Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Dholakia moved Amendment No. 203:

"(5) This section shall not come into effect before the national roll-out of the "custody plus order" under sections 163 and 164."

On Question, amendment agreed to.

Clause 138 [Pre-sentence reports and other requirements]:

Baroness Scotland of Asthal moved Amendment No. 203A:

    Page 83, line 12, leave out from "18" to first "the" in line 14.

The noble Baroness said: My Lords, Amendments Nos. 203A and 204 were tabled as a result of issues that arose in Committee. The noble Lord, Lord Dholakia, and the noble Baroness, Lady Walmsley, rightly pointed out that for cases where a community sentence or custody is being considered the court needs to see pre-sentence reports where the offence is summary or either way but not where it is indictable. We agreed that the issue needed further consideration and that we would return to it on Report. On that assurance the amendment was withdrawn.

The current provisions detailing when the courts are required to request and consider a pre-sentence report are contained in Sections 36 and 81 of the Powers of Criminal Courts (Sentencing) Act 2000. Those in turn are a consolidation of provisions in the Criminal Justice Act 1991.

5 Nov 2003 : Column 830

We believe that the original assumption was that the more senior courts—the Crown Courts—would naturally ask for pre-sentence reports, and that legislation focused on other cases because that was where practice needed to change. Having consulted the Department for Constitutional Affairs, the Youth Justice Board and the Crown Prosecution Service, we think it more logical to have the same statutory requirement for what are by definition the most serious juvenile cases. In practice most of those cases, whether in the Crown Court or the youth court, are already subject to pre-sentence report.

Nevertheless, we want to avoid any situation in which a pre-sentencing report could be denied to a young person facing the more serious indictable offences. Arguably, it is those cases that most need the input of a pre-sentence report with an offence analysis, an offender assessment, assessment of risk to the community and details of available options for sentence. In addition, the legislation allows courts to use a previous pre-sentence report where one exists, which gives some reasonable flexibility in situations where there are practical difficulties in obtaining a report or where a recent report is available and the youth offending team can confirm that the information is still accurate.

Given those considerations we propose that, where a juvenile is charged with an indictable-only offence and faces a custodial or community order, the court should be required to request and consider a pre-sentence report. Amendment No. 204, tabled by the noble Lord, Lord Dholakia, and the noble Baroness, Lady Walmsley, proposes that an Appeal Court should be required to request and consider a pre-sentence report in indictable-only juvenile cases if the lower court has not done so. I have added my name to that amendment and am very happy to accept it. On this occasion, I hope that I will in short measure get noble Lords' assent. I beg to move.

On Question, amendment agreed to.

Baroness Walmsley moved Amendment No. 204:

    Page 83, line 33, leave out from "18" to first "the" in line 35.

The noble Baroness said: My Lords, we are most grateful to the Minister for accepting our amendment, and for her related amendment that has just been agreed to. This is an example of the Government having listened, and it is a tribute to the eloquence and clarity with which my noble friend Lord Dholakia put our concerns in Committee. I pay tribute to him for that. I beg to move.

On Question, amendment agreed to.

Clause 139 [Additional requirements in case of mentally disordered offender]:

Baroness Anelay of St Johns moved Amendment No. 205:

    Page 83, line 42, leave out "Subject to subsection (2),"

The noble Baroness said: My Lords, in moving the amendment I shall speak also to Amendments Nos. 206, 207 and 208. All the amendments stand in my name and that of my noble friend Lord Kingsland.

5 Nov 2003 : Column 831

The amendments return to an issue debated in Committee on 8th October, as reported in col. 300 of Hansard. Clause 139 deals with the requirement to obtain a pre-sentence medical report before passing a custodial sentence in cases where the offender is, or appears to be, mentally disordered. The combined effect of subsections (1) and (2) is that the court is required to obtain such a report unless it,

    "is of the opinion that it is unnecessary".

In Committee, I pointed out that it would be difficult to think of circumstances in which the court ought not to consider a medical report before passing a custodial sentence on such a person. In that, I received support from around the Committee.

The noble Baroness, Lady Scotland, resisted my amendment by saying that the court might already have a medical report before it, perhaps because it had already remanded the offender to hospital for treatment under Section 36 of the Mental Health Act 1983. Her view was that in such a case,

    "it would be a waste of time and resources of the court and of the medical practitioner to produce and consider a further report which would add nothing to the information before the court . . . In those circumstances, it would be open to the court to say, 'We don't need to order another report because we already have available to us an appropriate report'".—[Official Report, 8/10/03; col. 302.]

As was pointed out by the noble Lord, Lord Carlile of Berriew, that narrow exception may be what the Government intend to address in subsection (2), but the Bill grants a much broader power to the courts to sentence mentally disordered offenders to custody without a medical report if the court's view is that such a report is "unnecessary". That could be for any number of reasons and not just the reason given by the Minister in Committee. The noble Lord, Lord Carlile of Berriew, was particularly concerned about a medical report not being obtained at all due to constraints on resources, a concern that I echoed then and do again today.

My amendments should of course be read together, as they are a package. They address the concerns expressed from this side of the Committee and the point made by the Government. The combined effect would be to place, under subsection (1), an absolute requirement on the court to consider a medical report before passing a custodial sentence on a mentally disordered offender. Subsection (2) would be altered to state that a medical report would have to be obtained by the court in order to fulfil the requirement in subsection (1) unless the court already had access to such a report. I hope that that meets the point made by the noble Baroness in Committee.

Amendment No. 208 addresses a slightly different issue. It would remove subsection (4). I remain concerned that the subsection appears to be declaring that if the sentencing court has not taken the right action and has failed to obtain a medical report, the mentally disordered offender is in the position of being stuck with the sentence and can change that only by

5 Nov 2003 : Column 832

being put to the trouble and effort of going to an appeal themselves. As I said in Committee, that seems to be doing things the wrong way round.

I have returned to the issues not simply because I feel that there has been a drafting error, but because the matters concern me. The commitments and duties on the court need to be clarified in this respect. I beg to move.

5.15 p.m.

Lord Thomas of Gresford: My Lords, my name has been added to the amendment. I fully support everything said by the noble Baroness, Lady Anelay. Any practical problem may be cured by the omission of "obtain and", because in so many cases where there is a suggestion of mental disorder it is the defence who has obtained a report, and it would not be necessary for the court to go and get one providing that the defence was prepared to release it to the sentencing judge, as is almost invariably the case. That answers some of the practical problems that may have been in the minds of those who originally drafted the clause. It would be much improved by the amendments.

Lord Mackay of Clashfern: My Lords, I strongly support the amendment. It is absolutely vital that, where there is any suspicion of mental disease or abnormality, the court should be apprised of that with a detailed medical report.

Baroness Scotland of Asthal: My Lords, I am almost overwhelmed by the strength of the fact that the noble Baroness has the noble and learned Lord, Lord Mackay of Clashfern, to support her. I am timorous about disagreeing. Loath as I am to do so, I will, and I shall explain why.

The effect of the amendments would be to remove the discretion of the courts to decide whether it was necessary to consider a medical report on an offender who appeared to be mentally disordered before passing a custodial sentence. I understand the importance of that. The amendments are significantly better than those brought forward on the previous occasion, if I may respectfully say so, with humility. However, the court will normally consider a medical report in those circumstances, to inform its decision on whether a disposal under the Mental Health Act 1983 would be appropriate. Clause 139 requires the court to consider so doing.

The medical report will not always be necessary to reach such decisions, however. An example is where a sentence under the dangerous offenders provisions is necessary, so one knows that custody is regrettably likely to be the result. In circumstances where, for whatever reason, it was clear to the court that it would not make a Mental Health Act disposal, then to require it to consider a medical report would be wasteful of both time and resources in a way that would benefit neither the offender nor the administration of justice.

Next Section Back to Table of Contents Lords Hansard Home Page