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Lord Carlisle of Bucklow: I support my noble friend Lord Kingsland. It seems extraordinary that in Clause 95 the Secretary of State is given the power to categorise offences in any way he wishes for the purpose of that clause. It goes on to say that the offences must be,

which invites the question: what are offences "of the same type"?

Following on from what the noble and learned Lord, Lord Cooke, said, I ask: is an offence of theft "of the same type" as an offence of robbery? Is it or is it not? The only difference is that there is an additional requirement in an offence of robbery that may not be present in an offence of theft from the person. Is theft an offence of a similar nature to an offence of burglary if the intention is to steal money? If I take money from someone's pocket, am I committing an offence of the same type as if I walk into his house and take it off a kitchen table? What do the words "same type" mean? How wide do they go?

It could be argued that many offences are of the same type if their intention is similar. In some ways, it is the intention of the person carrying out the offence that makes it an offence of a similar type to one which he may commit with the same intention but by a different means. Therefore, does it mean that if a man in his mid-40s commits on one occasion an offence of burglary, or he is charged with an offence of burglary, that the prosecution would be entitled to introduce evidence that at the age of 16 he had had a conviction for theft against him?

Baroness Scotland of Asthal: I thank the noble Lord, Lord Kingsland, for indicating that he has had quite enough of me on Clause 93. I thank him for his charity. I hope that I shall be able to clarify, to the satisfaction of the noble Lord, Lord Carlisle, how we currently see Clause 95(1)(b) and what will be included in an order.

Amendment No. 146 has been tabled as a consequence of Clause 95(1)(b), but it is important to make it clear that the paragraph does not confer

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admissibility. That is governed by Clause 93. Its sole function is to define an offence of the same category. Without this provision, it would leave an offence of the same category entirely undefined, which I know that noble Lords would find undesirable.

Clause 95(1)(b) is therefore a paving provision, as noble Lords have indicated. The intention is that the presumption created by Clause 93(1)(d) should apply to convictions for offences that are similar to the one with which the defendant is charged, as to previous convictions for the same offence.

We consider that the most straightforward way of achieving this is to make provision for categories which can be drawn up and considered in more detail in that context. By virtue of Clause 299(5), an order prescribing a category or categories of offences will be subject to the affirmative resolution procedure and therefore to active parliamentary scrutiny. We shall have an opportunity to look more specifically at these issues.

Our current view is that an offence is of the same description as another if the statement of the offence in an information or indictment would be the same. In plain language, this covers convictions for the same offence. Thus where a person is charged with theft or rape, only a conviction for those same offences would be covered by this provision.

It is worth noting that the statement of the offence in an information or indictment relates to the particular law that has been broken as opposed to the circumstances of the offence. Therefore there need not be a specific coincidence in the circumstances of the offence, although clearly the extent to which any dissimilarity affects the probative value of the evidence will need to be taken into account when assessing that probative value against its prejudicial effect under Clause 93(3). An offence is in the same category as another if they both come within a category which has been prescribed for this purpose by the Secretary of State. When we have the prescribed schedule, we shall be able, using the affirmative resolution procedure, to consider and debate what should or should not be included therein.

Lord Kingsland: I am most grateful to the noble Baroness for her clear response. I hope she will forgive me if I say that I derive little comfort from her reassurances about the affirmative procedure. As the noble Baroness will be well aware, your Lordships' House will not have the opportunity to amend the contents of a draft affirmative document. It must be either completely accepted or completely rejected; and the precedents for rejecting such documents laid before your Lordships are extremely rare.

By contrast, if the categories appeared on the face of the Bill, your Lordships' House would have the opportunity to amend the list presented. We would be, therefore, in a much more powerful position to deal with the matter during the course of the Bill than we will thereafter.

It is often the custom for the Government, while a Bill is being considered, to place before your Lordships' House a draft of some of the statutory

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instruments that they intend to make under the Bill. I should like to invite the noble Baroness to place such a draft before your Lordships' House on Report so that we can see clearly what the Government have in mind in making future rules under this subsection. I wonder whether the noble Baroness wishes to respond to that suggestion?

Baroness Scotland of Asthal: I wished to make sure that my initial reaction would accord with my instructions. I am happy to say that it does. Noble Lords will understand that time may be short, but we shall use our best endeavours to meet the noble Lord's request.

Lord Kingsland: I greatly appreciate the helpfulness of the noble Baroness in this respect. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 95 agreed to.

Clauses 96 to 100 agreed to.

2.15 p.m.

Clause 101 [Offences committed by defendant when a child]:

Baroness Seccombe moved Amendment No. 146A:

    Page 65, line 47, at end insert "in the following circumstances, namely—

(a) the prosecution can show continuous or persistent commission of similar offences by the defendant since the time that he first committed them, or
(b) the defence has introduced evidence of the defendant's experiences before the age of 14"

The noble Baroness said: The amendment relates to Clause 101, which is entitled:

    "Offences committed by a defendant when a child".

It repeals Sections 16(2) and (3) of the Children and Young Persons Act 1963. Subsections (2) and (3) concern offences committed by children and ensure that over-21 year-olds do not have convictions from when they were under 14 years of age brought up in later trials.

I believe that the clause as it stands would place an unfair burden on those who may have made mistakes in the past. Fourteen years old and under is a very young age to commit an offence on which you can be judged into adulthood. There are many reasons why juveniles commit crimes at such an early age: a bad home life, having fallen in with the wrong crowd or simply not having been taught any better and thus not developing the rational and more normal behaviour which comes with age and experience.

We have heard arguments regarding why it is not desirable for a jury to hear about former convictions, given the prejudice that a criminal record can bring, and I feel that these provisions are particularly hard. On hearing of a previous conviction, a jury is likely to attach more weight than it should to a criminal record and may convict on that evidence alone, especially when the current crime is the same or of a similar nature.

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This amendment would ensure fairness by narrowing the instances in which evidence of a criminal record can be adduced to two specific categories. The first category is that only those who continually commit crimes throughout their youth would have their record put before the jury. It would exclude those who made one mistake and learnt their lesson. I believe strongly that they should not have to continue to be punished by reference to something in their past.

All noble Lords in the Chamber were 14 years old at one time. I am sure that we can recall our own misdemeanours, along with those of others. Furthermore, most of us have been fortunate enough to be parents and live in fear and trepidation that our children may not stick to the straight and narrow. This provision creates an intolerable burden for a young person who may grow up to be a very responsible citizen. It will haunt them all their life.

The second category is if the defence has introduced evidence of the defendant's experiences before the age of 14. This would create a similar category to the current law on similar fact evidence, where a defendant adduces evidence of his good behaviour and thus loses his "shield" to past convictions.

I feel very strongly about this. The wide drafting of Clause 101 will cause grave injustice if it is passed unamended. I beg to move.

Baroness Walmsley: I rise to oppose the Question that Clause 101 stand part of the Bill. I am encouraged in doing so by the Children's Society, Barnardo's, NCH, NCB, NAYJ, Liberty and NACRO, all of which are urging the Government to reconsider these proposals on the basis that they are likely to have a damaging effect on children and young people.

The current situation is such that the law makes a special provision restricting the admissibility of evidence for crimes committed during childhood if a person is charged with offences in adulthood. We want to see those special provisions retained.

I have four major areas of concern. My first concern is about the proposal to widen the type of activity that can be admitted to the court. The admissibility of evidence of a defendant's previous convictions is currently restricted, but provisions in other clauses seek to widen that admissibility. With its wide definition of "bad character" in Clause 90, the Bill goes further than previous convictions to include previous allegations, acquittals and general behaviour, the kind of things that the noble Baroness, Lady Seccombe, so eloquently described.

The wider range of circumstances would lead to the court's consideration of the defendant's inclination to commit crime rather than evidence that he or she has actually committed the specific crime of which he or she is accused. Surely the purpose of a trial is to determine whether a particular defendant committed a particular crime, and not to make general judgments about the defendant's previous behaviour.

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My second concern is that neither the White Paper, Justice for All, nor the Law Commission's 2001 report, Evidence of Bad Character in Criminal Proceedings, nor the Auld report, made any specific reference to the effects on young people, nor identified particular problems with the current situation in relation to offences committed before the age of 14. Consequently there has been no meaningful consultation in this area.

The Children and Young Persons Act 1963 established an exception to the admissibility of evidence rules contained within the Criminal Evidence Act in recognition of the particular circumstances and experiences of children in relation to the rule of doli incapax. Under this principle, children between the ages of 10 and 13 were presumed to be incapable of criminal intent, and this presumption had to be rebutted by the prosecution before they could be convicted.

The Government's rationale for making a change in this area is not clear. I therefore particularly question the inclusion of offences committed as a child into the proposed scheme. Current criminal justice legislation in this area makes the distinction between the definition of a "child", defined as a person under 14, and a "young person" as between the ages of 14 and 18. While I would in no way want to endorse this distinction as I remain committed to the definition of a child as under the age of 18 within both the Children Act 1989 and the UN Convention on the Rights of the Child, it is difficult to understand why the Government seek to remove this distinction through Clause 101.

My third concern is about the relevance of offences committed as a child to criminal proceedings for offences over the age of 21. It is questionable whether any of us would consider it reasonable or relevant to be held to account for actions and behaviours during childhood after a potential gap of up to 11 years. Surely we could consider that a person may very well have changed during that time into someone almost unrecognisable from the little tearaway of 11 years old.

My final concern is about rehabilitation and policy consistency. The Government's proposals are particularly puzzling in the light of the recent Home Office report, Breaking the Circle: A Report of the Review of the Rehabilitation of Offenders Act (July 2002). The report contains a proposal for a "clean sheet" at 18 in respect of disclosures to employers for all but the most sensitive posts. In recognition of the particular vulnerability of young offenders, the review also considered whether a similar framework should be applied in respect of the admissibility of those previous convictions in court. The report concludes a preference for the current reliance on the general rules of relevance and the provisions of the 1963 Act. However, the Bill proposes to overturn the current situation on which the recommendations in the report were based and is potentially introducing contradictory policy in this area. This is extraordinary strabismus. The Government are looking both ways at once.

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To summarise our objections to the clause, the important legal safeguard of the principle of doli incapax has been eroded by Section 34 of the Crime and Disorder Act 1998 so that a 10 year-old child is now presumed to be as criminally responsible as a fully mature adult, a situation that would shock many of our European neighbours. The further erosion through the Bill of any safeguards for children and young people in relation to a recognition of their age and capacity for change and development, coupled with the widening of the definition of "bad character" and the circumstances in which evidence is admissible in court, is both significant and very alarming. I urge the Government to reconsider their proposals both in respect of allowing young people to move on in their lives and an assessment of the continued relevance of their behaviour at a very young age to their future position in society.

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