing with the young offenders for which the sentence is intended and, where such cases do arise, it is open to the Crown Court to remit to the youth court for sentencing.
Not for the first time, the noble Viscount has raised an extremely important point and I am most grateful for the care he has given to these matters. He has identified a situation where the Crown Court requires the power to consider a referral order; that is, as his amendment makes plain, where the court is reviewing sentence on appeal.
I am happy to say that, having researched the matter, we do not believe that we need to specify this on the face of the Bill because that power already exists by virtue of Section 48(4) of the Supreme Court Act 1981, which provides that the Crown Court, sitting in its appellate jurisdiction, may award any punishment which the lower court appealed against might have awarded.
I repeat that I am grateful to the noble Viscount for raising this point. I have had it researched and I believe that the answer is there.
Viscount Colville of Culross: I am grateful to the Minister for that answer. I do not suppose that many judges who sit in the Crown Court would have found that section. No doubt guidance will be given, area by area, about the use to be made of the new powers when they come into operation. I hope that the Home Office's guidance for the use of Part I of the Bill will include guidance to the Crown Court about that matter because I believe everyone is now agreed that it would be desirable to be able to use this power on a suitable occasion. As it is already in the law, albeit in a somewhat obscure corner of it, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.15 p.m.
Lord Cope of Berkeley moved Amendment No. 2:
The noble Lord said: It is suggested that we discuss Amendment No. 3 together with Amendment No. 2, which is obviously right since they go together. These amendments seek to clarify the age of the young people to whom these new provisions are to apply. The Bill talks about the court dealing with someone under 18. I take that to mean that the alleged offender--or, by the time he is convicted, the offender--is under 18 at the time he appears in front of the magistrates and that the new sentence is not available if the offender was under 18 at the time of the offence but before coming to court and being found guilty had passed his 18th birthday.
I understand that when it was last measured, about a year ago, the average time taken to come to court was about four-and-a-half months. There will be quite a number of young people who become 18 during that four-and-a-half months and move over the borderline. Given that in certain circumstances it is compulsory for magistrates to impose this, the sentence will depend on whether the case comes to trial before or after the offender's 18th birthday.
It seems to me that in these circumstances either the offender or another party, such as the prosecution, may think it desirable either to expedite or delay the trial in order to affect the sentence, which does not seem to me a satisfactory way to proceed. In addition, it is in the nature of things that in some parts of the country courts have a shorter waiting time than in other parts of the country and that some courts are able to respond more quickly than others. The availability of this sentence will therefore also depend on the court at which the young offender is to appear. Later in the Bill the Secretary of State is given the power to vary the offender's age for many purposes. I refer to Clause 2(4)(a). Therefore this age might in any case vary.
It seems to me at least worth asking whether it would not be better if the crucial date which decided whether or not this sentence were available should be the date on which the offence was committed rather than the
Baroness Carnegy of Lour: I strongly support my noble friend's amendment. Unless there is, unseen by him, a provision elsewhere in the Bill that clarifies this point, it seems completely against natural justice that the length of time taken to bring a young person to court should affect the sentence which that young person receives. Young people and the public would see this as unfair. If there is no other provision to clarify the point, I hope that the Minister will be able to accept the amendment.
Viscount Brentford: In supporting my noble friend's amendment perhaps I may make one further point. The amendment would benefit the administration of the courts. Otherwise, if the age of a person changes in the run-up to the hearing the courts' administration may or may not make the right guess as to when the hearing will take place. Having started work in the youth court it may have to move the matter to the magistrates' court and resume all of the administration a second time. I believe that my noble friend's amendment will assist the administration of the courts.
Lord Williams of Mostyn: The noble Lord, Lord Cope, identifies correctly the approach we have adopted; namely, that the referral order should be available for young offenders between the ages of 10 and 17 at the time they are dealt with by the courts. I cannot agree with the suggestion of the noble Baroness that this is against natural justice. It is found quite commonly within the justice system. The noble Lord referred to an average period of four and a half months, and that is so. If the prosecution sought to delay the trial for the purpose of ensuring that the young offender was over the age of 17 at the time of disposition it would be a wholly illegitimate use of power, and I believe that it would not happen.
We have tried to make youth justice the top law and order priority because we need to divert people away from crime as early as possible. We need effective interventions to tackle the causes of offending by young people and prevent recurrence. We believe that that is the right intervention for this group which is rightly specified as being between the ages of 10 and 17. The amendment of the noble Lord would focus the attention of the court on the age of the offender at the time of the commission of the offence rather than when he would benefit from the intervention. The amendment would mean that if many years elapsed between the commission of the offence and its detection and prosecution young offenders way beyond the 10 to 17 age band would be given referral orders, as he rightly observed.
Referral orders are disposals tailored specifically to prevent reoffending by young offenders. That is the purpose of these orders. In the case of young adults beyond that age group we believe that the courts should have disposals available to them to reflect those offenders' maturity and attitude. The noble Lord is right. We must keep this carefully under review. After all, the courts will have available to them a wholly new remedy. Self evidently, we shall want to see how it pans out in practice. For the moment I believe that we have got it right; namely, 10 to 17 as the age of disposition for this entirely novel remedy. I hope that that explanation assists the noble Lord who moved the amendment.
Lord Cope of Berkeley: I am not sure that I am wholly convinced. One question remains in my mind, the answer to which may be obvious to others but not to me. Why should adult magistrates' courts be involved if all of the offenders concerned with the possible disposal will be under 18? Another point raised by the Minister, which I believe has considerable weight, was that there might be a very long delay which was not the fault of the prosecution between the commission of the offence and the time when the trial took place if the offender was not detected for a long period and the matter arose much later. The Minister is right that it would be a disadvantage if somebody aged 25 or perhaps 30 was sent compulsorily to the youth offender panel under the terms of the Bill. But, as I shall explain when I turn to later amendments, I am in any event against compulsion. However, I do not argue that point at the moment. I shall deal with the matter at the appropriate time. But this is the way out of a particular difficulty rather than leaving very much in the air the question of the availability of the sentence according to whether the 18th birthday of the youth happens to fall before or after the trial.
I understand the Minister's point about the prosecution misbehaving if it tried to fix or affect the date so as to achieve that result. However, it would be entirely open to the defence to do so. It may be improper but that does not mean that it will not necessarily happen. I do not believe that that is a very satisfactory position in which to leave the law. I do not know wether the Minister is able to respond to my question about the adult courts and the youth courts.
Page 1, line 9, leave out ("under the age of 18").
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