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As long as that is clearly understood by the judiciary, for my part and the Opposition’s part, I am content with the amendment. I can see the noble Lord, Lord Bach, nodding, which gives me some hope that I shall get my way on this. Let me put it another way, if there is the slightest chance that a custodial

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sentence is to be passed, and if there is no report in writing, there must be a serious chance that the process will be in some way or other quashed by a higher court. It is very important that Parliament is clear about what it is doing before it does it. I beg to move.

Lord Elystan-Morgan: My Lords, it gives me very great pleasure to say how impressed I am by the care, assiduity and sensitivity with which the Government and the Opposition have approached this question. One of the most important conclusions that a court can ever arrive at is to deprive a young person of his or her liberty. However, I am not sure that I entirely agree with the argument put forward so clearly and fairly by the noble Lord, Lord Kingsland.

3.45 pm

There are two stages to the judge’s consideration. First, and this follows rather slavishly the wording, if I remember rightly, of Section 152 of the 2003 Act, it must be considered whether the threshold for custody has been crossed—in other words, whether the seriousness of that offence, with one other offence, at least, taken into consideration, is such that anything other than the custodial disposal would not be justified. That is not the exact wording but would be near to it.

Therefore, there is a preliminary decision as to whether that threshold has been crossed. The learned judge then says, “If that has been crossed, I will have to consider all the other considerations, including, of course, the offender’s antecedent and, no doubt, all the information that can be given in either a written or an oral report”. What is concerned here is not so much a final decision by the learned judge, but a preliminary one as to the crossing of that threshold line.

My other point is that although a written report is always to be preferred to an oral one, I would like to pay the highest possible tribute to those hardworking probation officers in daily attendance at the courts who, sometimes at very short notice, will produce a most incisive and comprehensive report on an offender’s situation. They can be helped, of course, by the learned judge having had the papers the night before and digested them and, having warned learned counsel before 10.30 am, informing that person that he would like that report done. Sometimes—and I am afraid that I was guilty of this from time to time—it might be at 12.45 pm that one would ask for that report by 2 pm.

However, my own experience was that these reports were prepared with very great conscientiousness, dedication and thoroughness. Almost invariably, a person asked to conduct such an inquiry would first get in touch with the probation officer who had written the last report and, if that was not possible, to have the matter adjourned for a few hours until that report was available. Therefore, one should not demote the verbal report too much, because in most cases, it will be of a very high standard. It will enable the judge, once there has been a preliminary decision under Section 152, as a crossing of the threshold, to be able to review that situation in the light of all the information that the court will then have.

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The Earl of Onslow: My Lords, having spoken on this issue in Committee, I am moved, first, to thank the Government for listening to what other people have said, and that is always to be congratulated. It seems to me that what the noble Lord, Lord Bach, has just said may be 100 per cent right, whereas my noble friend Lord Kingsland is guaranteeing that it is going to be right. Under those circumstances, to avoid doubt, what harm is there—and it seems there is some benefit—in amending the Bill in the way that my noble friend says? I am not being difficult, just trying to be clear.

Baroness Butler-Sloss: My Lords, it will not surprise Ministers to learn that I am delighted that the Government have moved this amendment and that I very much support it. I share the view of the noble Lord, Lord Elystan-Morgan. If there is any real likelihood of a young person, usually a man, under the age of 18, going to prison, it would be most unlikely that the judge would not want, in any event, a written report and consideration of a great deal of what would come into such a report.

This is a moment at which one can really leave it to the judge to decide what more he needs. I would like to pay tribute to the excellent oral reports that are given, but, where you are likely to go to prison, you are entitled to have a written report. I would have expected that to be provided in a case where a young person is likely to go to prison.

Lord Thomas of Gresford: My Lords, we on these Benches first raised this issue in Committee under Amendment No. 79. We are very grateful to the Government for listening and for bringing forward this amendment. Unfortunately, I disagree with the noble Lord, Lord Elystan-Morgan, about the value of an oral report. Probation officers have in the past done their very best but I have always thought it unsatisfactory that they should be required at very short notice to take upon themselves the production of a report. Normally, these reports require inquiries and consultation with the family. It is far better that that be a considered process—very much more so when the defendant is under 18.

The Government have listened to the views put forward from all around the House and I am grateful to them for what they are doing. I also support the noble Lord, Lord Kingsland, for the belt-and-braces approach he has taken in his amendment to the amendment. If he wishes to take the matter further, we will support him.

Lord Bach: My Lords, I thank noble Lords for their contributions to this debate. On behalf of the Government, I thank Liberal Democrat Members for having raised this issue in Committee and other Members who have raised it during our proceedings on the Floor of the House. I argue that with Amendment No. 1, we have come up with the right answer. The only thing about which I disagree with the noble Lord, Lord Kingsland, is whether there should necessarily be a written report in each case where a community sentence is imposed. We certainly agree with the view that was expressed around the House that there should be a written report in cases where a custodial sentence is or could be imposed.

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The noble Lord is pressing me, quite rightly, to be as clear as possible. As I said when moving the amendment, in practice this means that where the defendant pleads not guilty but is tried and then found guilty, after conviction the court will have to adjourn and a pre-sentence report will be prepared in a case where custody is a possibility. I do not think that we can be much clearer than that. After that, it will be in the hands of the judge, who is the sentencer.

Lord Kingsland: My Lords, as I think I said earlier, I am most grateful to the Government for bringing forward the amendment. The noble Lord, Lord Bach, has clarified a somewhat occluded part of its wording in a way that I find entirely satisfactory.

I am disappointed that the Government are not minded to accept my amendment. I think that in some respects, where a community order is under consideration, the variety of possible components of that order benefit greatly from a carefully thought out pre-sentence report on the history of the young person, his or her character and his or her suitability for the wide variety of possible rehabilitation orders that are open to the court. It is a different argument for a written report but, I believe, an equally powerful one. Nevertheless, the Government have come forward with their amendment; it meets us at least halfway. In those circumstances, I shall not press my amendment this afternoon. Therefore, I beg leave to withdraw the amendment.

Amendment No. 2, as an amendment to Amendment No. 1, by leave, withdrawn.

On Question, Amendment No. 1 agreed to.

Clause 16 [The assessment of dangerousness]:

Lord Lloyd of Berwick moved Amendment No. 3:

The noble and learned Lord said: My Lords, the object of the amendment is to repeal Section 229 of the Criminal Justice Act 2003. I should first explain why I did not press this amendment to a vote on Report. Section 229 of the 2003 Act contains the statutory definition of dangerousness. By subsection (3), which is the crucial subsection, the court is obliged to assume dangerousness if the offender has been convicted on two or more occasions of certain specified offences commonly known as the “two strikes and you’re out” provision.

That subsection is to be repealed by the Bill as it stands and I am very grateful to the Government that they are taking that course. All that will then be left of Section 229 is subsection (2). All that subsection (2) will say is that the court in assessing dangerousness,

and may take into account previous convictions. That is all Section 229 will then provide.

On Report, I pointed out that the courts have always taken previous convictions into account. What else can they take into account more obviously than previous convictions? They really do not need to be told by Parliament that they may do that. I think it is now accepted by the Government, at least to that extent, that Section 229 is covered by the existing practice.

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However, the noble Lord, Lord Bach, argued that the reference in Section 229 to information about the offence, or information about the offender, adds something that the courts have not always taken into account and he referred to the case of Considine in support of that argument. I was unfamiliar with that case so I needed to look at it before asking the House to express a view. I have now looked at it. It turns out that, so far from helping the argument of the noble Lord, Lord Bach, it helps mine. Indeed, I would go further than that and say that it is absolutely conclusive in favour of my argument. In an earlier decision, in the case of Johnson, the court said that subsection (2),

I say amen to that. That sentence in Johnson was expressly approved by a five-judge Court of Appeal in the case of Considine, the case on which the noble Lord, Lord Bach, relied.

In the light of my looking at that case, I wrote to the noble Lord and to the Lord Chancellor to ask them to reconsider Clause 16. Once subsection (3) has gone—and it is going—to retain Section 229 is pointless. It is saying only what already happens. Hence my amendment to repeal Section 229 of the 2003 Act. In his letter of reply the Lord Chancellor makes three points. He accepts now that subsection (2) does reflect the existing practice of the judges in assessing dangerousness. But he says that the statute got there first. It is only in 2007 in Considine that the case law caught up with Section 229.

It may be that that sounds odd, but it seems to me that that is what the Lord Chancellor is saying in this sentence of his letter:

As I understand it, the argument is that the courts might have taken a different view in assessing dangerousness in relation to the new, indeterminate sentence than they have always done in relation to the ordinary life sentence. If that is the meaning of that argument, I suggest in all seriousness that it is scraping the very bottom of the barrel. It suggests that, in interpreting this new provision covering indeterminate sentences, the court might have excluded all together what is relevant in assessing dangerousness. In any event, what might have been the position no longer matters, because we now know as a result of Considine that there is no difference between Section 229 and the practice which the judges have already adopted. So I say to the House that Section 229, consisting of what it will consist of unless my amendment is adopted, is wholly otiose and should be repealed.

4 pm

I can deal with the second and third arguments of the Lord Chancellor quite simply. The second argument was that it might imply an intention to repeal or alter the law substantially if we repealed Section 229. But we are of course altering the law substantially in the

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Bill by repealing subsection (3). That is the subsection which has the teeth, as I have tried to explain. We are not surely implying anything by repealing Section 229 about the information which courts ordinarily take into account in assessing dangerousness, because, as I have said, we now know that subsection (2) adds nothing to the existing practice.

Finally, the letter states that Parliament can, if it wishes, embody case law in legislation, to which I say, “Of course, it can”. But there is surely no point in stating the obvious. It is surely our duty to shorten, so far as we can, and simplify legislation. We have an opportunity of doing that now by repealing Section 229, which if it remains, will simply be a blemish on the statute book. I invite the House to do that and beg to move.

Lord Thomas of Gresford: My Lords, this is the second clause in the Bill which is useless and will draw the contempt of the legal profession and the judiciary if it is allowed to remain. This Government have had the tendency to look overseas to the United States of America and adopt its practices. That is a country where 750 out of 100,000 people are in prison, as opposed to 150 out of 100,000 in this country and an average of about 70 or 80 in the rest of Europe. For that reason, they introduced as a good wheeze the idea of “two strikes and you’re out”. The Government have recognised that that has done nothing to assist the administration of justice in this country. All it has done is serve to fill our prisons and produce the ridiculous anomalies of people being given indeterminate sentences, but with the proviso that they can apply for parole after 28 days. The end of that is very welcome to us. But we are now left with nothing, other than simply a repetition of what already has been the practice, as the Lord Chancellor has recognised in his letter. I urge your Lordships not to make nonsense of the criminal law in this way. The Government should go the whole hog. If they want to get rid of “two strikes and you’re out”, they should get rid of it and not leave useless bits of legislation hanging about.

Lord Bach: My Lords, I, like the House, am grateful to the noble and learned Lord, Lord Lloyd of Berwick, for putting forward again his submission that there is no need to retain Section 229—the assessment of dangerousness section—of the Criminal Justice Act 2003 in what is, of course, its truncated form following our reforms, about which he has just been generous.

We are grateful to the noble and learned Lord for bringing the issue to the attention of the House. As he has said, he has been in correspondence with my right honourable friend the Lord Chancellor, and I believe that they have also spoken. At the noble and learned Lord’s instigation, we have undertaken further consultation with senior Court of Appeal judges, who deal with criminal cases day after day. They have indicated informally to the Secretary of State that they favour the retention of Section 229 of the Criminal Justice Act 2003, in the truncated form proposed by the Bill.

I will explain, as briefly as possible, why the Government want to keep this part of the Bill as it is. Our changes in this Bill will, as we have already

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agreed, remove the statutory presumption of risk, which greatly limited judicial discretion in assessing risk, while leaving in place the remainder of Section 229, which sets out what matters the court may consider when assessing risk. Those, as the noble and learned Lord said, are set out in Section 229(2), which refers to previous offences and says that the court must take into account as well,


any of the offences mentioned in its paragraph (a) or new paragraph (aa)form part, and, lastly,

We believe it is important to retain that statutory basis for the assessment of risk because it clarifies that the courts may look not just at the circumstances of the trigger offence, but take into account all such information as is available about the pattern of behaviour of which the offence formed part. That matter is of particular relevance to a court with a special responsibility for assessing an offender’s prospective dangerousness, and a hallmark of public protection sentencing.

Lord Thomas of Gresford: My Lords, is the Minister saying that the courts do not already do that?

Lord Bach: My Lords, I am of course not saying that. I know that learned judges do that up and down the country. Perhaps the noble Lord, Lord Thomas, will hear me out before interrupting. In passing the Criminal Justice Act 2003, Parliament created a specific task for courts of assessing the dangerousness of sexual and violent offenders. The decision on risk would be made in the context of a new sentencing regime—one that has particularly serious ramifications for offenders who fall into its scope. I think we agree that those ramifications can be extremely severe. We believe that it was important to have clarity, from the beginning, on the breadth of information and evidence that a court can consider in assessing dangerousness in this new context.

On Report, I referred to the case of Considine, and the noble and learned Lord, Lord Lloyd of Berwick, has made his analysis of it. That will perhaps teach me better, as a mere ex-junior member of the Bar, about trying to cross swords with the noble and learned Lord. If I were to have appeared before him in days gone by, the thought of that would have terrified me for the weekend before, but in what I hope is the safety of the House of Lords I will make my point on Considine.

The noble and learned Lord asked whether we agreed that the Considine judgment showed that the new Section 229 would add nothing to the factors that a court would normally consider. The answer to that, to be absolutely blunt with the House, is that I do not think that it is particularly relevant to the issue that the House may have to decide in a few minutes whether we agree to that or not.

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As I explained, it would have been an omission for the Government to have failed to cover that point of the legislative scheme when we set up the legislation in 2003. The alternative would have been to trust the case law developed in other contexts in which dangerousness needed to be assessed and that that would be assessed and applied in the new context. We did not want to do that at the time because we wanted the new system to be clear from the very beginning, in view of the novelty and seriousness of the new sentencing proposals. As the noble and learned Lord told the House this afternoon, the courts did, in fact, by a process of case law development, confirm subsequently that the statute reflecting case law, derived in other contexts as to assessing dangerousness, is helpful. But does it follow that, because that is what the cases have decided, the statute is dispensable? We argue not. We do not believe that it is right to repeal the statute on the basis that subsequent case law would give courts the guidance that they need.

It is, we think, particularly the case—although I think that the noble and learned Lord disagrees with us on this point—that a repeal of Section 229 would imply an intention to alter the law substantively. It has not been suggested that there is any need to change the position regarding the breadth of information that may be considered in the changes that we have made in this Bill. Indeed, we would argue that, given the wider changes that we are making to the public protection legislation, it is more important than ever that it remains in place. We think that repeal of Section 229 would therefore create a doubt where currently there is none. It is there in statute.

For whose benefit will that be done? It is not necessarily for that of the learned judges who will of course have to pass sentences. However, I remind noble Lords that soundings that we have made suggest that a number of very senior judges who work in the criminal field are of the view that it would be helpful to keep this section in. We think that there are also significant presentational advantages in making it clear to criminal justice agencies and, perhaps, even to the general public, that previous convictions and the other kind of information that is relevant and lawful to be taken into account by a sentencing judge are very relevant to the assessment of risk. We believe that it is transparent—it is there in the statute—and we believe that it encourages confidence.

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