My Lords, first, I apologise to the House that I was not present when your Lordships discussed this clause in Committee, but my interest in this part of the Bill stems from the fact that during this Parliament I was a Minister at the Home Office with responsibility within my portfolio for both knife crime and gang crime.
The amendments tabled in my name and that of my noble friend Lady Berridge seek to tidy up the clause that was passed not just by this House but—as we have heard—came from the Commons with an overwhelming majority when it was tabled and proposed by my honourable friend the Member for Enfield North. So at its third reading I do not propose to rehearse again the arguments, particularly that about the deterrent effect of what is before the House in this Bill tonight. That was eloquently debated by Members on all sides of the House in Committee and the clause passed accordingly. However, quite a few things in the
clause as it stands need correction and alteration. I hope some of those corrections and alterations will pick up on some of the points that have been raised tonight because clearly it is very important that this proposed legislation—whatever the difference of opinion on the substance—none the less needs to be compatible with existing legislation. There is more than one Act of Parliament already on the statute book to which this legislation needs to be tied without there being any anomalies, and I would like to flag some of them up.
First, to ensure compatibility with Article 5 of the European Convention on Human Rights the clause must provide the court with the necessary discretion to take account of particular circumstances when deciding whether to impose the minimum sentence or mitigate against arguments that any deprivation of liberty is arbitrary, contrary to Article 5. However, with the current drafting, the court may take account of only particular circumstances relating to the current offence and the offender, not those relating to the previous offence or offences, when for example the date of the previous offence—perhaps committed very many years ago—could be relevant.
In addition, Article 5 must be read in the light of Articles 3 and 37(b) of the United Nations Convention on the Rights of the Child, which means particular care must be taken in detaining children. If the necessary consequential amendment is made to disapply the requirement on the court to have regard to sentencing guidelines, there will be no requirement on the court to have regard to the welfare of the offender when sentencing those under the age of 18. Therefore, we consider that a provision requiring the court to have regard to its duty under Section 44 of the Children and Young Persons Act 1933 when considering particular circumstances in relation to 16 and 17 year-olds should be inserted.
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There is also a bit of an anomaly in the way that the drafting deals with appeals. As currently drafted, if an offender is given a minimum sentence and then the previous conviction, because of which the minimum sentence was imposed, is set aside, the offender will be able to appeal the imposition of the minimum sentence, relying on Section 18(3) of the Criminal Appeal Act 1968 and the Court of Appeal’s power to extend the time limit. However, the usual approach is to make provision allowing an appeal within 28 days of the date on which the previous conviction was set aside, providing a fixed end-point by which an appeal must be brought. Therefore, we consider that the clause should be amended to make provision for such an appeal.
My noble friend has already mentioned the question of hospital admission or guardianship, particularly in relation to mental health. As drafted, it would not be open to the court to order hospital admission or guardianship, even if it was satisfied that the offender was suffering from a mental disorder and this was the best way to deal with him or her. Section 37(1A) of the Mental Health Act 1983 expressly states that nothing in the minimum sentence provisions elsewhere on the statute book prevents the court making such an order.
If reference to this minimum sentence is not added, the implication will be that the court is so prevented. I spent what seemed like a lifetime on the revised Mental Health Act and its pre-legislative scrutiny, and I think that we disregard that Act at our peril. Therefore, we consider that an amendment should be made to Section 37(1A) of the Mental Health Act 1983 to allow a court to make such an order.
I picked on those three elements of the amendments because I think that they are particularly pertinent. They also pick up on some of the points raised in the previous debate on the amendments tabled by my noble friend Lord Marks of Henley-on-Thames.
Attempts were made to seek agreement across the House to the amendments in my name and that of my noble friend before we tabled them. As your Lordships know, I am not a lawyer and we had to seek assistance in tabling them. We hope that we have the legislation and the legalities right to tidy up a clause which we support but which cannot be left in the Bill in its current state. I hope that these amendments are helpful, allay some concerns and improve Clause 27.