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Baroness Strange: My Lords, my noble friend has already spoken on behalf of the Cross-Benches. I am far

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too new on these Benches to be able to speak on their behalf although I suspect that I do and, indeed, on behalf of the whole House, in saying how enormously grateful we are to the noble Baroness for the very warm and sympathetic way she has handled this horrible question. We ask her to extend to the families of all the victims, if she can, our warm, loving thoughts and prayers at this horrible time.

Baroness Symons of Vernham Dean: My Lords, I do not suppose there is anything that can compensate for the loss of a family member. If anything could, then I am sure that the kind words of the noble Baroness are of comfort to them.

Lord Rowallan: My Lords, does the Minister believe that we are now in the midst of a move by rebel terrorists to kidnapping whereas 10 years ago skyjacking was their usual tactic? Kidnapping now seems to be happening more and more all over the world. Can the Minister say whether it is a general trend and, if so, what the Foreign Office is doing about it?

Baroness Symons of Vernham Dean: My Lords, I caution the House against rushing to any conclusion. The noble Lord is obviously summarising some of the more terrible incidents which have involved not only British tourists but others from the United States, Canada, New Zealand and many other countries. My right honourable friend suggested in another place today that the Foreign Office should now take forward the suggestion made some while ago that we look at the possibility of consultations with experts on the subject of kidnapping. It is a very worrying development. I suspect that there has always been a certain degree of kidnapping taking place in the world. But the motivation for such kidnapping, moving from perhaps the straightforward financial aspect to political motivation, which we have seen demonstrated in some recent instances, is a very worrying development. I do not wish to commit my right honourable friend except to say that I believe the points raised by the noble Lord are worthy of further consideration. If we feel that we need further expert advice I assure the noble Lord that we shall take the appropriate steps.

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

4.35 p.m.

Report received.

Clause 1 [Referral of young offenders to youth offender panels]:

Lord Cope of Berkeley moved Amendment No. 1:

Page 1, line 13, after ("sentence") insert ("or a sentence of electronic tagging").

The noble Lord said: My Lords, I hope it will be obvious from the drafting of the amendment that it is intended to leave the court the option to pass a sentence involving electronic tagging on an offender even though it is for a first offence or in the other circumstances

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outlined in the Bill. At the moment the court can pass a custodial sentence for the offence or it can dismiss it. However, in some cases the matter is compulsorily referred to one of the new offender panels.

When we discussed this matter in Committee the Government rejected the idea that electronic tagging might be used by the youth offender panel as part of its monitoring process in making sure that the young offender concerned carries out the terms of the contract. Therefore, if youth offender panels are unable to use that device it should remain open to the court in the first instance before the matter is sent to the panel. I still marginally prefer the idea that the panel should have the option of tagging available, but at the same time I recognise that the Minister had a valid point in saying that it was a restriction of liberty and therefore should be confined to the court rather than be given to a panel of that nature.

It is true that the restrictions which can be placed on an offender by a panel through the contract can include the restriction of liberty at least in the negative sense. So the position is not quite so black and white. For the purposes of this amendment I have accepted that electronic tagging is not available to the panel. Therefore, it seems to me that in appropriate cases, when the law otherwise provides for it, it should be available to the court in the first instance. I beg to move.

The Earl of Mar and Kellie: My Lords, I am surprised that the noble Lord, Lord Cope, has returned to this subject. Electronic tagging is a form of limited house arrest. It has the drawback of not having counselling built into it. In fact, the only contact would be with the monitoring staff of the company which supplies the electronic tagging. I agree that electronic tagging is an alternative to custody, but in that regard when a child is held in custody he or she is certainly going to be surrounded by adults skilled in discussing their future with them. Electronic tagging does not have that effect. In any case, I regard it as unsuitable for first offenders. I wonder why the noble Lord, Lord Cope of Berkeley, is trying to extend the list of exemptions from the wisely few compulsory referral conditions.

Lord Windlesham: My Lords, at earlier stages of the Bill I spoke in support of the referral of young offenders under the age of 18 to youth offender panels. It is a policy that has been widely welcomed both inside and outside this House as a constructive alternative to custody or to other disposals that are currently available to magistrates' courts. But how will the proposed new arrangement work in practice?

During the first day of consideration in Committee, again at the initiative of my noble friend Lord Cope of Berkeley, there was some discussion about the compulsory nature of the referral order which would bring the case before the youth offender panel; that is, the panel to be set up by local youth offending teams.

If we examine the first two clauses of the Bill, as I have done with some care, we see that the drafting is elaborate and not at all easy to follow. Why is that? It is because, providing certain conditions are fulfilled, the

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making of an order is to be mandatory. As a result, many of the conditions are in effect exclusionary. Clause 1(1)(a) states:

    "neither the offence nor any associated offence is one for which the sentence is fixed by law".
I shall return to that shortly. If it is such an offence, the young offender is excluded from eligibility for an order. Clause 1(1)(b) states that if the court is proposing to impose a custodial sentence or make a hospital order, the young offender is excluded. The amendment of my noble friend Lord Cope would add a third disposal; namely, a sentence of electronic tagging. We have just heard some well-argued criticism that to do so would add just one more to the existing list, and there may be something in that argument. Clause 1(1)(c) states that the court must not be considering an absolute discharge.

Providing that each of those conditions is satisfied, we then move on, as the magistrates' courts will need to do, to Clause 2. That sets out a second list of requirements to activate a compulsory referral. A young person must have,

    "pleaded guilty to the offence and to any associated offence".
He must have had no previous convictions, nor have been bound over to keep the peace or to be of good behaviour. Why is all this necessary? It is necessary because the making of the order is not to be left to the discretion of the court.

In Committee, the noble Lord, Lord Williams of Mostyn, argued, when challenged by my noble friend Lord Campbell of Alloway, that the new order was not a sentence. The Minister said:

    "What makes the new referral order different from the ordinary sentence disposition is that its purpose is not a sentence (full stop)".
I pause there. Whether the noble Lord said "full stop" or whether it is a typographical error inserted by Hansard I do not know, but that is what appears in the printed record. He went on:

    "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".--[Official Report, 18/1/99; col. 375.]

How does that eloquent reply relate to the wording in the Bill? If we turn to Clause 1(2)(b) we find that if the conditions stated in the earlier sub-paragraphs are satisfied,

    "the court shall sentence the offender for the offence by ordering him to be referred to a youth offender panel".
Such action may or may not trigger the subsequent series of events to which the noble Lord referred. However, the wording in what will become the statute, unless it is changed between now and the Bill becoming law, is that "the court shall sentence". If it was intended that the court should make an order, the wording could have been that the court "shall make an order", or simply that the court "should order" the offender to be referred to a youth offender panel.

I hope I am not making too much of a meal of this matter by attaching some broader reflections to the narrower amendment moved by my noble friend

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Lord Cope. I do so because there is a dangerous trend in criminal policy at present--the most dangerous of all trends in my opinion--towards mandatory sentencing.

For many years, the only sentence fixed by law, which is referred to as one of the conditions precedent in Clause 1(1)(a), was the mandatory sentence of life imprisonment on conviction for murder. But that is no longer the case. As noble Lords will be aware, the Crime (Sentences) Act 1997 authorised three new categories of criminal offence which would attract mandatory sentences: repeat offences of violence, for which there is a mandatory sentence of life imprisonment on second convictions; serious drug offences, for which, on third conviction, there is a mandatory sentence of seven years; and repeat offences of domestic burglary for which there is a mandatory sentence of three years on third conviction. The first two were implemented shortly after the general election in 1997, but the third, the mandatory sentence for repeat domestic burglaries was not brought into force. Many people inside and outside the Prison Service believed that it never would be implemented and that the new Government were understandably being cautious in considering repeal. That is now not going to happen. Totally unexpectedly, in January this year, it was announced that a mandatory sentence for repeat offences of burglary would be implemented, and we await a commencement order to that effect before long.

My reason for speaking at some length on this issue is that I am convinced, and I am not alone in this, that mandatory sentencing is fundamentally wrong. I should be very reluctant to see any extension, although it may seem a trivial matter in the context of this Bill on the treatment of young offenders. Any extension of mandatory sentencing has to be scrutinised in a wider context.

4.45 p.m.

Lord Renton: My Lords, we are indebted to my noble friend Lord Windlesham for his rather full but very relevant comments on the use of the word "sentence" in Clause 1. One asks oneself: when is a sentence not a sentence? It is when the court has not been required to decide the ultimate fate so far as treatment for a criminal act by the offender is concerned. Although my noble friend's comments go well beyond the scope of the amendment, they refer to a matter which should be put right and which could be put right at Third Reading. I hope that the noble Lord, Lord Williams of Mostyn, will bear that possibility in mind.

Having mentioned the noble Lord, perhaps I may express my thanks and say how impressed I am by the lengthy letters he has sent to noble Lords about various matters which were raised at an earlier stage of the Bill and which he promised to consider.

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