Criminal Justice and Courts Bill

Baroness Browning Excerpts

Monday 20th October 2014 Lords Chamber

Moved by

[Baroness Browning]

61: Clause 27, page 24, line 36, leave out from “had” to end of line 43 and insert “at least one relevant conviction (see section 1ZA)”

[Baroness Browning (Con)]

My Lords, first, I apologise to the House that I was not present when your Lordships discussed this clause in Committee, but my interest in this part of the Bill stems from the fact that during this Parliament I was a Minister at the Home Office with responsibility within my portfolio for both knife crime and gang crime.

The amendments tabled in my name and that of my noble friend Lady Berridge seek to tidy up the clause that was passed not just by this House but—as we have heard—came from the Commons with an overwhelming majority when it was tabled and proposed by my honourable friend the Member for Enfield North. So at its third reading I do not propose to rehearse again the arguments, particularly that about the deterrent effect of what is before the House in this Bill tonight. That was eloquently debated by Members on all sides of the House in Committee and the clause passed accordingly. However, quite a few things in the clause as it stands need correction and alteration. I hope some of those corrections and alterations will pick up on some of the points that have been raised tonight because clearly it is very important that this proposed legislation—whatever the difference of opinion on the substance—none the less needs to be compatible with existing legislation. There is more than one Act of Parliament already on the statute book to which this legislation needs to be tied without there being any anomalies, and I would like to flag some of them up.

First, to ensure compatibility with Article 5 of the European Convention on Human Rights the clause must provide the court with the necessary discretion to take account of particular circumstances when deciding whether to impose the minimum sentence or mitigate against arguments that any deprivation of liberty is arbitrary, contrary to Article 5. However, with the current drafting, the court may take account of only particular circumstances relating to the current offence and the offender, not those relating to the previous offence or offences, when for example the date of the previous offence—perhaps committed very many years ago—could be relevant.

In addition, Article 5 must be read in the light of Articles 3 and 37(b) of the United Nations Convention on the Rights of the Child, which means particular care must be taken in detaining children. If the necessary consequential amendment is made to disapply the requirement on the court to have regard to sentencing guidelines, there will be no requirement on the court to have regard to the welfare of the offender when sentencing those under the age of 18. Therefore, we consider that a provision requiring the court to have regard to its duty under Section 44 of the Children and Young Persons Act 1933 when considering particular circumstances in relation to 16 and 17 year-olds should be inserted.

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[Lord Faulks]

I am sorry to disappoint the noble Lord, Lord Kennedy, and the House but I am unable to respond in detail because, as I said in response to the earlier amendment, the clause has been added by a Back-Bench amendment and the principle has been agreed by your Lordships’ House. However, agreement has not been reached within the Government on the policy underlying this clause. Therefore, I am unable to speak as to the detail of these clauses.

[Baroness Browning]

My Lords, I am most grateful—that is, I think I am grateful. This is a serious subject and it is incumbent on all of us, when legislation is passed, regardless of whatever view we have taken, to make sure that it is as legally sound as possible. I have sought advice to try to do that and I hope that that is helpful to the House. I am grateful to all Members who have contributed to the debate.

[The Deputy Speaker (Baroness Pitkeathley) (Lab)]

Is it your Lordships’ pleasure that this amendment be withdrawn?

[Baroness Browning]

I am not withdrawing the amendment.

[The Deputy Speaker]

The amendment has already been moved and the Minister has responded, so it is for the noble Baroness now to decide what she wishes to do with the amendment.

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[The Deputy Speaker]

Does the noble Baroness wish to withdraw her amendment or seek the opinion of the House?

[Baroness Browning]

I do not wish to withdraw the amendment.

Amendment 61 agreed.

Moved by

[Baroness Browning]

62: Clause 27, page 25, line 1, leave out from beginning to “the” in line 2 and insert “Where this subsection applies,”

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Moved by

[Baroness Browning]

65: Clause 27, page 25, line 5, after “offence” insert “, to the previous offence”

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Moved by

[Baroness Browning]

69: Clause 27, page 25, line 11, at end insert-—
“(2CA) In considering whether it is of the opinion mentioned in subsection (2B) in the case of a person aged 16 or 17, the court must have regard to its duty under section 44 of the Children and Young Persons Act 1933 (general considerations).
(2CB) Where—
(a) an appropriate custodial sentence has been imposed on a person under subsection (2B), and(b) a relevant conviction without which subsection (2B) would not have applied has been subsequently set aside on appeal,notice of appeal against the sentence may be given at any time within 28 days from the date on which the conviction was set aside (despite anything in section 18 of the Criminal Appeal Act 1968 (initiating procedure)).”

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Moved by

[Baroness Browning]

73: Clause 27, page 25, line 29, leave out from “had” to end of line 35 and insert “at least one relevant conviction (see section 139AZA)”

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Moved by

[Baroness Browning]

77: Clause 27, page 25, line 40, after “offence” insert “, to the previous offence”

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Moved by

[Baroness Browning]

81: Clause 27, page 25, line 47, at end insert-—
“(6CA) In considering whether it is of the opinion mentioned in subsection (6B) in the case of a person aged 16 or 17, the court must have regard to its duty under section 44 of the Children and Young Persons Act 1933 (general considerations).
(6CB) Where—
(a) an appropriate custodial sentence has been imposed on a person under subsection (6B), and(b) a relevant conviction without which subsection (6B) would not have applied has been subsequently set aside on appeal,notice of appeal against the sentence may be given at any time within 28 days from the date on which the conviction was set aside (despite anything in section 18 of the Criminal Appeal Act 1968 (initiating procedure)).”

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Moved by

[Baroness Browning]

85: Clause 27, page 26, line 16, leave out from “had” to end of line 22 and insert “at least one relevant conviction (see section 139AZA)”

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Moved by

[Baroness Browning]

89: Clause 27, page 26, line 27, after “offence” insert “, to the previous offence”

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Moved by

[Baroness Browning]

93: Clause 27, page 26, line 34, at end insert—
“(5CA) In considering whether it is of the opinion mentioned in subsection (5B) in the case of a person aged 16 or 17, the court must have regard to its duty under section 44 of the Children and Young Persons Act 1933 (general considerations).
(5CB) Where—
(a) an appropriate custodial sentence has been imposed on a person under subsection (5B), and(b) a relevant conviction without which subsection (5B) would not have applied has been subsequently set aside on appeal,notice of appeal against the sentence may be given at any time within 28 days from the date on which the conviction was set aside (despite anything in section 18 of the Criminal Appeal Act 1968 (initiating procedure)).”