161A COURT'S DUTY TO ORDER PAYMENT OF SURCHARGE

(1) A court when dealing with a person for one or more offences must also (subject to subsections (2) and (3)) order him to pay a surcharge.

(2) Subsection (1) does not apply in such cases as may be prescribed by an order made by the Secretary of State.

(3) Where a court dealing with an offender considers—

(a) that it would be appropriate to make a compensation order, but

(b) that he has insufficient means to pay both the surcharge and appropriate compensation,

the court must reduce the surcharge accordingly (if necessary to nil).

(4) For the purposes of this section a court does not "deal with" a person if it—

(a) discharges him absolutely, or

(b) makes an order under the Mental Health Act 1983 in respect of him.

161B AMOUNT OF SURCHARGE

(1) The surcharge payable under section 161A is such amount as the Secretary of State may specify by order.

(2) An order under this section may provide for the amount to depend on—

(a) the offence or offences committed,

(b) how the offender is otherwise dealt with (including, where the offender is fined, the amount of the fine),

(c) the age of the offender.

This is not to be read as limiting section 330(3) (power to make different provision for different purposes etc)."

(2) In section 164 of that Act (fixing of fines), after subsection (4) insert—

"(4A) In applying subsection (3), a court must not reduce the amount of a fine on account of any surcharge it orders the offender to pay under section 161A, except to the extent that he has insufficient means to pay both."

(3) In Part 1 of Schedule 9 to the Administration of Justice Act 1970 (c. 31) (cases where payment enforceable as on summary conviction), after paragraph 12 insert—

"13 Where under section 161A of the Criminal Justice Act 2003 a court orders the payment of a surcharge."

(4) In Schedule 5 to the Courts Act 2003 (c. 39) (collection of fines), in paragraph 1(1) (application of Schedule), after "a fine" insert "or a surcharge imposed under section 161A of the Criminal Justice Act 2003".

(5) The Secretary of State may by order—

(a) make provision amending Schedule 5 (collection of fines) or Schedule 6 (discharge of fines by unpaid work) to the Courts Act 2003 in its application by virtue of subsection (3) or (4) to surcharges;

(b) make provision for any part of Schedule 5, or the whole or any part of Schedule 6, not to apply to surcharges;

(c) make amendments to any enactment that are consequential on provision made under paragraph (a) or (b)."

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8.

My Lords, may I inquire whether this is the new clause that deals with surcharges? The two new clauses after it raise the same principle with regard to fixed penalty offences. Does the Minister propose to deal with the issue of Amendments Nos. 8, 9 and 10 together; namely, the imposition of a surcharge both in conviction cases and as regards fixed penalties? Does that mean that we can speak to the principle of those three amendments as one?

Yes, my Lords. The noble Lord, Lord Carlisle, is absolutely correct. When I started cantering through this earlier, I said that I intended to deal with three categories. Again, I am sorry, if I have misled noble Lords.

These amendments aim to add a surcharge to criminal convictions in the courts; to fixed penalty notices for road traffic offences; and to penalty notices for disorder. They divide into three categories, as just indicated by the noble Lord, Lord Carlisle. I shall deal with each individually.

First, for the surcharge payable on conviction, Amendment No. 8 inserts two new sections into the Criminal Justice Act 2003, that impose a duty on the court to impose a surcharge on a person convicted of an offence, except where the court makes an absolute discharge or a mental health disposal. That is category number one.

In category number two, the surcharge payable in respect of penalty notices for disorder can be achieved principally through existing powers, as I mentioned earlier, to make secondary legislation. However, Amendment No. 9 will change the maximum amount that can be prescribed as a penalty for disorderly behaviour from a quarter of the maximum fine to a quarter of the fine plus half of the maximum surcharge.

The surcharge payable in respect of road traffic fixed penalty notices can also principally be achieved through existing powers to make secondary legislation. Amendment No. 10 allows us to do two things: first, to prescribe a higher penalty for repeat offenders; and secondly, for the fixed penalty clerk to collect the surcharge separately from the fixed penalty.

The proposal to add a surcharge to criminal convictions and fixed penalty notices was one of a number of proposals set out in the consultation paper Compensation and Support for Victims of Crime, issued on 12 January 2004. There was overwhelming support for more and better services for victims of crime, although opinion was divided on the introduction of the surcharge. The majority of objections were to the addition of the surcharge to fixed penalty notices for speeding. The amendments set out here will add the surcharge only when a driver speeds or commits other endorsable motoring offences that attract fixed penalty notices on repeated occasions.

When this issue was debated in the other place, there was some disagreement over who should be liable to pay the surcharge. Some took the view that the offenders should have to pay the surcharge only when they had committed enough offences to be disqualified from driving.

We believe that a fair system is for drivers to receive one warning, and if they commit another endorsable offence within three years they should be liable for the surcharge. I should clarify that examples of the types of offences we are talking about are speeding offences, driving through red lights or ignoring pedestrian crossings.

It is incorrect to say that these offences are victimless crimes; 3,400 people are killed on the roads through speeding each year and 36,000 people are seriously injured. At 40 miles per hour, 85 per cent of people hit by a vehicle die, compared to 20 per cent at 30 miles per hour and 5 per cent at 20 miles per hour.

The House of Commons Transport Committee this week published a report on Traffic Law and its Enforcement. It states:

"Bad driving is not victimless ... Changes are needed to ensure that we no longer have the culture which considers poor driving standards as acceptable, or at worst careless. It is unacceptable that speeding should be seen as unimportant, until such time as death or injury occurs".

We concur with that. The report goes on to say that drivers who receive automatic penalties for speeding have not committed a minor transgression but have significantly exceeded the speed limit. Someone would have to be driving at 35 miles per hour in a 30 miles per hour zone to receive a fixed penalty notice. That could be the difference between life and death for many of those involved in collisions.

It is clear that road traffic offences are serious offences and can have grave consequences. Offenders should be made to pay the surcharge. What we are aiming to do is to make offenders pay a small sum to a fund for the victims of crime. The fund will provide practical and emotional support to a range of victims, including those who have been victims of road traffic offences. Victim Support, for example, can only do so much with the annual grant it receives, even though the grant has almost trebled since this Government took office—from £10.7 million to £30 million. Its focus is on providing core services to victims and witnesses through its community and court-based services. It would very much like to do more. There are other specialised support groups which deserve our support too; not least voluntary organisations which provide help to those injured or bereaved by death on the road, often as a result of speeding motorists.

We want to provide more funding to the voluntary sector and to communities to meet local needs. We are determined that victims should receive the practical and emotional support they need, in many cases to rebuild their lives. There is no provision in the Bill for the establishment of the victims' fund. That is because we can do so without primary legislation, by agreeing with the Treasury that a certain portion of the consolidated fund will be ring-fenced. A recent precedent for that is the Recovered Assets Fund, into which was paid the proceeds of crime recovered through confiscation orders. Many of your Lordships may be aware that similar schemes have been very successfully employed in other countries.

Turning first to the surcharge imposed on a criminal conviction, subsection (1) of Amendment No. 8 inserts into the Criminal Justice Act 2003 two new sections, Sections 161A and 161B. New Section 161A would impose upon the court a duty to order payment of the surcharge with a criminal conviction, except when the court makes an absolute discharge or mental health disposal. However, a compensation order would take priority over the surcharge. If the court considers that the offender should pay compensation and has insufficient means to pay the surcharge as well, it must reduce the surcharge accordingly—if necessary to nil.

The Secretary of State would also have power to prescribe further exceptions. We envisage using this power, which will be subject to the negative resolution procedure, if experience of operating the surcharge shows that certain categories of defendants are being unfairly penalised by the surcharge.

New Section 161B deals with the amount of the surcharge, which it states will be as specified by order by the Secretary of State, subject to the negative resolution procedure. It will enable higher surcharges to be ordered for more serious offences. The intention, however, is that the surcharge will be a relatively small amount—up to £30 at present—in order to maximise payment by the vast majority of offenders to a wide range of victims.

Subsection (2) of Amendment No. 8 amends the provisions on the fixing of fines to ensure that the court does not reduce a fine on account of the surcharge. The aim is to ensure that, as far as possible, the court orders the surcharge to be paid on top of any fine it would otherwise have given. The only exception is to be when the offender simply does not have enough money to pay both, in which case the surcharge will take priority. We think that the new powers in the Courts Act 2003 will improve the overall likelihood of payment so that offenders do pay both the fine and the surcharge.

Subsection (3) of Amendment No. 8 has the effect that the surcharge will be treated as a fine for the purposes of collection and enforcement. Subsection (4) provides that the new provisions in the Courts Act on the collection and enforcement of fines will apply. Subsection (5) provides that the Secretary of State may amend the way in which the relevant provisions of the Courts Act apply to the surcharge. That is because these measures are currently being piloted.

The evaluation of the pilots may necessitate changes. Section 97 of the Courts Act provides a power to amend the provisions in the light of the pilots, but this would not extend to the surcharge, which will not be part of the pilot. This order-making power simply ensures that we can ensure that the Courts Act provisions, in their final form, apply properly to the surcharge. It will be subject to the affirmative resolution procedure, by virtue of Amendment No. 94.

Amendments Nos. 54, 69, 70, 77, 81, 87, 100 and 101 are consequential amendments to Amendment No. 8. Amendment No. 54 specifies that the order to be made under subsection (5) of Amendment No. 8 is subject to affirmative resolution. Amendment No. 69 amends the Rehabilitation of Offenders Act 1974 so as to ensure that the surcharge is disregarded for determining when a conviction is spent and the rehabilitation period will be applicable to the other parts of the sentence given by the court.

I hope that what I have said in relation to all three of the new changes will suffice. I am happy to give more detail if noble Lords would like it. I am sure that the House will agree that it is right that, whenever possible, offenders should be made to pay for the consequences of their crimes. A small contribution towards a fund to provide much needed support for a wide range of victims, we believe, is a fair and logical step. It will build on and complement existing services, including the criminal injuries compensation scheme and grant aid to Victim Support, made at the taxpayers' expense, to offer practical and emotional support.

I invite your Lordships to accept these amendments to add a surcharge to criminal convictions in the courts, to fixed penalty notices for road traffic offences and to penalty notices for disorder in order to provide revenue for the victims' fund.

I should now like to address the amendments which have been tabled to these proposed clauses. Amendment No. 8A in the name of the noble Baroness, Lady Anelay, seeks to remove the obligation on the court to order an offender to pay the surcharge when it deals with him. Instead it provides the court with a discretion in each case. Our intention is that the surcharge must be added unless the court has not dealt with the person under the terms specified in subsection (4) or the case is of a type which has been excepted from the surcharge provisions by an order made under subsection (2).

Amendment No. 8C, again in the name of the noble Baroness, Lady Anelay, would remove subsection (2) meaning that no such order could be made. So, instead of a clear list of exceptions being set out in an order, the court would consider each case on an individual basis.

Amendment No. 8B is consequential and would subsequently remove the mention of subsection (2) from subsection (1). These amendments would create additional work for the courts as they would have to carry out a detailed assessment of each case before deciding whether or not the surcharge should be added.

We believe that the courts should, assuming that they have dealt with the offender, automatically apply the surcharge unless the case meets the requirements set out in an order made by the Secretary of State. We appreciate that the intention behind the noble Baroness's amendments is to introduce some flexibility to the scheme, but we feel strongly that the surcharge should be compulsory. If people have committed and been found guilty of an offence which, in most cases, will have a direct victim, we think it right that there should be clarity about how much they should be asked to pay.

There are very few circumstances in which there will be a good reason why a small surcharge, to provide support and services to victims, should not be added by the court. Once the surcharge has been operating, the Secretary of State will be able to make an order setting out those circumstances and to add to them over time. That introduces a degree of flexibility, which I know that the noble Baroness seeks. Further, in the context of compensation, as stated in the Bill, where the court considers that the offender has insufficient means to pay both compensation and the surcharge, the court may reduce the amount of the surcharge, if necessary, to nil. Therefore, there is already some flexibility to the application of the surcharge. We would resist any amendments to introduce any more flexibility or discretion.

Amendments Nos. 8D and 8E, tabled in the name of the noble Baroness and the noble Viscount, Lord Bridgeman, who, happily, I see in his place, would change the procedure for making orders under Commons Amendment No. 8 from negative to affirmative resolution. Amendment No. 8D would mean that the power allowing the Secretary of State by order to exempt certain cases from payment of the surcharge of new Section 161A(2) would be subject to the affirmative procedure. We believe that the intention of Amendment No. 8E is to make the power to set the level of surcharge by order in new Section 161B(1) subject to the affirmative procedure.

We want to be able to make the orders by negative resolution, as we would like to have the flexibility to make additions or alterations to the orders fairly easily, once the surcharge has been in operation for some time. We therefore think it sensible to use the negative resolution procedure. Also, we are not dealing with large amounts.

Further, the Government believe that it would be rather odd to have the order-making power to set the amount of the surcharge payable on conviction subject to the affirmative procedure, when the surcharge on road traffic fixed penalty notices will be dealt with using the existing powers in Section 53 of the Road Traffic Offenders Act 1988, as amended by the Bill, which is subject to the negative resolution procedure. In addition, the power to set the level of on-the-spot penalties for disorderly behaviour under Section 3 of the Criminal Justice and Police Act 2001 is, by order, subject to the negative resolution procedure. I remind your Lordships of Section 3(6) of that Act.

I should also like to clarify, however, that, as the Bill stands, any amendment made to the Courts Act 2003 through the order-making power provided for in subsection (5) of Commons Amendment No. 8 will be subject to the affirmative resolution procedure. That is to be found in Commons Amendment No. 54.

As for Amendment No. 10A, which would remove Commons Amendment No. 10 in its entirety, I hope that I have already explained why we consider those who have received fixed penalty notices for enforceable road traffic offences still to be offenders. Their actions cause harm to other people, both pedestrians and other drivers. We feel strongly that they should be asked to pay a small surcharge towards the victims' fund. As well as raising funds for the support of victims of crime, we hope that the introduction of the surcharge on fixed penalty notices for repeat offenders will encourage drivers to think twice about speeding or committing other enforceable road traffic offences, which would, in return, reduce the numbers.

Amendment No. 10B is intended to increase the application of the surcharge to those who have committed an endorsable offence or those who have been previously disqualified from driving within the past five years, instead of the past three years. Our reason for deciding to apply the surcharge to those who have committed more than one offence within a three-year period was that that is the length of time that an endorsement will remain on a driver's licence. After three years, the penalty points are removed and the driver's licence will then be clean. If the time limit were changed to five years, it would be administratively difficult, if not impossible, to find out if someone committed an endorsable offence more than three years ago, so we would not be able to identify those offenders and apply the surcharge to them.

I turn to Amendment No. 10C, which would remove the ability of the regulations permitted to be made in relation to conditional offers to apply the relevant part of the Road Traffic Offenders Act 1988 with modifications. Modifications may be needed to make the provisions work and we want to ensure that we have the flexibility to do that. I hope that noble Lords will accept there is nothing untoward about that intent.

We therefore reject these amendments but ask your Lordships to accept Amendments Nos. 8, 9 and 10. I hope that, after that lengthy exposé, there will be no questions that I have not already answered.

Moved, That the House do agree with the Commons in their Amendment No. 8.—(Baroness Scotland of Asthal.)

rose to move, as an amendment to Commons Amendment No. 8, Amendment No. 8A:

8A Line 7, leave out "must" and insert "may"

My Lords, in moving this amendment, as an amendment to Commons Amendment No. 8, I shall speak also to Amendments Nos. 8B to 8E and 10A to 10C.

When we were all trying to jump the gun a bit to get to these exciting new government proposals, my noble friend Lord Carlisle of Bucklow made the point for us all. Here we have three ways in which a new surcharge is to be imposed by the Government: three new clauses making substantial changes, and yet, all together in one group, very difficult for all of us to be able adequately to debate.

All my amendments were tabled with the sole aim of trying to signal in advance some of the questions that I might pose. Indeed, the noble Baroness has answered most of them—although, I must say, not quite all; I have one or two left. Overall, I thought that it was important for the Government to bring rather more clarity and transparency to the proposals than they had so far in another place. There was little or none there until the 11th hour, on Report last week.

As the noble Baroness said today, the Government proposals first saw the light of day in their consultation paper published on 12 January this year—after the Bill had started its progress through this House. When that consultation paper was produced, there was overwhelming support in response for better services for victims but very divided opinion on the matter of the surcharge. The majority of objections to the Government's proposals concerned the road traffic surcharges. If we were in Committee or on Report, I would quote extensively from those objections, but I shall certainly not do that at this stage. I merely mention that bodies such as the Police Federation and the Magistrates' Association are against those surcharges for practical reasons.

There was a furore in the press. The Government appeared to back off. On Second Reading, the Home Secretary said that the measure would not apply to the vast swathes of motoring offences. At that stage, public opinion settled back down again, as did the red-top newspapers, in the belief that the Government would surcharge only the most serious traffic offenders and criminals who commit theft and violent offences.

The government new clauses in Amendments Nos. 8 and 9 are therefore pretty much what the public expected. They are certainly what we expected. But we should note that the proposal to surcharge those who are committed to prison makes a significant departure from the principle that I understood had always underpinned sentencing practice: that you should not mix a custodial with a financial penalty. Does the Minister agree that it has been usual practice in sentencing that, if there is a fine to be paid, as distinct from compensation, and a person is to be committed to prison, it has been good practice to commute the fine to extra days in prison? That recognises the importance of ensuring that when the offender is released, he or she makes a clean start and therefore should not be tempted to steal to pay the fine.

My amendments concerning the surcharge on people put into custody were indeed there to probe just what flexibility the Government want. As all governments do, perhaps, they want even more flexibility than I was prepared to concede. I was trying to argue, through those amendments, that we should be able to trust the judiciary properly to look at the circumstances of each offender to determine whether it was appropriate to add the surcharge. As on many occasions throughout the Bill, the Government's response was to say, "That is not the way we want to do it. We want to have this flat rate, and we will have the Secretary of State with his own power. If, later on, we think that the approach is not working then we will have the Secretary of State issue an order saying when the penalty shall not be imposed".

At this late stage I shall certainly not contest that position. I shall look very carefully at how the system works on the RDS section of the Home Office website, which is a very good facility for letting us know what the department is getting up to—sometimes it is even quite clear about what it is getting up to, but not always. I shall certainly keep an eye on the matter.

There are greater problems with the third group of surcharge proposals for road traffic offenders. I shall outline my amendments on the subject. When the Home Secretary said what he was going to do, his proposal did not let people realise that committing a second endorsable offence of itself would be sufficient to trigger the surcharge. As the noble Baroness says, that is within a three-year period. I accept entirely her argument about why it should be three and not five; the amendment was intended only to elicit that explanation.

Amendments Nos. 10B and 10C are devices to ask the Minister certain questions. First, when do you get a penalty notice? What for? Much of the Commons debate and the remarks of the noble Baroness today have related to speed cameras. I am at one with the noble Baroness on that: I accept, and always have, that speeding can be dangerous, especially in urban areas. I am arguing for transparency in sentencing and revenue raising. I am not arguing for an open sesame for boy-racers or girl-racers; however, I am certainly not arguing for an open sesame for the Government, who are desperate to find stealthier ways of getting extra funds. We all want victims' services properly funded, but I am not convinced that this is necessarily the right way to go about it.

There are plenty of other offences apart from speeding for which one could face the surcharge; for example, having your tyres under-inflated or over-inflated. The Government's definition of a "serious and persistent criminal" seems rather grotesque, because it includes someone who gets stopped twice in three years, perhaps for having under-inflated tyres. The Government argued in the other place that that was pretty much a middle-class crime and therefore it was okay to slap on a surcharge for the middle classes to pay up to assist victims of crime generally. I am glad that the noble Baroness did not take that line; it was not a particularly helpful one. It could well be the single parent on low income, who can just about afford an ancient runabout to take her children to school or the hospital and does not always have the tyres at the right pressure at the right time, who could be affected by this surcharge.

My second question is: how much will the penalty be? The noble Baroness has said that it will be only a small amount. That was a little coy, because in the other place sums of £5, £10 and £30 were bandied around. We were told, "We will let it run and then the Government will decide". By negative resolution they will be able to increase the amount when they wish. Surely the danger is that, if we all do as the noble Baroness says and think twice before speeding—I shall try; I have no points on my licence yet, but that is not through virtue—and become considerate drivers so that the government income from the fines goes down, surely the Government will be tempted to raise the surcharge to keep up the trickle of money into the fund to help victims. That would not be a transparent system.

My final question has not yet been addressed by the noble Baroness. When exactly does a surcharge fall due to be paid by the motorist? I shall take as an example a relatively common scenario, which I faced as a magistrate. One might be stopped for speeding once, say, for travelling at 36 m.p.h. in a 30 m.p.h. limit in one year, and within three years one is then stopped for having two tyres under-inflated and one tyre over-inflated. That is two occasions but four endorsable offences. If the surcharge is £5, does the person pay £5, £10 or whatever multiple thereafter?

The reason that I ask that question is because the noble Baroness's colleague Mr Goggins was less than clear in another place. He started off by saying that it would be clear:

"It will be clear that the second endorsable offence, not the value of the penalty points, will attract the surcharge".

But then he said:

"The number of occasions on which an offence is committed will be considered".

Did he leave out the word "not"? I do not know. He went on to say,

"twice is once too often, whether it is on the same day or over a period of three years".—[Hansard, Commons, 27/10/04; cols. 1506-08.]

It did not sound as though Mr Goggins quite knew whether it was two occasions, four offences or how it would be worked out. I beg to move this probing amendment.

Moved, as an amendment to Commons Amendment No. 8, Amendment No. 8A.—(Baroness Anelay of St Johns.)

My Lords, I find this very strange. Like other noble Lords, I took part in the Committee stage of the Domestic Violence, Crime and Victims Bill, which was looked at line by line, as happens in Committee. Then, suddenly, without any reference at all, the Government in the House of Commons start adding clauses which had never been mentioned, have never been considered by noble Lords and have no direct relationship to the Bill. Three of them deal with surcharges. I should have thought that these three clauses would have cried out for careful examination in Committee. So far as I am concerned, the principle itself is very dubious.

The principle as I understand it is that anybody who appears before a court and is convicted of a criminal offence, if he is not mentally affected or granted an absolute discharge, will be subject to paying a surcharge. Equally, anyone driving a motorcar who has one speeding offence as a result of travelling past a speed camera, maybe on an open road in the early hours of the morning, and who commits a similar speeding offence during the following three years will immediately become subject automatically to a surcharge.

What is the surcharge for? The Minister, Mr Goggins, told us:

"Our aim is to make offenders pay a small sum to a fund for the victims of crime. The fund will provide practical and emotional support to a range of victims".—[Official Report, Commons Standing Committee E, 1/7/04; col. 293.]

Why should there be a greater responsibility on someone who has committed a second motoring offence, for example, to pay for the establishment of a fund to deal with the emotional support needed by an elderly lady who is, say, the victim of a burglary? Surely, it is society's duty to provide support for victims. Whether or not you have committed a second fixed-penalty offence seems totally irrelevant and in no way increases the responsibility of that individual to compensate that victim.

Who will be the victims? We are told that the fund will provide practical and emotional support for a range of victims. There is no provision for the establishment of a victims' fund. Who is to decide who the victims are? Is it to be Victim Support with more money from the Government than before? I declare now an interest that I would have had to declare later in any event as a former chairman of the Criminal Injuries Compensation Board. Is it merely a method of increasing the money available to the Criminal Injuries Compensation Authority to compensate for the substantial cut in the budget that, I understand, it has received in the past few months?

What is the principle behind it? The Minister said that it was right that people should pay for their crimes. Of course they should, but I still do not understand why someone who is convicted of an offence of, say, shoplifting or drinking after hours should be more responsible than society as a whole to the victim of a wounding. The principle is highly questionable.

What about the practicality? First, there is the intention to surcharge the offender. As my noble friend Lady Anelay of St Johns asked, does that mean that, in future, everybody who is sentenced by any court to a term of imprisonment will, as well as being sent to prison, have a surcharge imposed on him? If that is so, is that not, as my noble friend said, contrary, in many ways, to the principle used in the past by the courts that if a person is incarcerated for his offence, we should not add a financial penalty?

The new clause does not say, "a court may"; it says, "a court ... must". Presumably, anybody who is imprisoned for any offence, however serious and however long the sentence, will be surcharged. We are not told the amount, but he will have to pay a sum that will ensure that, when he comes out, he will have no money left with which to start, if he wishes, to live an honest life. It is an extraordinary proposal.

What about the motorist? Again, everyone who is convicted of an offence carrying a fixed penalty will, as I understand the proposals, be ordered to pay a surcharge. I agree with the Minister that motoring offences are serious. I agree with her that those who commit more than one motoring offence are a serious problem. I am not sure, however, that I would necessarily describe a person who committed one offence of speeding and one of having a bald tyre as a repeat offender.

If the view is that speeding for a second time is more serious than speeding the first time, why not put up the fixed penalty? The fixed penalty for a first offence is £60. In future, for a second offence, it will be £60 and something called a surcharge, amounting to £30. If we are concerned at the gravity of the offence, we should put up the fixed penalty to £90, rather than dressing the increase up by pretending that it is a surcharge that goes, in an unexplained way, through a victims' fund, which is not to be established, to help with the emotional and practical problems of victims of crime who have no relationship to the individual who has committed the speeding offence or driven with bald tyres.

I have spoken longer than I should have, but the proposal is nonsense in principle and will be shown in practice to be unworkable.

My Lords, my noble friends Lady Anelay of St Johns and Lord Carlisle of Bucklow have drawn our attention to a confusing situation, caused mainly by the amendments moved in another place that the Government are asking your Lordships to accept this evening.

I am moved to draw attention, perhaps prematurely, to Amendment No. 8, which includes two new clauses to be added to the Criminal Justice Act 2003. The one that surprises and worries me is new Clause 161B, which deals with the amount of the surcharge. The Secretary of State will specify it by order. We find in the next subsection that the order may provide for the amount to depend on the offence or offences committed, how the offender is otherwise dealt with and the age of the offender.

In effect, the Secretary of State will be able to legislate in important ways on a matter that, essentially, should be dealt with in the Bill, rather than being delegated to him. We are not sure from new Clause 161B whether the Secretary of State will have the power to apply his recommendations to individual cases. I hope not. That would be the wrong way to legislate.

I sympathise greatly with the noble Baroness, Lady Scotland of Asthal. She has been given an impossible task. Theoretically, we are on the way to Royal Assent to this complicated Bill, but I hope that, somehow or another, it may not be passed in this Session. It should be thought out again and reconsidered in the next Session.

My Lords, one always tries to be charitable on such occasions, but the best that I can do is to call the proposals half-baked.

We are told that the Magistrates' Association opposes the proposals. I can see why. It would be helpful to be told what it said in response to the consultation. I cannot remember, but I imagine that the magistrates objected to being treated as tax collectors for the Government, who would be able thereafter to apply to matters outside the purview of magistrates the product of the so-called surcharge. Why is it called a surcharge? Why is it not called a penalty? That is what it is. What is it a surcharge on? It is a surcharge on a penalty that the magistrate thinks it right to impose.

I thought that those of us who took an interest in penal matters were agreed that custody should be avoided if other penalties were available and that financial penalties should be assessed according, in part, to the means of the offender. We all know how keenly the public feel that punishments should be appropriately severe, though not inappropriately severe. If, in a particular case, a court—any court—decides to respond to the offender's guilt by imposing a fine, it will do so by reference to his means and his ability to pay. We do not know what the Secretary of State will, by order, fix as the level of the surcharge. Presumably, it will be significant. The consequence will be that magistrates will reduce the amount of fines, to take account of the additional liability to pay the surcharge. If that is so, there will be a great deal of dissatisfaction among people who say that the fine is insufficient. Should not the Government better think about all that again?

My Lords, the Home Office must have a very large and dusty box of Christmas baubles in its attic. It seems to raid that box very frequently and hang them on any unsuspecting passing Bill. These amendments fall within that category. So disconnected is the issue of these surcharges from the substance of the original Bill that I notice that the Government have had to introduce Amendment No. 101 to change the Title of the Bill.

Turning now to the substance of these amendments, while we support the Government's wish to provide more adequately for Victim Support and commend the work of the Victim Support organisations, we have our reservations about the detail of the proposals to surcharge, in particular, motorists convicted of speeding. We do not, however, support any campaign against speed cameras in general. They have an important role to play in road safety as long as there is sound evidence for the location of their deployment.

We are concerned, first, that when the Home Secretary first proposed this measure, he suggested that the victim fund would be paid for by the mugger and not by the motorist. Then, lo and behold, we find a proposal introduced in another place to surcharge the motorist. When challenged on that by my honourable friend the Member for Somerton and Frome in another place, the Minister, Paul Goggins, claimed that it would apply only to serious or persistent offenders.

Now I come to our second concern, which is clearly shared by many other Members of your Lordships' House. Mr Goggins's definition of a persistent offender is someone who already has some points on his licence. That might be for an infringement of a very minor kind, as described by other noble Lords, or perhaps an infringement of a speed limit that occurred two years and 11 months ago. Indeed, it is quite possible for someone to commit two offences of that kind within 50 yards of road if he is caught on two cameras in the same journey. In my view, that does not make him a persistent offender. One of the proposed amendments would give the court a certain amount of discretion that might deal with anomalies of that kind.

My honourable friend suggested that a more appropriate definition of someone who should be surcharged would be someone who had been disqualified from driving for a serious or a series of motoring offences. Sadly, as the Minister has confirmed again today, the Government do not agree.

On these Benches, we believe that it is important to have public support for the law. Since about 1.5 million endorsable speeding offences occur every year, I fear that this measure will only reinforce the public's view that the Government see speed cameras more as a convenient cash cow than as a serious attempt to improve road safety. That would be a great pity. Cannot the Minister give us any comfort about the definition of those to whom these surcharges would apply?

Another thing that worries me is the link between the amount of support available for victims and how law-abiding motorists are. I certainly echo the concern of the noble Baroness, Lady Anelay, in that respect. The public prefer to see a link between the punishment and the crime. I also echo the words of the noble Lord, Lord Carlisle, on that matter. He had it absolutely right.

We do not support the Government's amendment. We support many of the amendments that have been put down to try to neutralise some of the effects of them.

My Lords, unlike any speaker in the House on this topic, including the Minister, I have an interest to declare. I have paid a fixed penalty within the past three years for speeding. I am very aggrieved about that, but that is beside the point.

First, I want totally to support everything that the noble Lord, Lord Carlisle, said. It is a very startling innovation that is really outside the scope of the Bill. Well, it would be outside the scope of the Bill but for the change in the Long Title, which is remarkable in itself.

I turn now to the suggestion that magistrates will reduce the fine to take account of the surcharge. We are not dealing with the gaming Bill at the moment, but I would take a small bet that they will, notwithstanding that in new subsection (4A) at the top of page 5, they are told that they cannot do that. Of course, it would be quite impossible to prove whether they have or have not. In the interests of justice, as they see it—probably rightly see it—I fancy that they will.

The objection here is one that I have had to the Home Secretary's activities over quite a long period of time; namely, that he wishes to take away the discretion of the court at all levels to decide the appropriate penalty. He has introduced minimum sentences for other offences, subject to some slight get-out clause. Now he will do the same here.

It may be said that a surcharge is not the same as a penalty, but it certainly is from the point of view of the repeat offender, as I fear I may become before I get to the end of the three years.

My Lords, I hope to reassure the noble and learned Lord that even if he were to become a repeat offender, which I am sure he will not because of the salutary effect of having received his penalty already, the penalty that will be imposed on him is likely to be within his ability to pay.

Perhaps I may straight away tell noble Lords the sort of figures that we have in mind. For fixed penalty notices, including penalty notices for disorder, up to £80, the proposed surcharge level is between £5 and £10. For a fixed penalty notice, including penalty notices of disorder, which are imposed between £81 and £200, the proposed surcharge is £10. For a fine of up to £1,000, the proposed surcharge is £15. For all community penalties and fines of more than £1,000, the proposed surcharge is £30. The surcharge is £30 for a custodial sentence that is suspended. It is also £30 for an immediate custodial sentence. Noble Lords will see that the amounts that we propose are of a relatively modest nature.

I hope that noble Lords will understand that we have tried in recent years to ensure that the victim is put very much at the heart of those proceedings. The victim has often felt—certainly this is something that a number of victims' organisations have told me—very much the "forgotten guest at the feast", the unregarded. We would very much like to change that. Huge amounts of effort and money are currently going into victim services. I am not just talking about the increase from £10.7 million to £30 million that is given to Victim Support.

In all, the Government, I believe, spend in excess of £600 million on various different services for the benefit of victims. But there is clearly much more that can be done. I have said already that we do not believe that road traffic offences are victimless crimes. I very much welcome the comments made by the noble Baroness, Lady Anelay, in support of that sentiment.

The best way of avoiding victims would be of course for civil obedience to break out. No surcharges would be payable because no one will have committed any offences. If that were to happen, I can assure noble Lords that no one would be happier than the Government. We would not have victims; we would not have those who were adversely affected; and we would not have to try to care for them in the way that we now do because they would not have so suffered.

My Lords, how is a person mugged in the street the victim of a motorist speeding in another part of the country rather than the victim of the person who committed the mugging, or the victim of the society which failed to protect him from attack?

My Lords, the victims' fund will be for everyone and we are refusing to exclude road traffic offences from that list. It is absolutely right to remember that if any other group of offences was causing the death of 3,400 people a year, there would be uproar about it. If any other group of offences involved injury to 36,000 people a year, there would be uproar about it. The fact that this is happening on our roads does not excuse the enormity of the pain caused by motoring offences.

My Lords, I was not for a moment suggesting that there are no victims of road accidents; of course there are. However, what I sought to ask is why is someone mugged in Edinburgh more the victim of someone speeding in Scarborough than the victim of society as a whole, which should protect him?

My Lords, society, through moneys already made available through the taxpayer, already plays its part. But what we are saying is that it should not be the taxpayer alone who makes this payment; each perpetrator of an offence should also make a contribution to a fund which will be set up and made available to various organisations which will be able to apply to it. That is similar to the way we have used recovered assets. For example, many noble Lords will know that recently we received around £4 million that will be used principally to set up sexual assault referral centres to which various bodies will be able to apply for funds. So it will be possible for various associations and organisations to apply to the victims' fund for support.

Those organisations will represent all sorts of victims: victims of road traffic offences, of sexual assault, of theft and of all kinds of other crime. Through their various organisations, victims will be able to access the fund. Equally, all sorts of perpetrators of all sorts of criminal offences will be asked to make a contribution.

Noble Lords may know that this arrangement has been used to great effect in many other countries around the world. It has succeeded in delivering the enhancement of high quality services for victims in need. We seek to do something similar.

The noble Baroness, Lady Anelay, asked what would happen in the case of multiple offences. The scenario that we envisage is this. Where a person is convicted of several offences at the same time, we would want the surcharge to be levied on the punishment for the most serious of those offences. I have already indicated that the level of the surcharge will be dependent on the level of the punishment. For example, a fine of up to £1,000 would attract a surcharge of £15, while a fine of £1,000 would attract a surcharge of £30.

In response to the point raised by the noble Lord, Lord Carlisle, I also made clear when I sought to outline how this is to work that it will be open to the court, if it felt that the fine as well as the surcharge could not be paid, for it to say that, if necessary, the surcharge could be reduced to nil. So it is not a case of saying that the fine may be improperly depressed or reduced because of the payment of the surcharge. A level of flexibility will be provided.

It is also wrong of the noble and learned Lord, Lord Donaldson, to fear that this is another removal of discretion. We have very much taken on board the fact that the courts would have real difficulty in setting individual surcharges. We have enabled the courts to make the charge quickly and effectively, and without any administrative or other difficulty. We think that we have provided sufficient flexibility for that.

The noble Baroness, Lady Walmsley, commented that this would be a raid on the Christmas box. Perhaps I may assure her that it is not. This is something that will very much inure to the benefit of victims and therefore, contrary to what was suggested by the noble Lord, Lord Carlisle, it is directly related to the Bill because this measure is concerned with domestic violence, crime and the victims of crime. We have created the Commissioner for Victims and Witnesses, who I am sure will be very anxious to monitor how we deal with this.

We say that this penalty is not being improperly imposed. It is not unusual for a sentence to include more than two elements. While it may be unusual in practice, there is nothing here which goes contrary to principle. Someone can receive a term of imprisonment along with a demand for a payment along the lines of this surcharge.

I accept that noble Lords would have preferred to have debated these matters earlier, and of course I take on board all the concerns and criticism in that regard. But we are where we are, and we believe that this will make a material and advantageous improvement to the ability not only to assist victims, but also—it is hoped—to underscore to those who do participate in committing offences that there is a cost attached, and that they will have to discharge their responsibilities. I hope that it will serve as a good reminder to people who have to pay the surcharge. Although they may think that they have committed a victimless crime, the surcharge will indicate that they have not. This small payment may serve as an appropriate reminder.

My Lords, I was hoping to hear an answer to a point I endeavoured to raise about magistrates reducing a fine they consider it appropriate to impose in order to permit the surcharge to be paid. The noble and learned Lord, Lord Donaldson, said that Section 164(4A) would deal with that, but in practice magistrates would do just what I have outlined if the justice of the case required it. Indeed, the whole wording of new subsection (4A) makes it clear that they are entitled to do that by stating,

"a court must not reduce the amount of a fine on account of any surcharge it orders the offender to pay ... except to the extent that he has insufficient means to pay both".

That states in terms that they may do that.

I hope to hear an answer to this, because the only response that I have heard seemed to be along the lines that it is a small payment, given that I think I am right in saying that the surcharge will be only £15 for a fine of up to £1,000. However, surely the next thing that will happen is this: enthusiasts of victim support services will say, "Look at this. The surcharge is a tiny proportion of the total fine. You must increase it, Secretary of State. You have the power to do so". As my noble friend beside me pointed out, income tax began at sixpence in the pound, and we know all about the rate of progression of these devices. I hope that the Minister will respond to that point.

My Lords, even if I did not specifically refer to the noble and learned Lord, Lord Mayhew, by name, I believe that I answered the point by saying that the surcharge would not operate so as to reduce the level of the fine. The discretion is provided so that if the court is of the view that the level of the fine would be improperly depressed because of the inability of the defendant to pay both the fine and the surcharge, it would be open to the court, if it so desired, to reduce the surcharge—to nil, if that was necessary. I had hoped that I made that clear. Knowing how the noble and learned Lord usually attends to these matters, clearly I did not.

My Lords, as ever I am grateful to the noble Baroness for her answers. We have scratched the surface at this late stage of the Bill, but we have done no more than that. My noble friend Lord Carlisle of Bucklow started us on the right line when he said that what we really should be looking at is the principle behind this arrangement. When we start to look at that principle, I think that we have to agree with the judgment of my noble and learned friend Lord Mayhew of Twysden, that this is a half-baked measure. Unfortunately, it is a half-baked measure presented so late in the day that we shall not be able to take the ingredients out and start all over again. I wish that the Government felt able to do that.

I agree with the noble and learned Lord, Lord Donaldson, that this is one more piece of evidence to show that the Government are moving away from using the discretion exercised by judges towards trying to impose a straitjacket, in this case taking the form of surcharges. The fact that the noble Baroness says that the amount of the surcharge may be sufficient for the noble and learned Lord to pay if he is so unlucky as to be caught by another speed camera is not the point. We are talking about the imposition of a surcharge on everyone for which there is as yet no fettering on the Government; it is an amount that could be raised at any time in the future.

The half-baked aspect of this came out when the noble Baroness was striving to persuade us about the principle behind it; about where the money would go and why. She started by saying that it would be nice if there was an outbreak of civil obedience because then there would be no surcharge because there would be no victims. However, the whole tenor of her argument is that if there were no road traffic victims, there would still have to be a surcharge because road traffic offenders would be paying for everyone else. Even if there were complete civil obedience and no one ever broke a road traffic direction ever again, penalties would still be imposed by the Government if they needed to pay for other victims.

Although it is an illogical and half-baked proposal, I shall certainly not be able to sort it out at this late stage. It merely goes to prove that in future we need to be sure that when the Government start a Bill they put into it at the very beginning the proposals that they hope to see at the end; that they do not put them into the Bill as though it was a skip passing in front of the House into which they can throw the goods they wish to see in it.

It is not a satisfactory position. People who consider themselves to be honest drivers will find themselves called "serious and persistent offenders" for the first time in their lives when perhaps they have once in a three-year period exceeded the speed limit at a modest level. I hope that they never do so, but it is an extraordinary title to apply to such people. I beg leave to withdraw the amendment.

Amendment No. 8A, as an amendment to Commons Amendment No. 8, by leave, withdrawn.

[Amendments Nos. 8B and 8E, as amendments to Commons Amendment No. 8, not moved.]

On Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENT

9 After Clause 11, insert the following new clause—

"INCREASE IN MAXIMUM ON-THE-SPOT PENALTY FOR DISORDERLY BEHAVIOUR

(1) In Chapter 1 of Part 1 of the Criminal Justice and Police Act 2001 (c. 16) (on-the-spot penalties for disorderly behaviour), section 3 is amended as follows.

(2) In subsection (2) (maximum penalty that may be prescribed), at the end insert "plus a half of the relevant surcharge".

(3) After that subsection insert—

"(2A) The "relevant surcharge", in relation to a person of a given age, is the amount payable by way of surcharge under section 161A of the Criminal Justice Act 2003 by a person of that age who is fined the maximum amount for the offence.""

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 9. I have spoken to this amendment with Amendment No. 8.

Moved, That the House do agree with the Commons in their Amendment No. 9.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENT

10 After Clause 11, insert the following new clause—

"HIGHER FIXED PENALTY FOR REPEATED ROAD TRAFFIC OFFENCES

(1) The Road Traffic Offenders Act 1988 (c. 53) is amended as follows.

(2) In section 53 (amount of fixed penalty), after subsection (2) insert—

(3) In particular, in relation to England and Wales an order made under subsection (1)(a) may prescribe a higher fixed penalty in a case where, in the period of three years ending with the date of the offence in question, the offender committed an offence for which—

(a) he was disqualified from driving, or

(b) penalty points were endorsed on the counterpart of any licence held by him."

(3) At the end of section 84 (regulations) (which becomes subsection (1)) insert—

"(2) The Secretary of State may by regulations provide that where—

(a) a conditional offer has been issued under section 75 of this Act,

(b) the amount of the penalty stated in the offer is not the higher amount applicable by virtue of section 53(3) of this Act, and

(c) it subsequently appears that that higher amount is in fact applicable,

the fixed penalty clerk may issue a further notice (a "surcharge notice") requiring payment of the difference between the two amounts.

(3) Regulations under subsection (2) above may—

(a) provide for this Part of this Act to have effect, in cases to which the regulations apply, with such modifications as may be specified;

(b) make provision for the collection and enforcement of amounts due under surcharge notices.""

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 10. I have spoken to this amendment with Amendment No. 8.

Moved, That the House do agree with the Commons in their Amendment No. 10.—(Baroness Scotland of Asthal.)

[Amendment No. 10A, as an amendment to the Motion, not moved.]

[Amendments Nos. 10B and 10C, as amendments to Amendment No. 10, not moved.]

On Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENT

11 Clause 12, page 8, line 11, leave out from "count" to end of line 17 and insert "may not be regarded as a sample of other counts unless the defendant in respect of each count is the same person"

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 11.

Let me begin by reminding your Lordships what these provisions are for. Where offending consists of innumerable repetitions of the same offence there may be far more instances of it than can reasonably be included in a single indictment. The practice used to be for a defendant to be indicted for a number of sample counts. It he was convicted of them the court would then sentence him on the basis of all the offences. But this meant that the offences for which he was sentenced included some to which he had not pleaded guilty, of which he had not been convicted and which he had not asked to be taken into consideration.

For this reason the practice was disapproved of by the Court of Appeal in the case of Kidd in 1998. The present clauses provide a statutory replacement for the sample count procedure. It is not intended to widen its scope, nor will it result in any cases which now receive jury trial being denied it. The offences that will be tried without a jury will be the ones that could not now be tried at all. The new procedure is an improvement on the old because where a defendant has been found guilty of sample counts the court will not, as before, simply assume that he is guilty of the remaining counts but will proceed to try those counts in accordance with the evidence.

In the debate at the Report stage in another place, Mr Douglas Hogg, the right honourable Member for Sleaford and North Hykeham, appeared to be somewhat concerned at the prospect of a judge who had heard the evidence in the first stage of a trial before a jury—and who would of course be aware that the defendant had been convicted—would then bring that knowledge to the second stage of the trial. This suggests a misapprehension about the purpose of this procedure. It is absolutely clear that where a defendant has been convicted of counts which are samples of other counts, it will be appropriate for the court to take account in the second stage of the trial both of the fact that he has been convicted and of any evidence adduced in the first stage that is relevant and admissible.

Conversely, a case where that would not be appropriate cannot be a sample count. But that is very different from applying a test of cross-admissibility, which is a bone of contention between us and noble Lords opposite. Your Lordships voted at Third Reading to add subsection (9) to this clause, a requirement for evidence admissible in respect of sample counts to be admissible in respect of subsidiary counts. There was a vote in Committee in another place to remove it, and an attempt at Report stage to reinstate it was defeated. Your Lordships have debated the issue in the past at some length, both on Report and at Third Reading, and it has been considered in another place. Nevertheless I should like to explain why we have consistently opposed the requirement for cross-admissibility and why we remain firmly of the view that such a requirement would be a mistake.

The risk is that using cross-admissibility as the criterion of whether counts were similar enough for one to be a sample of another might exclude some of the cases that we want to be subject to the two-stage process. Let me give an example. An offender is involved in an Internet scam whereby hundreds of victims are cheated of trivial sums of money; there is evidence of more than 600 transactions. Each transaction would constitute a separate count on the indictment and to include all of them would overload it.

The key issue in the case is whether or not the offender was dishonest. In other words, it is not in doubt that the transactions took place; the question is whether or not he had the dishonest intent. The prosecution would seek to make an application for a two-stage trial; 15 counts to be tried by jury and the rest to be tried by judge alone. If in order to obtain such an order the prosecution had to demonstrate that each count was cross-admissible, the court might apply a strict test of similarity or similar fact, which is commonly thought to be a test of degree. The case in the example may fail this test because evidence of dishonesty in respect of one transaction may have no probative value in respect of another different transaction. In other words, the evidence of the other transactions, while similar, may add no probative value to the main issue in the case, which is dishonesty.

Another difficulty is that the test would have to be applied at the preparatory stage, which is when the decision about using the two-stage procedure is to be taken. It might not be clear at that point whether evidence in respect of a count would be cross-admissible in respect of another count. Yet another difficulty is that where there has been no conviction the court has no power to award compensation. Victims may miss out on compensation, therefore, where there are more offences than can be accommodated on the indictment.

We are of the view that in cases of this type where the judge is considering whether one count is a sample of another, the judge can be relied upon to know what a sample count is and that the question of what can be regarded as a sample count can best be left to judicial discretion. The expression is well known and understood from the days before the Kidd judgment. I know that the noble Lord, Lord Thomas of Gresford, will be familiar with this, as indeed will the noble and learned Lord, Lord Donaldson. As far as I am aware, the case involved no suggestion that the courts were taking an unduly broad view of the circumstances in which some counts could be regarded as samples of others. The objection to the former procedure was merely that it entailed assuming the defendant's guilt on the subsidiary counts rather than establishing it, which is what our clause now allows.

Subsection (9), therefore, leaves what is a sample count to judicial discretion. We have been persuaded, however, that the way in which the subsection was originally drafted had an unhelpful circularity about it. Clause 12(9) has therefore been amended so as to remove the circular definition. It simply provides that a sample count is not to be regarded as a sample of other counts unless the defendant in respect of each count is the same person, thus preserving the part of Clause 9 that arguably has a useful function.

I hope that that is clear. We are creating a new mechanism to allow us to do what we did very happily for a number of years with great utility and facility.

Moved, That the House do agree with the Commons in their Amendment No. 11.—(Baroness Scotland of Asthal.)

rose to move Amendment No. 11A, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 11, leave out "agree" and insert "disagree".

My Lords, I draw your Lordships' attention to the wording of Clauses 12(4) and 14(1). Clause 12(4) says of the sample count:

"The second condition is that, if an order under subsection (2) were made, each count or group of counts which would accordingly be tried with a jury can be regarded as a sample of counts which could accordingly be tried without a jury".

The phrase "can be regarded" appears again in Clause 14 and, indeed, in the Minister's speech. It is new Labour speak, I am afraid; it is rather like the Prime Minister saying "I can apologise for misleading the country about Iraq", but did he? Here again, if it,

"can be regarded as a sample", is it a sample, and by whom will it be regarded?

All we are seeking to do, in this very simple amendment, is to make it quite clear what a sample count is, as it has always been understood, and that it is the judge who takes the decision that he is the person who considers that the sample count is a sample of the other counts and not that it "can be regarded" as such. By whom? By the man on the Clapham omnibus? We are simply seeking clarification.

The noble Baroness referred to Internet fraud. That is no doubt a very modern thing. I recall prosecuting a case four or five years ago of some 300 people who had been defrauded in a mortgage scam. I think that a solicitor was one of the defendants. The sums involved—about £50,000—were not trivial. Statements were taken from those 300 victims; the police sent around a pro forma and had them all fill it in. I think we started with 30 counts in the indictment and, at the suggestion of the judge, we cut it down to 10. But every statement that had been obtained—the scam having been carried out in the same way—was evidence in the case in relation to those 10 counts. They were admissible on very well known principles and were samples of the criminality of the person concerned.

I fully recognise that, since the Kidd decision, which suggested that it would be wrong to sentence a person on sample counts if the other counts were not admitted, something had to be done. We do not object to the general principle behind this, but we object to the fact that the phrase,

"can be regarded as a sample" is so wide that it could refer to things that are way outside the previously understood meaning of a sample count. For that reason, I beg to move.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 11, leave out "agree" and insert "disagree".—(Lord Thomas of Gresford.)

My Lords, I can be very brief, but my brevity does not reflect any lack of strength in my support. We remain unconvinced by the Government's argument; we do not see any mischief in the original amendment of the noble Lord, Lord Thomas of Gresford, with regard to subsection (9)(b). We believe that it is right to make certain that somebody cannot be convicted of an offence to be tried without a jury for large numbers of other offences that are not really linked to it.

We support the noble Lord, Lord Thomas of Gresford. We believe that his amendment would simply ensure that a sample count is exactly what the majority of legal practitioners would understand it to be. If the noble Lord is minded to test the opinion of the House, we shall support him.

My Lords, I hear what the noble Baroness says. I am disappointed that she should take that view, not least because it is absolutely clear on the face of the Bill that the person who will be responsible for exercising the discretion as to what will and will not be a sample count will not be the man on the Clapham omnibus, it will be the judge. The judge will decide, as the judge has always decided in these cases, whether these counts can properly be seen as a sample. I make it plain that I, for one, have total trust in the ability of our judges to make that decision soundly. If noble Lords opposite do not, it is a matter for them.

My Lords, the noble Baroness says that with her tongue in her cheek because she knows that nobody has been more supportive of the judiciary and the discretion of the judiciary than we on these Benches, and me in particular, not to mention the noble Baroness, Lady Anelay.

I am not satisfied with that reply. I ask your Lordships to agree with my amendment, and I propose to test the opinion of the House.

On Question, Whether the said amendment (No. 11A) shall be agreed to?

Their Lordships divided: Contents, 84; Not-Contents, 96.

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENT

12 Before Clause 17, insert the following new clause—

"PROCEDURE FOR DETERMINING FITNESS TO PLEAD: ENGLAND AND WALES

(1) The Criminal Procedure (Insanity) Act 1964 (c. 84) is amended as follows.

(2) In section 4 (finding of unfitness to plead), in subsection (5) (question of fitness to be determined by a jury), for the words from "by a jury" to the end substitute "by the court without a jury".

(3) In subsection (6) of that section, for "A jury" substitute "The court".

(4) In subsection (1) of section 4A (finding that the accused did the act or omission charged against him), for "jury" substitute "court".

(5) For subsection (5) of that section substitute—

(5) Where the question of disability was determined after arraignment of the accused, the determination under subsection(2) is to be made by the jury by whom he was being tried.""

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 12. In relation to this group of amendments, the government amendments made in the other place seek to reinstate provisions removed at Third Reading in this House, which would streamline the court process for vulnerable defendants who may be unfit to stand trial. The change provides that the decision on whether a defendant is fit to plead to a charge should be taken by the judge alone, and not by a jury.

We understand the fears of those who have argued that the change reduces the protection of jury trial, but, with respect, we do not agree that it has that effect. A finding of unfitness does not enable any court disposal. It leads to a trial of the facts further to which there is a jury decision on whether the defendant did the act as charged. If the jury is not so satisfied, the court must acquit. Only if the jury finds that the defendant did the act is there a court disposal, and that disposal cannot be punitive. The court may order admission to hospital for treatment if medical evidence justifies that. If it does not, it may order supervision in the community or make an absolute discharge.

The proposal was made by Lord Justice Auld in his review of the criminal justice process. Its intent is to spare vulnerable defendants the lengthy process involving two separate juries, the first having to hear evidence from at least two medical practitioners. A jury is unlikely to be as well qualified as a judge to interpret complex evidence of a professional nature. Moreover, if the defendant subsequently wishes to challenge the finding, he will have a judge's reasons for the conclusion under the new clause. Under the 1964 Act provision, which this amendment would restore, the jury has to give no reasons for its finding.

The amendments tabled by the noble Baroness and the noble Viscount would remove the benefits of the judge's greater expertise, and need to give reasons, from precisely those cases in which the defendant might wish to challenge the decision. We know that the decision on fitness is not challenged in the great majority of cases.

The proposed amendment would leave the Government's intentions intact when there was no challenge. But the defendant stands to gain most when there is dissent, and we should not seek to exclude those benefits.

Lord Justice Auld's proposal is now four years old. We believe that it is too important both to the courts and to vulnerable defendants to be delayed further. It must, at best, be subject to considerable further delay if removed from this Bill. We commend the amendment to your Lordships.

Moved, That the House do agree with the Commons in their Amendment No. 12.—(Baroness Scotland of Asthal.)

rose to move Amendment No. 12A, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 12, leave out "agree" and insert "disagree".

My Lords, in moving the amendment, I shall speak to Amendments Nos. 12B, 13A and 13B. When we first debated these matters at Report, it was because the Government had inserted them into the Bill quite late in the day, but had tried to give this House as much advance notice as possible of the changes before Report. At that stage, as the Minister will recall, I sought to contact those organisations with a direct interest in representing the needs of people who could come within the remit of these clauses. The difficulty was that at that stage I was simply unable to get a response from them. The Minister felt that there had been official consultation; the difficulty was that I could not see any record of that, or response from the organisations.

At Third Reading there still had been no response, which was why I divided the House—because I felt that it was important to listen to the views of organisations such as Mind. By the time the Bill reached Second Reading in another place, Mind had issued its briefing, in which it said that it was,

"concerned at the absence of consultation about these changes, particularly in view of the commitments extended by the government on the consultation and scrutiny of the Mental Health Bill".

Mind also said in its briefing that it believed that the Government's proposals,

"will lead to an increase in unwarranted deprivation of liberty and an unfair criminalisation of people who are not of proven criminal liability".

I appreciate entirely the Minister's arguments, and that she believes that the interests of vulnerable people in those circumstances may be preserved by a judge having given reasons. I put against that the perception and experience of an organisation that represents people who will be subject to those proceedings. Will the Minister tell the House what conversations the Home Office has had with Mind in the course of the summer on these matters?

My concern is that there has been no response from the Government, although Sandra Gidley in another place quoted the briefing at Second Reading (at col. 575 of the Official Report of 14 June) and my honourable friend Cheryl Gillan in Committee also referred to it (at cols. 202 to 203 of the Official Report of Standing Committee E of 29 June). Such references were simply not recognised in the response by Mr Goggins or, at Second Reading, by Mr Blunkett, the Home Secretary.

Today, I introduce an amendment—Amendment No. 12B—which addresses the need of the Government to achieve some form of administrative convenience, and yet balances that against the need for vulnerable people still to have the assessment of a jury at an appropriate time. That is set against the background, as the Minister will know, of the fact that this House is always wary of any measures that nibble into the role of the jury.

The noble Baroness said today, and has said before, that because the measure is in the Auld report and that was published four years ago we had better introduce it. As my honourable friend Cheryl Gillan pointed out in another place, this particular proposal took up about two small paragraphs in the Auld report. There really has not been a thoroughgoing justification for the proposal.

With regard to administrative convenience, Mind makes the point that the issue of fitness to plead is not a simple procedural matter but one that goes to the heart of the issue of culpability. This factor does not weigh significantly against the core principles in favour of retention.

With regard to stress on the vulnerable individual, Mind states that it does not believe that the additional impact of a change in the composition of the jury would make more than a marginal impact on the defendant and there is no case for weighing this assumed stress against the importance of retaining the jury.

If the Government wish to press ahead, my Amendment No. 12B would seek to offer them a way in which we might resolve this matter so that the jury would be retained to make the decision only in those circumstances where there is a challenge as to fitness to plead. I refer to a question to which the noble Baroness's colleague in another place, the Minister, Mr Paul Goggins, replied. The question was asked by the noble Baroness's noble, or rather honourable, friend Vera Baird. She is not noble yet, but perhaps she will be after the next election, not that I would wish Redcar a different Member of Parliament although I wish that she would change her party. However, I certainly admire her.

This amendment came from Vera Baird. It would mean that in 10 per cent of the cases that are challenged the jury could be retained. In another place Vera Baird was rather coy about the origin of the amendment. I quite agree with her that it was a suggestion and that she never tabled the amendment. She was a loyal Back-Bencher; she suggested the amendment but did not table it. Paul Goggins' response was simply to brush it aside. He said that the Government did not want it because that was not the way they wanted to tackle the matter. The noble Baroness has gone slightly further today but she has not as yet met my principles on this matter sufficiently to persuade me that we should not proceed with my Amendment No. 12B.

Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 12, leave out "agree" and insert "disagree".—(Baroness Anelay of St Johns.)

My Lords, we support Amendment No. 12A. The essential thing to realise about these issues of fitness to plead is that if a person is unfit to plead he is detained during Her Majesty's pleasure. Therefore, it is a matter of very considerable importance. Such people will be detained for a lengthy, indeterminate period of time. They will be regarded as people who have not been completely cleared of the offence with which they are charged. It is a very unfortunate position for them to be in. That is why we support this amendment.

My Lords, there is one slight snag with Amendment No. 12B in the name of the noble Baroness, Lady Anelay. Proposed new subsection (4A) states:

"Where there is no challenge by either party regarding the question of fitness to be tried".

I came across this in the late 1960s; it is the only time that I ever have met it. In the particular circumstances the prison officer had decided that the accused was perfectly fit to plead and had so certified. Originally no one raised any question about that until at a fairly late stage the accused went into the witness box. At that stage he said, alternately, "I did not do it" and "Of course, I did it". It seemed to be self-evident that he was not fit to plead. He was not putting on an act; he was quite genuine to that extent.

I turned to counsel for the defendant and asked whether he agreed that his client was unfit to plead. The counsel is a distinguished Member of this House. I cannot remember his name but it does not matter. He rightly said, in effect, "Don't be silly. If he is unfit to plead, he cannot give me any instructions as to whether he is fit to plead and so I really cannot enter into this at all", and he did not, although I believe it was clear that privately he thought that was all right.

That raised another point which is very helpfully dealt with—and I think rightly dealt with—in subsection (5) of the Government's amendment. In the peculiar circumstances to which I referred the accused's clear unfitness to plead emerged only during the course of the trial. There was, I am bound to say, a slight problem with the prison medical officer. The prosecution assured me that if we had a short adjournment he felt sure that the prison officer would change his mind, which he did. I was then faced with the problem of whether to empanel another jury to decide the question. That seemed to me to be daft. I do not think that it is referred to in any law on the subject. The question arises, if you have the same jury, do you really have to go through the charade of giving the evidence all over again? It seemed to me that that was nonsense. Therefore, I directed the jury that it was fully entitled to take account of the evidence that it had heard in a different capacity and the man was quite rightly found unfit to plead.

Subsection (5) of the new clause proposed by the Government is right. There are real problems in amendments that depend on neither party challenging, for reasons that I have given.

My Lords, I respectfully agree with the noble and learned Lord, Lord Donaldson. The judiciary generally shares the view that the new clause would be helpful. It may be right to remind the House what Lord Justice Auld said about the issue. He found that: first, the jury's role in the majority of unfitness decisions was little more than a formality; secondly, the procedure is cumbersome because it often requires the empanelling of two juries; thirdly, the jury can bring nothing to the finding that a judge cannot; and fourthly, he takes equivalent decisions about whether there should be a trial and whether a defendant is physically fit to stand in applications to stay the prosecution or discharge the defendant, very much as the noble and learned Lord gave us a clear example of.

Lord Justice Auld also suggested that the consequences of a finding of unfitness were more flexible since the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, including absolute discharge, and that the jury should be left to determine whether the defendant committed the act. I hope that noble Lords will not think that those points were not well made because he was succinct and precise to the point. Verbosity was never an ill from which he has suffered. He is right on the matter.

The noble Baroness made a point about the 10 per cent. For those who may be, as the noble Lord, Lord Thomas of Gresford, so clearly says, detained at Her Majesty's pleasure for a lengthy and indeterminate time, it is more important to get a reasoned decision on why they are to be so detained and why they are found to be unfit to plead. Although the jury can come to that decision, it is not obliged to give reasons for having come to it; in fact, it cannot. When it comes to either appealing or reviewing a jury's decision, there is not the wherewithal to know the basis on which it came to it. That is why we think it better if the judge is charged with that task, as he can bring the acuity, knowledge and skill that is sometimes needed when there is a contest between two difficult and contentious medical opinions. He can give a reasoned decision on why he may prefer the advice of one to the other.

In terms of the interests of those who are particularly vulnerable, we think the new clause a safeguard that is merited. Lord Justice Auld was right to say that the matter should be addressed. Given my further explanation and the assistance of the noble and learned Lord, I ask the noble Baroness not to press her amendment.

My Lords, I shall try to be as succinct as Lord Justice Auld, whose very weighty tome certainly did not suffer for its length. His acuity showed that it could have been even longer had it been written by someone else.

Even when the drafting of my amendments is holed below the water by the noble and learned Lord, Lord Donaldson, I sometimes have the temerity to plough ahead. This is one such occasion. I am extremely grateful to the Public Bill Office for the assistance that it gave me in drafting the amendment. It had to be somewhat rushed at the last moment, and it achieved a miracle in producing the amendment, subject to the directions that I gave; I am sure that they were rather vague.

The amendment fulfils my commitment to Mind to raise the issue today and put it to the test if there were not a satisfactory answer from the Government on the points raised. I shall not test the patience of the House by going through those arguments again, but I wish to test the opinion of the House when we reach Amendment No. 12B.

My Lords, I just wanted to clarify matters, because the noble Lord, Lord Thomas of Gresford, suggested that an individual could be detained at Her Majesty's pleasure for an indeterminate period. I should make it plain, and I hope that the noble Lord was intending this, that unfitness to plead cannot lead to indefinite detention in hospital. It can lead only to a trial of the facts by the jury; and only if a jury finds the defendant did the act, as charged, can he be ordered to be detained in hospital—and then only if he meets the conditions for detention on the grounds for his mental disorder, subject to the full safeguards of the Mental Health Act 1983, including immediate right to hearing by the Mental Health Review Tribunal, which can discharge him. That is the process that would have to be undergone. I felt that I should make that clear. I have said that before, but putting the two together might have caused some confusion.

My Lords, so that we are clear—I shall now seek to withdraw the amendment to the Motion, but give notice that I shall seek to move Amendment No. 12B. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

rose to move, as an amendment to Commons Amendment No. 12, Amendment No. 12B:

12B Leave out lines 4 to 13 and insert—

"( ) In section 4 (finding of unfitness to plead), after subsection (4) insert—

"(4A) Where there is no challenge by either party regarding the question of fitness to be tried the question shall be determined by the court without a jury.".

( ) In subsection (5) (question of fitness to be determined by a jury), for the words "The question of fitness to be tried" substitute "In all other cases the question".

( ) In subsection (6), for "A jury shall not make a determination under subsection (5)" substitute "The court or a jury shall not make a determination under subsection (4A) or (5)".

( ) In section 4A (finding that the accused did the act or omission charged against him), in subsection (1), for "section 4(5) above it is determined by" substitute "section 4(4A) or (5) above it is determined by the court or".

( ) In subsection (5)(a), after "was determined" insert "by a jury".

( ) In subsection (5)(b), after "was determined" insert "by a jury"."

My Lords, I have spoken to the amendment already and I beg to move.

Moved, as an amendment to Amendment No. 12, Amendment No. 12B.—(Baroness Anelay of St Johns.)

On Question, Whether the said amendment (No. 12B), as an amendment to Commons Amendment No. 12, shall be agreed to?

Their Lordships divided: Contents, 76; Not-Contents, 95.

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENT

13 Before Clause 17, insert the following new clause—

"PROCEDURE FOR DETERMINING FITNESS TO BE TRIED: NORTHERN IRELAND

(1) The Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I.4) is amended as follows.

(2) In Article 49 (finding of unfitness to be tried), in paragraph (4) (question of fitness to be determined by a jury), for the words from "by a jury" to the end substitute "by the court without a jury".

(3) In paragraph (4A) of that Article, for "A jury" substitute "The court".

(4) In paragraph (1) of Article 49A (finding that the accused did the act or omission charged against him), for "jury" substitute "court".

(5) For paragraph (5) of that Article substitute—

(5) Where the question of fitness to be tried was determined after arraignment of the accused, the determination under paragraph(2) is to be made by the jury by whom he was being tried.""

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 13. I spoke to this amendment with Amendment No. 12.

Moved, That the House do agree with the Commons in their Amendment No. 13.—(Baroness Scotland of Asthal.)

[Amendment No. 13A not moved.]

[Amendment No. 13B, as an amendment to Commons Amendment No. 13, not moved.]

On Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENTS

14 Clause 17, page 12, line 17, at end insert—

"(4) Section 5A of the Criminal Procedure (Insanity) Act 1964 ("the 1964 Act") applies in relation to this section as it applies in relation to section 5 of that Act.

(5) Where the Court of Appeal make an interim hospital order by virtue of this section—

(a) the power of renewing or terminating it and of dealing with the appellant on its termination shall be exercisable by the court below and not by the Court of Appeal; and

(b) the court below shall be treated for the purposes of section 38(7) of the Mental Health Act 1983 (absconding offenders) as the court that made the order.

(6) Where the Court of Appeal make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable as if the order had been made by the court below."

15 Page 12, line 20, at end insert—

""interim hospital order" has the meaning given in section 38 of that Act;"

16 Page 12, line 24, leave out from first "the" to end of line 27 and insert "1964 Act."

17 After Clause 18, insert the following new clause—

"COURTS-MARTIAL ETC

Schedule (Unfitness to stand trial and insanity: courts-martial etc) (unfitness to stand trial and insanity: courts-martial etc) has effect."

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 14 to 17. These amendments are intended to reflect in court martial procedure the changes that were made by current Clauses 17 and 18. It also reflects the change made by Amendments Nos. 12 and 13 that we considered a moment ago, that a decision whether a defendant is fit to plead will be made by the judge advocate alone rather than by the lay members of the court martial, and it makes consequential amendments.

The service legislation in this area is out of date. An attempt to provide an updated framework was made in the Armed Forces Act 1996, but the regulatory framework that it provided for has proved too complex and it has never been commenced. Therefore, it is now a matter of some urgency to put appropriate provisions in place.

The effect of the amendments is to allow courts martial to slot into the Mental Health Act 1983 and to make hospital orders on the same terms as civilian orders. That has meant abandoning the AFA 1996 provisions, which had envisaged a system allowing courts martial to commit people to hospital in Scotland or Northern Ireland as well as England and Wales. It is right that I should emphasise further that under the new provisions a person who is admitted into hospital in England and Wales can later be administratively transferred to a hospital elsewhere in the United Kingdom, if that is appropriate in his or her case.

The amendments also address a problem with the service legislation that has become apparent only from recent House of Lords and ECHR case law. The AFA 1996 Act envisages that orders admitting people to hospital or non-residential supervision would be made with input from both the judge advocate—that is a civilian judge—and the lay members of the court martial, who are non-legally qualified military officers and who serve a function like a jury. This is consistent with the normal courts martial sentencing procedure which allows the lay members to have input into sentencing because of their expert knowledge about the effect of criminal offending on military discipline.

However, the case law makes it clear that these orders are not to be considered as criminal in nature, but as mental health matters. While the court members will still decide on the facts of the case, it is therefore inappropriate to have lay input into the orders themselves. The decision should be made by the judge advocate alone on the basis of advice from mental health professionals.

In addition, Amendments Nos. 14 to 16 make some technical improvements to Clause 17. Those changes are not related to the court martial system, but simply improve what we have already done for the civilian system.

Moved, That the House do agree with the Commons in their Amendments Nos. 14 to 17.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENTS

18 Before Clause 19, insert the following new clause—

"POWERS OF AUTHORISED OFFICERS EXECUTING WARRANTS

(1) After section 125B of the Magistrates' Courts Act 1980 (c. 43) insert—

"125BA POWERS OF PERSONS AUTHORISED UNDER SECTION 125AOR125B

Schedule 4A to this Act, which confers powers on persons authorised under section 125A or 125B for the purpose of executing warrants for the enforcement of fines and other orders, shall have effect."

(2) After Schedule 4 to that Act insert the Schedule set out in Schedule (Powers of authorised officers executing warrants) to this Act."

19 Before Clause 19, insert the following new clause—

"DISCLOSURE ORDERS FOR PURPOSE OF EXECUTING WARRANTS

After section 125C of the Magistrates' Courts Act 1980 (c. 43) insert—

"125CA POWER TO MAKE DISCLOSURE ORDER

(1) A magistrates' court may make a disclosure order if satisfied that it is necessary to do so for the purpose of executing a warrant to which this section applies.

(2) This section applies to a warrant of arrest, commitment, detention or distress issued by a justice of the peace in connection with the enforcement of a fine or other order imposed or made on conviction.

(3) A disclosure order is an order requiring the person to whom it is directed to supply the designated officer for the court with any of the following information about the person to whom the warrant relates—

(a) his name, date of birth or national insurance number;

(b) his address (or any of his addresses).

(4) A disclosure order may be made only on the application of a person entitled to execute the warrant.

(5) This section applies to the Crown as it applies to other persons.

125CB USE OF INFORMATION SUPPLIED UNDER DISCLOSURE ORDER

(1) Information supplied to a person under a disclosure order, or under this subsection, may be supplied by him to—

(a) the applicant for the order or any other person entitled to execute the warrant concerned;

(b) any employee of a body or person who, for the purposes of section 125B above, is an approved enforcement agency in relation to the warrant;

(c) any justices' clerk or other person appointed under section 2(1) of the Courts Act 2003.

(2) A person who intentionally or recklessly—

(a) discloses information supplied under a disclosure order otherwise than as permitted by subsection (1) above, or

(b) uses information so supplied otherwise than for the purpose of facilitating the execution of the warrant concerned,

commits an offence.

(3) But it is not an offence under subsection (2) above—

(a) to disclose any information in accordance with any enactment or order of a court or for the purposes of any proceedings before a court; or

(b) to disclose any information which has previously been lawfully disclosed to the public.

(4) A person guilty of an offence under subsection (2) above is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine.

(5) In this section "disclosure order" has the meaning given by section 125CA(3) above.""

20 Before Clause 19, insert the following new clause—

"PROCEDURE ON BREACH OF COMMUNITY PENALTY ETC

Schedule (Procedure on breach of community penalty etc) (procedure on breach of community penalty etc) has effect."

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 18 to 20.

We now move on to a number of measures introduced at Commons Standing Committee and Report stage concerning the enforcement of fines, warrants where an offender has breached a community penalty and warrants issued when there has been a failure to appear in front of the court when summoned. These new measures were introduced by the Parliamentary Under-Secretary of State, Department for Constitutional Affairs, Christopher Leslie, as part of a large package of improvements the Government are currently taking forward to improve the overall enforcement of criminal penalties and fail to appear warrants. These powers will relate only to criminal warrants.

One of the Government's top priorities within the criminal justice system is to increase the effective enforcement of criminal penalties and pre-conviction warrants. For example, through the review carried out by my noble friend Lord Carter of Coles, the criminal justice system seeks to increase the use of fines. However, if we are to do that and be successful we must first ensure that the fine is seen by the judiciary and the public as being a credible form of punishment. To enable that to happen the effective enforcement of fines is essential.

The successful enforcement of community penalty breach warrants and fail to appear warrants is equally crucial to improve the efficiency of the courts and the overall criminal justice system. These additional measures are needed to tackle offenders who wilfully refuse to comply with the orders of the courts.

Currently only about 30 per cent of distress warrants and 43 per cent of community penalty breach warrants are executed successfully. It is estimated that there are currently around 70,000 outstanding fail to appear warrants. I doubt whether any noble Lord would argue that improved enforcement in these areas is something that we should not implement immediately. That is why these measures have been introduced in the Bill. The Domestic Violence, Crime and Victims Bill presented the earliest opportunity to see these new measures enacted. That is the background to why these measures appear before your Lordships' House today.

Therefore, the Government have introduced Amendments Nos. 18, 19, 20, 62 and 63 to the Bill. Amendments Nos. 102 and 103 amend the Long Title. These measures will give civilian enforcement officers (CEOs) and approved enforcement agencies (AEAs) the powers they need to improve the enforcement of fines, community penalty breach warrants, and the execution of fail to appear warrants.

By way of background I should explain that CEOs are employed directly by the courts or the police and execute warrants ordered by the court in relation to offenders who wilfully default on their penalties or refuse to attend court when summonsed. AEAs perform a similar contracted service in those areas where the courts have entered into partnership with other agencies to underpin effective enforcement of the orders of the courts. In carrying out their duties, both CEOs and AEAs are expected to adhere to the same standards of conduct. AEAs and the officers they employ must satisfy the conditions set out in the Approved Enforcement Agencies Regulations 2000. The national standards are available on the Department for Constitutional Affairs website, but, for example, those regulations specify that no officer employed by an AEA could have a criminal conviction punishable by imprisonment or a conviction for dishonesty or violence. For example, when employing CEOs in Devon and Cornwall, criminal background checks are carried out on the individuals as well as in-house checks to ensure that there are no outstanding warrants.

CEOs and AEAs have varying backgrounds; they include former police officers and others with experience of enforcement activities and debt management. I can assure the House that both sets of officers will receive thorough training in the execution of warrants, human rights and health and safety before they can operate—it will relate to both their existing powers and the proposed ones.

To that end, we want civilian enforcement officers and approved enforcement agents to have the power to enter and search premises to find an offender in order to execute a warrant of arrest, commitment or detention. This power can also be used in executing a warrant of distress, where he or she is in default in paying a sum, as a result of conviction. In all the above cases, the powers can be used only where the officer has reasonable suspicion that the offender who is the subject of the warrant is present. We also want them to have the power to search an offender for dangerous articles, such as hypodermic needles or knives, and items that the offender may use to facilitate an escape from lawful custody, and also the power to use reasonable force in exercising the powers that I have already outlined.

The new powers will not only lead to the more effective enforcement of fines, community penalties and "fail to appear" warrants but will also provide health and safety benefits for civil enforcement officers employed by both the courts and the police, and staff deployed by approved enforcement agencies. The officers involved in executing those warrants will, when an offender is deemed high risk, rely on police support. Those officers will receive detailed guidance and training before they can exercise the powers. We will involve key stakeholders, such as staff representative bodies, in the development of that provision. The main cost of implementation of those policies will be in the training.

I can assure noble Lords that the powers contain safeguards in that the power of entry can be used only to the extent that it is "reasonably required", a search can be conducted only on "reasonable grounds", and any force must be "reasonable" and "necessary". Should a civilian enforcement officer or member of an AEA exceed those limitations, the acts would no longer be lawful. The legal consequences will depend on what has been done, but a grievance can be pursued through the Magistrates' Courts Committee, through the AEAs' own complaints procedures, which they must have, or through legal redress in the criminal or civil courts, depending on the charge. We anticipate that powers of entry and search will be used only at the end of the process when necessary to enforce a warrant.

Secondly, we have also given magistrates' courts a new power to request specified information on offenders from organisations in the public and private sectors; for example, a financial institution or local authority. The information requested by the courts is intended to help trace offenders whose whereabouts have become unknown. At present, courts do not have access to such data should the organisations involved be unwilling to co-operate. The measure is for use only in assisting the execution of criminal warrants, and the power will be available only to the courts.

Currently, in instances where the courts have been provided with poor-quality information, such as false or multiple addresses, or where information is out of date, they are severely hampered in the effective enforcement of fines and community-penalty breach warrants. The new power will help the courts by allowing them to require organisations to provide data where it is thought that more up-to-date information is held about a hard-to-trace offender. The intention is that this power will be used only on a case-by-case basis in helping the courts determine the location of an untraceable offender. All powers comply with the current data protection legislation. As this is a change to the current system that will have an effect on employers, albeit a relatively small number, we have consulted employers' representatives about the new power and its possible impact on business. They are happy that it places no significant burdens on them.

Thirdly, we are also putting in place measures that will allow proceedings for breach of a community penalty to be commenced and heard by a magistrates' court other than the court responsible for overseeing the community penalty. Magistrates' courts are restricted in respect of which court can enforce a community penalty in the case of non-compliance by the offender. Restrictions vary according to the type of sentence, but in practice they tend to mean that only the court that passes sentence can issue a warrant or summons to secure the attendance of an offender who is in breach. The warrant or summons must specify that the offender appears before that court.

If the offender moves away from the area, it will create problems for enforcement. Often, CEOs and AEAs have to travel long distances to execute a warrant. Although the CEOs have national jurisdiction, the execution of a warrant in another court area is often inefficient and impractical. The problems are compounded when the offender cannot be found at the address on the warrant.

Giving magistrates the power will not only enable the more effective and efficient enforcement of community penalty breach warrants but will lead to the more effective and efficient use of civil enforcement officers and approved enforcement agencies by the courts. It is worth saying that, during 2002-03, only 29 per cent of the warrants were executed within the target period. That has improved to 43 per cent, but the aim is a 75 per cent enforcement rate within the target period. In order to achieve that, the court will have received all the relevant paperwork before the proceedings take place.

As I noted at the beginning of my speech this evening, the effective enforcement of criminal penalties and "failed to appear" warrants by magistrates' courts and the police is a priority for the Government and sits at the heart of the criminal justice system. Progress is being made, but we must do more to build on it and sustain the improved performance. These measures will help to do that. I can also confirm to noble Lords that, on the implementation of the powers, we will evaluate the effectiveness of the powers themselves and of the impact of the policy.

Moved, That the House do agree with the Commons in their Amendments Nos. 18 to 20.—(Baroness Ashton of Upholland.)

My Lords, I am advised by the Deputy Speaker that it would not be appropriate for me to speak to Amendment No. 62 in this group, although it is grouped with these amendments. There are more ways than one of skinning a cat—I love cats, so I would not do that. I shall speak briefly to the amendments moved by the noble Baroness, and I shall not move Amendment No. 62A when we reach it.

Yesterday, the noble Baroness, Lady Ashton of Upholland, invited my noble friend Lord Bridgeman and me to a meeting to discuss this group of amendments. I am grateful to her. The way in which she presented the Government's position means that she has answered almost just about all the questions that I was going to ask her today.

It is a new batch of provisions. The noble Baroness will not be too surprised—I told her yesterday that I would do it—if I tease her a little about dropping them into the Bill with the parachute offered to the DCA by the Home Office. When the provisions were introduced in another place on 6 July, the Minister's colleague Mr Leslie said:

"we saw an opportunity to make what I regard as vital changes to the law".—[Official Report, Commons Standing Committee E, 6/7/04; col. 358.]

One could say that the changes were so vital that no one had mentioned them until then, but, never mind, I see the reason behind the proposals. As a hard-bitten old magistrate, I was frustrated at the difficulty of serving warrants and getting effective fine enforcement in particular cases.

The proposal will take enforcement further within the constraints that the Minister set out. There will be proper training and guidance. There has been consultation with employers, and there will be safeguards for people caught up in the process. When a warrant is executed, there may be third parties around, particularly in a house in multiple occupation, who may find themselves injured or inconvenienced. There must be some method of redress for them. The noble Baroness has outlined it today.

I am content with the way in which the noble Baroness has presented the information, particularly the information that she gave about the dividing line between the occasions on which a civilian should take action and the occasions on which they can take action only with the police or when the police would take that action. The Government are aware that we are concerned about the growing tendency on the part of the Government to use civilians instead of police officers. However, in this regard, the Government have drawn the right dividing line between their functions.

My Lords, I, too, thank the noble Baroness for having a meeting with my noble friend Lady Walmsley and me to explain these provisions. Amendment No. 63, which introduces the procedure on breach of community penalties and so on, is to be welcomed. It is a very good idea that a person does not have to be taken half way across the country if he is in breach of a community penalty.

Providing that there is a proper transfer of information between one court and another, so that there is no sentencing for breach of a community penalty in ignorance of what has happened in the previous proceedings, that is fine. The noble Baroness was good enough to give us that assurance yesterday and to repeat it in her remarks today. Precisely how that is done, whether by transfer of the file or by some magical IT, for which she is also responsible, is something that we will be very interested to investigate.

On the issue of disclosure orders, we are concerned, as is the noble Baroness, Lady Anelay, with the increased use of civilian enforcement agencies. That is a growth industry. I am not very happy with it. I hope that it is not possible for an approved enforcement agency to do private work alongside public work, where the temptation to use information, for example, obtained by a disclosure order, would be given to private clients of the same organisation. I know that it would be an offence. I hope that, in accordance with the provisions set out here, it is made absolutely plain in contracts with that agency and in directions that are given to the court that the purpose of the disclosure order is limited to executing a warrant against an individual and that the information thus obtained is private.

I hope to say a little more on Amendment No. 62 if the noble Baroness, Lady Anelay, expands on Amendment No. 62A. While I indicated unease at the use of civilian enforcement officers and, more particularly, enforcement agencies, I have a serious objection to the use of force when doing the various things that new Schedule 4A would allow: in particular, the searching of arrested persons by force; the entry to levy distress by force; and the executing of warrants of arrest with the use of force.

In some circumstances, I suppose, a warrant of arrest can attract the use of force. But the searching of individuals by force, left to a civilian agency, is a new departure in this country. It was a matter that was the subject of protest by my colleague Mr David Heath when the matter first came before the other place in July. I repeat the concerns that were set out then.

As regards Amendment No. 62A, I see that the noble Baroness, Lady Anelay, is shaking her head and we will not be discussing it. I am sorry that she will not pursue the matter a little further.

Again, I hope that guidelines will be sent out to the organisations concerned that it will be contractually part of their responsibilities to ensure that only reasonable force is used and that there is a review of contracts too. That is the sort of thing that bedevils the privately run prison service at the present time.

On Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENT

21 After Clause 23, insert the following new clause—

"VICTIMS OF PERSONS SENTENCED TO IMPRISONMENT OR DETENTION

(1) This section applies if—

(a) a court convicts a person ("the offender") of a sexual or violent offence, and

(b) a relevant sentence is imposed on him in respect of the offence.

(2) But section (Victims of persons subject to hospital direction and limitation direction) applies (instead of this section) if a hospital direction and a limitation direction are given in relation to the offender.

(3) The local probation board for the area in which the sentence is imposed must take all reasonable steps to ascertain whether a person who appears to the board to be the victim of the offence or to act for the victim of the offence wishes—

(a) to make representations about the matters specified in subsection (4);

(b) to receive the information specified in subsection (5).

(4) The matters are—

(a) whether the offender should be subject to any licence conditions or supervision requirements in the event of his release;

(b) if so, what licence conditions or supervision requirements.

(5) The information is information about any licence conditions or supervision requirements to which the offender is to be subject in the event of his release.

(6) If a person whose wishes have been ascertained under subsection (3) makes representations to the local probation board mentioned in that subsection or the relevant local probation board about a matter specified in subsection (4), the relevant local probation board must forward those representations to the persons responsible for determining the matter.

(7) If a local probation board has ascertained under subsection (3) that a person wishes to receive the information specified in subsection (5), the relevant local probation board must take all reasonable steps—

(a) to inform the person whether or not the offender is to be subject to any licence conditions or supervision requirements in the event of his release,

(b) if he is, to provide the person with details of any licence conditions or supervision requirements which relate to contact with the victim or his family, and

(c) to provide the person with such other information as the relevant local probation board considers appropriate in all the circumstances of the case.

(8) The relevant local probation board is—

(a) in a case where the offender is to be supervised on release by an officer of a local probation board, that local probation board;

(b) in any other case, the local probation board for the area in which the prison or other place in which the offender is detained is situated."

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 21. These amendments seek to achieve a simple aim: that victims of serious sexual or violent offending should have rights to information about the release of the offender, whether the offender has received a prison sentence or has been dealt with under mental health legislation. Noble Lords will know that that is an issue that Jayne Zito and the Zito Trust have spent a considerable amount of time on. I pay tribute to the work that she and the trust have done and the way in which they have campaigned so hard and so long for this change.

The combined effect of the amendments will be that when the court sentences for a serious sexual or violent offence, the local probation board acquires a duty to identify the victim of the offence. If the victim wishes, they are to be kept informed about decisions regarding the offender's release. They have the right to make representations about measures to be taken for their protection and to be informed about those measures.

The duty already exists under Section 69 of the Criminal Justice and Court Services Act 2000 where the offender receives a prison sentence. But these provisions will extend it to cases where the offender is dealt with under mental health legislation; whether under a prison sentence or not. The provisions consolidate Section 69 of the 2000 Act with the new provision covering the three Mental Health Act 1983 powers under which such offenders may be detained.

I turn now to the amendments tabled by the noble Baroness, Lady Anelay of St Johns. I should say with respect that these amendments would have little or no practical effect on the provisions as drafted. The amendments to lines 11 and 31 to remove the reference to "all" reasonable steps would have the effect of weakening only slightly the requirement on probation boards to identify a victim who wished to be informed or to make representations. We wish to retain the existing wording which conveys a high level of responsibility and is indicative of our commitment to keeping victims informed wherever they wish it and when it is practicable. I should point out that in the victims' panel which I chair, victims have constantly pointed out that they want the opportunity to be consulted and kept informed, if they indicate that that is really what they want. That is a strong desire that was expressed by all members of the advisory panel.

For the purposes of the line 12 amendment, a person need only appear to the board to act for the victims. So a person "appointed to act for the victim" would be included. I have taken a number of the issues raised by the noble Baroness, Lady Anelay, to be probing in nature to make sure that we are including those people whom she would wish us to include.

In relation to the line 25 amendment, under the existing arrangements, which are to be maintained, victim liaison officers contact the victim about two months before the relevant decision. If the victim has not made representations in time for the decision process, it is a reasonable inference that they do not wish to do so. In any event, if a time period on making representations were to be provided for in legislation, it would need to be more precisely specified than just being within a "reasonable time limit". We consider that the current arrangements provide the appropriate degree of flexibility.

On the proposal to require the information to be conveyed "in writing", victims contacted by victim liaison officers do not always want information in writing, but prefer simply to have a meeting or sometimes a telephone call. We think that it is better to preserve flexibility to act in accordance with victims' wishes.

However, I understand the reason for these amendments. It is right that we ensure that these provisions are correct and that we have approached this with the appropriate level of sensitivity to meet the needs of victims in this rather delicate and difficult area.

Moved, That the House do agree with the Commons in their Amendment No. 21.—(Baroness Scotland of Asthal.)

rose to move, as an amendment to Commons Amendment No. 21, Amendment No. 21A,

21A Line 11, leave out "all"

My Lords, in moving Amendment No. 21A, I shall speak also to Amendments Nos. 21B to 21G. The noble Baroness is absolutely right. These amendments are probing in nature in order to try to flesh out some of the issues raised by the Government's new clauses. In that spirit, I have purposely tabled amendments only to the first relevant clause and certainly did not replicate them for the later clauses. I did not want to trouble the Printed Paper Office with the need to print that lot.

I recognise that the provisions before us have the support of mental health organisations. However, I have questions about the kind of consultation that is to take place with victims on these matters. What is the practicality surrounding the process, not only for the victim but also for the Probation Service which has to carry out these consultations? What happens when an offender is released but then moves from one area to another? Will the victim be advised of that change of residence?

What estimate have the Government made of the resource implications for the Probation Service, especially as it has now been subsumed within NOMS? The Minister will be aware from what has been said in this House—particularly at Question Time—about the concern of noble Lords with regard to the funding of the Probation Service and the financial challenges that it faces, especially in London where there is a shortage of professionals in post.

The noble Baroness referred to the fact that Amendment No. 21A would remove the word "all" from the phrase "take all reasonable steps". She said that it would not make much difference. I accept that. I am merely intrigued by the drafting simply because I have not seen it used before by the Government. It may be that it was in statutes passed before I began my two-and-a-half years in this job, but it seems to tie down the Probation Service to a particularly rigorous procedure. That is to be welcomed in that one wants to give the victim every opportunity to be consulted and to give his views but it also imposes a particular rigour on the Probation Service. What happens if someone challenges the Probation Service and says, "You did not take all reasonable steps. These are the reasonable steps that you did not take"? One does not want the system to be undermined by a lack of faith in it, either from the Probation Service side or the victim's side.

The noble Baroness referred to Amendment No. 21B. I have simply redrafted the subsection so that the duty is to consult the person who appears to be the victim of the offence or to consult a person who appears to have been appointed to act for the victim. The amendment seeks to elicit whether it is right that someone should pop up and say, "I am acting on behalf of Mr or Mrs A and therefore you should consult me because I am the one who is acting in his or her best interests". Should there not be some kind of proof that that person has been appointed either by Mr or Mrs A, or by someone legally acting on his or her behalf, to be involved in the consultation process?

I know many pressure groups and individuals act very responsibly in taking up cases, but very sensitive information is involved in this particular process and one must be wary that one does not go too wide in opening out the availability of consultation.

The noble Baroness also referred to Amendment No. 21E, which requires the information to be given in writing. There again, the amendment seeks merely to raise the question of what reasonable steps the Probation Service has to take to get the information to someone and how long the response period should be. There could be victims who feel so scarred by the experience of what they have been through that they simply will not reply. It is not because they are being obstructive to the system or difficult intentionally but because they cannot face the thought of having any contact with an organisation which is trying to act on behalf of the person being released, even though the Probation Service has contacted the victim in his or her own best interests. It is a question of how long should be the time lag before the Probation Service says, "We have done everything we can; we have tried to contact the victim; now we are going to get on with it even though we have not heard back from him or her".

As was the case when I started the day a very long while ago, I shall move this amendment in the expectation that it will shortly be withdrawn and that those grouped with it will not be pressed.

Moved, as an amendment to Commons Amendment No. 21, Amendment No. 21A.—(Baroness Anelay of St Johns.)

My Lords, while we do not oppose the intent of the Commons amendment we have one concern upon which the Minister may be able to shed some light. When this issue was debated in another place, my honourable friend the Member for Somerton and Frome asked the Minister whether there would be any restrictions on the victim's use of the information, but the Minister, Paul Goggins, was unable to give him a definite answer on that occasion. I wonder whether the Minister can do so tonight.

The problem is that in some circumstances, the victim may wish to go to the local media with the information that a person who has caused him or his family a great deal of grief is about to be released into the community and may go back to live in the same vicinity. This could pose difficulties for the rehabilitation of that ex-offender and therefore be highly undesirable to all of us who wish all ex-offenders to be resettled in the community and living a positive life. It may even cause unnecessary anxiety to residents in the neighbourhood and/or lead to victimisation of the ex-offender. All those are highly undesirable consequences.

There are also questions of how the information can or should be shared with Victim Support, GPs or anybody who might want to give counselling to the victim. Since Mr Goggins was unable to give my honourable friend a definite answer in another place, I invite the Minister to clarify the situation for your Lordships this evening.

My Lords, I very much understand why the noble Baroness raises this issue. The whole point of the amendments is to give victims of those who are mentally disordered similar rights with regard to information to those who are subject to the ordinary defendant.

What has really changed—and it is important that this is recognised—is that we have now set up witness and victims care units in the way in which the whole process of prosecutions will go. We hope that very soon there will be such a unit it all the 42 areas of local criminal justice boards with which we deal.

We hope that from the moment someone becomes a victim, there will be a proper assessment of what their needs are to get them through the process of the trial and an assessment of their long-term needs for help and assistance thereafter. During that time, we hope, an identified person will assist the victim right the way through. That is going to be available, and was available before these provisions for all those who were not subject to a disordered offender's offences. We are trying to bring all victims within the same category so that they all have similar rights.

It is absolutely fundamental that we listen to victims. The Probation Service will be responsible for finding out the way in which the victim may best want to receive information, who their contact points are or may be, and get some sort of confirmation on how that will be managed. We are producing good practice guides; the victims and witnesses unit in the Home Office is producing a tool kit which will go live and will, we hope, help local criminal justice boards to put in place the sorts of provisions that they will need to make sure that these things are implemented appropriately.

The provisions will mean that for the first time, victims of serious sexual or violent offenders will have the right to be kept informed. The noble Baroness, Lady Walmsley, asked about what happens to the information, because some of it is indeed confidential. Sharing information with victims must balance the legitimate needs of the victim to know what is in place, to address their legitimate fears, and the equally legitimate need to respect the medical confidentiality of the patient and avoid harming their chances of successful rehabilitation.

The decision must be case-specific. The decision one makes in one case may not be the sort of case one wants to make in another. That is why, where the victim has expressed a wish to make representations, we have restricted the information which the probation board must convey to what is needed to enable representations. In addition, where the victim has expressed a wish to receive information about conditions of discharge, we have restricted the information which the probation board must convey to the victim only to details of any conditions which relate to contact with the victim or his or her family. We have left to the board's discretion what additional information it may be able to give to the victim, taking into account the circumstances of the individual case. We would not expect victims to be given details of the offender's address because offenders also have rights to confidentiality.

There is also the possibility of seeking an injunction against disclosure by the media if appropriate and necessary in the circumstances, in particular for the purposes of protecting the patient. However, the board will have the responsibility for deciding, to take up a point made by the noble Baroness, Lady Anelay, about who is deemed appropriate to act on behalf of the patient. This measure has been so longed for—and Jayne Zito and others have spoken very passionately about the matter; there has been a real sense of injustice—because we have had two tiers of victims. One gets one sort of help, support and information if the perpetrator is compos mentis and has all their mental faculties and a totally different set if he does not. We listened to that and to the pain that has caused many families. We hope that these provisions will help to redress that balance.

We understand the concern that has been expressed by the noble Baroness, Lady Walmsley, in relation to that balance. Similarly, we understand the practicality of the questions asked by the noble Baroness, Lady Anelay, with her usual acuity saying, "What does this mean, how does it work and what will people do?". I will always commend the noble Baroness for that approach because it is absolutely the right one. It is what delivers on the ground for the people that we all care about.

My Lords, I am not sure whether that means that I am such a boring old so and so that I talk about the same thing on every single Bill, but never mind, I will keep plugging along. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENTS

22 After Clause 23, insert the following new clause—

"VICTIMS OF PERSONS SUBJECT TO HOSPITAL ORDER WITH RESTRICTION ORDER

(1) This section applies if the conditions in subsections (2) and (3) are met.

(2) The first condition is that one of these applies in respect of a person ("the patient") charged with a sexual or violent offence—

(a) the patient is convicted of the offence;

(b) a verdict is returned that the patient is not guilty of the offence by reason of insanity;

(c) a finding is made—

(i) under section 4 of the Criminal Procedure (Insanity) Act 1964 (c.84) that the patient is under a disability, and

(ii) under section 4A of that Act that he did the act or made the omission charged against him as the offence.

(3) The second condition is that a hospital order with a restriction order is made in respect of the patient by a court dealing with him for the offence.

(4) The local probation board for the area in which the determination mentioned in subsection (2)(a), (b) or (c) is made must take all reasonable steps to ascertain whether a person who appears to the board to be the victim of the offence or to act for the victim of the offence wishes—

(a) to make representations about the matters specified in subsection (5);

(b) to receive the information specified in subsection (6).

(5) The matters are—

(a) whether the patient should be subject to any conditions in the event of his discharge from hospital;

(b) if so, what conditions.

(6) The information is information about any conditions to which the patient is to be subject in the event of his discharge from hospital."

23 After Clause 23, insert the following new clause—

"VICTIMS OF PERSONS SUBJECT TO HOSPITAL ORDER WITH RESTRICTION ORDER: REPRESENTATIONS

(1) This section applies if section (Victims of persons subject to hospital order with restriction order) applies.

(2) If —

(a) a person makes representations about a matter specified in section (Victims of persons subject to hospital order with restriction order) (5) to the local probation board mentioned in section (Victims of persons subject to hospital order with restriction order) (4) or the relevant local probation board, and

(b) it appears to the relevant local probation board that the person is the victim of the offence or acts for the victim of the offence,

the relevant local probation board must forward the representations to the persons responsible for determining the matter.

(3) The duty in subsection (2) applies only while the restriction order made in respect of the patient is in force.

(4) The Secretary of State must inform the relevant local probation board if he is considering—

(a) whether to give a direction in respect of the patient under section 42(1) of the Mental Health Act 1983 (c.20) (directions lifting restrictions),

(b) whether to discharge the patient under section 42(2) of that Act, either absolutely or subject to conditions, or

(c) if the patient has been discharged subject to conditions, whether to vary the conditions.

(5) A Mental Health Review Tribunal must inform the relevant local probation board if—

(a) an application is made to the tribunal by the patient under section 69, 70 or 75 of the Mental Health Act 1983 (c.20) (applications concerning restricted patients), or

(b) the Secretary of State refers the patient's case to the tribunal under section 71 of that Act (references concerning restricted patients).

(6) Subsection (7) applies if—

(a) the relevant local probation board receives information under subsection (4) or (5), and

(b) a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

(i) when his wishes were ascertained under section (Victims of persons subject to hospital order with restriction order) (4), expressed a wish to make representations about a matter specified in section (Victims of persons subject to hospital order with restriction order) (5), or

(ii) has made representations about such a matter to the relevant local probation board or the local probation board mentioned in section (Victims of persons subject to hospital order with restriction order) (4).

(7) The relevant local probation board must provide the information to the person.

(8) The relevant local probation board is—

(a) if the patient is to be discharged subject to a condition that he reside in a particular area, the local probation board for the area;

(b) in any other case, the local probation board for the area in which the hospital in which the patient is detained is situated."

24 After Clause 23, insert the following new clause—

"VICTIMS OF PERSONS SUBJECT TO HOSPITAL ORDER WITH RESTRICTION ORDER: INFORMATION

(1) This section applies if section (Victims of persons subject to hospital order with restriction order) applies.

(2) Subsection (3) applies if a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

(a) when his wishes were ascertained under section (Victims of persons subject to hospital order with restriction order) (4), expressed a wish to receive the information specified in section (Victims of persons subject to hospital order with restriction order) (6), or

(b) has subsequently informed the relevant local probation board that he wishes to receive that information.

(3) The relevant local probation board must take all reasonable steps—

(a) to inform that person whether or not the patient is to be subject to any conditions in the event of his discharge;

(b) if he is, to provide that person with details of any conditions which relate to contact with the victim or his family;

(c) if the restriction order in respect of the patient is to cease to have effect, to notify that person of the date on which it is to cease to have effect;

(d) to provide that person with such other information as the board considers appropriate in all the circumstances of the case.

(4) The Secretary of State must inform the relevant local probation board —

(a) whether the patient is to be discharged;

(b) if he is, whether he is to be discharged absolutely or subject to conditions;

(c) if he is to be discharged subject to conditions, what the conditions are to be;

(d) if he has been discharged subject to conditions—

(i) of any variation of the conditions by the Secretary of State;

(ii) of any recall to hospital under section 42(3) of the Mental Health Act 1983 (c.20);

(e) if the restriction order is to cease to have effect by virtue of action to be taken by the Secretary of State, of the date on which the restriction order is to cease to have effect.

(5) Subsections (6) and (7) apply (instead of subsection (4)) if—

(a) an application is made to a Mental Health Review Tribunal by the patient under section 69, 70 or 75 of the Mental Health Act 1983 (c.20) (applications concerning restricted patients), or

(b) the Secretary of State refers the patient's case to a Mental Health Review Tribunal under section 71 of that Act (references concerning restricted patients).

(6) The tribunal must inform the relevant local probation board—

(a) of the matters specified in subsection (4)(a) to (c);

(b) if the patient has been discharged subject to conditions, of any variation of the conditions by the tribunal;

(c) if the restriction order is to cease to have effect by virtue of action to be taken by the tribunal, of the date on which the restriction order is to cease to have effect.

(7) The Secretary of State must inform the relevant local probation board of the matters specified in subsection (4)(d) and (e).

(8) The duties in subsections (3) to (7) apply only while the restriction order is in force.

(9) The relevant local probation board has the meaning given in section (Victims of persons subject to hospital order with restriction order: representations) (8)."

25 After Clause 23, insert the following new clause—

"VICTIMS OF PERSONS SUBJECT TO HOSPITAL DIRECTION AND LIMITATION DIRECTION

(1) This section applies if—

(a) a person ("the offender") is convicted of a sexual or violent offence,

(b) a relevant sentence is imposed on him in respect of the offence, and

(c) a hospital direction and a limitation direction are given in relation to him by a court dealing with him for the offence.

(2) The local probation board for the area in which the hospital direction is given must take all reasonable steps to ascertain whether a person who appears to the board to be the victim of the offence or to act for the victim of the offence wishes—

(a) to make representations about the matters specified in subsection (3);

(b) to receive the information specified in subsection (4).

(3) The matters are—

(a) whether the offender should, in the event of his discharge from hospital, be subject to any conditions and, if so, what conditions;

(b) whether the offender should, in the event of his release from hospital, be subject to any licence conditions or supervision requirements and, if so, what licence conditions or supervision requirements;

(c) if the offender is transferred to a prison or other institution in which he might have been detained if he had not been removed to hospital, whether he should, in the event of his release from prison or another such institution, be subject to any licence conditions or supervision requirements and, if so, what licence conditions or supervision requirements.

(4) The information is—

(a) information about any conditions to which the offender is to be subject in the event of his discharge;

(b) information about any licence conditions or supervision requirements to which the offender is to be subject in the event of his release."

26 After Clause 23, insert the following new clause—

"VICTIMS OF PERSONS SUBJECT TO HOSPITAL DIRECTION AND LIMITATION DIRECTION: REPRESENTATIONS

(1) This section applies if section (Victims of persons subject to hospital direction and limitation direction) applies.

(2) If —

(a) a person makes representations about a matter specified in section (Victims of persons subject to hospital direction and limitation direction) (3) to the local probation board mentioned in section (Victims of persons subject to hospital direction and limitation direction) (2) or the relevant local probation board, and

(b) it appears to the relevant local probation board that the person is the victim of the offence or acts for the victim of the offence,

the relevant local probation board must forward the representations to the persons responsible for determining the matter.

(3) If the representations are about a matter specified in section (Victims of persons subject to hospital direction and limitation direction) (3)(a), the duty in subsection (2) applies only while the limitation direction given in relation to the offender is in force.

(4) The Secretary of State must inform the relevant local probation board if he is considering—

(a) whether to give a direction in respect of the offender under section 42(1) of the Mental Health Act 1983 (c.20) (directions lifting restrictions),

(b) whether to discharge the offender under section 42(2) of that Act, either absolutely or subject to conditions, or

(c) if the offender has been discharged subject to conditions, whether to vary the conditions.

(5) A Mental Health Review Tribunal must inform the relevant local probation board if—

(a) an application is made to the tribunal by the offender under section 69, 70 or 75 of the Mental Health Act 1983 (c.20) (applications concerning restricted patients), or

(b) the Secretary of State refers the offender's case to the tribunal under section 71 of that Act (references concerning restricted patients).

(6) Subsection (7) applies if—

(a) the relevant local probation board receives information under subsection (4) or (5), and

(b) a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

(i) when his wishes were ascertained under section (Victims of persons subject to hospital direction and limitation direction) (2), expressed a wish to make representations about a matter specified in section (Victims of persons subject to hospital direction and limitation direction) (3)(a), or

(ii) has made representations about such a matter to the relevant local probation board or the local probation board mentioned in section (Victims of persons subject to hospital direction and limitation direction)(2).

(7) The relevant local probation board must provide the information to the person.

(8) The relevant local probation board is—

(a) if the offender is to be discharged from hospital subject to a condition that he reside in a particular area, the local probation board for the area;

(b) if the offender is to be supervised on release by an officer of a local probation board, that local probation board;

(c) in any other case, the local probation board for the area in which the hospital, prison or other place in which the offender is detained is situated."

27 After Clause 23, insert the following new clause—

"VICTIMS OF PERSONS SUBJECT TO HOSPITAL DIRECTION AND LIMITATION DIRECTION: INFORMATION

(1) This section applies if section (Victims of persons subject to hospital direction and limitation direction) applies.

(2) Subsection (3) applies if a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

(a) when his wishes were ascertained under section (Victims of persons subject to hospital direction and limitation direction) (2), expressed a wish to receive the information specified in section (Victims of persons subject to hospital direction and limitation direction) (4), or

(b) has subsequently informed the relevant local probation board that he wishes to receive that information.

(3) The relevant local probation board must take all reasonable steps—

(a) to inform that person whether or not the offender is to be subject to any conditions in the event of his discharge;

(b) if he is, to provide that person with details of any conditions which relate to contact with the victim or his family;

(c) if the limitation direction in respect of the offender is to cease to have effect, to notify that person of the date on which it is to cease to have effect;

(d) to inform that person whether or not the offender is to be subject to any licence conditions or supervision requirements in the event of his release;

(e) if he is, to provide that person with details of any licence conditions or supervision requirements which relate to contact with the victim or his family;

(f) to provide that person with such other information as the board considers appropriate in all the circumstances of the case.

(4) The Secretary of State must inform the relevant local probation board —

(a) whether the offender is to be discharged;

(b) if he is, whether he is to be discharged absolutely or subject to conditions;

(c) if he is to be discharged subject to conditions, what the conditions are to be;

(d) if he has been discharged subject to conditions—

(i) of any variation of the conditions by the Secretary of State;

(ii) of any recall to hospital under section 42(3) of the Mental Health Act 1983 (c.20);

(e) if the limitation direction is to cease to have effect by virtue of action to be taken by the Secretary of State, of the date on which the limitation direction is to cease to have effect.

(5) Subsections (6) and (7) apply (instead of subsection (4)) if—

(a) an application is made to a Mental Health Review Tribunal by the offender under section 69, 70 or 75 of the Mental Health Act 1983 (c.20) (applications concerning restricted patients), or

(b) the Secretary of State refers the offender's case to a Mental Health Review Tribunal under section 71 of that Act (references concerning restricted patients).

(6) The tribunal must inform the relevant local probation board —

(a) of the matters specified in subsection (4)(a) to (c);

(b) if the offender has been discharged subject to conditions, of any variation of the conditions by the tribunal;

(c) if the limitation direction is to cease to have effect by virtue of action to be taken by the tribunal, of the date on which the limitation direction is to cease to have effect.

(7) The Secretary of State must inform the relevant local probation board of the matters specified in subsection (4)(d) and (e).

(8) The duties in subsections (3)(a) to (c) and (4) to (7) apply only while the limitation direction is in force.

(9) The relevant local probation board has the meaning given in section (Victims of persons subject to hospital direction and limitation direction: representations) (8)."

28 After Clause 23, insert the following new clause—

"Victims of persons subject to transfer direction and restriction direction

(1) This section applies if—

(a) a person ("the offender") is convicted of a sexual or violent offence,

(b) a relevant sentence is imposed on him in respect of the offence, and

(c) while the offender is serving the sentence, the Secretary of State gives a transfer direction and a restriction direction in respect of him.

(2) The local probation board for the area in which the hospital specified in the transfer direction is situated must take all reasonable steps to ascertain whether a person who appears to the board to be the victim of the offence or to act for the victim of the offence wishes—

(a) to make representations about the matters specified in subsection (3);

(b) to receive the information specified in subsection (4).

(3) The matters are—

(a) whether the offender should be subject to any conditions in the event of his discharge from hospital;

(b) if so, what conditions.

(4) The information is information about any conditions to which the offender is to be subject in the event of his discharge from hospital."

29 After Clause 23, insert the following new clause—

"VICTIMS OF PERSONS SUBJECT TO TRANSFER DIRECTION AND RESTRICTION DIRECTION: REPRESENTATIONS

(1) This section applies if section (Victims of persons subject to transfer direction and restriction direction) applies.

(2) If —

(a) a person makes representations about a matter specified in section (Victims of persons subject to transfer direction and restriction direction) (3) to the local probation board mentioned in section (Victims of persons subject to transfer direction and restriction direction) (2) or the relevant local probation board, and

(b) it appears to the relevant local probation board that the person is the victim of the offence or acts for the victim of the offence,

the relevant local probation board must forward the representations to the persons responsible for determining the matter.

(3) The duty in subsection (2) applies only while the restriction direction given in respect of the offender is in force.

(4) The Secretary of State must inform the relevant local probation board if he is considering—

(a) whether to give a direction in respect of the offender under section 42(1) of the Mental Health Act 1983 (c.20) (directions lifting restrictions),

(b) whether to discharge the offender under section 42(2) of that Act, either absolutely or subject to conditions, or

(c) if the offender has been discharged subject to conditions, whether to vary the conditions.

(5) A Mental Health Review Tribunal must inform the relevant local probation board if—

(a) an application is made to the tribunal by the offender under section 69, 70 or 75 of the Mental Health Act 1983 (c.20) (applications concerning restricted patients), or

(b) the Secretary of State refers the offender's case to the tribunal under section 71 of that Act (references concerning restricted patients).

(6) Subsection (7) applies if—

(a) the relevant local probation board receives information under subsection (4) or (5), and

(b) a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

(i) when his wishes were ascertained under section (Victims of persons subject to transfer direction and restriction direction) (2), expressed a wish to make representations about a matter specified in section (Victims of persons subject to transfer direction and restriction direction) (3), or

(ii) has made representations about such a matter to the relevant local probation board or the local probation board mentioned in section (Victims of persons subject to transfer direction and restriction direction) (2).

(7) The relevant local probation board must provide the information to the person.

(8) The relevant local probation board is—

(a) if the offender is to be discharged subject to a condition that he reside in a particular area, the local probation board for the area;

(b) in any other case, the local probation board for the area in which the hospital in which the offender is detained is situated."

30 After Clause 23, insert the following new clause—

"VICTIMS OF PERSONS SUBJECT TO TRANSFER DIRECTION AND RESTRICTION DIRECTION: INFORMATION

(1) This section applies if section (Victims of persons subject to transfer direction and restriction direction) applies.

(2) Subsection (3) applies if a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

(a) when his wishes were ascertained under section (Victims of persons subject to transfer direction and restriction direction) (2), expressed a wish to receive the information specified in section (Victims of persons subject to transfer direction and restriction direction) (4), or

(b) has subsequently informed the relevant local probation board that he wishes to receive that information.

(3) The relevant local probation board must take all reasonable steps—

(a) to inform that person whether or not the offender is to be subject to any conditions in the event of his discharge;

(b) if he is, to provide that person with details of any conditions which relate to contact with the victim or his family;

(c) if the restriction direction in respect of the offender is to cease to have effect, to notify that person of the date on which it is to cease to have effect;

(d) to provide that person with such other information as the board considers appropriate in all the circumstances of the case.

(4) The Secretary of State must inform the relevant local probation board —

(a) whether the offender is to be discharged;

(b) if he is, whether he is to be discharged absolutely or subject to conditions;

(c) if he is to be discharged subject to conditions, what the conditions are to be;

(d) if he has been discharged subject to conditions—

(i) of any variation of the conditions by the Secretary of State;

(ii) of any recall to hospital under section 42(3) of the Mental Health Act 1983 (c.20);

(e) if the restriction direction is to cease to have effect by virtue of action to be taken by the Secretary of State, of the date on which the restriction direction is to cease to have effect.

(5) Subsections (6) and (7) apply (instead of subsection (4)) if—

(a) an application is made to a Mental Health Review Tribunal by the offender under section 69, 70 or 75 of the Mental Health Act 1983 (c.20) (applications concerning restricted patients), or

(b) the Secretary of State refers the offender's case to a Mental Health Review Tribunal under section 71 of that Act (references concerning restricted patients).

(6) The tribunal must inform the relevant local probation board —

(a) of the matters specified in subsection (4)(a) to (c);

(b) if the offender has been discharged subject to conditions, of any variation of the conditions by the tribunal;

(c) if the restriction direction is to cease to have effect by virtue of action to be taken by the tribunal, of the date on which the restriction direction is to cease to have effect.

(7) The Secretary of State must inform the relevant local probation board of the matters specified in subsection (4)(d) and (e).

(8) The duties in subsections (3) to (7) apply only while the restriction direction is in force.

(9) The relevant local probation board has the meaning given in section (Victims of persons subject to transfer direction and restriction direction: representations)(8)."

31 After Clause 23, insert the following new clause—

"REPRESENTATIONS AND INFORMATION: INTERPRETATION

(1) In sections (Victims of persons sentenced to imprisonment or detention) to (Victims of persons subject to transfer direction and restriction direction: information)—

"court" does not include a court-martial or the Courts-Martial Appeal Court;

"hospital direction" has the meaning given in section 45A(3)(a) of the Mental Health Act 1983 (c. 20);

"hospital order" has the meaning given in section 37(4) of that Act;

"licence condition" means a condition in a licence;

"limitation direction" has the meaning given in section 45A(3)(b) of the Mental Health Act 1983 (c. 20);

"local probation board" means a local probation board established under section 4 of the Criminal Justice and Court Services Act 2000 (c. 43);

"relevant sentence" means any of these—

(a) a sentence of imprisonment for a term of 12 months or more;

(b) a sentence of detention during Her Majesty's pleasure;

(c) a sentence of detention for a period of 12 months or more under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (offenders under 18 convicted of certain serious offences);

(d) a detention and training order for a term of 12 months or more;

"restriction direction" has the meaning given in section 49(2) of the the Mental Health Act 1983 (c. 20);

"restriction order" has the meaning given in section 41(1) of that Act;

"supervision requirements" means requirements specified in a notice under section 103(6) of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6);

"transfer direction" has the meaning given in section 47(1) of the Mental Health Act 1983 (c. 20).

(2) For the purposes of sections (Victims of persons sentenced to imprisonment or detention) to (Victims of persons subject to transfer direction and restriction direction: information) an offence is a sexual or violent offence if it is any of these—

(a) murder or an offence specified in Schedule 15 to the Criminal Justice Act 2003 (c. 44);

(b) an offence in respect of which the patient or offender is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 (c. 42);

(c) an offence against a child within the meaning of Part 2 of the Criminal Justice and Court Services Act 2000 (c.43)."

32 After Clause 23, insert the following new clause—

"Victims of mentally disordered persons: Northern Ireland

(1) The Justice (Northern Ireland) Act 2002 (c. 26) is amended as follows.

(2) After section 69 (views on temporary release) insert—

"69A INFORMATION ABOUT DISCHARGE AND LEAVE OF ABSENCE OF MENTALLY DISORDERED PERSONS

(1) The Secretary of State must make a scheme requiring the Secretary of State to make available to persons falling within subsection (2) information about—

(a) the discharge from hospital of, or

(b) the grant of leave of absence from hospital to,

persons in respect of whom relevant determinations have been made.

(2) The persons referred to in subsection (1) are victims of the offences in respect of which the determinations were made who wish to receive the information.

(3) A relevant determination is made in respect of a person if—

(a) a hospital order with a restriction order is made in respect of him by a court dealing with him for an offence, or

(b) a transfer direction and a restriction direction are given in respect of him while he is serving a sentence of imprisonment in respect of an offence.

(4) The Secretary of State may from time to time make a new scheme or alterations to a scheme.

(5) The information to be made available under a scheme must include information as to any relevant conditions to which a person in respect of whom a relevant determination has been made is to be subject in the event of—

(a) his discharge from hospital, or

(b) the grant of leave of absence from hospital to him.

(6) A condition is relevant for the purposes of subsection (5) if it appears to the Secretary of State that it might affect a victim of an offence in respect of which the determination was made.

(7) A scheme may require the Secretary of State to take all reasonable steps to ascertain whether a person who appears to him to be the victim of an offence in respect of which a relevant determination has been made wishes to make representations about the matters specified in subsection (8).

(8) The matters are—

(a) whether the person in respect of whom the determination has been made should be subject to any conditions in the event of his discharge from hospital or the grant of leave of absence from hospital to him;

(b) if so, what conditions.

(9) A scheme that includes provision such as is mentioned in subsection (7) must specify how the representations are to be made.

(10) A scheme may require other information in relation to the discharge of, or the grant of leave of absence to, persons in respect of whom relevant determinations are made to be made available under the scheme.

(11) The other information may include, in cases of a description specified by the scheme or in which the Secretary of State considers it appropriate, the date on which it is anticipated that a person in respect of whom a relevant determination has been made will be discharged or granted leave of absence from hospital.

(12) Subsections (5) to (8) of section 68 apply in relation to a scheme made under this section as they apply in relation to a scheme made under that section.

(13) A scheme may make different provision in relation to different descriptions of persons in respect of whom a relevant determination is made.

69B VIEWS ON LEAVE OF ABSENCE

(1) If a person who is the victim of an offence in respect of which a relevant determination has been made makes to the Secretary of State representations falling within subsection (2) the Secretary of State has the obligations specified in subsection (3).

(2) Representations fall within this subsection if they are to the effect that the grant of leave of absence to the person in respect of whom the determination has been made would threaten the safety, or otherwise adversely affect the well-being, of—

(a) the actual victim of the offence in respect of which the determination was made, or

(b) a person who is regarded for the purposes of a scheme under section 69A as a victim of that offence by virtue of section 68(5) (as applied by section 69A(12)).

(3) The Secretary of State must—

(a) have regard to the representations in deciding whether he should give his consent to leave of absence being granted, and

(b) inform the victim of any such decision.

(4) Section 69A(3) (relevant determination) applies for the purposes of this section.".

(3) In section 70 (supplementary), after subsection (3) insert—

"(4) In sections 68 and 69 references to a person serving a sentence of imprisonment in Northern Ireland include a person detained in hospital pursuant to a transfer direction and a restriction direction.

(5) In subsection (4) and section 69A(3)—

"restriction direction" has the meaning given in Article 55(2) of the Mental Health (Northern Ireland) Order 1986;

"transfer direction" has the meaning given in Article 53(2) of that Order.

(6) In section 69A(3)—

"hospital order" has the meaning given in Article 44(1) of the Mental Health (Northern Ireland) Order 1986;

"restriction order" has the meaning given in Article 47(1) of that Order;

"sentence of imprisonment" has the meaning given in Article 53(5) of that Order.

(7) In sections 69A and 69B "leave of absence" means leave of absence under Article 15 of the Mental Health (Northern Ireland) Order 1986.".

(4) In section 90(5) (statutory rules), in paragraph (b) after "section 68" insert "or 69A"."

My Lords, I beg to move that this House do agree with the Commons in their Amendments Nos. 22 to 32, to which I have already spoken.

Moved, That the House do agree with the Commons in their Amendments Nos. 22 to 32.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENTS

33 page 17, line 4, leave out "criminal"

34 page 17, line 9, after "means" insert "(a)"

35 page 17, line 9, after "offence" insert ", or

(b) a victim of anti-social behaviour"

36 page 17, line 10, after "(2)" insert "(a)"

37 page 17, line 15, leave out "criminal" and insert "relevant"

38 page 17, line 17, leave out "criminal" and insert "relevant"

39 page 17, line 19, leave out "criminal" and insert "relevant"

40 page 17, line 24, leave out "criminal" and insert "relevant"

41 page 17, line 26, leave out "criminal" and insert "relevant"

42 page 17, line 28, leave out "criminal" and insert "relevant"

43 page 17, line 29, after "(4)" insert "— (a)"

44 page 17, line 31, after "proceedings" insert—

"(b) a person is a defendant in relation to any other relevant proceedings if he might be, has been or might have been the subject of an order made in those proceedings."

45 page 17, line 31, at end insert—

"(7) In subsections (4) to (6) "relevant proceedings" means—

(a) criminal proceedings;

(b) proceedings of any other kind in respect of anti-social behaviour.

(8) For the purposes of this section—

(a) "anti-social behaviour" means behaviour by a person which causes or is likely to cause harassment, alarm or distress to one or more persons not of the same household as the person;

(b) a person is a victim of anti-social behaviour if the behaviour has caused him harassment, alarm or distress and he is not of the same household as the person who engages in the behaviour."

46 page 17, line 34, at end insert—

"(1A) An authority specified in Schedule 6 that has functions in relation to an area outside England and Wales is within the Commissioner's remit only to the extent that it discharges its functions in relation to England and Wales.

(1B) Subsection (1A) does not apply in relation to the Foreign and Commonwealth Office."

My Lords, I beg to move that this House do agree with the Commons in their Amendments Nos. 33 to 46.

We are now dealing with the amendments relating to the victims' commissioner, which brings the Ministry of Defence Police and NCIS within the remit of the commissioner. They also make it clear that the victims' commissioner and the Victims Advisory Panel can consider victims of anti-social behaviour together with the others to be included.

The group of amendments extends the remit of the Commissioner for Victims and Witnesses, both by making clear that he or she will have power to consider issues relating to all anti-social behaviour, and not only criminal anti-social behaviour, and by adding extra authorities to his or her remit. This measure was sought on the last occasion that we discussed it, so I have pleasure in making that statement.

Amendments Nos. 33 to 45 and Amendments Nos. 48 to 52, which extend the definition of victims and witnesses of crime to include victims and witnesses of anti-social behaviour, will enable the commissioner to address issues, including issues arising from civil court proceedings, relating to victims and witnesses of anti-social behaviour. They will also ensure that the Victims Advisory Panel will be able to consider national policy to tackle anti-social behaviour and provide its views to the Government.

The effects of some anti-social behaviour, for its victims, can be as devastating as those for victims of theft or burglary, or other offences of that level of seriousness.

We have put in place a tough programme to address anti-social behaviour. We should like the commissioner to have powers to examine whether it has made a difference to the lives of individuals and communities and to advise on what further action we should take.

Amendments Nos. 66 and 67 bring within the commissioner's remit in Schedule 9 the Ministry of Defence police in so far as it exercises its functions in relation to the non-service criminal justice system in England and Wales, and the National Crime Squad and National Criminal Intelligence Agency, which we propose will jointly form a new serious organised crime agency in future legislation.

Amendment No. 46 makes it clear that with the exception of the Foreign and Commonwealth Office, the commissioner's role does not extend beyond how the organisations within his or her remit discharge their duties in England and Wales.

I invite noble Lords to accept these amendments to extend, and provide greater clarity to, the role of the Commissioner for Victims and Witnesses. I hope that in that regard, while we near the end of our time, I have given a little pleasure to those who wanted this inclusion to be made.

Moved, That the House do agree with the Commons in their Amendments Nos. 33 to 46.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENT

47 page 18, line 7, leave out paragraph (b) and insert—

"(b) compliance with sections (Victims of persons sentenced to imprisonment or detention) to (Victims of persons subject to transfer direction and restriction direction);"

48 page 18, line 20, after "victims" insert "of offences or anti-social behaviour"

49 page 18, line 20, after "witnesses" insert "of offences or anti-social behaviour"

50 page 18, line 21, after "offences" insert "or anti-social behaviour"

51 page 19, line 3, after first "offences" insert "or anti-social behaviour"

52 page 19, line 3, after second "offences" insert "or anti-social behaviour"

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 47 to 52, to which I have spoken with Amendments Nos. 21 and 33.

Moved, That the House do agree with the Commons in their Amendments Nos. 47 to 52.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENT

53 After Clause 33, insert the following new clause—

"RECOVERY OF CRIMINAL INJURIES COMPENSATION FROM OFFENDERS

(1) The Criminal Injuries Compensation Act 1995 (c. 53) is amended as follows.

(2) After section 7 insert—

"7A RECOVERY OF COMPENSATION FROM OFFENDERS: GENERAL

(1) The Secretary of State may, by regulations made by statutory instrument, make provision for the recovery from an appropriate person of an amount equal to all or part of the compensation paid in respect of a criminal injury.

(2) An appropriate person is a person who has been convicted of an offence in respect of the criminal injury.

(3) The amount recoverable from a person under the regulations must be determined by reference only to the extent to which the criminal injury is directly attributable to an offence of which he has been convicted.

(4) The regulations may confer functions in respect of recovery on—

(a) claims officers;

(b) if a Scheme manager has been appointed, persons appointed by the Scheme manager under section 3(4)(a).

(5) The regulations may not authorise the recovery of an amount in respect of compensation from a person to the extent that the compensation has been repaid in accordance with the Scheme.

7B RECOVERY NOTICES

(1) If, under regulations made under section 7A(1), an amount has been determined as recoverable from a person, he must be given a notice (a "recovery notice") in accordance with the regulations which—

(a) requires him to pay that amount, and

(b) contains the information mentioned in subsection (2).

(2) The information is—

(a) the reasons for the determination that an amount is recoverable from the person;

(b) the basis on which the amount has been determined;

(c) the way in which and the date before which the amount is required to be paid;

(d) the means by which the amount may be recovered if it is not paid in accordance with the notice;

(e) the grounds on which and the procedure by means of which he may seek a review if he objects to—

(i) the determination that an amount is recoverable from him;

(ii) the amount determined as recoverable from him.

(3) The Secretary of State may by order made by statutory instrument amend subsection (2) by—

(a) adding information;

(b) omitting information;

(c) changing the description of information.

7C REVIEW OF RECOVERY DETERMINATIONS

(1) Regulations under section 7A(1) shall include provision for the review, in such circumstances as may be prescribed by the regulations, of—

(a) a determination that an amount is recoverable from a person;

(b) the amount determined as recoverable from a person.

(2) A person from whom an amount has been determined as recoverable under the regulations may seek such a review only on the grounds—

(a) that he has not been convicted of an offence to which the injury is directly attributable;

(b) that the compensation paid was not determined in accordance with the Scheme;

(c) that the amount determined as recoverable from him was not determined in accordance with the regulations.

(3) Any such review must be conducted by a person other than the person who made the determination under review.

(4) The person conducting any such review may—

(a) set aside the determination that the amount is recoverable;

(b) reduce the amount determined as recoverable;

(c) increase the amount determined as recoverable;

(d) determine to take no action under paragraphs (a) to (c).

(5) But the person conducting any such review may increase the amount determined as recoverable if (but only if) it appears to that person that the interests of justice require the amount to be increased.

7D RECOVERY PROCEEDINGS

(1) An amount determined as recoverable from a person under regulations under section 7A(1) is recoverable from him as a debt due to the Crown if (but only if)—

(a) he has been given a recovery notice in accordance with the regulations which complies with the requirements of section 7B, and

(b) he has failed to pay the amount in accordance with the notice.

(2) In any proceedings for the recovery of the amount from a person, it is a defence for the person to show—

(a) that he has not been convicted of an offence to which the injury is directly attributable;

(b) that the compensation paid was not determined in accordance with the Scheme; or

(c) that the amount determined as recoverable from him was not determined in accordance with regulations under section 7A.

(3) In any such proceedings, except for the purposes of subsection (2)(b), no question may be raised or finding made as to the amount that was, or ought to have been, the subject of an award.

(4) For the purposes of section 9 of the Limitation Act 1980 (time limit for actions for sums recoverable by statute to run from date on which cause of action accrued) the cause of action to recover that amount shall be taken to have accrued—

(a) on the date on which the compensation was paid; or

(b) if later, on the date on which a person from whom an amount is sought to be recovered was convicted of an offence to which the injury is directly attributable.

(5) If that person is convicted of more than one such offence and the convictions are made on different dates, the reference in subsection (4)(b) to the date on which he was convicted of such an offence shall be taken to be a reference to the earlier or earliest (as the case may be) of the dates on which he was convicted of such an offence.".

(3) In section 9(7) (financial provisions: sums payable into Consolidated Fund), after "section 3(1)(c)" insert ", or by virtue of regulations made under section 7A(1),".

(4) In section 11, after subsection (8) insert—

"(8A) No regulations under section 7A(1) or order under section 7B(3) shall be made unless a draft of the regulations or order has been laid before Parliament and approved by a resolution of each House.""

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 53.

The amendment adds new Clauses 7A to 7D, to the Criminal Injuries Compensation Act 1995, to give the Criminal Injuries Compensation Authority—the CICA—the power to recover from offenders the compensation that it has paid to their victims. This proposal is one of several set out in the consultation paper, Compensation and Support for Victims of Crime, issued on 12 January this year. The proposal received strong support, and the resulting new clause was welcomed when it was introduced in the other place.

We want to make offenders liable to reimburse the CICA for any money that it has paid out to the victim. The CICA will be able to pursue the offenders through the civil courts for that money. The clause provides an enabling power and sets out some of the parameters of the proposed arrangements, but the more detailed arrangements would be made by regulations under the Bill's enabling powers.

I am happy briefly to summarise the proposed provisions. After Section 7 of the 1995 Act there would be inserted new Clauses 7A to 7D. First, that sets out that the Secretary of State may by regulations make provision for the recovery of an amount from an offender, equal to or part of the compensation paid to a victim in respect of a criminal injury. It makes it clear that recovery will be possible only when the offender has been convicted of the relevant offence in the criminal courts. Such a conviction will establish that the offender was indeed guilty of the offence which led to the victim's injury, and this will obviate the need for CICA to establish liability in the civil courts.

The proposed arrangements will require the CICA to serve a recovery notice on the offender, setting out the amount of liability, the reasons for the determination and the basis on which it has been determined how it must be repaid and how the offender can object, if he contests either the amount recoverable or that he is not the person from whom it should be recovered. The information that must be contained in that notice is set out in the Bill and is an important safeguard to the offender. It would be the dream ticket for the noble Baroness, Lady Anelay, because it answers all her questions.

If the offender objects, the arrangement provides that the CICA must formally review that objection and that the review must be conducted by a person other than the one who took the original decision to issue a recovery notice. That is another important safeguard. After review, or if no objection is lodged and assuming no payment is made, the CICA may then initiate recovery action through the civil courts. In practice this means that it may seek to recover the money by normal debt recovery action. Such action will give the offender a further opportunity to object on the grounds set out on the face of the Bill. That is another important safeguard. Amendments Nos. 104 and 105 make a consequential change to the Long Title of the Bill to make it clear that the Bill now includes provision about the recovery, by the CICA, of compensation from offenders.

I should make it clear that these provisions do not take anything away from the rights of a victim or in any way compromise their ability to obtain appropriate redress. A victim will still have the right to sue the person who harmed them for compensation through the civil courts. What we want is to give the CICA a power to get back from offenders the money it has paid out in compensation to their victims, and we want it to use this power whenever there is a realistic chance of making a net recovery of public funds.

Fuller details of the procedure will be set out in regulations (for affirmative resolution). Parliament will accordingly have an opportunity to consider more of the detail when those regulations are laid before it. The compensation recovered under these arrangements will go back to the CICA so it can be used to pay compensation to other victims of violent crime. I am sure noble Lords will agree it is right that, whenever possible, offenders should be made to pay for the consequences of their crimes. I therefore commend the new clause to the House.

I turn swiftly to the amendments in the name of the noble Baroness, Lady Anelay of St Johns. The first of these amendments seeks to clarify the liability of each attacker when two or more of them are jointly responsible for causing the injury for which the victim has received compensation from the Criminal Injuries Compensation Authority. The amendment aims to make it express that each attacker is liable only for the proportion of the damage (or injury) he caused.

We do not think it is necessary to make this amendment to achieve that underlying aim. While the present provision is drafted in the singular, it does not mean that the words do not embrace the plural. In fact, we envisage that there may well be cases where multiple offenders cause injury which leads to compensation under the Criminal Injuries Compensation Scheme. Indeed, there could also be cases of multiple victims on any one set of facts.

We agree with the sentiment behind the amendment that the doctrine of joint and several liability would not be appropriate in this context. That would mean that where the CICA paid compensation in respect of injuries caused by multiple defendants, the CICA could demand full repayment from any one individual.

According to new Section 7A(3), the amount recoverable from a person under the regulations must be determined by reference only to the,

"extent to which the criminal injury is directly attributable to an offence of which he has been convicted".

Therefore, it would not be appropriate to demand full repayment from one individual if the criminal injury is not directly attributable to their particular conviction.

Much will depend upon the circumstances of the case in question and the facts that are proved or accepted. If the offenders are equally culpable, the CICA will seek to recover an equal share of the compensation from each of them. If one offender seems to be more culpable than the other (or others), the CICA is likely to make a corresponding adjustment of the apportionment. Separate notices would be served on each offender.

The offenders will, of course, have the right to challenge the level of their liability on the basis that the amount was not determined in accordance with the regulations, if they request a formal review by the CICA. They will have a further right to challenge that apportionment in the civil courts when the CICA asks for the debt recovery notice to be enforced.

With such assurances, and with such safeguards already in the Bill, I hope that noble Lords will agree that the further level of refinement they have suggested is not in fact necessary.

The second amendment relates to the information which must be given to offenders in the debt recovery notice requiring them to repay the compensation that the CICA has paid to the victim they injured. New Section 7B(2) lists the information that must be provided in the debt recovery notice and new Section 7B(3) empowers the Secretary of State to change that list of information by statutory instrument, subject to negative resolution. This amendment would require the statutory instrument to be approved by affirmative resolution.

9.30 p.m.

I see no strong justification for that change. The affirmative resolution procedure is, of course, much more demanding of parliamentary time, which is all too frequently at a premium. Any changes to the list of information for a recovery notice are likely to be minor in nature, and the negative resolution procedure seems entirely adequate and appropriate for such minor changes.

The next two amendments would extend the grounds on which an alleged offender could formally request CICA to review either whether he was the right person from whom recovery should be sought, or the amount of the recovery. The new clause sets out the grounds on which such a review may be requested, restricting them to three, of which the one most relevant is that the offender was not convicted of the offence to which the injury was directly attributable. The amendments would seek to extend the grounds to include cases where, fourthly, the conviction for the relevant offence had been overturned on appeal and, fifthly, where the sentence for the relevant offence had been reduced on appeal.

We do not think either addition necessary. For any of the new provisions to bite, the offender must have been convicted of the offence to which the victim's injury is directly attributable. If the case were going to appeal, CICA would wait until the appeal had been heard before seeking to recover money from the offender. If the conviction were overturned, clearly CICA would not seek to recover any money, since it would have no powers to do so.

In the less likely event that a conviction was overturned some time after conviction and recovery of compensation, the offender would of course be entitled to his money back. That could be achieved in a number of ways, of which the most straightforward would be for CICA to make a simple payment. We do not think anything is needed in the Bill to provide for that unlikely event.

If the sentence were reduced on appeal, of course the conviction itself would still stand. Therefore, CICA would quite properly still be able to seek to recover the money that it had paid in compensation to the offender's victim. The sentence itself is not relevant in that context. The offender caused the victim's injury, and CICA will have paid out compensation to that victim—who must have been a blameless victim in order to qualify for compensation under the compensation scheme—and CICA accordingly has every right to try to recover the taxpayer's money.

The last amendment would add to the decision that a person undertaking a review of a recovery determination is empowered to take. At present, new Section 7C(4) proposed in Amendment No. 53 lists four possible decisions; namely, setting the determination aside, reducing or increasing the amount recoverable, or letting the initial recovery determination stand. The amendment would additionally empower the reviewing person to require an amount to be repaid to the offender from whom recovery had been sought.

We think that that amendment betrays a slight misunderstanding of the processes involved. At that stage, CICA will have served an initial recovery notice on the alleged offender. If the offender contests that notice, he can ask CICA to review its initial decision. At that stage, therefore, the offender will not have paid any money to CICA. If the CICA reviewer decides not to proceed with the recovery action or to reduce the amount of recovery sought, there will therefore be no question of CICA paying any money back to the offender. That being the case, the amendment seems to serve no purpose and would not be necessary.

The noble Lord, Lord Carlisle, has been particularly concerned about the issue, not least on how often the provision will be used. I make it clear that the Bill is an enabling piece of legislation, so CICA can decide whether it is appropriate to be used. Noble Lords will have seen in a number of the documents that we issued in relation to victims and witnesses that there was clearly worry about what happens if someone wins the lottery or comes into a great deal of money after moneys have been paid out.

However, a number of victims' organisations—not least SAMM, which deals with the families of murder victims and made the case powerfully clear to me at its AGM a few weeks ago—find it offensive that taxpayers have to pay money in such a way to compensate them, their members themselves being taxpayers. Then they discover that the perpetrator has set up a business, has a huge amount of money or comes into money, and there is no opportunity to get that money back through the CICA or anyone else. Of course we understand that sentiment. This amendment gives the CICA an opportunity to recover money if it deems that it is appropriate, feasible and proper. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 53.—(Baroness Scotland of Asthal.)

rose to move, as an amendment to Commons Amendment No. 53, Amendment No. 53A:

53A Line 15, at end insert—

"( ) The amount recoverable from a person under the regulations may be determined by reference to the extent to which the offender acted jointly with another person in causing the damage and to the proportion of the damage that was caused by that offender."

My Lords, I am back into my rather boring mode of, "how does it work?". The Minister has spotted that, but I am grateful to her for giving a fuller explanation than was achieved in another place—particularly regarding her explanation of the matter of joint enterprise and the apportionment of payment by the offender. Of course it is good practice, in court proceedings where more than one person is convicted of an offence, for the court to apportion compensation according to the culpability of each of those persons. Often not every guilty person is there, so it is difficult anyway to apportion the compensation effectively. I appreciate that as near a correct result as can be achieved should be achieved through the drafting of the amendment proposed by the noble Baroness.

I was also concerned by the issue of what would happen if someone's conviction was overturned on appeal. I clearly heard the comments of the Minister that one would not need to worry about that because there would not be a recovery until later anyway—and if there was a need to recover compensation and pay it back to the offender, who is no longer an offender, one should not worry, because the CICA could do that anyway; so there would be no need to put that duty on the face of the Bill. My difficulty was that if there is no duty on the face of the Bill I was not sure how the person would have recourse against the CICA if the money was not repaid to them. But perhaps the Minister will tell me that there are procedures within the CICA to ensure that it would make such reparation.

She then might say that all of that would be tied up within the regulations anyway, and that the House would have the opportunity to deal with that—but by negative resolution. That is why I raised the issue of whether that should be made by affirmative resolution. I appreciate that the Minister has not yet had the interesting experience of being in opposition. If that ever comes her way, she will find that it is quite an interesting experience, to say the least, to arrive on a Monday morning to a pile of orders on her desk to determine whether any such negative procedure orders alarm her enough to pray against them. Indeed, the noble Lord, Lord Lester of Herne Hill, has such a prayer next Monday. That is why sometimes we on these Benches are more concerned than the Government to examine why an order should be affirmative.

As we always say, the other place does not have the same procedure as this House and is not always given the time to debate negative instruments, even if they are prayed against. I feel that the noble Baroness has gone far enough to satisfy my questions tonight. The underlying concern still remains: how much money will actually be raised by this new procedure and will it work? That answer will come when the system is in operation. For the moment I shall move the amendments and I anticipate that my noble friend Lord Carlisle of Bucklow will contribute, but I shall not press these matters. I beg to move.

Moved, as an amendment to Commons Amendment No. 53, Amendment No. 53A.—(Baroness Anelay of St Johns.)

My Lords, I start by making two declarations. One is a declaration of apology that I was not present when the Minister first rose to her feet, although I think that I heard most of her speech. Either the previous amendment was dealt with very quickly or I walk very slowly, as I thought that I started walking here when the previous amendment was still being considered. Secondly, I declare an interest as the former chairman of the Criminal Injuries Compensation Board, and I am delighted to see my noble friend Lord Thomas in his place. He was, of course, a member of the board and I hope that he may add to my remarks.

I am sure that the Minister and I both acknowledge, and are proud of, the fact that, of any country, ours has the original—that is, the first—and clearly the best system for compensating victims of crime in the most generous of terms. What I question about Amendment No. 53 is not the principle but what it will achieve in practice.

At present, as the Minister will know, the Criminal Injuries Compensation Appeals Panel or the Criminal Injuries Compensation Authority, as it is now called, as opposed to "Board", has always had, and has, the power to pursue an offender who has been convicted by the court when that court has made a compensation order and the CICB or CICAP has made an award afterwards. Those bodies take over the compensation award made by the court if it has not been fully met and they pursue the applicant.

As I understand it, it is suggested here that that should be widened so that, provided that the offender has been convicted, in all cases the authority should be able to pursue the offender for any award of compensation that it may make to the victim, irrespective of whether or not the court has made a compensation order.

My first question is: how is the authority to know the offender's means to pay? The great advantage of a compensation order made in a court is that the offender's ability to pay is taken into account. The right to pursue the offender will apparently exist irrespective of his ability to pay and that may lead to many claims being made when they are not possibly achievable. That is my first query and worry.

Secondly, what happens when the offender, having pleaded guilty, nevertheless challenges the amount of the award? Let us remember that we may be dealing with a case where a man pleads guilty to an assault in which he punched another man in the face. It is possible that the man who was punched hit the corner of a pavement and is now unfit to work for life. He is being compensated for that, although it arises from the punch in the face. What will happen when the offender says, "I pleaded guilty to assault and a compensation order was made on the basis that we had a fight and I hit him. But I had nothing to do with the injury caused to his brain, or he had some other injury beforehand, and I don't see why I should be asked to pay for the rest of it"? I am not saying that the Bill does not cover that; I am asking how it covers it. How does it cover it without the possibility of a serious danger of the medical reports provided for the board by the victim, in which he has privilege, being required to be disclosed to the defendant?

If the offender says, "I know I hit her"—the charming Minister sitting over there—"but she had other injuries and I am not responsible for those", I am told that he will be entitled to challenge the amount of the award. Suppose he says, "I wish to see the medical reports on which the award was made to Lady Scotland". Is he entitled to see them and, if so, does that breach the privilege of her medical reports?

These worries make me believe that the new power will be used very sparingly. With the greatest respect, I suspect that to some extent that it is a degree of window dressing. I am not sure whether one will receive any more money by pursuing awards made against people whose ability to pay one does not know, who have the right to appeal to a tribunal—I am not clear how that tribunal is formulated—and who, unless they win the pools and the news hits the newspapers, have no money at all. One may be pursuing a man with no money for no particular purpose. Is it really window dressing?

I am sure that the Minister will be happy to confirm that they have cut the budget for the Criminal Injuries Compensation Authority. She shakes her head—I may be wrong. I thought that they had cut the budget for the Criminal Injuries Compensation Authority and I thought that perhaps this was a way of trying to recoup the money from the offender. Will it succeed? I do not know. I do not oppose it in any way in principle. I know that our views are the same as the purpose of the scheme. I just feel that this particular proposal may not have been fully thought through, even if it is rather better baked than the one on which my noble and learned friend Lord Mayhew spoke earlier.

My Lords, I follow the noble Lord, Lord Carlisle of Bucklow, and at the same time I pay tribute to him for all the expert and hard work that he put in as chairman of the Criminal Injuries Compensation Authority, of which I was for some six or seven years a member, along with other noble Lords.

In law there is a saying that when one door shuts another opens. Here we seem to have a new industry in which claims officers are to be appointed. Presumably they will be legally qualified or will have some kind of training. There will also be a scheme manager. The scheme appears, on the face of it, to be that the claims manager investigates all the circumstances. He investigates what happened; he apportions blame; he determines how much compensation is recoverable, which presumably involves an investigation as to the means of the person who has to pay; and, in addition to him, there is someone who can conduct a review—a person other than the person who made the determination under review. So the files build up again. I know that the noble Lord, Lord Carlisle, will recall the way in which files can build up in matters of this kind and the whole situation becomes a bureaucratic nightmare.

What has been the situation until now? I see that the Minister is being handed the answer before I have finished speaking. The position that has pertained until now is that a court, in considering how to deal with an offender, and with knowledge of his means, will order that person to pay compensation. That compensation is taken into account by the Criminal Injuries Compensation Authority. The compensation can, as the noble Lord, Lord Carlisle, pointed out, be taken over by the CICA and paid directly. That is a way in which there is recovery.

So already built into the system is a judicial determination of responsibility, a judicial determination of compensation and recovery with the CICA. Why do we need to have a new system such as this? If an offender comes into a lot of money—if he wins the pools, succeeds on the lottery or whatever—it is always open to a victim to sue him. If the offender is sued and if the victim recovers compensation or damages, those damages are taken into account as a deduction from any award the Criminal Injuries Compensation Authority may make.

Therefore, there are two ways in which the offender can be made to pay; either originally when he is dealt with in the criminal court or through being sued. Either way the CICA gains. The Bill would set up a system which, as the noble Lord, Lord Carlisle, pointed out, is likely to be used very sparingly because it involves a whole new investigation of facts, apportionment of liability and apportionment of means. Of course it is window dressing.

We know that the criminal injuries compensation scheme, which at one time was based upon civil damages, was reduced to a tariff scheme under the Conservative government and reduced even further by the current Government's pegging of the amount paid out. I have looked at it. The criminal injuries compensation fund has been pegged at about £250 million for the past four or five years. There is obviously a determination to keep it at that level.

When the Government talk about victims being at the heart of their justice policy, I always take that with a pinch of salt. Even the noble Baroness, Lady Ashton, tried today to push out victims from the heart of the criminal justice system because she said that the recovery of penalties and fines was at the "heart" of the system; that is the word she used. So there is a certain amount of conflict. I do not think that the Government should be using the words "victim at the heart of the criminal justice system" until there is a resumption of the Criminal Injuries Compensation Board scheme, as it once was.

My Lords, I say immediately to the noble Lord, Lord Carlisle, that this is not window dressing. It is a response to a very serious concern that has been raised over a significant period. It was raised initially when we had the consultation in relation to victims about what we should do to respond to situations where it became clear that large sums of money may have become available.

I want to re-emphasise a point that I hope I made in opening; namely, that this is an enabling piece of legislation. It does not oblige the CICA to make claims. Indeed, it is right that the CICA will have to look at the commercial realities of seeking to recover costs in relation to small claims or payments that have been made.

The first decision will be on how much payment should properly be made to a victim. The second decision will come subsequent to that payment and is about whether it is right and proper to seek to recover all or any of that payment from the person who has been rightly convicted of committing that offence.

It is very hard to predict at this stage how often and how frequently the provision will be used, but from talking to victims, a number of victims' groups and a victims' panel, it is clear that many of them believe that there are circumstances they would like to bring to the authority's attention as to changes in the fortunes of defendants which are not currently being taken advantage of. So this is a very clear indication of the Government listening to what victims have said and seeking to act in support of what is a genuine and proper desire on their part.

The noble Lord also mentioned the budget. I can affirm that the budget has certainly not been cut. In 2003-04, the budget for compensation was £160 million, although that was overspent by £10 million. We have allocated an extra £3 million to the compensation budget. So the budget is £163 million and we are taking steps to manage within that budget for this year.

My Lords, does the noble Baroness accept that the figure of £200 million to £250 million was what used to be paid under the scheme and that therefore, if it is £160 million now, there has clearly been a cut?

My Lords, we do not accept that there has been a cut. Several issues have been brought into this. We help and assist victims not just through the CICA but, as noble Lords will know, from many other sources. That money has been increased, as far as I am aware, almost year on year. I am certainly happy to write to noble Lords more fully about that position, bearing in mind that it is now about five minutes to 10 o'clock.

My Lords, does the Minister accept that, as I understand it, the delay in dealing with cases is getting longer than it was because of not having enough money to pay out for those cases?

My Lords, I am unable to accept that. Noble Lords will know that earlier this year—and, I think, last year—additional resources were introduced to try to enhance the time taken to make it faster. Of course, there are issues about whether the appointment of temporary workers to speed things up can continually be paid for, but I am not aware that that has meant that things have become significantly slower.

Again, in order not to be inaccurate in any way, I am quite happy to write to noble Lords because the noble Lord may be right that, in recent months, it has become slower, but I am not aware that it has significantly changed. However, I am happy to write to both the noble Lord, Lord Thomas of Gresford, and the noble Lord, Lord Carlisle of Bucklow, and to put my letter in the Library in the usual way.

On medical records, issues of disclosure and the need to respect the rights of both victims and offenders are of course extremely important. There will be safeguards in the regulations to protect those rights. Both Houses will have a chance to consider those issues in greater detail when the regulations are debated. Those regulations will be debated under the affirmative resolution procedure, which will give us an opportunity to examine them in greater detail.

We think that this is a very positive step, giving the CICA an opportunity. In the right and appropriate case, I know that it will avail itself of it but, if I may speak entirely personally, it is not something that I anticipate will be used on a daily basis. It will be used, I imagine, for the larger cases and where there is evidence to indicate that the defendant is someone who now has the means to pay in whole or in part the compensation that has been expended on behalf of the taxpayer through the CICA to victims.

My Lords, before the noble Baroness sits down, can she tell us who makes the determination? Is it a member of CICA or is it to be a member of the claims people referred to in the amendment? What is the mechanism for determining how much will be paid?

My Lords, the CICA will make the determination of the award to the victim. It will make the determination.

My Lords, I appreciate that the CICA makes the award, but who makes the recovery order?

My Lords, it will be for the CICA to determine whether it wishes to make a claim for recovery. It will take the necessary steps to bring that about. That is what we propose through this amendment. The mechanism that it adopts is an issue that we can look at. It will be the decision made by the CICA acting by itself, through its servants, agents or otherwise in the normal way. Can I name the person who will do it? No. Will they be under the CICA? Yes.

My Lords, I must first withdraw my amendment before the noble Baroness can get her provisions on to the statute book. It is appropriate that at this stage I should be brief. I wish to recognise the experience of the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Carlisle of Bucklow in working on the Criminal Injuries Compensation Board (CICB), which my noble friend chaired. Their experience shows that there is reason to doubt whether the new system will work effectively. A new bureaucracy is being put into place, as the noble Lord, Lord Thomas of Gresford, said. There is concern that the net value of what may be recovered will be relatively low if one must pay for the work done by the claims manager and all the other paraphernalia, when a recovery system already exists in the CICA.

I must end on the tantalising prospect of seeing the Government explain how the disappearance of up to £100 million worth of funds from the CICA awards can be considered not to be a cut. The response seemed to be, "Well, we will spend it elsewhere". Tell that to the people who would otherwise expect to receive very timely awards from the CICA, directly to them rather than it being spent on other services. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 53B to 53E, as amendments to Commons Amendment No. 53, not moved.]

On Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENTS

54 Clause 37, page 20, line 14, after "section" insert "(Surcharge payable on conviction)(5),"

55 Clause 38, page 20, line 28, at end insert—

"section (Procedure for determining fitness to be tried: Northern Ireland)."

56 page 20, line 28, at the end insert—

"section (Victims of mentally disordered persons: Northern Ireland)."

57 page 20, line 32, after "Schedule" insert "(Unfitness to stand trial and insanity: courts-martial etc),"

58 page 20, leave out lines 34 and 35.

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 54 to 58, to which I have spoken with Amendments Nos. 8, 12 and 14.

Moved, that the House do agree with the Commons in their Amendments Nos. 54 to 58.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENT

59 Clause 39, page 20, line 38, leave out subsection (2).

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 59. This is a technical amendment to remove the House of Lords privilege amendment to Clause 39, inserted when the Bill moved from the House of Lords to the other place. As this House cannot consider matters of money and charges on the public funds, this amendment was inserted. Following Second Reading in another place, a money resolution was passed and, due to amendments agreed during Committee stage, a ways and means resolution.

Moved, That the House do agree with the Commons in their Amendment No. 59.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

:TITLE3:COMMONS AMENDMENT

60 Schedule 1, page 23, line 20, leave out from beginning to the second "that" in line 23 and insert "the requirement under Article 49A of the Mental Health (Northern Ireland) Order 1986"

61 After Schedule 2, insert the following new schedule—

:TITLE3:"UNFITNESS TO STAND TRIAL AND INSANITY: COURTS-MARTIAL ETC