Criminal Justice and Court Services Bill (Hansard, 4 October 2000)

HL Deb 04 October 2000 vol 616 cc1603-80 1603

§ 8.31 p.m.

§ House again in Committee.

§ Clause 44 [Community sentences: drug abstinence requirements]:

§ On Question, Whether Clause 44 shall stand part of the Bill?

§ Lord Dholakia
This clause allows drug abstinence requirements to be attached to a community sentence. We do not understand why such a power is needed. The Government recently introduced drug treatment and testing orders, which have been fairly successful. Treatment can also be made a condition of an existing supervision order.
The suggestion here is that an abstinence requirement is made without the possibility of treatment. Class A users will not stop their drug abuse because a court or a probation officer has told them so to do. In our view, without treatment, offenders who are made the subject of this requirement are being set up to fail. Probation officers will have the onerous role of supervising and conducting the tests. It will be the probation officer who will have to tell the person on supervision that there was no provision for treatment and that they will have to pull themselves together and stop taking drugs. That is totally unrealistic. It is also dangerous.
During the drug treatment and testing order pilot scheme in Croydon, female members of staff were at one time forced to supervise tests involving the passing of urine. A clear health and safety issue was raised by this. On one occasion a male offender threw an empty receptacle at a female member of staff in an act of frustration.
We believe that if this clause is implemented we shall see a sharp rise in the number of short-term prisoners and prisoners with acute drug problems. The Prison Service will not be able to cope or to offer such prisoners any realistic hope of treatment or rehabilitation.

§ Lord Bassam of Brighton
Clause 44 introduces a new requirement for drug abstinence which the courts may add to community rehabilitation orders, to community punishment orders or to community punishment and rehabilitation orders. This is very much in line with the action we are taking against those who commit crime to feed a drug habit. These new powers complement the drug abstinence orders and will be used where the court has decided to impose a community sentence and further requires the offender to abstain from drug misuse.
The court is required to add such a requirement to a community sentence where the offender is aged 18 or over; is convicted of a "trigger offence" and, in the opinion of the court, is dependent on or has a tendency to misuse specified Class A drugs. In other cases, the court has the discretion to include a drug abstinence requirement if it is believed that the misuse of a 1604 specified Class A drug caused, or contributed to, the offence. The court may not add a drug abstinence requirement if a drug treatment and testing order or drug abstinence order has been issued, nor if a community rehabilitation order has been issued which includes any drug requirement.
Testing is an integral part of monitoring the abstinence requirement. The Secretary of State will have the power to issue guidance on the frequency of sample provision by the offender and may make rules for regulating the provision of samples.
Drug abstinence requirements are also to be piloted and this clause provides that a court may make such a requirement only in areas notified by the Secretary of State that arrangements are in place for it to be implemented.

§ Lord Dholakia
I thank the Minister for providing that information. I hope, too, that the Minister has taken note of my earlier comments.

§ Clause 44 agreed to.

§ Clause 45 [Community sentences: curfew requirements]:

§ [Amendment No. 121 not moved.]

§ Lord Bassam of Brighton moved Amendment No. 122: Page 29. line 19, at end insert— ("(10) An order under sub-paragraph (9)(a) above may make in paragraph 19(2)(aa) of Schedule 3 to this Act any amendment which the Secretary of State thinks necessary in consequence of any substitution made by the order."").

§ On Question, amendment agreed to.

§ Clause 45, as amended, agreed to.

§ Clause 46 [Community sentences: exclusion requirements]:

§ Lord Dholakia moved Amendment No. 123: Page 29, line 31, at end insert— ("( ) An exclusion requirement shall only be made if the offence is one which is specified in schedules by order of the Secretary of State.").

§ The noble Lord said: Amendment No. 123 deals with the exclusion requirements of community sentences. Under the provisions of the clause, I understand that new technology will be used to produce a "reverse tag" which will be used to protect the victims of predatory crimes, such as domestic violence, stalking and so forth.

§ I addressed this matter earlier. It would be helpful if, when the schedule is prepared, it specifies clearly what it will contain rather than rely on the extremely wide powers conferred by this clause. I beg to move.

§ Lord Bassam of Brighton
I am grateful to the noble Lord for his further intervention on this matter. Of course I shall be happy to consider the point that he has made.
Amendment, by leave, withdrawn.

1605

§ [Amendment No. 124 not moved.]

§ Lord Bassam of Brighton moved Amendment No. 125: Page 30, line 20, at end insert— ("( ) An order under sub-paragraph (8)(a) above may make in paragraph 19(2)(ab) of Schedule 3 to this Act any amendment which the Secretary of State thinks necessary in consequence of any substitution made by the order.").

§ On Question, amendment agreed to.

§ Clause 46, as amended, agreed to.

§ Clause 47 agreed to.

§ Clause 48 [Breach of community orders: warning and punishment]:

§ [Amendment No. 126 not moved.]

§ The Attorney-General (Lord Williams of Mostyn)
moved Amendment No. 127: Page 32, line 45, at end insert (", and ( ) where one of those orders is a curfew order that fact shall be disregarded for the purposes of sub-paragraph (4) above""). The noble and learned Lord said: In this group originally were to be found Amendments Nos. 126, 127, 128 and 129. I think—I am not entirely certain—that the noble Lord, Lord Windlesham, has decoupled Amendment No. 128, although the amendments all deal with the same topic. If I trespass on Amendment No. 128 inappropriately, I shall of course give way at once.
Perhaps I may deal with and speak to government Amendments Nos. 127 and 129. It was quite plain during Second Reading that there was a good deal of concern about Clause 48—essentially described as "undue rigidity". Certainly the noble Lords, Lord Windlesham, Lord Dholakia and Lord Brennan, raised those concerns and I believe that the noble and learned Lord the Lord Chief Justice also expressed similar concerns in correspondence with the Home Secretary.
As I have said, a good deal of the criticism was that the enforcement proposals were too rigid, too mandatory. We took the view that community sentences should not be ignored or treated too lightly. My noble friends Lord Bassam, Lord Bach, and I said that we would think carefully about whether this particular regime could be improved, subject of course to the fact that the final result should be consistent with what we were aiming to achieve. I think we can say that we have listened and paid careful attention. What we have now got—if the Committee agrees to it—is more judicial discretion while retaining certainty of outcome.
Under the government amendments to which I have referred, where an offender is aged 18 or over and is subject to a community order to which the statutory warning provisions apply, having found the breach to have occurred, the court would first decide whether or not, notwithstanding the current breach, the offender's response to the sentence as a whole was such that it was likely that the order would be successfully completed. If the court took that view—in other 1606 words, successful completion likely—it would allow the order to continue; and it would be under a duty to punish the breach by imposing a community punishment order, a curfew order or, where the appropriate age applied, an attendance centre order. Having listened to all the representations, we came to the conclusion that a fine would not be appropriate as it is of a lower tariff than the community penalty breached.
If the court does not believe that there is a likelihood that the order would be successfully completed, there would be a requirement to impose a custodial sentence, other than in exceptional circumstances. If the original offence itself was punishable by imprisonment, a prison sentence would be imposed for the original offence. If the original offence was not so punishable, the prison sentence would be limited to not more than three months. The existing exclusion—that is, those who are under 18 and those who fail to comply with a requirement to refrain from using Class A drugs—would remain.
As in the original wording, the presumption would also be displaced where there were exceptional circumstances to justify it. In dealing with these cases, the courts would be obliged to impose one of the alternative community sentences as a penalty for breach or re-sentence for the original offence, if thought appropriate. There are consequential amendments, of course, in Schedule 6 to the Bill.
I believe that these amendments are a proportionate, reasoned and reasonable response to the criticisms which were made. I should say on my own behalf that I am grateful for the criticisms because the consequences of listening to them and trying to engage in a reasonable debate has brought about a better outcome. I beg to move.

§ 8.45 p.m.

§ Lord Windlesham
In speaking to this amendment, I should like to speak also to Amendment No. 128, which stands in my name and the name of the noble Lord, Lord Dholakia, and others.
Clause 48 of the Bill, as it stands, provides that, unless there are exceptional circumstances, all offenders who breach community orders such as probation or community service orders, after one warning would automatically be punished by a mandatory prison term of not more than three months in duration.
This was a proposal—I use the past tense in view of what we have just heard from the Government Front Bench—which was breathtaking in its scope, in its non- selectivity and in its potential impact on the prison population, especially in local prisons and at reception. As the noble and learned Lord accepted, there were strong criticisms of the proposal at Second Reading. Consequently, a cross-party amendment was tabled in the names of the noble Lord, Lord Dholakia, the noble Baroness, Lady Stern, the right reverend Prelate the Bishop of Lincoln, and myself, to omit the clause altogether. That is Amendment No. 128, to which I am addressing myself at the moment.
1607 But sometimes the seasons and political opportunities coincide. The Second Reading debate on the Bill was shortly before the long summer Recess. That allowed time for second thoughts; it allowed time for strong representations from the Probation Service; and, we understand from what the noble and learned Lord the Attorney-General said, an opportunity for the Lord Chief Justice, whom I am delighted to see in his place, to be in touch with the Home Secretary on the matter. I have a strong suspicion that others present this evening also may have played a part.
As a result, we have in front of us what is substantially a new clause. It is brought forward as Amendment No. 129, to which the noble and learned Lord the Attorney-General will be addressing himself very shortly. As he has already explained, the effect of the amendment leaves the court with more flexibility in dealing with breaches of community orders. Instead of automatic imprisonment, it proposes that a court—both a magistrates' court and a Crown Court—need not make use of custody if it is of the opinion that the offender would be likely to comply with the rest of the order if it was allowed to continue. Where the order is allowed to continue, the court would punish the breach with a community punishment order—to use the title which will be in use if the Bill is enacted in the form in which it is at present—or a curfew order enforced by a tag, or, for offenders under the age of 21, an attendance centre order. The court would also have the option of dealing with an offender by re-sentencing for the original offence.
If, however, it was considered "unlikely"—the same term again—that the offender would comply with the order, then, unless there were exceptional circumstances, the court would be under an obligation to punish the breach with imprisonment.
When the noble Lord, Lord Bassam, was first in touch with me on behalf of the Home Secretary to inform me that Ministers were willing to make this substantial concession, I thought there were two aspects of this welcome news which needed to be established. The first was: did the Probation Service think it was workable? The likelihood is that the sentencing court, in deciding whether or not there has been a breach and, if so, what the penalty should be, would have to look to the Probation Service for a report, because it is the Probation Service which will know the individual first-hand. We must hope that the court has not been so familiar with the individual from the past to be able to make an assessment on its own.
With very little hesitation, the answer from the Association of Chief Officers of Probation was that it anticipated the Probation Service would be able to distinguish between, and advise the court on, orders which were still viable and might be allowed to continue and those where the chances of completion were remote. That was one part of the assessment as to the effect of the proposed changes.
The second part was how the courts would look on the proposal. I shall say no more on that aspect in view of the fact that the noble and learned Lord, Lord 1608 Woolf, is here and will be able to give us his own view. Those are the crucial aspects to which we must give our attention.
Finally, I hope that the Government will not dismiss too readily the use of fines. It was briefly passed over in the Attorney-General's opening remarks. I am aware that fines are currently out of favour with the Home Office. But there is a case for a fine to be added to the other suggested punishments for breach—a curfew order, community service hours, or an attendance order—for those offenders who might be assessed as able to continue with their orders.
At present, fines are widely used as a disposal in this context. I understand from the Inner London Probation Service, the biggest service in the country, that in about a quarter of cases—a substantial number if one considers the volume of throughput—the court attaches a financial penalty to the continuation of the order. So, in welcoming the order and in accepting the significance and generosity of the concession, I hope that the Home Secretary, the Attorney- General and others will not dismiss the possibility of including fines as a supplementary penalty. I commend the amendment and I look forward to the comments of other Members of the Committee who may take part in the debate. When it is concluded, I shall withdraw the amendment.

§ Lord Woolf
Like Members of the Committee in general, I should acknowledge that it is welcome that the Home Secretary has felt it possible to propose the amendment introduced by the noble and learned Lord the Attorney-General. I acknowledge straightaway that the proposal is much more satisfactory than what was previously contained in the Bill. However, the clause in its original form and in that proposed in the amendment raises an issue of principle and I consider it right to detain the Committee with a brief discussion of the matter.
Prior to taking up my present office, for almost 10 years I had not been directly concerned with our criminal justice system. I found to my regret that in the intervening period the system had not improved. I am afraid that it was my clear impression that it had deteriorated. That was despite—or, more accurately, partly because of—a flood of legislation in the intervening period. That legislation was no doubt well intended and was passed with objectives in mind which many would say were commendable. However, its effect has been to make the task of the sentencing judge or magistrate extraordinarily convoluted and difficult.
Because of my change of role, I thought it important that I should return to school. Therefore, I attended a refresher course for a week during the summer which was held by the Judicial Studies Board. The course work was impressive, as were the skills of those who attended. They needed to be. In order to pass a lawful sentence today, you have to pass through hoop after hoop imposed by the legislature. Although unintentionally, I am sure, the legislation has created an obstacle course. The sentences which can be passed and those which cannot are hedged around with a myriad of technical restrictions. What has to be 1609 explained in open court when passing sentence has become subject to a mass of technical requirements—so much so that a hot topic at the seminar that I attended was: is the better practice to go through the statutory hoops before telling the offender what is his or her sentence; or is it better to tell him or her the worst and then go through the hoops? From the offender's point of view, and that of the expeditious and efficient administration of justice, neither alternative has much to commend it.
Clause 48, in its original form, had the disadvantage that, although it was designed to give non-custodial sentences more credibility in the case of a breach of the conditions, it was in practice likely to lead to the opposite result. That is for the simple reason that it would make probation officers more reluctant than they should be to give warnings, and even more reluctant to bring offenders back to court. Those who have had anything to do with sentencing know that in many cases what is most effective if someone is brought back to court should a community sentence have had conditions breached is for the offender to be brought back into court. That is in itself salutary. A stern warning from the court can then have the effect that is required and the original intention of the sentencer when imposing the community sentence can be achieved.
What is the evidence that magistrates or judges are being unduly lenient when offenders are brought back before the courts for a breach of a condition imposed on a custodial sentence? That is not the impression of probation officers with whom I have discussed the matter. If we are treating offenders unduly leniently, training plus guideline decisions from senior judges can produce the required result. Why place a judge in the entirely artificial situation of having to impose an artificial sentence of imprisonment?
The new provision requires the court, if it is not satisfied that a community sentence can be completed, still to impose a sentence of imprisonment. What are the requirements with regard to that sentence of imprisonment? The court must ask itself what would be the sentence if the offender had just been convicted. But that is not the situation. A period of time would have elapsed before the sentence would have been imposed. Secondly, the sentencer has to consider what decision he would have imposed when the matter was originally before him. But that is putting the sentencer in an entirely artificial position. His intention at the time was not to impose a sentence. So he is asked to go through a hoop which serves no purpose.
Then, the court is being asked to impose imprisonment in some circumstances for an offence in relation to which no imprisonment could be imposed. A sentence of imprisonment is imposed for that offence in substitution for the means of disposal in the community which had originally been imposed. It is justified on the basis: "Ah, but the offender has since committed a breach of the order that was made". But imposing imprisonment in those circumstances is still imposing a sentence for the original offence. If Parliament had previously said that the proper sentence was not imprisonment, is it right, as a matter 1610 of principle, to impose imprisonment because the community sentence that was imposed has not been complied with?
It is now accepted that great improvements have been made by the legislation that this Bill seeks to amend; namely, the Powers of Criminal Courts (Sentencing) Act, which was passed this year. That Act brought together legislation that was spread across numerous Acts of Parliament. The consolidation was very much a step to be commended. However, we are now in the process of repeating the mistakes of the past by trying to deal piecemeal with particular problems that have been identified, frequently without conducting the investigation that should have been carried out to see whether the amendments to what has been consolidated in that Act are justified.
Complexity is a menace in any system of justice. What we are constantly doing is increasing that complexity. We have reduced the complexity in the civil justice system. That has assisted the administration of justice. What is being done now, and what has been done over the preceding years, is to move in the opposite direction with regard to the criminal justice system. I respectfully suggest to noble Lords that that process should be avoided unless an overwhelming case is made out to move in the other direction. As far as concerns this amended Clause 48, I know of no such case.
Finally, I should like to associate myself with what the noble Lord, Lord Windlesham, said with regard to an alternative of a fine. With the greatest respect to the noble and learned Lord the Attorney-General, I suggest that it is not an answer to the non-inclusion of a fine to say that that is a lower sentence in the tariff than the community sentence that has been imposed. The situation could arise where the offender would still have to fulfil his community sentence but could pay a fine in addition. As we have heard, that form of sentencing is regularly used now. I can see no purpose in depriving the courts of that additional weapon.
When sentencing, it is vital for a court to have as many options as possible. Of course, that means that the outcome is less certain; but it does not mean that the outcome is less desirable. Sentencing requires flexibility. We must avoid removing that flexibility if we can.

§ 9 p.m.

§ Lord Brennan
I am sure that I speak on behalf or all Members of the Committee in acknowledging the value to us, and to the community, of listening to the views of the noble and learned Lord the Lord Chief Justice on the matter of sentencing with which we are concerned tonight. We shall need carefully to consider what he said in relation to the structure of legislation about future sentencing because that illustrates to us the particular tensions that arise in the present Bill which so concern him on the part of the judiciary and the system of criminal justice.
Why is this debate an example of that concern? We are here debating the question of how those who receive what must be described as a "lenient 1611 sentence"—that is to say, a non-custodial sentence—by way of a community order should be dealt with when they breach the terms of that order. That question raises the three issues that so concern the Lord Chief Justice. First, there are the interests of the offender; secondly, there is the question of protecting the public; and, thirdly, in seeking to resolve those two, often conflicting, considerations, there is the question of how the judges can best be assisted in sentencing.
I hope that the reasoned and, in my view, effective compromise on the question presently before the Committee by way of this amendment will give the noble and learned Lord some assurance that, with careful thought, the right solution can be achieved from time to time, despite the fact that it may be accompanied by one of two of those "hoops" that he has deprecated so much—and rightly so.
In the context of this debate it is important for the legal profession, and those in the criminal justice system, briefly to explain the purpose of the present amendment. As I understand it, a community order is regarded in many cases as an alternative to a custodial sentence. But for mitigating circumstances, the particular defendant ought otherwise to go to prison or to youth detention by way of sentence. That decision as the result of a pre-sentence report and the considerations surrounding the decision then made by the judge are designed to protect the public from harm on the part of the offender; to prevent the commission of further offences; and to secure the rehabilitation of the offender. However, I suggest that it should never be forgotten that behind those objectives is the belief that, if they cannot be achieved, that which was first worthy of consideration—namely, a custodial sentence—should be worthy of fresh consideration as regards those who breach those objectives by their conduct.
The Bill before us talks about an "unacceptable failure" in relation to the requirements of a community order. It is not a simplistic requirement to ask of a defendant that he observes an order of a court. Therefore, having identified the nature of the sentence, I invite Members of the Committee, and those who will read the Hansard report of this debate, to consider the purpose of the order: it is to make the defendant obey the requirements of the probation officer by completing the community order—whether it be community service, probation, or whatever—instead of going to prison.
With that background I ask three questions. First, what is the position of the offender with regard to the proposal in Amendment No. 129? At the day of sentence the judge will have to tell him or her in plain language that if the order is breached there will be a penalty, which may be the very penalty that would have been passed but for the mitigating circumstances that justify a community order. The defendant will be told in plain English, "If you do not do what you are told, you will be brought back and you may be sent to prison". That is not difficult to understand.
1612 I am quite sure that that warning will be repeated by every probation officer at their first meeting with a defendant. It may be the subject of a nudge from time to time as the months go by. It may, unfortunately, result in a first official warning. No defendant can plausibly say that that would take him by surprise; the opposite is the case. It gives him opportunity after opportunity to obey and to fulfil the terms which the court required of him.
Secondly, what is the position of the probation officer? As the noble Lord, Lord Windlesham, told us, it is significant that the Association of Probation Officers accepts the approach I have mentioned. I speculate on the reasons for that. It gives control which is reasoned and not indiscriminate. In my view it is a control which assists the effective completion of a community order; it does not hinder it. It enables the officer to say to the defendant, "I want to help you. You tell me you want to help yourself. You must follow the rules. If you do not, there are consequences". That is the kind of regimen which many of us observe in our ordinary lives; why not a defendant in these circumstances?
Thirdly, what is the position of the sentencing judge? The judge must ask himself: if there is a breach under this system, is the sentence likely to be successfully completed if I do not return to the sentence that ought originally to have been imposed? That is a perfectly reasonable question. If the sentence is likely to be successfully completed, there is every motive to allow it to stand. If that is not the case, I cannot foresee any cogent reason why the court should not return to square one; namely, to what the defendant was told would happen if he did not obey. The judge in so sentencing has his powers restricted by Parliament, but advisedly so because Parliament wishes a sentence to have penal effect if it is not observed by the person receiving it.
Those three considerations of the offender, the probation officer and the judge all lead me to conclude that this is—as I described it initially—a reasonable and effective method of ensuring that those who receive lenient sentences must take the consequences if they do not obey the rules. On several occasions in this Chamber I have heard the liberal—I use that word with affection rather than disdain—sentiment that there are many in our community who are so disadvantaged by background, drug addiction or whatever, that they need special attention. That is quite right. However, there are many more who are not so disadvantaged who treat such sentences as ones with which they can play. That must stop.
I therefore commend the amendment to the Committee, but I do so with restraint because, as my noble and learned friend the Lord Chief Justice said, this Bill is an amendment to a Bill which was a consolidating Bill this year of two Bills passed in the previous two years. This has got to stop. Sentencing and crime merit parliamentary attention, but not month by month or several times in one Parliament.
I make that suggestion seriously because we are dealing with important questions which affect public confidence in our system. The more carefully we 1613 prepare, the more detailed our examination of the resulting legislation, the more effective will be the result.
I conclude by inviting us all when next we examine legislation of this kind to remember what the Lord Chief Justice has told us. For us it is legislation. For the criminal justice system is human activity day by day which everyone should be able to understand and be able to follow and which, we hope, will benefit the community. I endorse the amendment and ask the Committee to support it.

§ 9.15 p.m.

§ Lord Dholakia
Amendment No. 128 stands in the name of the noble Lord, Lord Windlesham, the right reverend Prelate the Bishop of Lincoln, and myself, and the noble Baroness, Lady Stern, who asks me to give her apologies. She is in Sweden and unable to be here on time.
I am delighted that the noble and learned Lord the Attorney-General has considered our concern. It is in his nature to find ways in which we can move forward. Much of the case has been made. I am delighted to hear the views of the noble and learned Lord the Lord Chief Justice.
The government amendment will improve the clause considerably by enabling the court to let an order continue if it considers it likely that the order can be successfully completed. The only oddity about this part of the amendment is that it requires the court to pass a community service order, a curfew order, or an attendance order for the breach but not a fine. Sufficient emphasis has been given to this and it would be right and proper for the Minister to consider whether a fine might be appropriate in certain cases.
Under the amended clause, if the court decides that it is not likely that the order can be successfully completed, it will be required to imprison the offender unless there are exceptional circumstances. This remains excessively rigid. For example, in the case of an offender with a chaotic lifestyle who has breached a community service order a court resentencing the offender might conclude that the probation order or curfew order with electronic monitoring would be a suitable punishment as well as having a better chance of injecting some structure into the offender's life. It would be more likely to steer the offender away from further crime than a short period of imprisonment.
The amendments considerably improve the clause and have the support of the Association of Chief Officers of Probation. I hope that the Minister will look at the amended clause. It still ties the hand of the resentencing court in a way which seems somewhat excessive and undesirable. The proposals improve it. Let us hope that it will work.

§ Lord Williams of Mostyn
This has been a micro debate of great profundity. It is a pity that more noble Lords were not here to listen to it. It seems to me that it divides itself into two categories. The first is the general jurisprudential, almost philosophic, approach that the noble and learned Lord the Lord Chief Justice 1614 utilised in dealing with the general problem of sentencing. He said—I think I cite him fairly—that complexity is a menace in the criminal justice system. It may be, but the alternatives may be no better. One alternative to complexity is simply the blunt sentence. The other is the system with which he and are well familiar—I am not being disrespectful to our judicial colleagues in the northern part of the Americas—where the judge simply ticks the box. There is nothing complex about it but neither is there anything particularly sophisticated or subtle about it.
I take the point made by the noble and learned Lord the Lord Chief Justice and immaculately, if I may say so, by my noble friend Lord Brennan. I cannot improve upon his argument. I used to hear those words often in debates on reform of the House of Lords followed by the most cruel word in the English word—"however". But I do not propose to say "however" or seek to improve on his argument. The single point I need to address—the noble and learned Lord the Lord Chief Justice and the noble Lord, Lord Dholakia referred to it—is the question of fines.
The answer to that—it was touched upon by my noble friend Lord Brennan—is that a fine was a possible alternative on the original sentencing occasion. It was rejected as insufficient. It was rejected because it would be neither a punishment nor an appropriate deterrent. It was a lower level than the one being breached. Experience indicates that significant fines are rarely collected from this class of offender. I do not dissent from the figures given by the noble Lord, Lord Windlesham. I should have said earlier how typically generous his response was. But if one has an offender who has already been sentenced in this way, a significant fine is unlikely to be imposed and collected.
We say, following the noble Lord, Lord Brennan, that a curfew order, a community punishment order or an attendance centre order would have a significant effect on offenders whose lives, I agree, are typically unstructured and chaotic.
We have benefited enormously from the debate. There is no doubt in my mind that the amendment will provide a significantly better remedy than the original clause. I am grateful to those who have contributed to the debate this evening and those who have taken the trouble to put their points to me privately and by letter. I hope that I have dealt with the concerns that have been expressed.

§ Lord Windlesham
To get us back into order, it might be appropriate for me to say that I shall not move Amendment No. 128. We have had a distinguished debate, illuminated by the presence and the contribution of the Lord Chief Justice.
The Attorney-General said that he could not improve on the speech made by the noble Lord, Lord Brennan. I hope that he will read it carefully. Echoing the Home Secretary, the noble Lord said that community penalties are punishments that must be observed. If they are not, the individual will be brought back to court and must know that he may be sentenced 1615 to imprisonment. The word "may" is crucial. There is nothing wrong with that. It leaves discretion with the court.
The noble Baroness, Lady Kennedy of The Shaws, and I are on different sides of the Chamber, but we have often agreed on many matters. Her nodding is as eloquent as any of the words that she could and often does use. Our essential objection to the original proposal was that it was a mandatory—and very harsh—scheme that would have resulted in injustice. That cannot be the right way to approach criminal justice policy. With those words ringing in the Attorney-General's ears, I repeat that I shall not move my amendment.

§ On Question, amendment agreed to.

§ [Amendment No. 128 not moved.]

§ Lord Williams of Mostyn moved Amendment No. 129: Page 33, line 1, leave out subsections (4) and (5) and insert— ("(4) In paragraph 4, for sub-paragraph (1) there is substituted— (1) This paragraph applies if it is proved to the satisfaction of a magistrates' court before which an offender appears or is brought under paragraph 3 above that he has failed without reasonable excuse to comply with any of the requirements of the relevant order. (1A) In a case where the offender is aged 18 or over and the order is one to which the warning provisions apply, the magistrates' court shall impose a sentence of imprisonment for the offence in respect of which the order was made unless it is of the opinion—

(a) that the offender is likely to comply with the requirements of the order during the period for which it remains in force; or
(b) that the exceptional circumstances of the case justify not imposing a sentence of imprisonment.

(1B) The sentence of imprisonment—

(a) where the offence was an offence punishable by imprisonment, shall be for the term which, if—

(i) he had just been convicted of the offence by the court, and
(ii) section 79(2) of this Act did not apply, the court would impose on him for that offence; and

(b) in any other case, shall be for a term not exceeding three months;

taking account of the extent to which he has complied with the requirements of the order. (1C) If in a case within sub-paragraph (1A) above the court does not impose a sentence of imprisonment or if the case is not within that subsection, the magistrates' court may deal with him in respect of the failure in one of the following ways (and must deal with him in one of those ways if the relevant order is in force)—

(a) by making a curfew order in respect of him (subject to paragraph 6A) below);
(b) where the offender is aged 16 or over, by making a community punishment order in respect of him (subject to paragraph 7 below);
(c) where the offender is aged under 21, by making an attendance centre order in respect of him (subject to paragraph 8 below); or
(d) where the relevant order was made by a magistrates' court, by dealing with him, for the offence in respect of which the order was made, in any way in which the court could deal with him if he had just been convicted by it of the offence."

(5) In paragraph 5, for sub-paragraph (1) there is substituted— (1) This paragraph applies where under paragraph 3 or by virtue of paragraph 4(4) above an offender is brought or appears before the Crown Court and it is proved to the satisfaction of that court that he has failed without reasonable excuse to comply with any of the requirements of the relevant order. (1A) In a case where the offender is aged 18 or over and the order is one to which the warning provisions apply, the Crown Court shall impose a sentence of imprisonment for the offence in respect of which the order was made unless it is of the opinion—

(a) that the offender is likely to comply with the requirements of the order during the period for which it remains in force; or
(b) that the exceptional circumstances of the case justify not imposing a sentence of imprisonment.

(1B) The sentence of imprisonment—

(a) where the offence was an offence punishable by imprisonment, shall be for the term which, if—

(i) he had just been convicted of the offence by the court, and
(ii) section 79(2) of this Act did not apply, the court would impose on him for that offence; and

(b) in any other case, shall be for a term not exceeding three months;

taking account of the extent to which he has complied with the requirements of the order. (1C) If in a case within sub-paragraph (1A) above the court does not impose a sentence of imprisonment or if the case is not within that subsection, the Crown Court may deal with him in respect of the failure in one of the following ways (and must deal with him in one of those ways if the relevant order is in force)—

(a) by making a curfew order in respect of him (subject to paragraph 6A) below);
(b) where the offender is aged 16 or over, by making a community punishment order in respect of him (subject to paragraph 7 below);
(c) where the offender is aged under 21, by making an attendance centre order in respect of him (subject to paragraph 8 below); or
(d) by dealing with him, for the offence in respect of which the order was made, in any way in which the Crown Court could deal with him if he had just been convicted before it of the offence".").

§ On Question, amendment agreed to.

§ Clause 48, as amended, agreed to.

§ Clauses 49 to 51 agreed to.

§ Clause 52 [Testing persons in police detention]:

§ Lord Bassam of Brighton moved Amendment No. 130: Page 35. line 43, at end insert— ("( ) Information obtained from a sample taken under this section may be disclosed—

(a) for the purpose of informing any decision about granting bail in criminal proceedings (within the meaning of the Bail Act 1976) to the person concerned;
(b) where the person concerned is in police detention or is remanded in or committed to custody by an order of a court or has been granted such bail, for the purpose of informing any decision about his supervision;
(c) where the person concerned is convicted of an offence, for the purpose of informing any decision about the appropriate sentence to be passed by a court and any decision about his supervision or release;
(d) for the purpose of ensuring that appropriate advice and treatment is made available to the person concerned.").

§ On Question, amendment agreed to.

§ [Amendment No. 131 not moved.]

§ Clause 52, as amended, agreed to.

§ Clause 53 agreed to.

§ Lord Thomas of Gresford moved Amendment No. 132: After Clause 53, insert the following new clause—

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