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Lord Thomas of Gresford: My Lords, does the noble Baroness not consider it important that, even where a

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dangerous offender order is made, those who may ultimately have to consider whether to release a person into the community should have at their disposal a report relating to the mental disorder made at the time of sentencing?

Baroness Scotland of Asthal: My Lords, I hear what the noble Lord says. He knows, too, that increasingly—we hope that it will be rolled out generally—offenders go through a risk assessment process when they reach prison so that one can better manage them through the period of imprisonment and address the needs that they may have. Therefore, it is certainly likely that, in any event, an assessment process will take place for prisoners.

We are really considering whether, in the particular circumstances of a case, the court should have a residual discretion to say, "A report is not needed on this occasion for the following reasons". The noble and learned Lord, Lord Mackay of Clashfern, will know that if the court is given no discretion, it is very difficult to legislate for every circumstance. The noble and learned Lord will know from his time as Lord Chancellor in particular how assiduous the courts have been in relation to this issue. Therefore, bearing in mind the careful approach of the judiciary, we believe that it will be important to retain a modicum of discretion for the court to do what it feels is proper.

I understand the concern that has been expressed and I understand, as I said, what the noble Lord, Lord Thomas of Gresford, said. On balance, we have come down on the side of saying that the court should have this modicum of discretion in order to ensure that things are dealt with appropriately and smoothly while also, obviously, addressing the question of the mental health of the offender. The noble Lord will know, for example, that if the court failed and/or refused to do what was proper in consideration of the defendant's needs, a matter would be raised on appeal if that were appropriate. I know that our judges would be assiduous in ensuring that such opportunities were limited.

Baroness Anelay of St Johns: My Lords, I am grateful for the support of, in particular, my noble and learned friend Lord Mackay of Clashfern and also for that of the noble Lord, Lord Thomas of Gresford, who added his name to the amendment.

If I were to press the matter to a Division, I would, by tradition, start by saying how disappointed I was with the response of the Minister. I shall not press this issue to a vote but I am still disappointed with her response. I understand precisely that the Government are seeking to leave behind what the Minister calls so delicately "a modicum of discretion". Certainly, in relation to many other parts of the Bill I argued that I wanted courts to have discretion. The only reason that I am trying to fetter that discretion here is that I believe it to be in the interests of a particular group. I feel that the onus should not be put on that group to appeal a decision which would plainly be wrong.

I would expect—as I have no doubt the Minister would—that no court would come to the decision that a report should not be current and available and used

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before such sentencing. My attempt was only to have that commitment from the Government placed on the record, which, in a manner, they did in Committee and on Report. I give way to the noble Baroness.

Baroness Scotland of Asthal: My Lords, I very much agree with the noble Baroness. Mentally disordered offenders represent a significant proportion of people who now, regrettably, find themselves in our prisons. Dealing with them appropriately and well is absolutely critical. Where a mentally disordered offender comes before the court, we expect the court to have the kind of evidence upon which it can make a properly informed judgment. We believe that any opportunity to exercise this discretion should be used very judiciously. It should be reserved for the exception and should by no means become the rule. I hope that that assists the noble Baroness.

Baroness Anelay of St Johns: My Lords, that was a very clear and generous response. It is as good as it gets and it is very good of the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 206 to 208 not moved.]

Clause 143 [Pre-sentence drug testing]:

Baroness Walmsley moved Amendment No. 209:

    Page 86, line 12, leave out "14" and insert "18"

The noble Baroness said: My Lords, in moving Amendment No. 209, I shall speak also to Amendments Nos. 210 and 211. The existing drug-testing powers in the criminal justice system are applicable only to anyone aged 18 and over. Under the provisions of the Bill, it is proposed that those powers should be extended to anyone aged 14 or over.

The principles behind our continued pressure on the Government on this issue are two-fold. First, we do not believe that they are rooted in evidence and we consider that they are therefore potentially counter-productive. Secondly, we believe that they confuse the distinctive status of children in law and within the criminal justice system.

Therefore, we believe that the proposed measures in relation to drug-testing powers for children should be withdrawn. Unfortunately, the Minister did not convince us in Committee that they have an explicit purpose or rationale. We believe that they are an extension of powers used with adults without any consideration of how or whether they meet the best interests of children. They infringe children's rights to liberty, privacy and protection from inhuman and degrading treatment. We believe that they risk making a child's right to necessary treatment for a drug problem conditional upon his past or future involvement with offending. That should not be the basis for the availability of such treatment. Finally, they come at a time when expertise and evidence in relation to children's drug problems and their relationships with offending are evolving. The evidence does not suggest that the Bill's proposals will be effective.

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Perhaps I may say a little more about that. The evidence put forward by the Government shows certain linkages between acquisitive crime and long-term drug dependency. We agree to the validity of that link and have never disputed it in your Lordships' House. However, that body of evidence suggests that identifying and treating adult offenders who have an entrenched dependency can have a clear impact on their criminal behaviour.

However, research into the relationships between drug use and offending in the juvenile population shows that, while drug experimentation and regular use are prevalent, a long-term drug dependency is rare. Offending and drug use among the young are inter-related in far more complex ways than is the case with adults. That must raise the question why we should simply assume that an extension of powers used for adult drug-dependent offenders will be appropriate or effective for young people.

We are particularly concerned about the lack of stated purpose or intended consequence given for the extension of powers to test children for class A drugs. Any child who is charged, including those given final warnings, will already be referred to a youth offending team officer for assessment of his needs. Part of that assessment is an analysis of any substance misuse, and all YOTs have a specialist to follow up any needs or further assessments. That includes the pre-sentence report stage and ensuring appropriate support in the community following release from custody. That raises the question why the powers are thought to be necessary before research has proved that they are in fact necessary.

We are at least gratified that, as the noble Baroness told us in Committee, this measure will be piloted and monitored and that the powers of the Secretary of State to amend the age upward or downward will be subject to affirmative instrument and, therefore, subject to some kind of parliamentary scrutiny. However, we ask the Government to reconsider these issues in the absence of the appropriate research to prove their necessity. I beg to move.

5.30 p.m.

Baroness Scotland of Asthal: My Lords, Clause 143 provides for the court, when considering passing a community sentence on a person aged 14 or over who has been convicted of an offence, to make an order for that person to be tested for specified class A drugs—heroin, cocaine and crack. We have gone through these matters before. I absolutely understand why the noble Baroness is concerned about them. I believe that she understands how the Government put the matter and why we think it is necessary.

Amendment No. 209 would raise the minimum age for drug testing from 14 to 18. The effect of that will be to negate the purpose of the clause as pre-sentence drug testing is already available for adults aged 18 and over—under Section 36A of the Powers of Criminal Courts (Sentencing) Act 2000—where that is being

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implemented as part of the wider drug testing programme for adults. We are considering knocking out the clause in its entirety and expunging it.

The purpose of the clause is to lower the minimum age from 18 to 14, in line with other drug testing provisions in the Bill, to help to ensure that younger offenders in the age range 14 to 17, who may be misusing specified class A drugs, are also identified. Action can then be taken to follow this up and appropriate intervention can be made to address the needs of the offender when the court is passing sentence. We believe that it is absolutely critical that we address the problems—they are real problems—as quickly and as early as we can.

I know that the noble Baroness has previously acknowledged some of this. We know that drug use and offending and other anti-social behaviour among young people are very much linked. Moreover we know that there is a correlation between early use of illegal drugs and more frequent and problematic drug use later on.

Drug testing for young people aged 14 to 17 years is part of a package of interventions that stretches across the drugs strategy provisions for young people. These provisions aim to ensure that drug misuse can be identified in a number of settings, including within the criminal justice system, so that young people who are misusing drugs can be encouraged to address their misuse and access appropriate treatment and other programmes of help. So we want to get them out of the behaviour. We do not simply want to ignore the fact that they are in a distressing situation and are not coping very well.

The purpose of pre-sentence drug testing, as with testing on charge, is to have a screening tool. We know that young people will often not acknowledge that they have a drug misuse problem—particularly one involving heroin, crack and cocaine—or that their drug misuse is causing problems to themselves, to their family and to the community. The tragedy is that some young people are very skilled in hiding their misuse from all of those who care most for and about them.

Pre-sentence testing can provide a signal to professionals working with young offenders that the offender is misusing specified class A drugs. The drug test result can then be used, with other information, to help the court form an opinion as to the most suitable requirements for the offender as part of his or her community sentence; for example, whether it would be appropriate to include any relevant drug treatment and testing requirement.

It has been argued that these provisions, with their element of compulsion, are unnecessary, as young offenders who are using serious drugs will be picked up by the Youth Offending Team's ASSET assessment which includes an assessment of substance misuse. However, we believe that these provisions are necessary. Pre-sentence testing is intended to be used in conjunction with the ASSET assessment—not in substitution of it—and initiatives such as arrest referral. It provides an opportunity, which might not

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otherwise arise, for the court to obtain an indication as to the offender's recent use of any specified class A drug.

It could be used, for example, where the offender has not previously been tested, or has produced a negative result at charge but the court has reason to believe that the offender is misusing specified class A drugs; or where a young person has not co-operated with the ASSET assessment or any referral to a drugs worker in the Youth Offending Team and the supervising officer believes that the young person has a specified class A drugs problem.

It could also be used where the offender is disputing a test or claiming to be no longer using specified class A drugs having tested positive on charge. The results of the test will help to inform the sentencing decision of the court and ensure that for those young offenders who do have a specified class A drugs misuse problem, that that misuse can be taken into consideration and appropriate treatment and intervention can be provided.

We want to help young people with such drug problems, which if left unchecked, could escalate and lead to an ongoing cycle of drug misuse and offending, and all the associated problems that brings with it. We believe, therefore, that this provision, which allows the court to exercise its discretion to require a drug test which will help to identify whether the offender has used a specified class A drug, is in the best interests of young offenders. It will help to ensure that if they are using specified class A drugs, that misuse can be addressed alongside their offending, with the aim of enabling them to go on to lead a healthy and crime-free lifestyle. It is also in the interests of the victims of their offending and of society.

The noble Baroness will have heard, as I have when visiting programmes for such young people, terrible stories of the life that they led when under the influence of these pernicious drugs. Then one sees the wonderful person who rises out of that situation when they have received the help and support that they need to leave behind the offending behaviour, the contribution that they go on to make to their communities and how they help others to drag themselves out of the same mire in which they were steeped. That is very important, and we are very committed to taking the opportunity to do that.

We therefore propose that Amendment No. 209 should be resisted. We would invite the noble Baroness not to press it. The clause provides for the presence, of an "appropriate adult" during the testing process for those offenders who are under the age of 17. Amendments Nos. 210 and 211 in the names of the noble Lord, Lord Dholakia, and the noble Baroness, Lady Walmsley, would raise the age at which a person must not be tested for specified class A drugs except in the presence of an appropriate adult, from those under the age of 17 to those under the age of 18.

We acknowledge the views expressed by noble Lords that the clause should provide for all persons under the age of 18 to be afforded the same safeguard involving an appropriate adult. Similar amendments

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were debated on Report in respect of Clause 5, relating to drug testing persons in police detention. As I explained then, we believe that consistency and clarity in respect of the age level for an appropriate adult are important, but we believe that we need to look holistically at the issue of how juveniles are treated under PACE and across the criminal justice system, rather than seek to change the position in a piecemeal fashion. Earlier today we were accused of doing things in a piecemeal fashion. We have taken that to heart and we do not want to do this piecemeal because it affects so many young people.

We propose to introduce the provisions for drug testing younger offenders in limited areas initially so that they can be fully evaluated and so that information about good practice can be shared. That will include issues relating to the appropriate adult requirement. Although the legislation, as drafted, does not specifically provide for the presence of an appropriate adult for those aged between 17 and 18, that is not precluded. There is nothing to prevent a 17 year-old requesting that a parent or an appropriate adult be present during the testing process.

As I sought to assure noble Lords earlier on Report, we shall certainly heed the views expressed when considering whether more consistency needs to be introduced into the age levels applying to juveniles across the criminal justice system, as identified by the PACE review in 2002. The issues will not go away; we shall return to them and we shall have an opportunity to deal with them holistically. With contributions from all noble Lords whom I know will contribute to that debate, I hope that we shall get it right. Therefore I invite the noble Baroness not to press any of these amendments, although I understand why she has tabled them.

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