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The Earl of Mar and Kellie: My Lords, my noble friend Lord Dholakia tabled an amendment which will add a tiny discretion to the referral order process. That discretion--to discharge the case conditionally as well as absolutely--will enable the magistrates to deal effectively and appropriately with very minor offenders. In so doing, it will avoid clogging the youth offender panel system with young offenders--perhaps I really mean young people--who have a non-existent degree of criminality.

Should the magistrates' assessment be wrong about the degree of criminality that is or is not developing in the young person, the referral order is still available should a second offence occur. I support my noble friend's amendment.

Lord Campbell of Alloway: My Lords, there is a world of difference and a fundamental distinction between discretion to make or not to make the order which is the subject matter of the next amendment, Amendment No. 2, and the discretion with which this amendment, Amendment No. 1, is concerned as to whether to make an absolute or a conditional discharge. The problem with the type of distinction concerned with the subject matter of Amendment No. 1 is that there is an inherent element of contradiction. Indeed, it is the type of amendment which could, in effect, from a practical point of view, damage the working of the experiment which, on its merits, is wholly supported.

Baroness Carnegy of Lour: My Lords, I listened carefully to the noble Lord, Lord Dholakia, as he moved his amendment. It was most interesting. Can the Minister tell the House, for the benefit of people like myself, what kind of conditions might be attached to a conditional discharge in these circumstances so that we can see to what extent the amendment would affect the issue?

Viscount Tenby: My Lords, I congratulate the noble Lord, Lord Dholakia, on the ingenuity of his amendment which, to some extent, also embraces the following amendment which stands in the name of, among others, the noble Lord, Lord Windlesham.

On the subject of absolute and conditional discharges, speaking from my own experience as a magistrate, perhaps I may point out that absolute discharges are rare whereas conditional discharges are given every day of the week and have a useful purpose in tying in the offender to a period of behaviour of, say, 12 months or even two years in some cases.

We must be careful with regard to youth offender panels because they will be committing youngsters who have committed and pleaded guilty to a first offence which is not very serious in nature. I am thinking of criminal damage, such as graffiti and painting on walls or something of that kind. If, as

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one will have to do under the terms of the Bill, one has to commit such an offender to a youth panel with its associated headmasters, criminal psychologists, magistrates and everybody else, that will take quite some time just when we are trying to fast-track the time between the commission of a crime and the execution of its sentence. At the moment, such a person would appear before a youth court and would probably be given a reparation order. That would take about 10 minutes as opposed to the three weeks of the protracted process involving the youth panel.

However, having said that--I come now to why I find the amendment in the name of the noble Lord, Lord Windlesham, so difficult and why I have a great deal of angst about it--Amendment No. 2 would drive a coach and horses through the Crown jewel (if I may mix my metaphors) of this Bill, which is the establishment of youth offender panels. Therefore, I take a certain position on that amendment which I shall relate to the House when we reach it.

With regard to the gallant attempt of the noble Lord, Lord Dholakia, to try to circumvent that, I am not really sure whether confining this amendment to absolute and conditional discharges would entirely do the job that the noble Lord wants it to do.

Lord Cope of Berkeley: My Lords, I too sympathise with the ingenious amendment tabled by the noble Lord, Lord Dholakia, in its extension of the discretion of magistrates. However, my own view, on which I shall expand a little later, is that it is not as satisfactory as the more complete extension of discretion which is represented by Amendment No. 2 in the next grouping.

The Minister of State, Home Office (Lord Williams of Mostyn): My Lords, the noble Baroness, Lady Carnegy of Lour, asked me to answer a specific point and I am happy to deal with that immediately. A conditional discharge is simply a discharge which is given to an offender on a plea of guilty or a finding of guilt; the condition being one of not reoffending during the period of the discharge. As the noble Viscount, Lord Tenby, indicated, they often run for one year and sometimes for two years, but the requirement not to reoffend is the only condition. If the offender reoffends within the period of the discharge period, he or she is taken back to court and may be dealt with for the original offence. In that sense, perhaps the term "conditional discharge" is capable of being misleading. A conditional discharge is as simple as I have described it.

I am grateful, as always, for the careful, patient and, indeed, seductive way in which the noble Lord, Lord Dholakia, moved his amendment. I have said on several occasions that the introduction of referral orders and youth offender panels is intended to be a fundamental shift in the way in which we deal with young, first-time offenders. I entirely agree with the description given by the noble Viscount, Lord Tenby. This is not intended to be another sentencing option. It is a deliberate policy decision that, where the referral conditions are met, no other disposal should be available to the court.

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The exceptions are those which the noble Lord indicated. One envisages that the more common exceptions would be an absolute discharge or a custodial sentence. An absolute discharge may well be appropriate where there is technical guilt but perhaps the absence of any significant fault. A custodial sentence must remain available for those where the offence is sufficiently serious and/or there is a need to protect the public. We believe that there are strong and persuasive reasons for allowing the court that discretion in those circumstances.

We do not believe that there is a compelling argument to include conditional discharges. The problem with conditional discharges--this is why I am so grateful to have the opportunity to reply to the noble Baroness--is that they often give the impression to both the public and the offender that the offending behaviour is of no real consequence. A referral order is designed, and is intended, to be a proactive intervention--a conditional discharge is not that--which focuses on the needs of the young person in diverting him or her from further offending.

An interesting aspect of a referral order and its consequences is that it is internally flexible. That is the key to it. Therefore, as a very wide variety of circumstances will lead to such an order being made, those who devise the contract can approach the matter flexibly and focus on the offender. In other words, following an appropriate and wide-ranging inquiry, they will devise a contract which will assist the offender not to reoffend. I think that that is the policy difference between the noble Lord, Lord Dholakia, and I. We have discussed this matter on a number of occasions and I am bound to say that I remain unconvinced. If the noble Lord wishes to press his amendment, I invite your Lordships not to assent to it for the reasons that I have briefly given.

Lord Dholakia: My Lords, I thank the Minister for his response to the amendment which I tabled partly as a result of a meeting that I attended recently of the All-Party Group on Penal Affairs. The extent to which we tend to put mandatory provisions in our legislation is a matter of serious concern. Therefore, I am not in the least surprised by that response. I hope that the noble Lord, Lord Windlesham, will forgive me for saying that if this is the stance that the Minister is going to take on other amendments, we shall not get much further with this. We should seriously consider whether, as a matter of natural justice, we ought not to forget that from time to time discretion can play a very important part. When those discretions are limited, or to an extent controlled, then it will give justice a bad name.

I have heard everything. I shall certainly keep an eye on this matter and table Questions over time as to how the provision is working. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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3.30 p.m.

Lord Windlesham moved Amendment No. 2:

Page 1, line 21, leave out from ("court") to ("to") and insert ("may order the offender").

The noble Lord said: My Lords, two weeks ago, in replying to a lengthy and important debate at Report stage about restrictions on evidence in rape trials, the noble Lord, Lord Williams of Mostyn, remarked on the absence of unanimity on the part of the movers, both as to the nature of the problem addressed and the proposed solution. In contrast, Amendments Nos. 2, 3 and 4 have a transparent simplicity and directness; indeed, they go to the heart of the criminal process and the principles which uphold it.

The amendments would have the effect of conferring on a magistrates' court a discretionary power to refer to a youth offender panel young first offenders under the age of 18 who do not deserve a custodial sentence. The policy of diverting suitable young offenders away from custody has been, for many years, a Holy Grail of the penal system. It is easy to proclaim, but it is very difficult to achieve in practice. The referral orders in Clause 1 of the Bill are a novel form of sentence designed to provide an opportunity for a young person, accompanied by his or her parents whenever possible, or other representatives, to review their offending behaviour with the help of a professionally qualified panel. An agreement or "contract", in the wording of Clause 8 will then be sought with the offender, containing a number of provisions designed to prevent further offending.

All of that is well thought out and offers some hope of preventing a repetitive cycle of offending. It is inevitable that there will be disappointments--perhaps many disappointments--but there should also be successes. So, in short, it is an experiment, and one that is well worth pursuing. I emphasise to your Lordships that nothing in this amendment is intended to contest the policy objectives of keeping as many selected young people as possible out of custody, which we know in many cases is more likely to harden their criminality rather than reduce it. I am confident that these objectives are widely accepted in the House; indeed, in the previous debate the noble Viscount, Lord Tenby, referred to these proposals as the "Crown jewels" of this part of the Bill.

There is therefore only one matter which divides noble Lords who support this group of amendments and the Government who I anticipate will not. It does not relate to the merits of the proposed new disposal in any way. It relates to the central question of whether it should be a mandatory or discretionary decision by the magistrates' courts.

The arguments against mandatory sentencing are well known and will need to be repeated often if the gradual slide down the slippery slope of the past few years is to be resisted. Mandatory sentencing is one of the most fundamental changes of direction in criminal policy for a long time; and it is of the greatest importance. It should be on the facts of each case and the characteristics of the individual offender

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before the court that magistrates, like judges, decide on the type and severity of the disposal at the conclusion of a trial. The fact that a referral order differs from a sentence in a conventional sense does not alter its nature as a compulsory disposal. As the Bill is drafted, no discretion is left with the magistrates. According to Clause 1(2)(b) they must,

    "sentence the offender for the offence by ordering him to be referred to a youth offender panel".
This amendment would alter the wording to read, "the court may order the offender to be referred to a panel". Such a simple amendment would render unnecessary the dense thicket of Clause 2, which then goes on to define which young offenders will be eligible for compulsory referrals and which would not.

In that regard the draftsman has had to invent a new sub-category to get around an awkward corner. Under the Bill, compulsory referral follows if an offender, who has never previously been convicted of a criminal offence or been bound over to keep the peace or be of good behaviour, pleads guilty to the offence and any associated offences. But what happens if he is inconsiderate enough to plead guilty to one offence but not to others? Is he or she then eligible for referral or not? That is the sort of thing which causes the computer to crash. The draftsman avoided such an outcome by saying, in elaborate language, that in such circumstances, but only in those circumstances, the court had better have some discretion after all to decide whether or not it would be appropriate to make a referral order. But that is confined narrowly to the question of eligibility where a young person has pleaded guilty to one offence, but not to some other offences. This is an example of how a blanket provision, allowing only for minutely prescribed statutory exceptions, leaves no power in the hands of the magistrates' court to use its own judgment, or its common sense, in deciding whether or not a young person is suitable for this promising new disposal.

I conclude with this observation. There is a tendency of which many of us in this House are aware--it is to be seen in the recent Crime and Disorder Act as well--for the Government, having worked so diligently and thoroughly in developing imaginative new policies on criminal justice, to insist that every provision should be implemented in one specific way. Such a desire for total control is not necessary; indeed, it is potentially dangerous. It introduces undesirable rigidity into the administration of justice. It diminishes the responsibility of sentencers and sooner or later it is inevitable that some hard cases will result. Why is that? Because human behaviour will fail to fit into a predetermined pattern. I beg to move.

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