Criminal Justice and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Wednesday 22nd October 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, the world now knows about the technology used by your Lordships and their Saturday night viewing habits. I associate myself with the remarks that have been made. I was not able to be in the House while the Bill was in Committee. However, I was a bit surprised that, rather than a quite simple but perhaps simplistic amendment which restored what everyone had thought of as the status quo, instead the amendment is around 10 lines in length. Those among your Lordships and from the Government who carried out the drafting have come up with very many lines, which can sometimes prove more difficult than a more straightforward and prescribed amendment.

Having said that, I want to mention the position of defendants. I agree very much with what has been said, and I simply add that not to provide anonymity or reporting restrictions—whatever term you apply, although of course they are not necessarily the same thing—seems to me to undermine the whole purpose of the youth justice system, which is rehabilitation, reintegration, and so on. An enormously important principle is at stake here. The same really applies to the amendment of my noble friend Lord Marks. One cannot separate out the stages. I am sure that there is a sporting analogy for this. Having lost anonymity at that early point before being charged, there is really nothing more that one can sensibly do afterwards to fulfil the spirit of what the Government themselves seem to consider important, even if we would like to have more than the Government’s amendment.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, my Amendment 123 is largely superfluous in the light of the government amendments. The Standing Committee for Youth Justice has sent to all noble Lords who have taken part in this debate, I suspect, a briefing which was largely laid out by the noble Earl. He made the point very well about the high threshold test proposed by the Government in their amendments. He summarised that by saying that the new threshold test would be a diminishment of co-operation or evidence through fear on behalf of the witnesses or the victims. The Standing Committee for Youth Justice briefing makes the point that this higher threshold is even higher than that in the Children and Young Persons Act. This is an important point, which I hope that the noble Lord will be able to address.

This is a very difficult area of legislation. In my brief time in the courts, although the law has not changed in the adult courts, in practice what magistrates view as appropriate use of media within a courtroom has changed quite a lot. This is largely at the discretion of the magistrates and district judges involved. I very much hope that the noble Lord will agree that whichever amendments are agreed tonight will be kept under review, because this is such a delicate and difficult matter.

Where I diverge from the noble Earl and the noble Lord, Lord Carlile, is whether lifetime anonymity should be given to child offenders. The briefing was rather less nuanced than the points made by the noble Lord, Lord Carlile. To put it in stark terms, I do not think it reasonable that a young person of 17 and a half should get a lifetime of anonymity, whereas someone who is 18 gets no anonymity if they have committed largely the same offence. If one were to rely on the briefing alone, that is the burden of the argument which is being made. I know that that is not the point made by the noble Lord, Lord Carlile; he presented his case in a more nuanced way. However, I find it troubling that there is potentially a very stark difference in the way that people are treated on either side of the 18 years of age barrier.

I would like to make a further point, which may be a technical one. I noticed that the briefing continually refers to child defendants and not to child offenders, whereas of course all the children about whom we are talking have either pleaded guilty or been found guilty in a court. They are not, in my understanding, child defendants. Having said all that, it is a real issue about the availability of the internet and how that might affect the rehabilitation and reintegration of young offenders into the community.

I conclude with an anecdote, which is not to do with youth. Recently, my wife employed a female offender who was still in prison but on release when she was employed by my wife. It was a wholly positive experience in that the offender worked well and the organisation benefited. However, when my wife searched the internet for the offences that the woman had committed, the information she got was not what she had been told by the offender or the organisation which facilitated the work placement. Nevertheless, I support the Government in their objectives.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, my amendments in this group, which largely repeat the amendments I put down in Committee, have a simple purpose, which is to permit the court a discretion as to whether or not to impose the criminal courts charge. Because they largely repeat earlier amendments, I will be brief.

Under the new Section 21A proposed in Clause 46, the court has no discretion but to order a person over 18 convicted of an offence that is not excluded by regulations to pay the charge. Since Committee, I have moved towards the Government’s position by suggesting in these amendments that a relevant court must “consider ordering” that the criminal courts charge be paid, so that while they would have a discretion, the courts would receive a clear message that such a charge should be expected in the generality of cases, and the legislation would act as an indication as to how the discretion should generally be exercised.

However, I maintain the general position I took in Committee in suggesting that it would be completely senseless to make an order that a criminal courts charge be paid in every case. There would be many cases heard every day in criminal courts where orders were made and everyone in the court would know that there was not the slightest chance of the charges ever being paid. That would make a nonsense of the provisions, I suggest, and would risk bringing the courts into disrepute. Relying on a later power to remit the charge in such cases is unnecessarily burdensome on the courts and wasteful of everybody’s time.

Furthermore, I am concerned that imposing a charge upon offenders who are already without means and often in serious personal and financial difficulties is likely to reduce their chances of rehabilitation. The outstanding charge may have a significant impact on their ability to secure work and to meet necessary expenses, particularly where they need credit in order to do so and the outstanding charge will impede their obtaining such credit. For those reasons, I suggest that the imposition of a criminal courts charge needs to be discretionary.

I further suggest that it is not sensible to deny the court any discretion as to the level of the charge to be imposed. That is the reason for my Amendment 125D. New Section 21C would require the amount of the charge to be the amount specified in regulations. My amendment would simply make that amount a maximum. There will be cases where offenders of limited means will wish, or at least be prepared, to meet their obligations and pay the charge if they can afford it. I suggest that a sensible way of dealing with such offenders is for the court to set the charge at a level the offenders can afford, rather than charging them the full amount specified in the regulations and forcing them to come back on an application to remit the charge at a later date or, worse, leading them to the position where they do not pay anything. I beg to move.

[Lord Ponsonby of Shulbrede]

My Lords, I shall speak to my amendments in this group. I support 100% what the noble Lord, Lord Marks, has said. I moved similar amendments in Committee and the amendments that I am putting forward on Report are by way of a compromise. I regard my position as a fallback position and the position of the noble Lord, Lord Marks, as the primary position on judicial discretion.

My Amendments 125, 126 and 127 would allow the Criminal Procedure Rule Committee to specify the circumstances in which the charge should not be imposed. The idea behind this group of amendments is that it would provide an opportunity for the CPRC to ensure appropriate judicial discretion, while providing greater clarity than a more permissive wording, which is what the noble Lord, Lord Marks, is seeking. Of course, the CPRC operates independently of government.

I also thank the Minister’s officials for clarifying to me in the past few days that the court’s charge can be treated the same way as the victim surcharge under Section 135 of the Magistrates’ Court Act 1980, which gives magistrates a general power to order a brief period of detention when a defendant is in default of any fine imposed by the court, particularly when that defendant is homeless and cannot pay. This, as any magistrate or lawyer will know, is a regular occurrence in London magistrates’ courts. This is the only practical way of dealing with this type of case.

I conclude on a wider point, by reiterating some of the points that the noble Lord, Lord Marks, has made. Notwithstanding the people who are homeless and literally do not have any money in their pockets, there are many other people we regularly see in courts who are on benefits, perhaps because of disabilities. Any additional cost that is given to them will remain unpaid and accrue as a greater debt. Every day of the court’s week, magistrates and judges impose fines where they have discretion and come up with appropriate fines that they believe are realistic. They put in place tough measures, namely collection orders, to recover those fines, so magistrates and judges are well able to exercise discretion, and they should be given the opportunity to do so over the court’s charge.