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Lord Williams of Mostyn: I deal first with the general points raised by the noble Lord. If someone under a particular age commits an offence and comes up for sentence having passed the time gap for sentence the usual rule is that the sentence is passed appropriate to the age at the time of sentence. We do not believe that it will be possible for a defendant in this category simply to manipulate the system as has been notoriously done in the past. This is the whole purpose of the Narey reforms to which the Home Secretary is personally committed. We want to reduce the national average of four and a half months. As to magistrates' courts or other adult courts dealing with an under 18 year-old, in the main this will not happen. The purpose of the present draft is simply to establish that the youth court

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is a class of magistrates' court. Therefore, one is not looking at the circumstances to which the noble Lord refers.

The fundamental point is that we have selected this group which is suitable in the limited circumstances already outlined--a first time offender who pleads guilty--for early intervention of this particular type. We shall keep the matter under review. But the usual practice in the criminal regime is that an individual is sentenced to the appropriate range of penalties according to age at the time of sentence, not the time of conviction for an offence. The noble Lord makes the perfectly legitimate point that he wants a discretionary, not mandatory, resolution. He rightly says that that is a story for later today. I believe that there is a fundamental difference between us in that respect.

Viscount Colville of Culross: Before the noble Lord sits down, if the Government consider that they may think again about the age of the offender at the time that he or she comes to court, I observe that in Clause 2(3) the Secretary of State's powers to make amendments by regulation do not include a power to deal with Clause 1(1). In the light of what the noble Lord has said, it may be advantageous if it does so.

Lord Williams of Mostyn: I did not say that the Government had it in mind to alter it. I said that plainly these matters would be kept under review. I am grateful as always for what the noble Viscount says. I shall think about his proposal but I cannot give any clearer indication than that.

Lord Cope of Berkeley: We have been given some food for thought on this matter by the Minister. I am grateful to my noble friends for their support for my amendment but in the circumstances I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

3.30 p.m.

Lord Cope of Berkeley moved Amendment No. 4:

Page 1, line 17, leave out subsection (2).

The noble Lord said: As it turns out, it has not been such a long wait for discussion on whether or not this new form of sentence should be compulsory in some circumstances.

The Bill provides that the sentence is compulsory so far as concerns the magistrates. They have no discretion in the cases set out in Clause 2(1). Where those conditions are fulfilled, the magistrates have no option whatever. An important point of principle is involved. It is a point of principle that we have sometimes discussed at the other end of the judicial hierarchy when discussing whether or not judges should be obliged to pass life sentences in the case of murder. The Lord Chief Justice, and many others before and since, have argued that it would be advantageous if judges retained a discretion as regards sentences for murder. In view of the special nature of the crime of murder, I agree with

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the Government that the judges' discretion should be limited; and that a life sentence is the correct sentence for a conviction for murder.

However, at the other end of the judicial hierarchy there is no question of the special considerations applying to the offence of murder. Many of the arguments used by the Lord Chief Justice about the necessity for discretion seem to apply in this situation. Only the magistrates on the spot who have heard the case and know the offence, the offender, and so on, are in a position to say that such a disposal is the appropriate course of action. The fact that it is a first offence, and that the other conditions in Clause 2(1) are fulfilled, are matters that they would take into account in deciding whether or not to use their discretion in that way and to pass the new sentence. It seems unwise to fetter their discretion in that way.

Why should the Government think it essential to tie the magistrates' hands in these cases? Perhaps the Government do not entirely trust the magistrates to use the new form of sentence. I hope that that is not the case because it should not be; I do not believe that there is justification for it. As time goes on, magistrates will judge for themselves whether it is an effective sentence, and the correct sentence under Clause 2(1); or whether the provision should be used only in some cases and the criteria for deciding in which cases such a course would be appropriate. No doubt different magistrates will take slightly different decisions, but that is always the case when an individual appears before the courts, and there is nothing that we can do to ensure that the courts always take precisely the same course of action. We have to rely on the discretion of the magistrates. We usually do so and are not let down.

The thought also occurred to me, but I immediately dismissed it, that it might be part of the Government's obsession with wishing to control everything. However, I am sure that that is not so in the case of the Minister. I do not believe that it is desirable for the magistrates to be compelled to use the provision automatically whenever the circumstances of Clause 2(1) occur.

The amendments grouped with Amendment No. 4 are intended to be consequential to the main amendment. Whether I have all the consequential amendments correct is not clear. I have attempted to do so, but if the principle is agreed no doubt we can settle the consequential amendments at a later stage. I beg to move.

The Chairman of Committees (Lord Boston of Faversham): I must point out to the Committee that if Amendment No. 9 is agreed to I cannot call Amendment No. 10.

Lord Campbell of Alloway: As a matter of principle, perhaps I may support my noble friend. As the Minister may remember, I am in favour of discretionary life sentences for murder, as I believe that he was at one time, and may still be. The principle in question is that if one removes discretion one tends to impair the quality

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of justice if the quality of those judging is reasonably high. I ask the Government to think again about the question. An important principle is involved.

Viscount Tenby: Rather irritatingly, I can see both sides of the argument. On the one hand, I understand a situation where one has established youth panels and one has to put in hand the machinery for them to come into existence. The moment one makes the position discretionary, individual benchers may decide not to pass such cases on and a coach and horses may be driven through that important aspect of the Bill.

On the other hand, the Minister will not need reminding that at present youth justice panels on benches are grappling manfully (and no doubt "womanfully") with the forest of new orders under the Crime and Disorder Act. I am sure that the Minister and his colleagues have taken that factor into account. However, if at the same time as those panels seek to deal with that problem they find they are being emasculated in their discretion as regards disposals, it may have an adverse effect on their morale at a delicate time. Perhaps the Minister will be kind enough to reassure me that that matter has been taken into account.

Baroness Carnegy of Lour: It seems likely that the Minister will answer my noble friend by saying that there is a wide menu from which the court may choose when agreeing the programme for the young offender. The point of my noble friend's amendment is that the Bill fetters the discretion of the court on the decision whether the offender is the right person with whom to make a contract. Should there be a contract? Is that person likely to respond to a contract? If the young person is extremely truculent and unwilling to co-operate at the outset, it may do more harm than good to enter into this sentence.

There is a strong point in my noble friend's amendment. It would affect a number of other issues which will arise later in Committee.

Lord Williams of Mostyn: It is not a desire to control everything. I can only repeat publicly, as has the noble and learned Lord the Lord Chancellor on so many public occasions, our trust in the virtue and value of the magistrates of this country.

I take the point of principle put forward by the noble Lords, Lord Campbell of Alloway and Lord Cope. The important difference of principle is this. What makes the new referral order different from the ordinary sentence disposition is that its purpose is not a sentence (full stop). Its intended purpose is to ensure that the conviction of the young offender, who has to be a first offender and plead guilty, will trigger on a basis of mandatory obligation an inquiry into the reasons for the offending behaviour. That is the real importance of the youth panel. It is not a sentence in itself; it is the triggering of an inquiry.

We believe that it is essential to break the cycle of continued offending and re-offending and to go immediately to the first offender who has pleaded guilty and say, "It is necessary, it is obligatory, it is mandatory to have this inquiry at this stage." I respectfully suggest

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to the noble Lord, Lord Campbell of Alloway, that that is the difference between the sentence to which he and I are accustomed in the criminal courts and the mandatory triggering of an inquiry. It is an intentional and fundamental shift in the way we deal with young offenders.

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