Amendment made: No. 544, in

clause 143, page 80, line 22, at end insert

'other than a report given orally in open court'.—[Hilary Benn.]

I beg to move amendment No. 618, in

clause 143, page 80, line 25, leave out paragraph (b).

Under subsection (2) provision is made that the court must give a copy of the report not only to the offender, his counsel or solicitor but also to the prosecutor—that is to say, the person having conduct of the proceedings in respect of the offence. There might be good reasons for doing that and I hope that we shall hear from the Minister what those are. However, it constitutes a departure from what I

understand to be normal practice. In my experience, the prosecutor does not necessarily see a copy of the pre-sentence report, having no role to play in the details of the sentencing apart from outlining, at the invitation of the judge, any points of law in relation to what the tariffs might be. I am aware that there has been a lot of discussion about the matter. The Director of Public Prosecutions recently said that he wanted the role of prosecutors to change so that they became much more proactive in court, moving, as I understood it, towards the American model of making submissions to a court about what the sentence should be. Such a practice may be justified, but it is not at present Government policy to go down that road.

Although it seems a small and rather innocuous feature of subsection (2), the provision that the prosecutor must be provided with a copy of the pre-sentence report is not in accordance with past practice. I have known many cases in which the prosecutor has not had a copy of the report. I would like the Minister to explain the purpose of subsection (2)(b). There is an argument that a pre-sentence report may contain inaccuracies—some are based on information supplied by the defendant or his relatives—and that giving it to the prosecution could give them a useful tool to correct such inaccuracies. However, I hope he will give me the reasons why a prosecutor should see a copy of the report.

Is it also the intention to show the victim a copy of the report?

I wish to reinforce the point made by my hon. Friend the Member for Beaconsfield. Historically, the prosecution have been utterly independent, and it has been a great characteristic of the British system that the prosecutor has no vested interest whatever in the result beyond presenting the facts to the court and permitting it to reach a just verdict. The prosecution has never had a role in sentencing. I understand that in certain foreign jurisdictions the prosecutor will demand that a particular sentence be passed. We have never had that in this country, and in my experience the prosecution have never seen a copy of a pre-sentence report. If in the report a probation officer says that a defendant has shown huge remorse, will the prosecutor be given a copy so that he can challenge it? Does the Minister envisage that by doing that the prosecutor will be able to challenge any submission made by the defence? If so, we are into more protracted proceedings.

The purpose of the amendment is to probe why this measure is regarded as important and to remind the Minister that, whatever he may say, it is not established practice.

Am I incorrect in reading subsection (5)(a) and (b) as suggesting precisely that purpose for the disclosure of the pre-sentence report: that the prosecution can challenge what it may contain?

That is a very good point. I listen very carefully to what the hon. Gentleman says. The Minister may say that since the 2000 Act this has been a relevant issue as well.

It may indeed have been.

I can hear the Minister. I realise that he will now remind me that I should have realised that that is in the 2000 Act. Nevertheless, we must be jolly careful before we move into the world of giving the prosecutor more of a role in sentencing than at present, which is in effect none.

I would not like it to be generally believed that prosecutors never play a role in sentencing. There is a very obvious example that I have often experienced: motorists seeking to give special reasons for not being disqualified or having their licences endorsed. They must give evidence, during which prosecutors can cross-examine them. The prosecution play a role, admittedly in limited cases, in sentencing, so the hon. Gentleman must accept that it is not quite true that they never played a role.

The hon. Gentleman is absolutely right. He has hit on a classic case in which the prosecutor does have a role—

Or in a new hearing.

Yes, or in what is called voir dire—I hope that I will not be asked to spell that—which is a trial within a trial. Yes, it does happen. However, the prosecutor in such cases acts quite gently, in a probing, semi-independent fashion. I am not putting this very well. The Committee will understand that I am concerned about moving away from the current system towards one in which the prosecutor has a really proactive role in relation to sentencing based on the contents of a report.

The Powers of Criminal Courts (Sentencing) Act 2000 has been a popular text for the afternoon. I refer to it once again, as the hon. Member for Woking anticipated, in order to point out to the Committee that this is a re-enactment of section 156 of that Act, which says that the court shall give a copy of the report to the prosecutor.

Is it in force?

Are you giving way, Mr. Benn?

No, but my understanding is that it is in force. If that is not the case I shall seek to correct the impression as soon as possible.

Mr. Malins rose—

Order. Please. You are like two pouncing panthers. Is the Minister giving way now?

Yes, of course.

How splendid.

Thank you.

I have no idea whether it is in force. All I know is that most of the legislation that we have passed in the past two years is not in force and nobody knows when it will be. I should like confirmation that it is in force, when from, and whether it has become established practice, because I do not think that it has.

Those are two separate questions. I am assured that it is in force, and I shall ensure that the hon. Gentleman has an answer as to when it came into force. Whether it is established practice is another question, but that is what the statute requires.

There might be circumstances in which it is appropriate for the prosecution, having received a copy of the pre-sentence report, to make representations. An example was given by my hon. Friend the Member for Stafford (Mr. Kidney) in a helpful intervention. It might protect victims, which my hon. Friend the Member for Nottingham, North asked about, in that an offender might have misled a probation officer and that might have been reflected in the report. Having had a chance to read the report, the prosecution would be able to correct the false impression.

It will also help the victim, once the accused has been found guilty, to come to terms with the offence and to understand how the criminal justice process has worked when a sentence is finally delivered. At present, much of the distrust of the criminal justice system is due to the fact that victims are totally bewildered as to how a sentence has been arrived at.

Hilary Benn rose—

I am troubled that the proposal now seems to be to show it to the victim, not to the prosecutor.

I was just about to say that my hon. Friend the Member for Nottingham, North is right about the confidence of the victims in the system. Let me reassure my hon. and learned Friend that the clause contains no proposal to show the report to the victim. I would also make it clear to the Committee that there are safeguards in the legislation to ensure that the report is disclosed automatically only to what is described as a prescribed prosecutor. For any other prosecutor—for example, one in a private prosecution—the court will have discretion as to whether to grant disclosure.

I do not think that the Minister gave us the reason—perhaps it can be found in the debates on the 2000 Act—for deciding that the prosecutor should have a copy. That was the main thing that I asked.

I am sorry. There are two reasons. One is to make the representations that I have described in cases in which the defendant has misrepresented himself. The second is that the prosecution might want to make representations to the court in order to prevent it from misdirecting itself in sentencing matters. For example, they might draw to the attention of the court any relevant case or other authorities.

What was the reason why it could not be shown to the victim?

I think that the answer is that, while I accept my hon. Friend's argument about the system needing to be open to the victim, it would contain material pertaining to the offender and his or her background and family circumstances that it would not be appropriate to show to the victim.

I am grateful to the Minister. It may assist the hon. Member for Nottingham, North, if I add that good sentencing reports are heavily dependent on the co-operation of the offender in their compilation. If the report could be shown to the victim or a third party, or even be made public, it would clearly make that co-operation more difficult to achieve.

I was unaware that the provision was in force, but I have not represented live defendants about to be sentenced—rather than corporate clients—since 2000. I am clearly not up to speed on the latest procedures. However, as long as it is confined to the two areas outlined by the Minister, I see no need to press the amendment to a Division.

I am grateful to the hon. Gentleman and the Minister for explaining why a victim should not see the pre-sentence report, but that puts the onus on the magistrates or the judge to explain their sentence fully, so that the victim can come to terms with it. There is no excuse for saying at that point that confidences should not be broken or personal data revealed; however, a full explanation will help the victim come to the terms with the offence and the sentence.

The hon. Gentleman raises a good point, and it is certainly desirable that there should be as much transparency and openness as possible. However, he will understand that some cases can cause considerable difficulties. For instance, a letter might be given to the judge, who is about to pass sentence, giving details of the health of the defendant's wife—a classic example would be that she is dying of cancer and has only a few weeks to life. For reasons of basic confidentiality, which we exercise in our daily lives, judges are reluctant to do more than allude to such matters and will not go into chapter and verse. That may well be one of the reasons why people get the wrong impression.

It is desirable that the judiciary should ensure that there is as much transparency as possible, but 100 per cent. transparency is sometimes simply not feasible. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 650, in

clause 143, page 80, line 27, leave out subsection (3).

With this it will be convenient to discuss the following amendments:

No. 619, in

clause 143, page 80, line 27, leave out '17' and insert '18'.

No. 620, in

clause 143, page 80, line 28, leave out from 'need' to end of line 29 and insert

'must be given to him and his parent or guardian or supporting relative if present in court.'.

No. 651, in

clause 144, page 81, line 6, leave out subsection (3).

No. 621, in

clause 144, page 81, line 6, leave out '17' and insert '18'.

No. 622, in

clause 144, page 81, line 7, leave out from 'need' to end of line 8 and insert

'must be given to him and his parent or guardian or supporting relative if present in court.'.

I shall be as brief as I can, consistent with the material that I need to cover. I am acting as a voice from the Joint Committee on Human Rights. We are debating an exception to the right of a defendant normally to receive a report. The exception applies to those under the age of 17 who are not represented by counsel or a solicitor. The Human Rights Committee report on 31 January drew attention to three concerns about the provision.

The Committee was concerned that there might be a violation of three specific rights. The first is the right of an offender to a fair hearing under article 6.1 of the European convention on human rights and under the Human Rights Act 1998, on the ground that the right to a fair trial does not end on conviction but extends to sentencing. Secondly, it went on to consider the right of child offenders to express their views freely in all matters under articles 12.1 and 12.2 of the United Nations convention on the rights of the child, and particularly to have the opportunity to be heard in any judicial or administrative proceedings affecting them either directly or through a representative.

The third right was the right of the offender as a person to respect for his private life under article 8 of the ECHR and under the Human Rights Act. The circumstances that we had in mind were those in which a child is no longer in the care of a parent or guardian, and does not wish that parent or guardian to see the reports or make representations to the court, because the relationship between the two has broken down.

Ministers have already considered those points that the Joint Committee made, and have said that there might be a case for reducing the age from 17 to 14. I agree with that. There was an indication that the Government might table amendments to the Bill to bring that into effect. We have not yet seen such amendments, so perhaps the Minister can tell us that they will be introduced later. That would bring into line a view of an age at which juveniles can take their own decisions on matters on which such a determination has been made.

The Joint Committee welcomed that proposed change and said that it would substantially alleviate its concerns in relation to article 8 of the ECHR. On the basis of that provision, it went on to accept that the interests and rights of a child under 14 might be properly balanced with the responsibilities of parents for their children's welfare.

The Joint Committee went on to say that under article 12 of the convention on the rights of the child it would be satisfied as long as there were arrangements in place for readily available independent legal representation. However, it was concerned—the concern is extant—about matters relating to article 6 of the ECHR. To give copies of a report to a parent who might be estranged from the child, or unable or

unwilling to give voice to the child's concerns, would be to deprive that child of their rights. Under such circumstances, in which a child is not properly represented and the report is not be presented—quite properly, under the current provisions of the clause—there would be a lacuna in the rights of that child. That would be open to challenge and might prejudice future proceedings, quite apart from the intrinsic rights of the child in question.

The amendment would eliminate the offending subsection. It is a means of asking the Minister to address those proper concerns. I do not particularly want to remove the subsection altogether, but the Joint Committee—an authoritative source—has expressed those concerns, to which there have not yet been answers. I should like the Minister to address those issues and perhaps satisfy the Committee.

I shall speak briefly to amendments Nos. 619, 620 and 621. Subsection (3) refers to an offender aged under 17—the amendments would change that to 18—and describes such a defendant as

''not represented by counsel or a solicitor'',

whereas in truth a counsel or solicitor invariably represents those under 17 or 18. Very few ever represent themselves. The court always appoints somebody to represent them, so I do not think that the provisions will apply very often. I see no reason why 18 should not be substituted for 17. If it is not, we would be dealing with an offender aged 17—very young indeed. Why can the provisions not say ''under 18''? What is the magic in ''under 17''?

Under subsection (3), the report

''need not be given to him but must be given to his parent or guardian if present in court.''

I seek to widen that on the grounds that scenarios might occasionally arise in which somebody is not represented by counsel or a solicitor but may have a supporting relative present. One often asks a defendant, ''Who is with you?'' and the answer is that it is his brother. The brother stands up and says, ''I'm looking after him—he's my brother.'' The same goes for grandmothers and aunts, and the term ''cousin'' is often used in a wider sense than the strict one in which we understand it. As such relatives frequently turn up in support of defendants, are they included in the definition of guardian? If they are, fine. If not, should the clause not be widened in order to permit a copy of the report to be given to them? To all intents and purposes they might have the daily responsibility for the defendant even though not a parent or, unless we widen the definition, a guardian.

The only possible justification for withholding a report, as provided in subsection (3), is for the good of the individual. It is the old question of not telling children all the details about themselves. I can think of no other logical reason for doing it. If that is the case, the first question that springs to mind is why 17? The age of majority is 18; should not that be the limit? Or, picking up the point of the hon. Member for Somerton and Frome (Mr. Heath), why 17 at all? It is totally undesirable that there should ever be a circumstance in which, as a result of the rule, a report is not shown to somebody representing and acting on

behalf of that defendant. If that were to happen, I am sure that the Human Rights Act would be infringed.

I cannot think of any circumstances in which a 16-year-old appears in court unrepresented or without the presence of his parents or guardian. Perhaps such incidents do occur; I do not normally practise in such courts and I should be concerned if that were the case. It might be difficult for a 14-year-old to absorb the contents of a report, especially if, for instance, it touched on matters concerning his health. We need some reassurance about where the measure comes from and what its purpose is. Otherwise, it provides a loophole through which the whole system could be shown to be wanting. I hope that the Minister can help us.

This has been a useful debate, for reasons that I shall explain. I confirm what the hon. Member for Somerton and Frome said: our attention was first drawn to the provisions—which, in essence, replicate clauses 156 and 157 of the Powers of Criminal Courts (Sentencing) Act 2000—by the Joint Committee on Human Rights. It wrote to the Home Office suggesting that the right of the parent to see the child's pre-sentence report might breach a child's right to privacy under article 8 of the European convention on human rights. We said that we would change the age of a child whose parent was entitled to see a report to under 14 rather than under 17. We thought that that would strike a balance between the child's right to privacy and the proper exercise of parental rights. However, the various amendments have caused us to pause and to wish to think further about the matter. We want to strike the right balance. I am genuinely grateful, for that reason, to hon. Members for having tabled the amendments that gave rise to such a useful conversation.

We should like to return to two issues on Report. The first is that, in principle, a pre-sentence report and other court reports should be made available to both parents or guardians and children, regardless of whether the child is legally represented. I am in favour of open disclosure. We shall consider the point that the hon. Member for Woking raised about the definition of guardian. I think that it means legal guardian, but he raised an important issue.

Secondly, the courts should retain a discretion not to disclose information in reports to either party where that is in the best interests of the child. The reason in relation to the child was given by the hon. Member for Beaconsfield. In relation to the parents, the child may have revealed something in the conversation about what is happening at home, and it may not be in the child's interests for that to be disclosed.

Under rule 10(3) of The Magistrates' Courts (Children and Young Persons) Rules 1992, young people already have access to reports in the majority of the cases. The report must be disclosed to the child unless the courts direct that that would be impractical because of his or her age and understanding, or undesirable because he or she might suffer serious harm. Moreover, as a matter of good practice, the Youth Justice Board national standards state that a PSR must be made available in writing, and a copy must be provided to the young person and his parent or carer. If appropriate, child protection implications, the court, the Crown Prosecution Service and the defence must be considered. I am also aware of what the Joint Committee on Human Rights has said on article 6.

We would like to consider all those issues. We did not feel that the amendments dealt with them. We shall reflect on the issues that have been raised in this helpful discussion and return to them on Report. In the meantime, I request that the amendment be withdrawn.

I am most grateful to the Minister for what he has said. On the undertaking that he will look carefully at the clause and that we shall be able to return to it on Report, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 143, as amended, ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Heppell.]

Adjourned accordingly at four minutes to Five o'clock till Thursday 6 February at ten minutes past Nine o'clock.