Criminal Justice and Immigration Bill

I am grateful to noble Lords who have spoken and, in particular, to the noble Lord, Lord Kingsland, for moving his amendment. Amendment No. 101 seeks to allow a court to make a second referral order on the recommendation, as the noble and learned Baroness reminded us, of a member of the youth offending team, a probation worker or a social worker. The legislation currently allows only one referral order to be made. We do not believe that we should allow a second referral order if one has been made previously and I shall try to explain why. We have introduced a range of out-of-court disposals for juveniles that will be engaged long before they reach the point of a referral. Indeed, Clause 98 introduces the youth conditional caution which will provide an additional out-of-court option to the existing reprimand and final warning. It is also possible for a young offender to receive either an absolute discharge or a conditional discharge before the court stage, where a referral order comes into play. In other words, before a young offender gets to the point of receiving a referral order, he or she may have committed several offences of a fairly serious nature. We do not have a problem with that if the out-of-court disposals and discharges have been used appropriately. It is our aim and the aim of everyone who has spoken in the debate to keep children and young people out of the formal court process. But when they enter the formal court process, it is essential that we keep the confidence of the public, even with young people, in rigorous and effective community penalties. The referral order is available for a range of offences, some of which are serious as they include imprisonable or custody offences. Allowing a second referral order may result in legitimate criticism that repeat offenders are not being dealt with effectively. I shall remind the Committee of the circumstances in which an offender receives a referral order. At present an offender must generally be given a referral order if, first, the offence is imprisonable; secondly, he pleads guilty to an offence and any connected offences; thirdly, the offender has not previously been convicted of an offence; and, fourthly, the offender has never been bound over to keep the peace. An offender may be given a referral order in similar circumstances where the offence is not imprisonable or more than one offence has been committed, whether imprisonable or not, and the offender pleads guilty to at least one. We have made a change in the Bill that will allow a referral order to be made on a second conviction if a referral order has not been made before, but we do not believe that we should extend it further. It is a part of the challenge to achieve the balance required in the youth justice system between providing sentences that meet the needs of young people who offend and, at the same time, providing reassurance to victims and the public that the offender will be dealt with effectively. We believe a second referral order is a step too far. My noble friend Lord Judd, in a typically effective way—as he always does in these kinds of arguments to the Committee or to the full House—talked about a breach leading to a referral order being necessarily revoked. It is true that a breach of a referral order may lead to it being revoked, and thus to resentencing, but, as I understand it, a breach of a referral order does not necessarily lead to the order being revoked. What we are talking about here in most cases is another offence committed by the offender. So we are not talking about breach; we are talking about another offence committed by the offender. The referral order involves a restorative justice approach. We believe that it is right that all first time guilty pleas for young people who are before the court—they may have committed a number of offences and not been dealt with by the courts—should have the opportunity to go through this process. Our concern is that if the young person has offended again, more intervention is needed. Therefore, we think that the course that the courts will take in those cases is more often than not the youth rehabilitation order that the Bill introduces. It is not a question of the referral order going because another offence has been committed and therefore inevitably, like night follows day, the young offender must go into custody. We believe that the commission of the other offence—which presumably will not be trivial because if it was, it would probably not come to court anyway—means that that offender needs more intervention than the referral order gives him or her. That is the purpose of the youth rehabilitation order that we have debated.