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Lord Lane: My Lords, the sad fact is that the mandatory sentence or mandatory disposal order will inevitably be a potential miscarriage of justice. The sentencing court has the difficult task of trying to reconcile all kinds of apparently irreconcilable matters. It has to determine questions of deterrence, questions of retribution, questions of punishment, questions of rehabilitation and so on. Having thought all those things out, together with the situation of the victim and the situation of the offender, the magistrate or court sentencing comes to a conclusion as to what is just and what is fair; solution "X". Then, notionally, they turn to the statute book to see whether they are allowed by statute to do what they want to; namely, sentence "X". If the statute says "yes" then, fair enough, there is no need to have the mandatory order. If, on the other hand, they are prevented from doing what they consider to be just and fair by the terms of the mandatory sentence, they are then bound to do something which is unjust or unfair. That is not a situation into which any court--a magistrates' court or otherwise--should, respectfully, be put.

It may be that this is a very small example of the mandatory sentence, but, as has already been stated, it is unfortunately an indication of the way things are going. One hoped from what one had heard when the present Government were in opposition that perhaps mandatory sentences would disappear altogether--as indeed they should--but, no, matters have become steadily worse and this is an indication of a further slide, as has been described, down the slope. I suggest, respectfully, that this amendment should be supported.

Lord Renton: My Lords, I firmly support the amendment moved by my noble friend Lord Windlesham. The main issue that arises of course, as he said and as others have said, is whether there should be a mandatory power on the part of the court to refer a case to a youth panel. I would add only one thought. The noble and learned Lord, Lord Lane, with all his experience as Lord Chief Justice, my noble friend Lord Carlisle of Bucklow and all noble Lords who have judicial experience, whether current or in the past, know that the circumstances vary, that the unexpected always arises and that ever to fetter the discretion of the court is a mistake. The court is there, it sees the accused and hears all the circumstances. For Parliament to fetter the discretion of the court would lead, occasionally, to an injustice. I therefore warmly support the amendment for that main reason.

There is another issue--a less important one, I grant your Lordships--and it is this: what is a sentence? The Government have put forward the concept that if a court instead of imposing custody, a fine, a bind over, or an absolute discharge, refers the matter to a youth panel. In the wording of the Bill that is a

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sentence. I strongly suggest that this is not what a sentence is. I think, therefore, that, purely from the drafting point of view, these amendments also should be supported.

Viscount Tenby: My Lords, I always thought that this amendment would give me a certain amount of angst and I have had it by the bucketful following the lucid and very fair introduction of his amendment by the noble Lord, Lord Windlesham. I also appreciate that I would get into trouble with my own association, a point that has been confirmed by the noble Lord, Lord Carlisle of Bucklow. However, I suppose I must press on as best I can.

At an early stage of the Bill, when I discussed the fact that this clause related only to those young offenders who had pleaded guilty to a first offence, the Minister--I hope I am right in this; I have not checked it--was honest enough to say, "Well, yes, at a future time that quite rigid class could be extended by order". In other words, one could get a situation where the ground is being cut from underneath the legally and judicially appointed juvenile court and magistrates' Bench and taken over by what I can only describe, in a certain context, as a non-judicial body; that is, the youth panel. That does present difficulties.

However, I have to come back to my one very big reservation. I am not entirely sure that the moment one gives this discretion magistrates will not be tempted to hang on to the cases all the time, a point made by the noble Baroness, Lady Carnegy of Lour. That is the big problem. I think that the whole concept of this youth panel treatment of offenders is so important that I am not sure that I am prepared to take that risk.

Lord Campbell of Alloway: My Lords, I spoke at some length during the previous stages of the Bill and I think the noble Lord, Lord Williams of Mostyn, and I came to a gentlemen's agreement that we had heard enough of what we had to hear from each other and the only sensible thing to do, where there was a position of amicable disagreement as a matter of principle, was to take this matter to the opinion of the House. Today, I should like to try to persuade the noble Viscount, Lord Tenby, that his fear that the amendment could drive, I think he said, a carriage and four or a coach and horses through the Bill is, with the greatest respect to him, misconceived.

Those of us who support this amendment believe that the experiment is a very good one and is well worth having. All we wish to do is to improve the way in which it is administered to the individual young offender. In view of the way that this proposal was put by the noble and learned Lord, Lord Lane, I hope that the noble Viscount can see, from the view of a former Lord Chief Justice, that we are not driving a carriage and four through this provision; we are seeking to improve the way in which it is applied in practice.

The only other matter is to seek respectfully to answer the concern of my noble friend Lady Carnegy. Naturally--I say this without a hint of patronage or

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any offence--not being intimately concerned with the theory or practice of crime and punishment, my noble friend is concerned with the deterrent effect of an automatic sentence. "They will know", she says, "these young people, that if they do this, this is what will happen to them".

Even as a Recorder, which is a fairly unimportant form of judicial office compared with that of the Lord Chief Justice, one had to be very careful about deterrent sentences. For all kinds of reasons they do not work in practice, even if one has a discretion to impose them. But where they are automatic, they are as dangerous as dynamite. They can impose manifest injustice. For that reason I hope that my noble friend can, on the merits of the argument that she has heard today, take the view that she could conscientiously support this amendment as seeking to improve what is a first-rate and necessary experiment. The inevitable possibility of error is a deprivation of due justice. That element will persist unless the amendment is accepted. No reasoned argument has been advanced in favour of a mandatory regime, other than by my noble friend Lady Carnegy, as affording any practical advantage over a discretionary regime.

There is no reason to suppose that magistrates, justices of the peace, are either incompetent or incapable of exercising their discretion in the proper manner. Is it not wrong in principle for the Government to interfere with the exercise of judicial discretion in any context? The Bill, for no good reason, derogates from that principle without any convincing justification whatever. I have not heard any such justification yet from the noble Lord, Lord Williams of Mostyn; perhaps we shall hear it today. It is said that the proposal is an experiment. That will not do. It is said by the noble Viscount that the amendment would drive a coach and horses through the provision. With respect, that will not do. It has been shown that the working of the experiment would be enhanced if the amendment were accepted. It is a wholly novel and unnecessary imposition to have a mandatory sentence for the reasons that have been given. I commend this amendment, to which I have put my name.

4 p.m.

Lord Warner: My Lords, perhaps I may remind noble Lords of the context of these clauses relating to youth offender panels. I suggest that this set of clauses represents unfinished business from the Crime and Disorder Act. The Crime and Disorder Act provided a new principal aim for all those working in the area of youth justice; namely, to prevent offending. That is no less an aim for those working in the youth courts than it is for those working in youth offending teams or juvenile secure facilities. It means that we are introducing a concept of effectiveness of sentence, as well as the elements of justice and fairness.

These provisions are an attempt to introduce the concept that we want a break with the past. We ought to be concerned about the point raised by the noble Viscount, Lord Tenby; namely, whether magistrates

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will be tempted to hang onto cases rather than make that break with the past and refer people who meet the referral order conditions to youth offender panels. I suggest that we should have to be heroically optimistic about human nature if we did not believe that magistrates would be tempted to hang on to cases rather than make those referrals.

Clause 2 of the Bill already includes a considerable number of conditions which must be met before a case is referred to a youth offender panel. Magistrates will already have to exercise their discretion and judgment in applying those conditions to particular cases. I suggest that that is adequate provision for judicial discretion, and that we are seeking to give life and intent to the principal aim in the Crime and Disorder Act of preventing offending. If we were to accept this amendment, we should be weakening the break with the past that these clauses seek to achieve. We should be wise to resist this amendment.

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