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Lord Cope of Berkeley: I am sorry for interrupting the noble Viscount and I am grateful to the Minister for referring me to paragraph 7(3) of Schedule 1. The point I was trying to make--to which I do not need an immediate reply--is that under paragraph 7(3) an order is discharged; that is to say, nothing further can happen to the offender. I understand that that is the difference between it being discharged and being revoked. It seems to me that in some circumstances the reason for the offender being referred back to the court will be because, although the time of the proposed contract has elapsed, the offender has not fulfilled its terms. In those circumstances, if the court is doubtful about the panel's decision the offender will automatically "get off" and that may not be right.

Perhaps I have misunderstood the situation. I do not wish to press the Minister at this point to respond to my comments.

Lord Williams of Mostyn: Before the noble Viscount decides whether or not he intends to withdraw his amendment, perhaps I can respond to both of those points. I am grateful to the noble Viscount. As I indicated on earlier occasions when he was most helpful in raising these questions, I shall give the matter further thought with officials. The noble Viscount may well be right as to the practical outcome. And, of course, I shall look again at the point made by the noble Lord, Lord Cope, and write to him, undoubtedly before we meet again in a week's time.

Viscount Colville of Culross: The noble Lord, Lord Williams, is always most accommodating. What I want to achieve as a result of this discussion is something that will be easy and fits in with the sort of situation to which the courts and youth offending teams will have to apply their minds. I am happy to leave it to the noble Lord and his advisers to look at the matter again. There is nothing wrong with it; it is just too elaborate. If he says he will look at it again, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 60 had been withdrawn from the Marshalled List.]

Lord Dholakia moved Amendment No. 61:

Page 45, line 39, after ("order") insert (", other than by imposing a custodial sentence on him").

The noble Lord said: This amendment prohibits the youth court from passing custodial sentences on young offenders who fail to complete a contract they have made with the youth referral panel. The youth court will

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retain the ability to pass any other form of sentence on such young offenders, including fines, reparation orders, supervision orders, attendance centre orders, action plan orders and community service orders.

The young people concerned will be juveniles who have appeared in court for the first time and plead guilty. Part I of the Bill requires the youth court to refer the majority of such young people to a youth referral panel. The youth panel and the young offenders will have to draw up a contract which will involve the young person in appropriate activities such as reparation of the victim or the community and in work designed to tackle the cause of offending. So far there is no dispute. If the young person does not comply with the contract, he or she will be returned to court to be sentenced for the original offence. If they complete the contract successfully, then Schedule 3, paragraph 5, of the Bill provides for the offence to be spent for the purpose of the Rehabilitation of Offenders Act 1974.

This is a fairly imaginative development which will have a number of advantages over the current youth court procedures. The panel will be better able to involve a young person and the parents fully in discussing the offence, its impact on the victims and the steps which should be taken to make amends and ensure that there is no repetition. In the more formal proceedings of the youth court, young offenders and their parents often fail to understand fully what is happening and the legal procedures can hinder the process of getting young people and parents to speak and contribute fully to the discussion.

Furthermore, in a panel setting the drawing up of a contract can concentrate on the best course of action to prevent reoffending, including attention to developing the welfare needs of the young person and his or her family. I have in mind examples such as family counselling, educational measures and help with drug abuse. While courts can use welfare-related measures--for example, a supervision order--they can do so only if the offence is regarded as sufficiently serious to warrant such a sentence. In the result, many young people appearing in the court for the first time miss out on the welfare intervention which could help steer them away from further trouble.

It is important to ensure that disproportionate sanctions are not imposed for failing to keep to a contract which has been agreed in a non-court setting. The procedure of the panel will not contain all the safeguards of due process which apply in a court setting and the contract will not be subject to the full limits of proportionality which apply in court sentences.

It does not seem right that a failure to abide by a contract, agreed in a non-court setting, should be subject to the full range of youth court penalties, including custody. That is especially so as the referring court must have decided that the original offence did not merit custody before making the referral to the panel.

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It is therefore submitted that it would be disproportionate to allow a court to impose custody for failure to abide by a contract agreed in a non-judicial setting, following a first court appearance for an offence which was judged not to deserve custody. I beg to move.

Lord Cope of Berkeley: With the greatest respect to the noble Lord, Lord Dholakia, I do not agree with Amendment No. 61. When the offender first appears in court, the magistrates have at that stage the option of sending him or her to prison, if they think that it is a very serious offence. There may be marginal cases about which the magistrates need to deliberate carefully on whether to send a defendant to prison or allow him or her to appear before a panel. If the magistrates come down on the side of sending him or her to a panel, but the panel does not work in terms of agreeing a contract or the contract is not completed, the offender will return to the court. The noble Lord set out many of the options available, but it seems to me that the court should have available to it the option that it was considering when it first dealt with the offender. The Government's wording is correct in this instance.

Amendment No. 62, which is grouped with Amendment No. 61, concerns what happens if the panel system is not successful in a particular case and the youth is returned to court. As the Bill stands, the court seems to be intended to approach the matter as if the youth offender panel had never existed and nothing had happened in that respect. In some cases, that will be quite right. However, there may also be cases where the offender, having been sent to the panel--in some cases compulsorily as far as the court is concerned or by discretion--makes life so difficult for the panel that it is impossible to agree to a contract; or where the offender lightly agrees a contract and then makes no effort to pursue it.

Young people in such circumstances can be extremely manipulative of those trying to help them as well as of those trying to punish them. They can, and sometimes do, string a panel along. In those circumstances, it seems appropriate that the court should have the power to impose an additional sentence on a young offender for wasting the time of the panel--and, indirectly, of the court--by his or her behaviour. I expect that that power would be used only in blatant cases. If there is no such power, it is likely that a panel's time will be wasted by young offenders who think of it as a soft option. Once that starts, and it is realised that there is no penalty, I believe that that practice will grow. I believe that the suggestion in Amendment No. 62 is worthy of the Committee's consideration.

4.45 p.m.

Lord Renton: I should like to add to what my noble friend Lord Cope has said. The main point is that Amendment No. 61 would fetter the discretion of the court; that is, the discretion that a court would normally have with regard to a serious offence. We must also bear in mind that only offenders who are under 18 years of age are made subject to a referral order. As they pass the age of 18, one may expect better behaviour as they mature. If young offenders have failed to co-operate

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with the body to which the referral order is made (instead of having been sentenced by the court for quite a serious offence), I do not think that they should be able to get away with that, as the amendment would allow.

Baroness Carnegy of Lour: If the Minister disagrees with Amendment No. 61, as I expect will be the case, will he tell us whether it is expected that what the court does will depend partly on the original offence, for which the offender was sent to the panel, and on the nature of the breaking of the contract, or the refusal to sign it? Are those two matters to be taken into account? I imagine that they will be, but it would be interesting to have that confirmed.

The Earl of Mar and Kellie: I support my noble friend Lord Dholakia in his Amendment No. 61. It seems reasonable to me that a child who is referred to a court by a youth offender panel should be resentenced, but without the possibility of a custodial resentence. The Minister has already said that there will be no punishment for being referred back to the court. That is unlike the response for a breach of a probation order or some other community sentence. In those circumstances, the offender is punished for the breach as well as being resentenced for the original offence.

As regards the position of no punishment for being referred back, the youth court will have had the opportunity to impose a custodial sentence when the child first appeared before it and pleaded guilty. The youth court will have decided not to impose a custodial sentence because the offence was not sufficiently serious. Therefore, I believe that the decision not to impose a custodial sentence should be carried forward to referral-back proceedings.

The merits of the limitation of the youth court's powers of resentencing will confirm the principles of restorative and rehabilitative justice and the determination not to write off a young offender who will, after all, have pleaded guilty to a first offence. Experience of working on an intensive probation project suggests to me that such schemes--I include the youth offender panels and their contracts--may require a level of maturity not always present in very young offenders. The youth court must recognise that and find another community-based sentence.

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