HL Deb 06 October 2003 vol 653 cc22-76
Baroness Scotland of Asthal

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

House in Committee accordingly.


Lord Kingsland moved Amendment No. 160BAA: Before Clause 135, insert the following new clause—

"JUDICIAL DISCRETION IN SENTENCING Judges shall have discretion in the determination of all sentences save for the offence of murder.

The noble Lord said

This is a probing amendment on which the Opposition do not intend to divide the Committee. Its purpose is to give the Government the opportunity to respond to the hesitations expressed by noble Lords about Part 12 of the Bill on Second Reading.

The Opposition are particularly concerned about two of its proposals. The first is that which determines the minimum sentence after conviction in a criminal trial; and the second is the modus operandi of the Sentencing Guidelines Council. Our concerns have been aggravated by the fact that, in another place, important amendments to those matters were tabled on Report, so late that it did not have the opportunity to debate them properly.

Differences have emerged between the judiciary and the executive about the degree of statutory control appropriate to constrain the sentencing powers of a trial judge. Where should the line be drawn between obligation and discretion? In what circumstances should society require a minimum sentence irrespective of the facts of a particular case?

Under our constitution, both the executive and the judiciary are subject to the will of Parliament. However, another place, at least for the time being, is the creature of the executive. In those circumstances, your Lordships' House has a particular and special responsibility to ensure that an appropriate balance is maintained between Ministers and judges.

Imprisonment after a criminal conviction is the biggest constraint on liberty under our jurisdiction. We must ensure that, in all the circumstances of the case, the sentence is just. Do these proposals meet that test? I beg to move.

Lord Renton

Although my noble friend said that this is a probing amendment, it is an important one. For a number of years, there has been a tendency for Parliament, on the advice mainly of civil servants, to have a few offences punishable by fixed sentence. Some of those are compulsory, without the alternative of probation or any other non-custodial or financial punishment. Judges and magistrates acquire their own wisdom and judgment on whether the sentence for a particular offence should be flexible or fixed.

Circumstances continually change. A particular offence may have been committed regularly over a short time but it is wrong to assume that that will continue and to fix a sentence. I agree with the terms of the proposed new clause and believe that judges should have discretion in the determination of all sentences, save for the serious matter of murder. Therefore, while supporting what my noble friend said, I believe that we should go a stage further.

Lord Dholakia

I am delighted that we have reached the most important aspect of the Bill; that is, the general provision on sentencing. We are in general agreement about the new clause proposed in Amendment No. 160BAA by the noble Lord, Lord Kingsland, relating to the judges' discretion in sentencing. We supported the Halliday review which set out the constructive and rehabilitative approach to sentencing. Unfortunately, much of the impact has been lost by the Home Secretary's insertion of late amendments into the Bill. The amendments are designed to set a minimum sentence for murderers, fettering the discretion not only of the judiciary but of the sentencing council, thus questioning its independence even before it has been set up. The paramount principle is that each case before the court is unique—it has its own characteristics—and the person who can weigh all the evidence is the judge. Therefore, sentencing is for the discretion of the judges.

Where do we stand on sentencing? One of the aspects often advocated is that the primary aim of any sentencing policy must be to promote the rehabilitation of offenders, recognising the lower success rate of custody in preventing re-offending; developing custody-plus sentences as an alternative to conventional imprisonment; promoting the use of restorative justice which gives the victim greater involvement; and supporting the vital role of the probation service in reducing re-offending.

When we look at the proposals in the Bill, the Government often try to make us believe that the objective of reforms to the criminal justice system should be to increase the number of convictions. Change a process here; reduce the rights of the defendant there—many more people who go to court will be convicted and everyone will be happy. But the current failure is not that once people get into court they are not convicted. Three out of four crimes across the country—seven out of eight in London—never result in anyone being convicted.

I turn to the main argument behind the amendment; independence of the judges. I believe that that is the final safeguard. Ministers' attitudes, policies and proposals are in danger of undermining the independence of our courts. Parliament decides maximum sentences but it must be for independent judges, not party-political Ministers, to decide what particular punishment fits what particular crime.

The independence of judges is not the enemy of the political process. The independence of judges is the defence of people in this country who have no written constitution to defend them against the potential tyranny of the authorities in the abuse of power of the state. If the criminal justice process is to be replaced and valued to the full, it is imperative that it is rooted in the community. This is why independence of the judiciary must be at the heart of any legislation on sentencing.

Lord Carlisle of Bucklow

My noble friend Lord Kingsland, in opening the debate, said that the purpose of the amendment is to give an opportunity to look generally at the philosophy or the policy behind sentencing and who should have the say in sentencing under the Bill. Having attempted to read Part 12, I believe that it is verbose, complex, in many parts self-contradictory and platitudinous. I cannot believe that it is necessary to have anywhere near the number of clauses or words relating to setting out sentencing guidelines that we have in the Bill. I believe that it could be simpler.

The noble Lord, Lord Kingsland, said that we are concerned about where the balance of statutory control of sentencing lies between the judiciary and the legislature. I have no doubt that in this Bill that balance has been moved substantially to the disadvantage of the judiciary. Therefore, it is vital that we have an opening clause, such as that in the amendment, under which the right of the court and the judge to try and sentence the offender convicted before him with full discretion is maintained.

We have recently heard much talk about the independence of the judiciary. It has been in terms of the independence of the judiciary as against the appointment of the judiciary. We have heard the Government rightly claiming their belief in the importance of the independence of the judiciary. But the independence of the judiciary, if it is to mean anything, must mean not only independence of appointment but independence on sentencing within the framework set down by Parliament. It is not the role of the legislature to set the sentence. The role of the legislature and Parliament is to set the context in which the sentence is passed and to set the maximum penalty to show the gravity attached to the offence.

The sentence passed in any case must ultimately be the individual decision of the judge. He is the only person who has had the opportunity of hearing the whole of the evidence, of seeing the defendant and of hearing what is said on his behalf. He is the only person who is in a qualified and trained position to do justice in sentencing.

I admit that I am totally opposed to mandatory minimum sentences. I opposed them from the Benches opposite when Mr Michael Howard attempted to introduce them in his Bill in, I believe, 1995–96, and many of the proposals were defeated in this House. I believe that mandatory sentences lead inevitably to injustice because they cannot take account of all the various aspects and different features that occur in every case.

The Bill asks in general terms: what are the aims of sentencing? Of course it is right that imprisonment should be a matter only of last resort and that, if imprisonment is imposed, the sentence should be as short as possible. But, at the same time, the Bill is contradictory because it requires that courts must take into account the deterrent effect of a sentence. That may mean that the sentence which a judge was minded to give to meet the facts of an individual case may not be sufficient to meet the deterrent effects to the public as a whole.

I hope that when we debate this matter on Report, we shall consider in detail the Government's answer today and listen with care to what the Minister says. However, I hope that we shall never reach the situation where the Home Office tries to impose on judges the sentence that should be given. The detail in this part of the Bill effectively goes as close as it can to a system of mandatory sentencing without actually introducing such a system.

4 p.m.

Lord Renton

Before my noble friend sits down, I wonder whether he will allow me to add to his very valuable contribution by pointing out that sometimes an offence is prevalent in one part of the country but scarcely ever committed in another. The judge sitting in the part of the country where the offence has become prevalent should have not only a power but a duty to impose a stiffer sentence than might be imposed elsewhere.

Lord Carlisle of Bucklow

Clearly the judge who tries a case has the opportunity to take into account all the features and, frankly, I do not believe that he needs to be told, as Clause 136 seeks to do, what is meant by the seriousness of the offence. He will decide the seriousness of the offence inevitably using, as I said, many of the platitudinous matters referred to in that clause. However, he is the person who decides and he takes into account, as magistrates do, other local, as well as national, matters. They are bound to do so. I say again that I believe that, the wider the discretion a judge has, the greater justice prevails.

Lord Monson

I know of at least some second and third-world countries which fetter judicial discretionary sentencing. However, admittedly as a complete layman, I know of no western democracies that do so, with the obvious exception of minimum sentences for murder and minimum periods of disqualification for certain motoring offences. If I am mistaken and if the imposition of minimum sentences is commonplace in many first-world countries, I should be grateful if the Minister would give some examples when she comes to reply.

Lord Alexander of Weedon

I agree with everything that has been said by, in particular, my noble friend Lord Carlisle of Bucklow. It seems to me that this matter warrants debate because it is a constitutional change. As has just been pointed out, apart from the mandatory sentence for murder, which itself has given rise to some considerable cause for anxiety and suggestions for change, effectively the principle has long been clear in this country that Parliament, when it legislates, sets the maximum sentence. Up to that maximum the courts, with the priceless advantage of having heard the facts of the case, decide what the correct sentence should be.

Therefore, if we are trying to consider this issue as a matter of principle, I believe we are hindered by the fact that it has been introduced in a way that seems to be increasingly essential for the introduction of constitutional change in this country. It has been introduced with speed at a late stage in the consideration of a Bill and it has not been the subject of prior consultation.

If those are now the characteristics of the approach to constitutional change taken in this country, this debate gives an opportunity to invite the Minister, who is keenly conscious of the importance of law within our society, to slow down and open up the debate. She and I, and I believe almost all the previous speakers, share the values that have been so epitomised in the tributes this afternoon—the values of passionate and independent care about the law. And much more unites those of us on these Benches, the Minister and those who sit with her who have those values than divides us on that issue of principle.

Therefore, I move on to ask whether this is—I put this as gently as I can—another illustration of the current Home Secretary not feeling sufficient confidence in the judiciary. Whether intentionally or not over the past year, he has certainly created the public impression that his confidence in at least some judges is less than total and that he is reluctant to accept without public challenge some of the decisions that they reach.

If there is a belief that judges do not do their job properly—that they are too soft—I consider that that belief should be out in the open. I am not clear what other basis there can be for this proposed legislation. It seems to me that underlying it is the broad approach which simply says, "We do not trust the judges to sentence sufficiently stiffly". This comes oddly in a society whose gaol population stands at a record level and where we are told that new massive prisons must be built. It is difficult to see at the same time both that judges are being too soft and yet that the prison population is rising. I believe that Home Office predictions are that it will rise very much further over the next few years.

The Minister knows perfectly well from her experience, as I do, the infinite variety of cases which involve the same crime. Some apparently minor crimes can, on examination, appear to be rather more serious, and some in the other category can, when examined carefully, have their seriousness diminished. When the facts are taken into account in litigation, they can provide another compelling reason for a sentence which, in the view of some members of the public, may be on the soft side but which is right when the facts are examined closely.

I would not be surprised if the Minister, like me, has on many occasions valued the fact that sentences are passed by judges who are experienced and skilful and who try to maintain a balance between the proper need to reflect society's concern about an offence and the proper way of treating an individual. I suspect that, like me, she will have been very glad that that exercise has been carried out, after close examination of the facts, by someone of great skill and experience.

I anticipate that in response she may say that that will be perfectly possible in the future. The judge will be able to do that and give reasons why he or she goes below the minimum. In turn, I would respond that in that case why do we need a minimum? Perhaps the Home Secretary believes that the enactment of a minimum sentence will make it more difficult for a judge to pass the right sentence if he believes that it should be below what is considered in the minimum sentencing standards to be the appropriate sentence. At one and the same time it cannot be possible to say that we trust the judges and that we are not inhibiting them in any way, but none the less we need to impose by statute these legislative principles. I do not pretend to know all the answers as to how that evolved, but I suggest that in a proper civilised society such as ours the matter should be dealt with by consultation first rather than by a rush into legislation.

The Lord Bishop of Worcester

Perhaps I may add to some of the points that have already been made on a matter that appears to me to go to the very heart of the Bill. This is a reminder to myself, which I am sure I do not need to give to other noble Lords, about the reason why it is considered necessary for Parliament to prescribe maximum sentences but not minimum ones. The reason is that the people's representatives have the task of protecting people who are vulnerable from the excesses of other branches of government. As a result of the interplay of the protections that are built into our constitution, we achieve something approaching justice.

It is not necessary to make speeches suggesting the infallibility of judges, for which I do not believe there is any more evidence than there is for the infallibility of bishops, but it is important to say that they have their task and we in Parliament have ours. I would be greatly concerned if we were to usurp the judicial function by not being in the business of protecting the vulnerable.

That brings me to the greatest difficulty in this matter. I expect the Minister to be very reassuring in her responses because I am sure that she believes that we have nothing to fear here. But what has so far been said in the debate illustrates why there are grounds for fear. There is a fear that different messages are being given in different places. In this Committee we shall give a reassuring message about the continued discretion of the judiciary, while out there on the hustings, in the newspaper columns, in the interviews on the "Today" programme understandably politicians of all parties will want to deliver a different message which is to assure the public that something is being done.

It is important that something is done and that the vulnerable in our society who become victims of crime should be protected, but not at the cost of the protection of people who, once they are in the dock, are in an extremely vulnerable position. In support of what is before us we need reassurance not just that the Minister who speaks in this Committee understands the sensitivities of the Committee on these matters, but that politicians generally are sensitive to the fact that they are easily trapped in an auction of toughness that leads to short-circuiting a whole host of protections, the loss of which we may have cause to regret deeply later.

4.15 p.m.

Lord Borrie

Perhaps I may follow some of the points raised by the reverend Prelate. The vulnerable in society include those accused of crimes and it is the job of the legislature to ensure that they are reasonably protected. In the context of crime, especially in this day and age, we must be concerned with the vulnerable people who are members of the public in general and the victims or alleged victims as well. Surely it is a matter—this is a point raised by the noble Lord, Lord Carlisle of Bucklow—on which we should not be so extreme as to say that judges must have complete discretion. It is admitted by those who have spoken that it is perfectly proper for Parliament to lay down maximum sentences. I believe that the noble Lord, Lord Carlisle of Bucklow, indicated that it is perfectly proper for Parliament to lay down context—I believe he used that word—and principle within which judges' discretion should be exercised.

As I see the scheme in this part of the Bill, there are three levels. First, there is the level of the legislature, which lays down certain principles and in certain cases indicates a minimum sentence below which normally judges should not go when dealing with particular kinds of offences that have particular qualities.

Secondly, there is the Sentencing Guidelines Council. Perhaps my only qualification for speaking in this debate is that I was once a member of the Parole Board. I remember with pleasure the fact that the Parole Board, concerning itself with sentences and the sentences that people should ultimately serve, consisted not simply of judges, but of strange people like myself and policemen, probation officers, criminologists and others. There would be a mixed panel of five or six people of whom one or two were judges, all bringing their various experiences to bear in relation to the sentence that should be served by the person whose bid for parole was up for consideration.

I mention that because we have a somewhat similar situation here. The Sentencing Guidelines Council is to have—so long as we oppose certain amendments that I notice are before us—a mixed membership of the kind that I have described. I mention that because already in our system we have certain features that suggest that not only judges should determine the final sentence that is served.

The third aspect of the scheme, apart from the legislature and the Sentencing Guidelines Council, is the judge. Surely, no one suggests in the Bill or elsewhere that the ultimate discretion will not lie with the judge in a particular case. He will bear in mind all the facts, the law and the mitigating circumstances that the defence counsel has put to him. All those matters will be considered and he should give reasons, which judges are well capable of giving, including for going above the minimum sentence, which the legislature may lay down in certain circumstances, as is being suggested.

Therefore, I do not see much difference. Perhaps I may be allowed to personalise my point—the noble Lord, Lord Carlisle of Bucklow, is a very old friend of mine. He talked about judicial discretion within a context. I do not believe that there is much difference between the two of us. The point is where to draw the line. The legislature, the Sentencing Guidelines Council and the judge in their various ways have their various functions which seem to be retained within this part of the Bill and there is nothing between us on that.

Lord Ackner

In considering the terms of this Bill, with particular regard to the independence of the judiciary, it is terribly important to bear in mind the background. One of the undoubted consequences of the recent constitutional upheaval is that the traditional office of the Lord Chancellor will be abolished. He and previous Lord Chancellors have agreed that the chief or essential function of the Lord Chancellor is to preserve or defend the judiciary. There is no present offer by the current Lord Chancellor that this obligation—note the words "chief or essential"— will be introduced into statutory form to bind him in those terms as Secretary of State for Constitutional Affairs.

There is a dangerous illusion that everyone supports judicial independence; but do they? I recently pointed out that that very question was answered by Lord Hailsham in a lecture he gave in 1989. I shall shorten the quotation as follows: Certainly not the Opposition—whatever Party happens to be on the Speaker's left. Certainly not Party Conferences of any hue. And least of all I assure you, individual members of the Cabinet whose Departmental interests from time to time basically conflict, not only with the view of the judiciary, where they are entitled to differentiate, but in the provision of the means necessary to enable the Courts to discharge their functions! The judiciary is in no way hostile or resistant to input from Parliament or elsewhere in relation to the sentencing process. In the Crime and Disorder Act 1998, the Sentencing Advisory Panel was set up. Its function is to provide advice to the Court of Appeal, which the Court of Appeal is required to consider. Before the Court of Appeal issues guidelines, it must consult the panel. The panel consists of a chairman who is a professor and a variety of people, some sentencers and some, like probation officers, of general balance and intellect.

The panel's recent annual report shows that new guideline judgments covering a wide range of offences— rape, child pornography, possession of offensive weapons, domestic burglary and causing death by dangerous driving—have been promulgated with the support of the panel. In addition, the Lord Chief Justice used the panel's advice on minimum terms in murder cases as the basis for his Practice Statement as to Life Sentences in May 2002. That brings to 10 the total number of proposals from the panel that the Court of Appeal has now adopted.

The provisions of the Bill propose that the Court of Appeal should no longer issue sentencing guidelines. That action is to be carried out by a new statutory body called the Sentencing Guidelines Council. As originally drafted, the council consisted solely of sentencers, including a magistrate, and was presided over by the Lord Chief Justice. The Lord Chief Justice was quite content with the proposal. It involved no change to the constitutional convention that Parliament is responsible for establishing the sentencing framework—for example, the maximum sentences permissible—and it is for the judiciary to decide in its unfettered discretion how to arrive at individual sentences which appear to it to be just.

The current proposals represent an attempt by the executive to exercise inappropriate control over the sentencing process by diluting the sentencing council with non-sentencers, such as policemen and civil servants. This is despite the fact that judges have followed the Court of Appeal guidelines reasonably consistently and closely over the past few decades, and, in any event, if they impose sentences which are unjustifiably lenient, the Attorney-General had the right to appeal. Prior to this proposed legislation there was no mechanism for the court to consult Parliament before issuing a guidelines judgment and to have done so would not be consistent with our constitutional traditions. What is now proposed, despite no past action by the Attorney-General, indicates a lack of confidence in the judiciary and/or in the Attorney-General in failing to exercise his discretion, to which I have referred above.

I touch but briefly—I want to say a great deal more about it later—on Schedule 17. It purports to lay down "minimum starting points" in relation to murder cases, ranging from whole life, 30 years and down to 15 years, according to the category of murder subjectively chosen by the Home Secretary without any public consultation or advice from the advisory panel. Schedule 17 represent approximately a 50 per cent increase over the recently promulgated murder guidelines referred to above. Those guidelines had been previously submitted to the Home Secretary, the Lord Chancellor and the Attorney-General, who suggested only minimal modifications which were adopted. It seems to have been entirely overlooked that this very significant increase in the length of sentences will have a serious "knock-on" effect on other sentences for serious crimes, all of which will have to be "jacked up" for the pattern of sentencing on serious offences to be maintained. This distorts the task of the Sentencing Guidelines Council before it is established. Within a short period of time, because of the knock-on effect, prisons will be unavoidably beyond their capacity and incapable of coping.

The sentencing panel's functions will also become distorted since it will have to add a 50 per cent, or thereabouts, uplift to any new proposals it might make. Before leaving the sentencing panel, it is interesting to note from its annual report at page 9 that it has already made clear to Ministers that the panel has reservations about the current proposals to dilute the Sentencing Guidelines Council. While welcoming the extension of its remit to cover general sentencing proposals as well as offence-specific guidelines and agreeing that there is a need for non-judicial input into sentencing guidelines in view of the broader social and ethical issues involved, the panel points out that it already provides that input. Of its 12 members, only four are sentencers and it sees no need to duplicate the range of experience and expertise of the panel, which seeks comments and advice before it promulgates its proposals to the Court of Appeal and, in future, the Sentencing Guidelines Council.

The panel further points out that its main concern is that, if the new system is to work effectively, the council will need to command the trust and respect of the judiciary at all levels. With that in mind, it is anxious to avoid overlap or duplication between the constitution and functions of the panel and the council.

I respectfully submit that there is a great deal for the Government to answer to, but we shall come to more detail as we proceed to consider the important amendments that have been tabled.

4.30 p.m.

Lord Mayhew of Twysden

I intervene briefly to express my welcome for the amendment but my slight regret that it contains the saving words at the end, save for the offence of murder". When she replies, I hope that the noble Baroness will explain the Government's thinking about the offence of murder in the context of sentencing. I fear that that has been a bee in my bonnet for a long time, and I acknowledge that there has been some mitigation in recent legislation of the previous law that a Minister— a politician—determined how long someone should stay in prison because he had been convicted of murder.

We all know—it has been acknowledged today in the Chamber—that murder is infinitely variable in its culpability and wickedness. In the past, we recognised that in practice by allowing someone—until recently it has been a politician—to decide how long someone stayed in prison. Now, fixed lines are established in the Bill. I repeat the question posed by my noble friend Lord Alexander of Weedon: is not the real motive or engine behind the Bill's provisions lack of trust in the judges? If it is not that, I hope that the noble Baroness will tell us, when she replies, what it is.

As the noble and learned Lord, Lord Ackner, reminded us, we have now had for some years the jurisdiction of the Attorney-General to go to the Court of Appeal to say, "Look, this was unduly lenient". I hope and believe that that power has been exercised and has not been allowed to atrophy. As it happens, I introduced it when I was Attorney-General and used it. It has been used by every Attorney-General since, not least by the late Lord Williams of Mostyn, to whom we paid tribute this afternoon. So that discretion exists.

I therefore hope that the noble Baroness will tell us why that is thought insufficient and why the Government have become wedded to the notion of minimum sentences, the objection to which was graphically expressed by the right reverend Prelate 10 minutes ago, when he said, "Well, it is all right to fix a maximum, but minimums should be left to the professional, independent judiciary". I hope that the Minister will find time to deal with those points when she replies.

Lord Ackner

My observations were in no way meant to be an adoption of the present position with regard to the death penalty. The noble and learned Lord will see that I have tabled an amendment to deal with that: Amendment No. 209, which would be inserted before Clause 254.

Lord Mayhew of Twysden

I gather that that is correct. This Chamber has expressed its view about the mandatory sentence for murder more than once and has been ignored by successive governments.

Baroness Stern

I rise to support the amendment, to speak briefly and mainly to ask the Minister for help to clear up what is for me a large area of confusion. I should be grateful if she could explain exactly what the Government want to achieve by the provisions in this chapter. During our discussion in Committee, she has often said—may I say that it has been a pleasure and privilege to listen to her explanations; that has been a splendid learning experience for me for which I am grateful to her—that our aim is rebalancing and modernising. Although we do not yet have the record, I think that this afternoon she said, "We are looking for a system that is fit for purpose". In her reply, can she explain exactly what that means?

The Bill does not start from a blank sheet; in our sentencing policies we are starting from what many commentators would describe as a crisis. We already have an imprisoning rate of 140 per 100,000. To put that in context, the European Union average is 99 and that in many European countries is about 60,70 or 80. This morning, there was an article in the press about money for two new prisons to hold 1,500 people each. We read about a probation service in crisis with a workload that it cannot handle and targets that it cannot meet.

It is difficult to see how the provisions address that crisis. They are not the sort of legislative reform that has taken place in Canada, where sentencing reform embedded in law a principle of using prison as a last resort, with workable machinery to ensure that that was implemented. That has led to a substantial reduction in the use of prison in Canada. I presume or hope that the Bill is not leading us towards the situation in the United States, where judges' discretion has been almost completely removed. In answer to the question posed by the noble Lord, Lord Monson, that is a first-world country with many mandatory minimum sentences and many active groups campaigning against them because of the enormous injustice that they cause to those on whom they are imposed.

So where do the measures sit? What is the vision for sentencing policy in England and Wales as a result? What in the Minister's eyes would be a desirable outcome in effect on the prison population, the workload of the probation service, the number of people who go through a criminal justice system that may well damage their prospects of social integration and on public safety and crime levels generally? I know that that is a big question, but if we had some idea of what would be the desirable outcome and what is the vision for sentencing, that would help us to debate the rest of the Bill.

Lord Goodhart

This is the first occasion or which I have taken part in the debate on this very important Bill. I am glad that I have been able to come in at this stage because, in a Bill that contains many dangerous provisions. Part 12 is the most dangerous of all. I am therefore happy to support the amendment moved by the noble Lord, Lord Kingsland. In line with the noble and learned Lord, Lord Mayhew of Twysden, I would go further: I would omit the final words of the provision about its inapplicability to sentences for murder. It is plain that judges should at least have a right to retain the power to recommend the minimum term to be served.

There is a case—I do not say that we are yet in a position to adopt it—for replacing the crimes of murder and manslaughter with the single crime of criminal homicide. I hope that the Law Commission will be invited to look at the issue and to make recommendations. That change would remove a number of problems; for instance, it would no longer be necessary to impose what is at least nominally a life sentence on mercy killers, whom everyone knows will be released in three, four or five years. That would get rid of the problems of diminished responsibility and provocation, for instance, which would no longer be needed as defences to a murder charge but would simply be dealt with at sentencing. That matter is not ripe for action at the moment, although I hope that the Law Commission can be invited to look at it.

I shall return to what is already in the Bill. The Government are trying to confuse two different matters: consistency of sentencing and uniformity of sentencing. Consistency of sentencing—the idea that people who commit similar offences in similar circumstances should receive similar sentences— is highly desirable and plainly right. At a lower level of crime, for instance, in the past, one Bench of magistrates may have dealt with similar motoring offences quite differently to another magistrates' Bench. Such inconsistency can be, and has been, dealt with in recent years by the Court of Appeal Criminal Division. It hears a series of test cases that raise particular problems regarding the appropriate level of sentence in fairly general circumstances. The Court of Appeal can say what it thinks is the range of appropriate sentences for crimes of that kind.

Uniformity of sentence is different; in my view, it is wholly unacceptable. It is the idea that a similar offence should be subject basically to a similar penalty whatever the surrounding circumstances, except perhaps in the most extreme cases. The Government seem to be moving in that direction with the Bill.

I am happy with, and would positively support, the idea of lay input by non-sentencers into the question of consistency of sentencing. As the noble and learned Lord, Lord Ackner, pointed out, we have that already in the Sentencing Advisory Panel. As he asked, what is then the need for a separate Sentencing Guidelines Council, which seems to be taking a step too far? Unlike the Sentencing Advisory Panel, the council attempts to restrict the discretion of judges. That is plainly wrong. It is wholly inappropriate to have the two distinct bodies. We should stick with the Sentencing Advisory Panel and not have the Sentencing Guidelines Council.

If we have a council, it should never lay down restrictions on the discretion of judges in individual cases, but only seek to achieve consistency by applying general rules for general cases. In individual cases, if a judge gets it wrong it is not a matter for a minimum sentence but something to be dealt with by specific guidelines. The remedy already exists: the power of the Attorney-General to refer the case to the Criminal Division of the Court of Appeal, which can impose a higher sentence.

I agree entirely with what the noble Lord, Lord Carlisle of Bucklow, said about the danger of minimum sentences, as many other speakers have done. I will not go into the details of Schedule 17, which contains many serious faults. I shall deal simply with the question of minimum sentences. As experience has proved in America—where minimum sentences have had disastrous consequences, as the noble Baroness, Lady Stern, pointed out—we should not go into such sentences.

This part of the Bill contains many dangerous provisions. I hope that the Government will be prepared to accept the spirit behind the amendment.

4.45 p.m.

The Earl of Listowel

I am deeply concerned about the repercussions of the Government's proposal for children who become involved in the criminal justice system. I have listened with increasing anxiety as I hear each speaker voice his or her concerns. Of course we must always bear in mind the impact on victims of the crimes committed by such people. However, I was dismayed that in another place the Government proposed to introduce a minimum life sentence for children who commit murder. If what the noble and learned Lord, Lord Mayhew of Twysden, said about adult murderers is true—as I am sure that it is—it is so much more true of children who commit murder.

I am concerned that the provision is liable to lead to more interference in the judiciary as it deals with children. That would happen in the context of a situation in which children and their families have been neglected so badly in the past as regards the services that we have provided for them. Let us take for example children's homes, where staff can work without any previous professional training or qualification. In continental countries such as Poland staff in children's homes must have two to three years' professional training before they may work with these very disturbed and sometimes violent children who, sadly, may eventually end up in the criminal justice system.

Without a strong independent judiciary, the danger is that the public, who, sadly, are often ill-informed about the context of criminal behaviour, will put pressure on politicians to increase sentences and to overload the criminal justice system so that nothing can be done to rehabilitate people who may have committed awful crimes but who are often victims themselves.

Lord Williams of Mostyn used to say of the death penalty that, in certain circumstances, one must put aside the pressure of public opinion and do what one thinks is right. He would always say "Two wrongs do not make a right". I look forward to reassurance from the Minister that this is not a slippery slope towards lessening the independence of the judiciary and an increase of rule by popular misunderstanding of the situation.

Lord Chan

I also speak to this amendment, which would ensure judicial discretion in sentencing. That is exactly what happens at the moment. I declare that I am a member of the Sentencing Advisory Panel.

The Court of Appeal has accepted 10 submissions or recommendations from the Sentencing Advisory Panel, which demonstrates, as the noble and learned Lord, Lord Ackner said, that the judiciary accepts advice and consults on sentencing. The panel has found one issue difficult—that of minimum sentences, which have made the work of consistency in sentencing difficult and unbalanced. For example, an offender who commits burglary a third time would receive a custodial sentence of three years, which has been commented upon by the many groups of interested people who receive the recommendations and submissions of the panel. Those groups represent a large sector of the community as well as the professions.

The Government have got the legislation about right at the moment. However, my personal view is that things should not go too far, especially with regard to the sentencing guidelines council. It is not desirable for civil servants from government departments to comment on and influence sentencing.

Baroness Scotland of Asthal

I thank noble Lords who have participated in this debate for their thoughtful contributions. The noble Lord, Lord Alexander of Weedon, is right: the thrust of what the Government seek to do is very similar to the aspirations of those who sit on the Benches opposite. There is nothing on which we disagree. I hope that nobody will be surprised to hear me say that judicial independence is not only valued by this Government but jealously guarded, because it is a cornerstone on which our democracy is founded. Nothing in the Bill seeks to undermine that fundamental principle. There can be no doubt that the judiciary has discretion in the determination of sentencing for all offences. We therefore fully agree with the statement made in this new clause, and with much of what has been said this afternoon.

It may be useful to say a little now about how we see the broad scheme, especially to answer the request of the noble Baroness, Lady Stern. Noble Lords will know that, in time, we will look with greater particularity at each clause individually. At that stage, noble Lords will want to respond more fully, as shall I.

With his characteristic sagacity, the noble Lord, Lord Carlisle of Bucklow, called the provisions verbose and self-contradictory and said that that was the best that could be said about them. However, with the greatest respect, I disagree. This is an incredibly complex area, although many would like to suggest that all is straightforward and simplistic. We know to our cost that that is not so. The Government have relied greatly on the work done on the Halliday report, which was rightly praised by the noble Lord, Lord Dholakia. We tried to set the context and my noble friend Lord Borrie was so right about the structure in Part 12 being the context and backdrop against which the exercise of discretion should be viewed.

We have learnt much in the past 50 years from the development and practice of sentencing. We have learnt about the futility of dealing with the offence without accurately and properly dealing with the offending behaviour. It has been said that certain individuals in the country serve life six months at a time—going in through one door and out through the other, backwards and forwards. By utilising all the provisions in the Bill, including those of restorative justice and rehabilitation identified by the noble Lord, Lord Dholakia, the Bill seeks to create a framework for the sentencer. The sentencer will be able not only to look at the individual offence, but to go beneath the problem.

We seek to bring not only the sentencer but the whole criminal justice system together to act in unison to provide better protection and justice for the victim as well as establishing a better-targeted and crafted process through which an offender can go. Hopefully, that will enhance the opportunity for change, for restoration, rehabilitation and reparation. Those may be contradictory, but must be held in the balance because they are equally necessary.

How do we do achieve that? Several noble Lords have mentioned minimum sentences as if they could be found in the Bill. Noble Lords will know that there are minimum starting points in the Bill, from which there can be mitigation and aggravation. We will return to them with greater particularity at a later stage, but I gently mention the provisions in Paragraphs 7 and 8 of Schedule 17. Paragraph 7 clearly states: Having chosen a starting point, the court should take into account any aggravating or mitigating factors, to the extent that it has not allowed for them in its choice of starting point. Paragraph 8 states: Detailed consideration of… mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order. Several noble Lords, including the noble Lord, Lord Kingsland, asked, "Where is the judges' discretion?" However, the provisions are founded on the cornerstone of the exercise of judicial discretion, first, in choosing a starting point and then in either mitigating it downwards or in taking into account those factors which cause a sentencer to go upwards.

The noble Lord, Lord Goodhart, applauds any attempt made to promote consistency. I am grateful for that. It is right that, for justice to be seen to be done, it must be done consistently. There cannot be one rule of law in the north of England and another in the south of England, notwithstanding the proper flexibility that there must be for regional differences, as mentioned by the noble Lord, Lord Renton. One knows that there are moments when, because of the nature of an offence in a particular area, a court may feel it right and proper to express itself with clarity, in order to bring that behaviour to a stop. Of course, there must be flexibility, and, in the provisions that we have set out, there is such flexibility.

The noble Lord, Lord Alexander of Weedon, made a point about speed without consultation. There has been a plethora of consultations about the matters. There was the consultation that went with Halliday, and, when it came to considering the issues raised in Part 12, the Government recognised the importance of the provisions and consulted further. I know that the noble Lord and others have said that the provisions were added to during the Bill's passage through the Commons and that changes were made in Committee. Respectfully, I say that that is to fail to recognise the nature of the parliamentary process. All Bills will be recrafted and refashioned as they pass through the other place. Indeed, our main role is to review, change or alter—we would say "enhance" and "make better"—those Bills.

Between April 2002 and March 2003, there were seven meetings between representatives of the senior judiciary and Home Office Ministers and/or officials at which the Criminal Justice Bill was discussed. My right honourable friend the Home Secretary and the Lord Chief Justice also met bilaterally on 21st March 2002, 25th November 2002, 13th March 2003 and 11th June 2003. The Committee will know that a protocol has been drawn up to cover consultation between the Home Office and the senior judiciary on Home Office legislation. That does not mean that we will always agree, but proper consideration will continue to be given to the proper comments made and concerns raised.

The noble and learned Lord, Lord Ackner, raised the issue of inappropriate control over the process — diluting, as he put it—by non-sentencers. Several noble Lords, including my noble friend Lord Borrie and the noble Lord, Lord Goodhart—to name but two—welcomed the introduction of a broader ambit for the sentencing council. The sentencing council will have an important and independent role.

5 p.m.

Lord Goodhart

I suggested that there should not be a sentencing council. I welcomed the Sentencing Advisory Panel.

Baroness Scotland of Asthal

I beg the noble Lord's pardon. I think that he said that, if we had the Sentencing Advisory Panel together with the current rules, we would not need a council. My noble friend Lord Borrie said that it was an enhancement, and I agree with him.

I think that it was suggested by the noble and learned Lords, Lord Mayhew of Twysden and Lord Ackner, that, in some way, the provisions would besmirch the role of the Attorney-General. He is not in his place at the moment, but I must say that we are blessed with a particularly gifted Attorney-General, as has historically been the case. I say without any fear of contradiction that the noble and learned Lord, Lord Mayhew of Twysden, discharged that role with great distinction, as did Lord Williams of Mostyn and others. There has not, in this country, been an Attorney-General of whom we have not been proud.

It is not a case of failure by the Attorney-General to exercise the function properly or at all. It is not a case of a lack of confidence in the judiciary or the legal officers. It is an attempt to create a framework within which there will be parity of treatment, flexibility and a solid foundation on which the exercise will be crafted. If we examine the provisions, as opposed to being terrorised by the mere thought of change, we will, I say respectfully, become much calmer. We will see, in virtually every provision, the opportunity for the exercise of discretion. The Committee should not for a moment underestimate the importance that a well-trained judiciary will have.

The Earl of Listowel

I am concerned about the popular response. If the media see someone receiving a sentence below the minimum, they will catch on to it and say, "The judge had a minimum sentence, and he went well below that". They will not listen to the fact that the judge gave his reasons, which would be wholly acceptable to all of us. Does the Minister have that concern?

Baroness Scotland of Asthal

I understand the noble Earl's concern. I know that there are people outside the House who would like the policy to be driven by the media, but it is not. It is driven by the needs of the individuals who come before the courts seeking justice—the victims, the witnesses and the defendants. Each needs a clear, acknowledged, known system that is fairly applied.

In the provisions are the tools that can be used by sentencers to make clear the reasons for their judgments and the basis on which they have been made. The guidelines that the sentencers will have observed will be written in statute. They will start from the minimum position but will be able to say precisely what mitigating factors have been taken into account and what features caused an offence to be aggravated, so that they can distinguish between such offences.

The noble Earl, Lord Listowel, is right to say that, often, there is ill-formed criticism of the exercise of a judge's discretion, whether the judge be lay or professional. The Bill will give the sentencer the tools to make the explanation clear. Discretion will be better understood for that.

The right reverend Prelate the Bishop of Worcester said that we were giving out different messages. We are not. From the Dispatch Box, I have sought to give out a consistent message.

Lord Ackner

Does the noble Baroness accept that the genesis of Schedule 17 was the Home Secretary's reaction to the application by the House of Lords of the human rights legislation to the effect that the Home Secretary no longer had a part to play in deciding how long someone guilty of murder should stay in prison? He threatened to respond, and, in another place, he indicated that this was his response. Some of us have received letters from the noble Baroness's department explaining why it took so long for Schedule 17 to be provided, given that the decision of the House of Lords to apply the European legislation and jurisprudence occurred way back in 2002.

Baroness Scotland of Asthal

That would not be a fair assessment. The noble and learned Lord will concede that there is, and has been for some time, a vigorous debate about the proper role that the legislature and the executive should play in determining sentence and the proper role and parameters for the judiciary. Of course, it is right that our constitutional arrangements, prior to the decision made by the Judicial Committee of this House, were such that the political—as, I believe, the noble and learned Lord, Lord Mayhew, expressed it—voice in sentencing could clearly be heard and exercised through the expression of the Home Secretary in being.

Therefore, the constitutional arrangement that prevailed hitherto was that, through the Secretary of State, Parliament had an opportunity to be heard. Once those arrangements were changed—the noble and learned Lord will know that many have cried out for such a change for a long time—it was proper for the Government, in looking at this Bill, to seek alternative arrangements if Parliament deemed it appropriate. We are now engaged in that. It is a proper discussion, which we should be having, about where the boundaries are. Parliament has had an opportunity to speak through the other place and it will have an opportunity to speak here.

We should not fool ourselves that outside Parliament in the general population there is clarity and understanding of how conclusions are reached by our judiciary. It is incumbent on us to seek to bring that clarity. If we succeed, it is to be hoped that we shall engender a greater degree of confidence in our judicial process than, lamentably, there appears to be now. It is a sad fact that although crime is dropping at significant rates, confidence levels are not rising at a commensurate level. Therefore, we must do something. Here, we seek to put matters in balance.

I hope that I have answered the question posed by the noble Lord, Lord Kingsland. It is right that this is a probing amendment. We will have an opportunity to discuss in detail the individual clauses as they arise in their proper place.

5.15 p.m.

Lord Kingsland

I am most grateful to the noble Baroness for giving such a full reply. I hope that Members of the Committee will agree that the debate has provided an important degree of clarification at the beginning of our consideration of the detailed amendments under Part 12. Perhaps I may make just one or two observations before I withdraw the amendment.

I was pleased to hear the noble Baroness say that she had complete confidence in Her Majesty's judges; and that she also had complete confidence in the Attorney-General. Since the Attorney-General has rarely found it necessary to use his powers to question sentences laid down by trial judges, that might suggest to Members of the Committee that, broadly speaking, the system is working extremely well.

The Minister said that the motive for the changes that the Government seek to introduce is to provide a starting point for the trial judges sentencing exercise. The starting point is the minimum sentence. That is then adapted by a process of taking into account aggravating and mitigating factors.

I ask myself: is that any different from what happens now? A trial judge considers a starting point, which is a spectrum—a range from zero to the maximum sentence. Somewhere along that spectrum, the trial judge will determine the particular sentence in the particular circumstances of the case. He or she will be assisted by the guidelines laid down by the Criminal Division of the Court of Appeal. As far as I am aware, no dissatisfaction has been expressed by the noble Baroness with respect to those guidelines. Therefore, where is the advantage of the new system that the Government are proposing?

I confess that I cannot see any advantage. Indeed, I would go further: I can see at least one disadvantage. Setting out a minimum sentence will put pressure on the trial judge to go in one direction rather than another in setting his or her sentence. The trial judge will be aware that, in circumstances where he sets a sentence below the minimum, he is likely to receive considerable criticism in the press.

When we consider the many amendments tabled to the particular clauses in Part 12, we should bear in mind today's general debate. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 135 [Purposes of sentencing]:

[Amendments Nos. 160BB and 160BC had been withdrawn from the Marshalled List. ]

Baroness Anelay of St Johns moved Amendment No. 160BCA:

Page 84, line 10, leave out subsection (1) and insert—

"(1) When a court determines the sentence that shall be imposed on an offender, it shall take into consideration the following purposes of sentencing—

  1. (a) the punishment of offenders;
  2. (b) the reduction of crime (including its reduction by deterrence);
  3. (c) the reform and rehabilitation of offenders;
  4. (d) the protection of the public;
  5. (e) the making of reparation by offenders to the community and persons affected by their offences;
  6. (f) the maintenance of public confidence and the prevalence of the offence in question in the locality; and
  7. 42
  8. (g) ensuring offenders' awareness of the effects of crime on the victims of crime and the public."
The noble Baroness said: In moving Amendment No. 160BCA, I speak also to Amendment No. 160BH with which it is grouped. As my noble friend Lord Kingsland said, we have just debated the significant matters of principle that underlie Part 10. We turn now to matters of detail. The Minister said that we now have a raft of amendments which go step-by-step towards investigating what the Government are trying to achieve and determining whether this is the appropriate way forward.

It is right that we should do so because so little of this part was considered in another place. If it was, it was considered at a very late stage. For example, Clauses 165 to 214 inclusive were not debated in Committee because of a timetable Motion. Clauses 218 to 227 inclusive were not debated similarly. Government amendments to Schedules 7, 8 and 9 were never debated. Therefore, we felt it necessary to table a significant number of mostly probing amendments because it is the only opportunity in either House to consider the detail of some of these clauses.

Therefore, in the spirit of achieving the passage of the Bill in the limited time now available, I agreed to a significant number of very large groups. I apologise to all Back-Bench Members of the Committee for so doing. I appreciate that it makes debate more difficult. I tried to do it only where I could see that there is a unifying argument. I appreciate, too, that, understandably, there has been some difficulty in drawing up the lists at the Home Office.

Therefore, for the convenience of the Committee, I shall do a little caretaking. First, Members of the Committee will be relieved to hear that I shall not move Amendments Nos. 160BT and 161E. I feel that the Public Bill Office has had enough of withdrawing amendments, so I shall not add any more. I understand also that the Liberal Democrat question about whether Clause 143 should stand part, currently grouped with Amendment No. 160BK and others, has been put in that place incorrectly. I give notice therefore that it will be taken in its proper place with Amendments Nos. 161C and 161D.

Given how the groupings list has been typed, it may not be immediately obvious to noble Lords that the group to which I am speaking comprises 10 amendments, up to and including Amendment No. 160BJD. The next grouping, beginning with Amendment No. 160BK, comprises 13 amendments up to Amendment No. 160BSA. That marks the end of my sermon on these groups of amendments.

I turn now to the detail of the amendments. Clause 135 sets out in statute the five purposes of sentencing to which the courts shall have regard when passing sentence on offenders. At Second Reading, the noble and learned Lord the Lord Chancellor set out the purposes and went on state that: Those purposes are complementary. It will be up to sentencers to determine what weight to accord to each in a particular case".— [Official Report, 16/6/03; col. 561.] That was a helpful statement, but it does not appear on the face of the Bill. Between now and Report stage, perhaps the Government will consider whether the words of the Lord Chancellor should be incorporated into Clause 135 in some form for the avoidance of any doubt in the future.

Amendment No. 160BCA rewrites Clause 135(1). I have sought to present a keeling schedule of my own to enable other noble Lords to make sense of the various amendments that I had put down earlier. The subsection was then littered with amendments; consolidation has made more sense of them. The objective of the amendment is to add to the list of principles of sentencing currently listed in the subsection.

First, my proposed new subsection (l)(e) ensures that reparation by offenders, one of the aims of sentencing, should be directed to the community as a whole. At present the paragraph proposed by the Government refers to offenders making reparation only to "persons" affected by their offences. I ask, therefore, whether such reparation would include reparation made to the wider community as well as to the direct victims of the particular offence. When I first read the paragraph, I had thought that that was what the Government meant, and I see that the noble Baroness is nodding her head. I shall not pursue that in the hope that she will clarify the issue.

Secondly, my proposed new subsection (l)(f) sets out an additional purpose in that there should be a restoration of public confidence and that the prevalence of the offence in the local area should be taken into account. In Standing Committee in another place, my honourable friend Mr Humfrey Malins asked whether courts might need the flexibility to deal more severely with offences that are particularly prevalent in a certain area. The Minister, Mr Hilary Benn, rejected my honourable friend's argument but went on to say that, even under the Bill, there could be, well-justified local variation [in sentencing arrangements]".— [Official Report, Commons Standing Committee B, 30/1/03; col. 733.] Given our previous debate, and considering in particular the contribution made by the noble Lord, Lord Goodhart, concerning consistency and the response of the Minister on that point, I should be grateful if she would expand on this. What degree of, "well-justified local variation" in sentencing does the Bill allow? What role will ensuring public confidence in the system play in the sentencing framework once the Bill has been enacted? That is not mentioned in Clause 135 and I would welcome the Minister's comments.

The third proposed new sub-paragraph (g) would make it a principle of sentencing to make offenders aware, of the effects of crime on the victims of crime and the public". That wording is specific. It replicates Section 2(2)(d) of the Criminal Justice and Court Services Act 2000.I am sure that the Minister's briefing will point out that the section sets out one of the statutory aims of the National Probation Service. Noble Lords who took part in the debates on that Bill—I did not do so, but I have read the reports—will recall that the words were inserted after the House divided on an amendment proposed by my noble friend Lady Blatch.

The purpose of the amendment is to elicit a response from the Government as regards what consideration they have given, when looking at the purposes of sentencing, to ensuring that offenders are made aware of the effects of crime on victims and the public. In the 2000 Act Parliament recognised that this is an important issue as regards offenders being supervised by the probation service. Why is it not included here? All the other statutory aims of the Probation Service have been set out; why not this one? Why has it slipped from the list?

I turn finally to Amendment No. 160BH, concerning the role of the sentencing guidelines council, to be established by the Bill. I move from the general comments made in the previous debate to the particular and ask the following questions. Will the council have any role in formulating guidance for sentencers on the relative weight to be given to each of the priorities in particular cases, as listed in Clause 135(1)? I notice that Clause 163(l)(a), dealing with the remit of the council, states that guidance issued by it "may be general in nature". Does that include guidance on the relative weight to be given to the statutory purposes set out in Clause 135(1) and the mechanism for resolving any conflicts or tensions between them? I ask that because conflicts and tensions there are bound to be. It would be helpful if the noble Baroness could explain at this stage the Government's thinking in this regard.

It would also be helpful if she would respond to the point that has been made by Justice in its helpful briefing to noble Lords, which is as follows: There will be many occasions when a court needs to make a choice. Clause 135 gives no clue as to how that choice should be made, and establishes no order of priority among the various aims". I shall not speak at greater length in putting forward these detailed questions. It is difficult to do justice to such a large group of amendments without speaking for too long. I hope that I have done them a little justice. I beg to move.

The Deputy Chairman of Committees (Lord Carter)

If Amendment No. 160BCA is agreed to, I shall not be able to call Amendments Nos. 160BCB to 160BFA inclusive on the grounds of pre-emption.

5.30 p.m.

Lord Dholakia

The grouping under Amendment No. 160BCA contains a number of amendments tabled by my noble friend Lord Thomas of Gresford and myself; that is, Amendments Nos. 160BCB, 160BCD, 160BJB, 160BJC and 160BJD. A number of other amendments have been tabled by my noble friend Lady Walmsley and myself: Amendments Nos. 160BCC, 160BFAand l60BJA.

Perhaps I may say at the outset that we support much of what has been said by the noble Baroness, Lady Anelay, in relation to her Amendments Nos. 160BCA and 160BH. Perhaps I may also mention that we shall not move Amendments Nos. 160C, 161and 257 at this stage in order to facilitate discussion on these important matters.

Amendment No. 160BCB is designed to ensure that all the factors must be considered by the court as opposed to it simply having regard to the five factors that have already been mentioned. Clause 135 contains a declaration of the purposes of sentencing regarded by the Government as the cornerstone of the proposals and an essential element of the new strategy.

Justice has pointed out that the declaration is confused and liable to produce greater inconsistency in sentencing. The Bill states that the court must have regard to five purposes each time it passes sentence: punishment, crime reduction and deterrence, the reform and rehabilitation of offenders, public protection and reparation to victims. In fact there are probably six or more different purposes because "crime reduction" is said to include its reduction by deterrence and the White Paper stated that both the deterrence of the offender and the deterrence of others should be taken into account.

Amendments Nos. 160BCC and 160BJA are designed to identify clearly the age groups to which the clause relates. Clause 126 sets out a framework for the court in relation to the purposes of sentencing which specifically excludes children—that is, offenders under the age of 18. NCH, the National Children's Bureau, Barnardo's, the Children's Society, NACRO and the National Association of Youth Justice support the principle of separating the framework for adults from that for children and further believe that there is a need to set out clearly in primary legislation the court's duty under domestic and international law to consider children's welfare as a primary consideration in all matters affecting them.

We believe that the proposed amendment would retain the primary overall aim of the youth justice system—the prevention of offending by children— while reinforcing and clarifying the necessary safeguards for children and better compliance with children's human rights obligations. If accepted, the amendments would ensure that, when passing sentence, the courts would have regard to the welfare of the child in order to best respond to their vulnerability, developmental need and relative immaturity. Ignoring these considerations can result in unnecessary, harmful and lengthy custodial sentences—itself a contravention of Article 37 of the UNCRC.

Amendment No. 160BCD seeks to insert a more accurate and less emotive expression of a core function of sentencing. Amendment No. 160BFA seeks to add a rehabilitation element to the purposes of sentencing, which a court must consider during the sentencing exercise. Amendment No. 160BJB is self-explanatory. It provides a chance to rehearse and confirm the "prison does not always work" argument and provides that the alternative must be considered.

As to Amendment No. 160BJC, Clause 135 states that a court must have regard to the purposes set out in the clause but in many cases the five purposes may point in different directions and the court will have to make a choice. Clause 135 gives no clue as to how the choice should be made and establishes no order of priority among its various aims, as the noble Baroness, Lady Anelay, pointed out.

We support Amendment No. 160BJD on the basis of the proposal in the Halliday report that a fundamental principle of sentencing is that it should be proportional to the seriousness of the offence. At a minimum, the Bill should adopt the recommendation of the Council of Europe, Principle A4, to the effect that no sentence should be disproportionate to the offence. In order to establish the primacy of this principle, the relationship between Clauses 135 and 136 must be established. This could be achieved by an additional subsection to Clause 135.

Lord Renton

If the amendment moved by my noble friend Lady Anelay of St Johns and the other amendment standing in her name and that of my noble friend Lord Kingsland are not accepted and do not become part of the Bill, there might be something to be said for the amendments to which the noble Lord, Lord Dholakia, has spoken. However, I would prefer the Bill to be amended fundamentally in the way proposed by my noble friend rather than by the patching-up amendments brought forward by the Liberal Democrat Front Bench.

I strongly agree with my noble friend's suggested replacement of subsection (1). Like other noble Lords, I have had to sentence a good many people in the various part-time judicial capacities I have held. When carrying out that work, we never had available to us such a clear statement of the purposes of sentencing as that expressed in the amendment. It contains valuable statements of principle for the guidance of courts and it points out the need for the court to be flexible according to the circumstances.

However, I should mention two points of detail. I am not sure that the expression "reparation by offenders" in paragraph (e) will always be widely understood. It may be the best expression but it means "compensation", and "compensation" may be better understood.

My other point arises out of what was said in a previous debate—in which, I am thankful to say, the noble Baroness, Lady Scotland, agreed with me. Paragraph (f) refers to the maintenance of public confidence, and the prevalence of the offence in question in the locality". That point needs to be borne in mind by Parliament when giving powers of sentence. It is rather unfortunate and extraordinary that in some areas, especially in large cities, one type of offence will grow too prevalent and not be heard of much elsewhere. It is only right that we should bear that factor in mind when legislating.

However, returning to the generality of my noble friend's amendments, Amendment No. 160BCA would make Clause 135 more practical, more flexible and necessarily part of our law. As to Amendment No. 160BH, it should be made clear to lay Members of the Committee that the Sentencing Guidelines Council can only issue guidelines. It cannot change the sentencing powers provided by Parliament.

Lord Carlisle of Bucklow

In her reply to the previous debate the Minister was kind enough to mention the modest words with which I described Part 12 of the Bill. I therefore have a requirement to justify one or two of them briefly.

Among other things, I said that I felt the Bill was "platitudinous". I was referring particularly to Clause 136(1). I would not have thought that it was necessary to advise anyone sitting in any form of judicial capacity that, In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might forseeably have caused". That adds nothing to the phrase "seriousness of the offence".

I also remarked that the Bill was in some ways self-contradictory. Like the noble Lord, Lord Dholakia, I was there referring to the paper produced by Justice— which no doubt the Minister has seen—in regard to this part of the Bill. Clause 135(1) states that: Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing". If I understand its argument correctly, Justice is saying that the use of the word "must" could make some of the proposals self-contradictory in that one could well be in a position where the reform and the rehabilitation of the offender was pulling one way and the need for the reduction of crime, including its reduction by deterrence, was pulling in the other direction. Justice gave various examples where it believes that the other intentions of the Bill to achieve shorter sentences could be affected by the use of the word "must" and the purposes of sentencing set out in Clause 135.

At this stage, all I ask of the Minister is whether— with reference to the word "self-contradictory"—she would look again and consider whether "must" is the right word. I do not know whether "shall" would reduce the strength of the wording in any way. However, it could lead to a conflict of intention to say that in each case one must take account of the reduction by deterrence, when one is dealing with a person who, in the light of his individual circumstances, may be reformed better without a prison sentence.

No part of the clause says what weight is to be given to any of the particular purposes of sentencing. One might perhaps say something like, have in mind the following purposes of sentencing", or, must be aware of the following purposes of sentencing", rather than, "must have regard", which implies that any sentence must meet all those six purposes when they may in some cases be self-contradictory.

Lord Chan

I support Amendment No. 160BCA, especially the proposed paragraphs (f) and (g). The "maintenance of public confidence" in particular localities was a very common issue in the two research projects that the Sentencing Advisory Panel carried out in communities. The fear of crime grips vulnerable people such as single older people living alone and families with young people; that fear recurred frequently when confronted with sentencing for serious crimes such as sexual offences and violence, and extended to such issues as burglary. It is important that sentencing guidelines are stated clearly so that the public knows for certain that that is what sentencing is all about, and particularly that judicial discretion is taking those factors into consideration.

Baroness Stern

I support Amendment No. 160BCC, which relates to children under 18, and stress the importance of making it clear as often as possible in legislation that the sentencing of children—those under 18—is a very different matter from the sentencing of adults. The United Kingdom is a signatory to international obligations under the Convention on the Rights of the Child, which should require us to use custody absolutely as a last resort, for the shortest possible time. The primary consideration in sentencing children should be the welfare of the child. Therefore, it seems to me appropriate that it should be clear that children are removed from the provisions.

I also support Amendment No. 160BJB, in the name of the noble Lords, Lord Dholakia and Lord Thomas of Gresford, which suggests that prison should be used, "as a last resort".

I thank the Minister for being so helpful in answer to my question about the Government's objectives with the measures. From her answer, it was clear that the Government have no view about the desirable or appropriate size of the criminal justice system nor, therefore, about the cost of criminal justice interventions, and that that is not an issue that affects these measures. Since in the real world money is limited and is unlikely to be available easily for the vast range of interventions that have been proposed, using prison as a last resort, and having that in legislation, seems a sensible policy. It is one for which any government would be grateful, as it at least suggests that they might have the money to fund whatever they feel is the most desirable course of action.

5.45 p.m.

Baroness Scotland of Asthal

I shall respond first to the point just raised by the noble Baroness. Of course, the Government do have a view in relation to the utility of interrupting offending behaviour. The combination of the sentencing measures that we are bringing to bear should have the effect of reducing offending behaviour, thereby relieving the public of the abuse to which they are put by that offence. One hopes that it will also reduce the numbers of people whom we find we are obliged to imprison because of their activities.

We are clear that the sentencing framework should do more to support the purposes of crime reduction and reparation, which goes slightly wider than the definition of "compensation" that the noble Lord, Lord Renton, wanted. One can make reparation in a combination of ways—by saying "sorry", by doing work or paying money. There is a plethora of things that one can do under the heading "reparation" that go beyond compensation.

We also believe that we should continue to meet the needs of punishment. The clause aims to do that by setting out what we consider to be the purposes— though not the only ones—of sentencing. I refer to punishment, crime reduction, reparation and the reform and rehabilitation of offenders. During Committee stage in another place, we recognised in response to an amendment that reform and rehabilitation of offenders should form a purpose in their own right and made the appropriate changes. We are, however, not quite convinced by the additional proposals made in today's amendments.

I want to say a word to the noble and learned Lord, Lord Carlisle, about the apparent conflict to which he alluded in the clause. I believe that he said that the reform and rehabilitation of offenders might be in conflict with each other.

Lord Carlisle of Bucklow

The conflict is with the principle of reducing by deterrence.

Baroness Scotland of Asthal

Not necessarily. If an offender reforms and rehabilitates, that should have the impact of reducing crime, because it should reduce the source and nature of their offending behaviour, which gives rise to more crime. The two do not necessarily act in conflict with each other.

It is right that, when a sentencer comes to consider the sentence, all those factors are borne in mind, so that the sentence overall not only gives voice to what will be consistent with punishing the offender but better protects the public as well. I welcome what the noble Lord, Lord Chan said, in support of the clarity and the need to have those factors in the Bill, so that everyone knows what we are talking about.

I appreciate that Amendment No. 160BCA is a probing amendment. The noble Baroness, Lady Anelay of St Johns, will not be at all surprised that we do not believe that the amendment, which would replace the drafting of the clause with a new version that adds to the purposes outlined, is helpful. I say clearly that we think it is already implicit in the drafting of Clause 135(1)(e) that reparation can be directed towards a victim, a group of victims or a community through the reference to "persons affected by offences". We agree that reparation to communities is equally as important as reparation to a particular victim but the clause already achieves this. Similarly, we do not think that a purpose which requires the court to have regard to the offender's awareness of the effects of crime on its victims and the public adds anything over and above what is already achieved through the reparative purpose. One of the tragedies of these cases is that often the offender blocks his or her mind entirely to the consequences of the offence on others, whether it concerns drink, drugs or other offences.

Nor do we think that the maintenance of public confidence and the prevalence of the offence in the locality should feature on the list of the purposes of sentencing. While we agree that sentencing and the framework within which it operates need to earn and merit public confidence, this is a complex relationship and not one in which sentencers can simply be "driven by the wind" of public mood. Public understanding of sentencing is regrettably low and the evidence suggests that the public are under-informed about sentencing severity and believe it to be more lenient than it is. We need to do much more to improve this but we should not make public confidence—or the prevalence of local offending—an aim of sentencing. This could lead to very inconsistent sentencing around different parts of the country. Creating an effective sentencing framework in which sentences and the treatment of offenders promote public confidence is certainly a necessary goal. We believe that there is sufficient flexibility in the way in which we currently phrase provisions to allow local expression of issues which are pressing and difficult in a particular area. Nor are we attracted by the suggested replacement in Amendment No. 160BCD of the purpose of punishment with one that refers to the, holding of offenders to account for their offences". We think that "punishment" is a better recognised and more widely used definition of one of the purposes of sentencing. We consider that Amendment No. 160BFA, which also adds a new purpose to the list (the treatment, reintegration and rehabilitation of offenders) duplicates the existing purpose—which is succinctly put in the reform and rehabilitation of offenders—which already provides for these elements to be taken into account.

We do not consider that Amendment No. 160BH adds anything useful. Sentencers will, of course, refer to any relevant guidelines when sentencing offenders to particular offences—the purposes in Clause 135 simply set out the framework for this consideration. However, I say to the noble Baroness, Lady Anelay, that when the council drafts the guidelines with the purposes of sentences in mind there will be nothing to prevent it from issuing guidance on the interaction of the purposes if it deems that appropriate or necessary, or if experience indicates that might be helpful. Clause 165 already requires the court to have regard to any guidelines issued by the council. We seek to try to create consistent application of purpose and principle. As I say, in some cases the prevalence of local offending may mean that a particular offence attracts a different sentence in one part of the country than it does in another. However, that should not skewer the way in which the measure is put on the face of the Bill.

Amendments Nos. 160BCC and 160BJA seek both to restrict the existing purposes to over-18s, which they already are by virtue of Clause 135(2)(a), and to introduce a new principle for juveniles. I know that that is a matter which the noble Baroness, Lady Stern, and the noble Lord, Lord Goodhart, are concerned about. However, this clause applies only to adults and although the welfare of juvenile offenders is indeed an important consideration in sentencing, courts are already required to have regard to it under the Children and Young Persons Act 1933. We have recently published our proposals on youth justice in a consultation document called Youth Justice--The Next Steps, a companion document to the main children Green Paper,Every Child Matters. In it we set out our proposal to introduce a single main sentencing purpose for juvenile offenders. The consultation period lasts up to 1st December and we very much welcome views on this as well as on our other proposals contained in the document. We believe that this is an important issue and do not consider it sensible to make changes in law to the principles of juvenile sentencing in advance of the conclusion of this consultation process.

Amendments Nos. 160BJB to 160BJD all add to the clause in order to prescribe the way the court can use the purposes set out there. We do not consider them to be effective provisions as they over-complicate the drafting, are not directly relevant, or duplicate provisions elsewhere in the Bill. Amendment No. 160BJB requires the court to impose custody as a last resort, but there is already a clause—Clause 144—which deals with custodial thresholds and stipulates that custody should be imposed only when the offence is "so serious" that a community sentence or fine cannot be justified. We believe that that is a very clear provision.

Amendment No. 160BJC would require the court to state the purpose of each sentence passed and how it expects outcomes to be achieved. We do not think that this is helpful, particularly as there is a later clause— Clause 167—which requires the court to give reasons for a sentence passed and to explain its effect. Amendment No. 160BJD says that any sentence of the court should be commensurate with the seriousness of the offence, but this is a duplication of the principle stated in the next clause, Clause 136(1).

Finally, we do not consider Amendment No. 160BCB, which is a drafting amendment, to be an improvement on our formulation. However, it provided an important opportunity for clarification. I understand why the noble Baroness and the noble Lord tabled the amendments. It is right to probe the Government's thinking on the matter but I hope that the noble Baroness and the noble Lord will be satisfied with the explanations that I have given.

Baroness Anelay of St Johns

I am grateful to the Minister. She is absolutely right to say that these are probing amendments to elicit clarification from the Government and to some extent they have achieved that end although I believe that we may need a little more assistance on Report on one or two issues.

I am grateful for the Minister's response to my noble friend Lord Renton. She clarified the issue of reparation in line with what I hoped that the Government had intended it to mean within the context of the clause. That goes to the heart of what my noble friend Lord Carlisle of Bucklow said about the drafting of the Bill. Sometimes it is verbose and sometimes the way in which its objectives are presented is not sufficiently clear. Therefore, it is important to have the Minister's clarification on the record today.

My noble friend Lord Carlisle went to the heart of the issue—which I shall certainly need to reconsider before we reach Report—when he referred to the first line of my rewritten proposed subsection (1) in Amendment No. 160BCA which states: When a court determines the sentence that shall be imposed on an offender, it shall take into consideration the following purposes of sentencing". My noble friend took me to task a little on that matter but Clause 135 is perhaps even worse as it states: Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing". My noble friend directs us to the core issue of what direction should or shall or may be given to the court. That is something I should like to discuss with my noble friend before Report so that we may frame a more useful amendment to debate that point. However, I am grateful to the Minister for her response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 160BCB to 160BCD not moved.]

[Amendments Nos. 160BD to 160BF had been withdrawn from the Marshalled List.]

[Amendment No. 160BFA not moved.]

[Amendment No. 160BG had been withdrawn from the Marshalled List.]

[Amendment No. 160BH not moved.]

[Amendment No. 160BJ had been withdrawn from the Marshalled List.]

[Amendments Nos. 160BJA to 160BJD not moved.]

Clause 135 agreed to.

6 p.m.

Clause 136 [Determining the seriousness of an offence.]:

Baroness Anelay of St Johns moved Amendment No. 160BK:

Page 84, line 34, after "offence" insert "and all the surrounding circumstances"

The noble Baroness said: In moving Amendment No. 160BK. I should, with the leave of the Committee, like to speak to the remainder of my amendments in the group-Amendments Nos. 160BL, 160BM, 160BN, 160BP, 160BQ, 160BR and 160BS.

Clause 136 lays down a number of criteria that the courts must apply when considering precisely how serious a given offence is. My amendments seek to probe the drafting proposed by the Government.

Amendment No. 160BK would allow the court to take into account all the circumstances surrounding an offence when determining the level of seriousness. My honourable friends in another place were concerned that the current drafting of subsection (1) of Clause 136 might be construed narrowly so that it focused solely on issues of individual culpability and harm caused rather than enabling the courts to look at the surrounding circumstances in their totality in particular cases, considering such factors as age and mental state of the victim and the defendant, the mode of commission of the offence, any breach of trust or the motivation behind the offence, be it drugs, greed, revenge, or whatever. In another place, my honourable friend Mr Humfrey Malins put it thus at col. 741 in the Committee consideration: If the clause means that the court can take anything into account, then it would be nice to hear that that is the case—and the clause should say so more clearly". Perhaps the Minister can further explain that today.

In another place, the then Under-Secretary of State, Mr Hilary Benn, responded to my honourable friend by saying: Nothing in the clause prevents the court from taking into account the other considerations to which he alluded".—[Official Report, Standing Committee B, 30/1/03; cols. 741-742.] If it is the Government's intention to allow the courts to take into account such additional factors, why does the clause not say so?

Amendments Nos. 160BL, 160BM and 160BN are equally probing amendments which relate to the concept of harm. Clause 136(1) requires the courts to take into account, when looking at the seriousness of an offence, any harm caused, intended to be caused or which might foreseeably have been caused. Amendment No. 160BL would insert the words "or distress" after the word "harm".

Amendment No. 160BM would make it clear that harm taken into account may be to individual victims, other persons affected or the general public. Amendment No. 160BN would make it clear that both direct and indirect harm could be taken into account.

As I think is obvious, Amendment No. 160BL is intended to probe whether the concept of harm in the Bill includes the distress that might be caused to individual victims and the wider community. I have hinted at that in my last amendment, with regard to the principles of sentencing.

We all know the devastating effects that crime has on its victims, but they can go much wider, to the public at large, who may fear that they may become subject to a similar kind of offence. A typical situation is one in which a burglary takes place in a particular street, and other people living in that street then think that they might be subject to a similar offence in the future. Evidence from several pieces of research that have been undertaken shows that elderly people are now sometimes afraid to leave their home after dark, which, in the winter, can mean quite a long time to spend inside. The effect of crime goes very wide.

Amendments Nos. 160BM and 160BN seek clarification on related points. I will not go further than I have already done in introducing these amendments.

The remaining amendments in the group relate to taking previous convictions into account when considering the seriousness of an offence. In Clause 136(2), the Government are moving from the current position—that the courts must take previous convictions into account when sentencing—to requiring that courts treat such convictions as an aggravating factor when sentencing for the latest offence. My Amendment No. 160BP would require the courts to treat previous cautions as an aggravating factor as well as previous convictions.

For a police caution to be given these days, a person has to admit that he or she has committed an offence. Although it is not a criminal conviction as such, it involves an admission of guilt, and the fact of the caution remains on the person's police record. So does the wording of the Bill mean that previous cautions— which may be for relatively serious offences in some people's eyes—cannot be treated as an aggravating factor by the court? Or does it mean that the courts are not precluded from doing so by Clause 136(2)? We need to know the Government's position. After all, the Minister in another place appeared to say in Committee, at col. 747, that previous cautions could not be considered at all, under any circumstances. But the Bill is silent on that point and we need to know where we stand.

Amendment No. 160BQ would change the duty placed on the court to treat previous convictions as an aggravating factor by changing "must" to "may". It would introduce a further element of judicial discretion. Are the Government able to persuade us that enough discretion is being given to judges by the use of the phrase, the court considers that it can reasonably be so treated", and the wording in paragraphs (a) and (b), which allow the court not to treat previous convictions as an aggravating factor if they are unrelated to the latest offence or a long period of time has elapsed? This goes to the heart of what my noble friend Lord Carlisle of Bucklow said earlier. There appears to be some contradiction in the way in which the Bill is so drafted.

Amendment No. 160BR would introduce an explicit discretion for the court when determining the seriousness of an offence to consider such other aggravating and mitigating factors as it deems appropriate. No such general discretion is given to the court under Clause 136, which prescribes a number of limited factors, including culpability, harm caused, previous convictions and offending while on bail. Is it right that the courts' discretion should be limited, as it appears to be, in this way? Are there not other factors, both aggravating and mitigating, which might well fall to be considered?

Finally, Amendment No. 160BF relates to previous convictions by courts outside the United Kingdom. These may be treated as an aggravating factor if the court considers it appropriate to do so. My amendment relates to the circumstances in which the person was tried and convicted by a foreign court. This is a matter to which we referred when we debated Part 10 on double jeopardy and in debating the Extradition Bill in Grand Committee.

Will the court in this country merely look at the fact of the conviction when deciding to treat it as an aggravating factor, or will it be able to consider the way in which the conviction was obtained? Could police methods and the fairness of the trial process be taken into account in such a case? With some relief, I beg to move.

Lord Goodhart

With the leave of the Committee, I should like to speak to Amendments Nos. 160BNA, 160BQA, 160BQB, 160BQC and 160BSA. They are all in the names of my noble friend Lord Dholakia and either my noble friends Lord Thomas of Gresford or Lady Walmsley.

These amendments all deal with those parts of Clause 136 which relate to the aggravating effect of previous convictions. Before I talk about them in detail, there is the question of the appropriate role of previous convictions in the sentencing policy. Certainly we feel that these provisions are too rigid. One has to start by asking why previous convictions should lead to a longer sentence. At one time, for a few years, a Criminal Justice Act provided that previous convictions should be disregarded in determining the length of the sentence. That did not last very long, frankly. Intuitively, people feel that previous convictions and criminal records should lead to a longer sentence, but one needs to think why. The fact that someone who has already been convicted comes back for sentencing for a further crime shows that the rehabilitative or deterrent effects of the first conviction have not worked.

The case for taking previous convictions into account may be based on the belief—it may obviously in some circumstances be right—that a more serious form of punishment may be worth trying. For example, if the community order has not worked, a prison sentence may be worth trying. However, once prison has been tried and has failed, it is a little hard to see why a longer sentence should succeed where a shorter sentence of the same type did not. Indeed, it may make things worse, by increasing the risk of someone becoming institutionalised, by risk of someone becoming more dependent on drugs—we all know that they are very freely available in prisons—or by increasing the risk of the prisoner becoming isolated from friends and family and having more difficulty in re-establishing himself in life outside.

A preventive effect may be strengthened by lengthier sentences for persistent offenders, who cannot commit offences while in prison. Many years ago, there was a category of preventive detention, which meant giving long sentences for persistent petty offenders, in return for which those offenders were given somewhat better prison conditions. That was abolished, because it was regarded as inappropriate to give sentences of many years' imprisonment for petty offences such as minor shoplifting, however frequently committed.

Very long sentences may be justified on preventive grounds for violent offences or other crimes that involve exceptional distress for the victims, but it is difficult to see that they are appropriate for, for instance, repetitive shoplifting crimes. Therefore, it is desirable that there not be too much rigidity, and we think that there is too much rigidity in Clause 136.

I shall deal with our amendments in detail. Amendment No. 160BNA would leave out Clause 136(2) to (5), which gives specific instructions to the court as to the taking into account of previous convictions. The present practice is well established and does not need to be specifically contained in statute. On a more detailed point, the Bill as drafted creates a danger of double punishment. If an offender has been convicted of previous offences and is in breach either of a community sentence or a post-custody licence, the penalty for the breach will take account of the previous offence and will be added to the sentence passed for the new offences. To treat the previous convictions as an aggravating factor would result in double punishment for having committed a breach of the order or licence, in addition to the punishment for the further offence.

Amendment No. 160BQA is a paving amendment for Amendment No. 160BQC, which requires that: In considering the effect of previous convictions on the seriousness of the offence, the court must have regard to the principle that the severity of the sentence must be proportionate to the seriousness of the current offence".

When I began to speak to the amendments, I made the point that one should be very careful in treating previous offences as an aggravating factor, because there is a real risk that the effect may be to make the sentence for the actual offence disproportionate to the seriousness of the offence. Paragraphs Dl and D2 of the Council of Europe recommendation on consistency in sentencing state that: Previous convictions should not, at any stage in the criminal justice system, be used mechanically as a factor working against the defendant … Although it may be justifiable to take account of the offender's previous criminal record within the declared rationales for sentencing, the sentence should be kept in proportion to the seriousness of the current offence".

Amendment No. 160BQB confines the operation of subsection (2) and subsequent subsections of Clause 136 to offences, committed by the offender when over the age of 18".

That raises the same arguments as raised on the previous group by my noble friend Lord Dholakia. Barnardo's, on a matter on which it has great experience, says that offending by children and young people divides into two broad types. To use its phrases, the first is adolescent limited and the second is life persistent. The adolescent-limited offence is the sort committed by boys of 14, 15 or 16, but that they grow out of by the time that they get into their 20s. However, there are also offences committed by boys that are a warning signal that they will become persistent, long-term criminals.

The point raised by Barnardo's is that, in offences of adolescent misbehaviour, there is no immediate cut-off. Those boys may, for a few years in their late teens, come back to court more rarely—perhaps with long intervals—but not entirely throw off such behaviour after their first conviction. The aim of the youth justice system is, as we know, the prevention of offending by children and young people, and it should be designed to assist those who will grow out of it to do so as soon as possible. Treating earlier convictions as an aggravating factor is undesirable in such cases and may make matters worse.

Amendment No. 160BSA, the last amendment in the group, would introduce an additional subsection to Clause 136. It suggests that one can use previous convictions as a factor in imposing a more serious sentence within the same band, but cannot use it as a ground for raising the sentence to a different band. In other words, a current offence that on its own is not serious enough to warrant a community disposal cannot be turned into a community sentence, and a current offence that is defined as serious enough to warrant a community disposal cannot be raised because of serious convictions to make it suitable for a custodial sentence.

That point was raised by the Penal Affairs Consortium, which believes that there is a grave danger that Clause 136 will lead to a major and costly escalation in the severity of sentencing. This is contrary to other sections in the Bill where it is specified that only the current offence should be used to determine whether an offence is serious enough to warrant a community disposal or so serious that only a custodial sentence is justified. It may be that that provision is intended to be overriden, so it may be that Amendment No. 160BSA is unnecessary. However, it would be useful and helpful to be given the answer because we do not want to see the limited resources of the probation service being squandered on low-risk offenders who could be effectively dealt with by a repeat of bind-overs or fines. Furthermore, we do not want to see short custodial sentences being passed where a community sentence would be the norm.

6.15 p.m.

Lord Borrie

I found the points raised by the noble Lord, Lord Goodhart, interesting and fundamental, particularly in relation to previous convictions. He referred to the justification for taking into account previous convictions in determining the sentence for the offence, let alone for regarding previous convictions as an aggravating factor, which is a provision in the clause. He made the point that if the sentence is to be proportionate to the offence, in determining the sentence it seems illogical to take into account the individual's previous convictions.

Under Amendment No. 160BNA, the noble Lord, Lord Goodhart, wants to leave out subsections (2) to (5). I may have missed something he said, but subsection (3) states: In considering the seriousness of any offence committed while the offender was on bail, the court must treat the fact that it was committed in those circumstances as an aggravated factor". I am not sure that the noble Lord dealt specifically with that, but I believe that it is a justifiable provision. Recently, there has been a great deal of public concern about offences—usually the more serious, violent offences are reported in the press—committed while on bail. Bail is a matter of trust and it seems to me justifiable that the public should be concerned that an offence has been committed while someone has been given the privilege of bail. It also seems justifiable that that should be an aggravating factor, yet it is one of the subsections that the noble Lord wants to remove from the Bill.

Lord Renton

Thirteen detailed amendments have been moved to the clause—eight by my noble friend Lady Anelay and five by the noble Lord, Lord Goodhart, on the Liberal Democrat Front Bench. The two groups are inconsistent with each other. As far as I can work out, we could not accept all of my noble friend's amendments and any of the others.

I shall not trouble the Committee with a long speech covering all the detailed amendments, but perhaps I may make the following comment. I agree with all except one of the eight amendments moved by my noble friend. I believe that she should give further thought to Amendment No. 160BP, where she asks the court to bear in mind not only previous convictions but cautions. We must be careful about that. Cautions are sometimes administered by police when no offence has been committed. The offender, who wants to get away, does not challenge the police officer, but simply accepts the caution and hopes never to be troubled again. He may nevertheless commit an offence subsequently, and reference may then be made to that earlier caution although there was no offence. I believe that my noble friend should not press Amendment No. 160BP. If she does, I am afraid I shall not support her.

I want to make one comment—I could make a number—on the amendments tabled by the noble Lords, Lord Dholakia and Lord Thomas of Gresford. Amendment No. 160BSA, which adds new subsection (6), states: Treatment of previous offending as an aggravating factor under subsection (2) is to be interpreted as permitting the imposition of a more demanding sentence"— and I am puzzled by the following words, which I have never seen before— within the band of community or custodial seriousness". What is the meaning of the word "band" there? The phrase has not previously entered into our statute book which deals with these matters—if it has, I have never noticed it—and therefore even if the amendment were to be accepted by the Government, that phrase should be struck out.

The clause deals with determining the seriousness of an offence and it must be considered. I dare say that until now the general power of the courts has never been defined in the kind of way that the clause attempts to define it. It is simply something that the courts must constantly bear in mind and everyone knows that. Whether the clause is desirable or not, if it is to be accepted my noble friend's amendments, other than Amendment No. 160BP, should also be accepted.

Baroness Stern

I support all the amendments which propose that previous convictions should be taken into account at the discretion of the court, but should not be considered as an aggravating factor which must be taken into account when sentencing. The noble Lord, Lord Goodhart, and the noble Baroness, Lady Anelay, have expressed the arguments well on why discretion should be retained. In jurisdictions where previous convictions are regarded as an aggravating factor—and I made this point at considerable length at Second Reading—many people are in prison for minor offences. When one tries to discover why people who have committed minor offences are serving such long sentences, the answer is, "They have done it before. They steal from the market very often".

The path that we are taking regarding previous convictions as an aggravating factor is a path to injustice and disproportion in punishing people not for what they have done but for being a bad person, a feckless person, a person who does not conform. For that reason, I support the amendment.

6.30 p.m.

Earl Russell

I believe I owe an apology to the Committee for contributing to the debate so soon after my arrival. I apologise for my earlier absence from the proceedings. However, in the minutes since I arrived in the Chamber, and even more so on reading the Bill with some care before I came in, I have had an uncomfortable sense of déjà vu. I suddenly feel that I am back in the first Bill in which I took part—the Education Reform Bill 1988, which was the beginning of the assault on the autonomy of the universities. There was a continual pile-up of verbiage, demanding that we justified, explained and rationalised and that we gave the latest subsection and sub-paragraph on everything we had done. It stopped there for a while but not for long.

I believe that the problem behind this issue is the Whitehall fetish for accountability. I can understand perfectly well why Whitehall becomes worried about accountability—after all, people try to hold them accountable for all sorts of things. In the words of Pope Gregory VII to William the Conqueror, which I believe puts the basic point more clearly than anyone since has ever done: As I have to answer for you at the awful day of judgment, ought you, can you refuse obedience to me?". That is the voice of Whitehall in all centuries. It changes very little.

However, the point is that Ministers are not answerable for the actions of the judiciary. That is a very big difference. I believe that in the course of piling up this verbiage, we are in danger of forgetting that distinction. I know that the Daily Mail has never even known it, but one can speak truth occasionally, even to the Daily Mail. I know: I have tried. And once in a blue moon it is even correctly reported.

I believe the idea that Ministers are answerable for the actions of the judiciary is one of such very great danger that we cannot encourage it, no matter what the papers say. Therefore, I hope that some of this verbiage can be dispensed with because we are standing at the top of a slope which, I have learnt from experience, is very slippery indeed.

Baroness Scotland of Asthal

None of us could greet the intervention of the noble Earl, Lord Russell, with anything other than acute pleasure. I wish to reassure him that I do not believe we are standing at the top of a slippery slope; we are trying to bring a certain degree of consistency to what we have.

Earl Russell

The Minister said that we are not standing at the top of a slippery slope but endeavouring to bring a degree of consistency. That is the slippery slope.

Baroness Scotland of Asthal

Then I pray forgiveness because those of us who like consistency, equity and parity are therefore always standing at the top of a slippery slope.

I want to put Clauses 135 and 136 into context. Clause 135 deals explicitly with how the court should determine the seriousness of an offence and it sets out a number of factors which it must consider in doing so. The surrounding circumstances of the offence are relevant when considering, for example, whether there are any aggravating or mitigating factors but not when considering how serious the offence is. We do not wish to include some of the amendments because we believe that the current drafting of, any harm which the offence caused", already suggests that the court can consider harm caused to the victim, the public or anyone else, and we do not need explicitly to spell that out. I know that the noble Baroness asked about the words "any harm", and I hope that that gives her the clarification that she seeks.

I turn out of sequence to address the issue raised by the noble Baroness, Lady Stern. She rightly pointed out the difficulty when proportionality goes out of the window in sentencing. Nothing in the Bill should be misconstrued to suggest that we wish to have disproportionate sentences. However, it is important that previous convictions are taken into account and that they are capable of forming an aggravating feature. The noble Baroness will know that the courts would equally have to take into account other mitigating features in order to balance the issues before them and to ensure that justice was done in any given case.

I shall preface my remarks on the amendments by answering the comment of the noble Baroness, Lady Anelay, on treating each previous conviction as an aggravating factor. We do not consider it appropriate to include a caution in the requirement imposed on the court under Clause 136(2). But requiring the court to treat a previous conviction in a particular way does not of itself prevent the court taking a previous caution into consideration as part of the overall sentencing exercise.

I shall take each of the amendments in turn. We do not want to widen the clause, as Amendment No. 160BP proposes, so that cautions, as well as previous convictions, count as aggravating factors. That is a policy decision that we have made. That is the case, first, because, if an offender has simply been cautioned in the past and not convicted and sentenced for an offence, it would be unfair for that caution to act as an aggravating factor in a future sentencing decision.

Secondly, if we did include cautions, that could have the potential of leading to a huge and perhaps unnecessary increase in sentencing severity. Of course, we take into account that in the way that we are now refashioning cautions, we are trying to make every intervention count, and those factors will form part of the circumstances that the court will take into consideration. Therefore, for example, if a person is given a caution and undergoes rehabilitation, drug treatment or something of that kind, the court will want to know about those circumstances. Particularly if cautions are to be used early on, we want people to grasp the opportunity for change and to change their behaviour if they are able, with the help of the court, to do so.

Therefore, we made a clear policy decision to move away from the current position where the court is simply required to "take into account" any previous convictions to the position set out in this clause where recent and relevant previous convictions must be treated as aggravating factors. Persistent offenders must know that they will be dealt with progressively more severely each time they offend. As I said, that does not mean that wildly disproportionate sentences will be the result. Sentencers will of course operate within the principles laid down further on in the Bill. Those dictate that the severity of the resulting sentence should reflect the seriousness of the current offence committed by the defendant. This clause simply modifies the proportionality principle so that previous, relevant offences can act as an aggravating factor.

We also do not consider that Amendment No. 160BK adds to the effect of this clause. The clause concerns how the court should determine the seriousness of the offence. The circumstances of the offence are an important factor when considering, for example, whether there are any aggravating or mitigating factors. However, here it is the seriousness of the offence that the court is being required to consider in order to determine what sentence to impose. The sentencing principles set out in the clause are to guide the sentencer in reaching a decision on the seriousness of the offence. If we may respectfully say so, the surrounding circumstances are not relevant to that.

For similar reasons, we do not consider that it would be possible to accept Amendment No. 160BR. Aggravating and mitigating factors which courts already take into account are relevant to the determination of the overall severity of the sentence rather than the seriousness of the offence, which is far more specific. In any case Clause 159 already does the job of providing the court with powers to mitigate sentences.

Amendments Nos. 160BL to 160 BN all attempt to amend the drafting of subsection (1) and to redefine harm caused in ways that we do not think are entirely helpful. The current drafting refers to "any harm" that could already include harm to the victim, to the public or to anyone else connected to the offence as suggested by Amendment No. 160BL. The harm caused could be indirect or direct and similarly we do not wish to overcomplicate the drafting by adding this formulation. Nor do we wish to widen the scope, as proposed in Amendment No. 160BJC, so as to include a consideration of any distress as well as harm caused, although of course we accept that "harm" could include psychological harm where that has been caused. We think that that would weaken the impact of the provision.

Neither do we think that inviting the court to consider the circumstances of a conviction secured in a non-UK court is relevant. The fact that the offender has such a conviction is the key fact, regardless of any other circumstances, just as such a consideration of a previous conviction incurred in England or Wales would not be relevant. The key factors are whether the offender has a previous record and how long it is.

I turn to Amendments Nos. 160BNA to 160BSA in the name of the noble Lord, Lord Dholakia, and spoken to today by the noble Lord, Lord Goodhart. They seek either to remove the principle in this clause that recent and relevant previous convictions should act as an aggravating feature in sentencing or to restrict it by inserting criteria that the court must follow when treating previous convictions as an aggravating feature in sentencing.

We would not want to accept any of these amendments because we have been quite clear that we expect persistent offenders to be treated progressively more severely—although that does not necessarily mean through the imposition of custody—in a way that ensures consistency and so that they recognise what the impact of their offending will be. We are clear that this must not result in disproportionate sentences, which is why we have said that only recent and relevant previous convictions should count. So at each stage of the offending behaviour we would hope that the sentencer has an opportunity not only to punish the defendant but also to seek to interrupt his or her offending behaviour. They can consider which method of sentencing is more likely to do that.

In effect, we are introducing, as I said earlier, a modified version of the proportionality principle. It will be up to the Sentencing Guidelines Council to set out in guidelines the extent to which severity of sentence could increase in relation to the kind of previous convictions and the nature of the current offence. We would not want to set out any restrictive criteria in statute; it will be up to the Sentencing Guidelines Council to spell out the effect of the principle. All the sentencing principles set out in this chapter that replace those in the Powers of Criminal Courts (Sentencing) Act, apply to juveniles and we do not want to change that either.

I hope that I have explained the framework into which this sits. Noble Lords will not have found me guilty of verbiage and will, I hope, better understand that which we seek to do.

6.45 p.m.

Baroness Anelay of St Johns

I am grateful to the Minister for her clarification. My amendments were probing amendments to achieve that end. I assure my noble friend Lord Renton that I have no intention of pressing any of these amendments. I always bear in mind his direction to the Committee in general, and I am sure to me in particular, that one should never have more words in a Bill than are strictly necessary. So I certainly would not dream of seeking to add to the Bill all these amendments to which I have spoken. However, they have elicited the response for which I had hoped from the Minister.

My noble friend Lord Renton was particularly concerned about my probing Amendment No. 160BP which referred to the inclusion of cautions within those matters that the courts should take into account as aggravating factors. I am glad to have elicited such a clear response from the Minister that there is a policy decision on cautions that they should not form part of the aggravating factors. I am prepared to accept that.

I am interested in the points that my noble friend Lord Renton raised about a caution being administered. Although it involves someone admitting that he or she has committed an offence, that person may admit an offence merely to get the matter out of the way and to move on. My noble friend has highlighted an important matter. As all noble Lords who have witnessed or taken part in cases in courts will know, not only when someone faces a caution but also when someone faces the imposition of a sentence, that person may admit the offence which they have not committed because they want the matter out of the way. Sometimes that comes to light early in proceedings. When I was a magistrate on more than one occasion I heard people say, "I didn't do it, but I can't afford to take more days off work; the witness did not turn up yesterday; I'm here again today; I can't come another day; I'll plead guilty and let's get it out of the way". The court immediately has to say, "Stop, we cannot take this case; if you are not guilty we cannot hear it".

Of great concern to us all is those people who do not make such a statement out loud and who, therefore, may have a conviction on their record of which they were not actually guilty. It behoves all of us to consider how to get round that and how we shall get across the message of what is in the Bill for people in the future so that they do not fall foul of some of the provisions in these clauses that may mean that when they subsequently commit an offence they find that a previous conviction—something that they did not do—suddenly wallops them on the head and results in them receiving a stiffer sentence.

I believe that it was vital that the noble Lord, Lord Goodhart, said what he did, referring to the need to debate the appropriate role of previous convictions in general. That did not happen in another place but it is right that it should happen here. The noble Lord, Lord Borrie, pointed us in an important direction in regard to this clause—subsection (3), relating to the scenario of an offence that is committed when someone is on bail. Before Report stage we need to consider the whole issue of judicial discretion, a court's discretion in deciding whether an aggravating factor is taken into account. Here the court is directed that it must take it into account.

Whenever I sat as a sentencer with others in a magistrates' court, and someone had committed an offence while on bail for another offence, of course we considered it a very serious matter indeed. I am not sure that courts need to be directed to do that. It may be that it is perfectly right to express in statute what already happens in practice. We shall have to consider that. As I said the amendments are probing amendments. I am grateful to the Minister for her response and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 160BL to 160BSA not moved.]

Clause 136 agreed to.

Clause 137 [Reduction in sentences for guilty pleas]:

[Amendment No. 160BT not moved.]

Clause 137 agreed to.

Clause 138 [Increase in sentences for racial or religious aggravation]:

[Amendment No. 160C not moved.]

Clause 138 agreed to.

[Amendment No. 161 not moved.]

Clauses 139 and 140 agreed to.

Baroness Anelay of St Johns


  1. (1) This section applies when—
    1. (a) an offender is sentenced for an offence ("the current offence");
    2. (b) at the time when he is sentenced for the current offence, he is in custody and is serving a custodial sentence that was passed in respect of another offence ("the previous offence") or he is ordered by the court to be returned to custody to serve any part of such a custodial sentence; and
    3. (c) at the time when he is sentenced, the unexpired period of the custodial sentence passed in respect of the previous offence is 12 months or less.
  2. (2) When this section applies, the court may pass a community sentence on the offender in respect of the current offence if in the circumstances the court is of the opinion that it would have imposed such a sentence had the offender not been in custody and that, notwithstanding the fact that the offender is in custody, it is in the interests of justice for a community sentence to be imposed in respect of the current offence.
  3. (3) When this section applies and the court passes a community sentence in respect of the current offence, the court shall order that the commencement of the community sentence is to be deferred until such time as the offender is released from custody."
The noble Baroness said: Amendment No. 161A takes us to a new subject. The amendment relates to the imposition of community sentences for relatively minor offences on offenders who are at the time of sentencing already in custody for another offence. Noble Lords will be aware that at present if the release date is more than a few weeks away, the court is likely to impose a short consecutive custodial sentence for the new offence. That is not necessarily so, but they may do so even if ordinarily it would have imposed a community sentence had the offender not been in custody at the time.

The amendment seeks to probe whether it may be more effective to impose deferred community sentences, including what are currently known as community punishment orders and community rehabilitation orders where the offender is already in custody for another offence at the time of sentencing but has only a few months left to serve.

The offender might be in custody at the time of sentencing because he has committed the new offence while on licence, and has been recalled to prison to serve a few months of his unexpired sentence; or perhaps the Secretary of State has recalled him to prison for another breach of licence conditions before his appearance in court; or where he has been sent to prison for a short term for another offence committed in the period between committing the offence for which he is being sentenced and the sentencing hearing.

At present, this issue appears to be dealt with solely in case law. I am advised that the leading case is that of Fontenau v Director of Public Prosecutions, a decision of the Divisional Court of the Queen's Bench Division, reported in the First Volume of Criminal Appeal Reports (Sentencing) for 2001, at page 48. The noble and learned Lord, Lord Bingham of Cornhill, the then Lord Chief Justice gave the leading judgment. He said that while it is permissible to impose a community sentence on an individual nearing the end of a custodial sentence imposed on a previous occasion, that should only happen where the period remaining before release from custody is, so short as to be in practice minimal". The amendment raises the question of whether it would be better for Parliament to build on this decision in Fontenau and to enable the courts to defer the operation of a community order until the offender's release from custody for the other offence, where that release is just a few months ahead. For the purposes of the debate on my amendment I have chosen a period of 12 months, although I realise that this may be too long and that a shorter period may be considered more appropriate. It really is simply a probing amendment.

What is suggested in the amendment might be more effective than the court imposing a very short consecutive custodial sentence, perhaps only of a few days, for the new offence simply because the offender is already in custody. I stress that the amendment deals solely with cases where the court would ordinarily have imposed a community sentence for the new offence, but is precluded from doing so because the offender is actually in custody for that other offence. I beg to move.

Baroness Scotland of Asthal

I reassure the noble Baroness that Amendment No. 161A is not necessary. That is the only basis on which I shall not accept it. Its effect can already be achieved under the current law. Where an offender is convicted on two or more indictments, whether or not on separate occasions, the court must impose a separate sentence on each count. The sentences imposed may be ordered to run concurrently with each other, or consecutively, or there may be a mixture of both. The court: should indicate which sentences are imposed in relation to which counts.

Under the new framework, with all prison sentences being served partly in prison and partly in the community, all offenders will of course have a period spent on licence in the community where resettlement and rehabilitative work can be undertaken. If the court decides to impose a community sentence and orders it to run concurrently with a prison sentence, the offender will still therefore have time under supervision in the community.

There is a body of case law establishing the authority of the court to impose consecutive sentences—the noble Baroness mentioned one leading authority—on different counts on different indictments. It is therefore already possible for the court to order a community sentence to be served consecutively to a custodial sentence currently being served as proposed under the clause. I hope that with that reassurance the noble Baroness will feel comfortable in withdrawing her amendment.

Baroness Anelay of St Johns

I welcome that assurance. I shall obviously check that that is the understanding elsewhere. The noble Baroness said it with such authority that I am sure it must be, but I shall look carefully at it. At this stage, I beg leave to withdraw the amendment and make it clear to the Committee that I shall not move Amendment No. 161B.

Amendment, by leave, withdrawn.

Clause 141 [Passing of community sentence on offender remanded in custody]:

[Amendment No. 161B not moved.]

Clause 141 agreed to.

Clause 142 agreed to.

Clause 143 [Community order for persistent offender previously fined]:

Baroness Anelay of St Johns

moved Amendment No. 161C: Page 87, line 11, leave out "three" and insert "two The noble Baroness said: In moving Amendment No. 161C, I shall speak also to Amendment No. 161D. Clause 143 gives courts the power to order that persistent petty offenders who have been fined on at least three previous occasions should be sentenced to a community sentence even though such a sentence would not otherwise be justified given the seriousness of the latest offence. Again, these are probing amendments. Amendment No. 161C reduces the number of previous occasions from three to two. and Amendment No. 161D from three to one.

The obvious question I pose as a result of these two contradictory amendments is: why three previous occasions? I beg to move.

Lord Carlisle of Bucklow

I welcome the Bill's emphasis on community service. Perhaps I may ask the Minister a question. Community service has been going through rather a rough time. What is the position at the moment? Have more orders been made? Clearly, it is desirable that the courts should make them, as the Bill makes clear, where appropriate.

Baroness Scotland of Asthal

I do not have the figures with me, but I shall certainly write to the noble Lord. We are trying to create better-targeted community sentences which, frankly, have greater teeth. Therefore, the public will have more confidence that they do the work which we know they can in terms of reform, rehabilitation and reparation.

The noble Baroness asks why three and not two occasions? Defining a persistent petty offender for the purposes of this clause as one who had been sentenced to a fine on two or even one occasion, rather than on three previous occasions, would lead to a much greater number of offenders being caught by the provisions. I suppose it almost goes that once is a mistake, twice is somewhat careless, but three times tends to indicate a pattern. So the figure three was alighted upon as being perhaps an indication that the person has been given an opportunity to make a mistake, an opportunity to consider it again, but the third time he should be unlucky.

Not only would that be the case—I am not being entirely flippant about it because we have to consider what this approach may lead to—but we are very conscious of the concern that it should not lead to a large up-tariffing of sentences. That would also be very costly for the probation service to deal with. It has to concentrate on those offences which are of a more serious nature. We think that the limit of three previous convictions is a better one.

Much of the offending caught by this provision is minor—for example, low-level public order and minor road traffic offending—and of a kind that would only warrant a community sentence where a clear need for such a penalty is identified. Such a need is unlikely to arise unless persistency is clear. We believe that two previous offences would be insufficient to reach the threshold and one would certainly not reach an acceptable level of seriousness. It is really for that reason that we think that this is the most appropriate way forward.

Earl Russell

If the Minister has to make that point again, she might find it useful to refer to the amateur archaeologist who reported having discovered two post holes which were in a straight line.

Baroness Anelay of St Johns

These are probing amendments. I am grateful to the Minister for her clarificatory response. Towards the end she referred in particular to the sentencing of road traffic offenders. I had that in mind, given the response of her colleague Mr Hilary Benn in another place when he was then Under-Secretary of State, although today we learn that he is in the Cabinet. His response on a similar occasion was to talk about occasions not convictions. I was worried when he referred to three previous occasions being taken into account as a guideline for a persistent offender, that in road traffic offences there may be one conviction on one day which covered several occasions. I was not sure from what he said how the Government were approaching that form of sentencing. Today the Minister has confirmed the issue: it is the conviction not the occasion. She has put right an unintentionally misleading response from her right honourable friend in another place.

My noble friend Lord Carlisle of Bucklow was right to raise the question that he posed on community orders. It goes to the heart of the issue. We are all trying to ensure that prison sentences are used only when absolutely necessary, for the minimum number of occasions. We will certainly look at the matter in detail in future. We are all trying to ensure that community sentences are the only recourse. I reassure my noble friend that we will have the opportunity later to debate in some depth the issue of the government resources that, I hope, are to be made available for all the community sentences imposed as a result of the Bill.

Amendment No. 252C, which relates to Part 14, will be led by my noble friend Lord Bridgeman, who is on the Front Bench at the moment. We thought that it was right to table that amendment at the end of the Bill so that we can take into account everything that has been debated. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 161D not moved.]

On Question, Whether Clause 143 shall stand part of the Bill?

7 p.m.

Lord Goodhart

First, I seek clarification on a point arising out of the previous debate. It relates to the application of Clause 143 to minor traffic offences. Is it possible that Clause 143 could be applied to offences that do not otherwise carry a sentence higher than a fine? As I read it, Clause 143 could not apply unless the offence carried a punishment more serious than a fine, and that you could not simply apply it when there were three successive fines—assuming, of course, that they had all been paid.

We are concerned about Clause 143 in principle. Our concern is shared by the Bar Council and the Howard League for Penal Reform. The Bar Council says that Clause 143 could act as a green light to those who are minded to lock up people for minor offences. It has urged the courts to stop seeing an automatic route through the prisons for the non-payment of fines, whereas this clause provides that route.

The Howard League is also very concerned about the collapse of the fine as a tool of the criminal justice system, with fines having fallen by a quarter between 1996 and 2000.

We object to Clause 143. We will not necessarily take the matter further, but we wish to make clear at this point our serious concerns.

Baroness Scotland of Asthal

We do not propose to substitute any term of imprisonment for fines. Fixed penalties for offences such as speeding, for instance, are not convictions by a court so they do not count for the purposes of Clause 143. Payment of a fixed penalty discharges any liability. I can see that the noble Lord is puzzled—I am responding to the first comment that he made about fines.

Lord Goodhart

Perhaps I am ignorant of the fact. Although I am aware that there are fixed penalties for parking offences, I understood that the punishment for moving traffic offences such as speeding—when someone is caught on camera speeding—is a fine rather than a fixed penalty. I may be wrong.

Baroness Scotland of Asthal

The situation gets complicated. The non-payment of a fixed penalty notice can result in convictions that in turn may lead to a fine that can be counted for these purposes. An offence can also be prosecuted rather than dealt with by a fixed penalty, and a fine may result. It is through that route that a fine comes about. In all other respects the position remains the same.

Baroness Anelay of St Johns

It might be helpful if we looked at the subject again on Report. In the Anti-social Behaviour Bill, the Government are introducing a significant number of new on-the-spot penalties. I am glad that the noble Lord, Lord Goodhart, raised this aspect that I had not properly considered. I give notice that we will need to consider it before Report stage.

Baroness Scotland of Asthal

It may be helpful if I write to both the noble Baroness and the noble Lord to clarify how we see the issue so as to obviate the need for the noble Baroness to return to the issue.

Baroness Anelay of St Johns

I would welcome that.

Clause 143 agreed to.

Clause 144 [General restrictions on imposing discretionary custodial sentences]:

[Amendment No. 161E not moved.]

Lord Goodhart

moved Amendment No. 161EA: Page 88, line 7, at end insert— ( ) In considering whether to pass a custodial sentence under subsection (2), the court must take into account the impact of a custodial sentence on any dependent children for whom the offender is responsible. The noble Lord said: The amendment is grouped with Amendment No. 161EB. Amendment No. 161EA would require the court, when passing a custodial sentence under Clause 144(2), to take into account its impact on any dependent children for which the offender is responsible. The amendment was tabled as a result of a briefing by the Royal College of Psychiatrists, which said that there should be an additional provision to that effect. It said that the matter should be included in a pre-sentence report. It further states that underlying the proposal is the principle that the punishment is of the individual offender and should not adversely affect innocent third parties, particularly vulnerable children. The provision would also be of particular relevance to the increasing number of imprisoned women.

It is obvious that a custodial sentence of a mother with young children could have a very serious effect. At its worst, that effect could stay with those concerned for the rest of their lives. The issue ought to be in the Bill. It is a factor that ought to be taken into account, as it is at present, no doubt, by courts considering the possibility of imprisoning mothers with young children.

Amendment No. 161EB provides that, the overriding principle should be to reserve the use of custody for dangerous sexual and violent offenders and seriously persistent repeat offenders". The amendment was tabled as a result of briefing by the Prison Reform Trust. It points out that the Explanatory Notes on the Bill state under the section headed "Part 12: Sentencing": The provisions will be implemented as part of a strategy which will aim to ensure that custody is reserved for dangerous sexual and violent offenders and seriously persistent repeat offenders, and that the benefits of community supervision are made available for more offenders". The Prison Reform Trust recommends that an assurance be sought that this strategy should be developed and implemented swiftly and to a timetable. It also believes that the legislation would be strengthened if the principle were included in the Bill. In support of its views, my noble friends and I have tabled Amendment No. 161EB in our name. I beg to move.

Viscount Colville of Culross

I hope that the noble Baroness, Lady Scotland, will not accept either of these amendments. As the noble Lord, Lord Goodhart, said himself, Amendment No. 161EA is something that any court should take into account and give proper consideration to. Mitigating counsel would be in grave dereliction of duty if that point were not made.

On Amendment No. 161EB, there are a number of very serious offences of dishonesty that certainly ought to be visited by a prison sentence on a suitable occasion. I recently had some experience of food safety cases in which the most horrendous behaviour could lead to extremely serious poisoning of anyone who ate the food, and in which a large sum of money was being made by the offender. I do not think that the categories put forward by the noble Lord, Lord Goodhart, in Amendment No. 161EB cover the ground. I would have thought that the courts should not be constrained in this way.

Lord Carlisle of Bucklow

The shortest speech that I could make would be to say that I heard what the noble Viscount, Lord Colville of Colross, said and I agree. I welcome the clause to the extent that it makes clear that prison should be used only when the offence is serious and no other form of penalty is justified. I share the views expressed by the noble Viscount. As far as Amendment No. 161EA is concerned, I would have thought that it was obvious that, when one examines all the circumstances, one should take into account the position of the family and matters of that nature. In areas such as those, I was emboldened to say earlier that the Bill was very verbose. It often states matters that are accepted as perfectly sensible and obvious sentencing guidelines that do not need to be included in the Bill.

The second amendment, Amendment No. 161EB, would leave out every form of offence of dishonesty, fraud, major larcenies, people who stole money from elderly ladies and all sorts of other offences. One type of offence, by its very nature, cannot be said to be more heinous than another offence without knowing the facts of each individual case.

That brings me back to what I said earlier. I agree that sentencing is a matter for the judge who sees the people before him, knows the facts and knows the seriousness of the offence. As far as possible, we should leave him the widest discretion within the general framework set out by Parliament.

7.15 p.m.

Baroness Stern

Briefly, I support Amendment No. 161EA despite the wise words of the noble Viscount, Lord Colville, and the noble Lord, Lord Carlisle of Bucklow. I agree that, in a different environment, it would be right for these matters to be left to the discretion of the judge or magistrate. However, when almost every circumstance is being set out in legislation, it is an omission that we are not drawing the attention of sentencers to the effects of imprisonment on the carers of children. Men are sometimes the sole carers, but they are usually women, so the effect of a prison sentence on women is much greater.

The harm caused by the imposition of a custodial sentence on women with young families can be enormous. The crime-creating effects of such a sentence can be great and can quickly cancel out any crime reduction that might be achieved by the prison sentence. The break-up of the family can lead in the long term to serious social disruption. In most of the cases for which women come before the court, a demanding community order would be a completely adequate response. Although in principle it would be desirable for the courts to be trusted in these matters, since most other matters are being set down, the fact that this is not makes it likely that sentencers will not believe that we felt the matter to be as important as I believe it to be. I support the amendment.

The Earl of Listowel

I look forward to the Minister's response. I have listened to the debate and feel very concerned, as do we all, about the harm caused to young children when they are separated from their mothers. I am no expert in this area and experts have spoken, so I simply look forward to her reply. Perhaps she could also tell us something about the problem of location. I understand that, because of the size of the prison population, it is often difficult to keep prisoners within close reach of family members. Will she assure the House that, in the case of principal carers, every effort is made to ensure that they can be kept within close reach of their families, especially when young children are involved?

Baroness Scotland of Asthal

I hope that I will be able to satisfy everyone. I wholeheartedly agree with the comments of the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord Carlisle of Bucklow, in resisting the amendment. However, I also say to the noble Baroness, Lady Stern, and the noble Lord, Lord Goodhart, that I take on board their comments about the need to consider the position of the carer. I understand the sentiments expressed by the noble Baroness about the consequences that may flow from a mother being removed from young children when an alternative form of sentencing might be appropriate.

I hope that the noble Lord and the noble Earl, Lord Listowel, will be comforted that that is precisely the sort of issue that should be dealt with by the Sentencing Guidelines Council. It can help the judge or sentencer—lay or professional—by inviting them to take into consideration those factors that will most help them to come to a just resolution. Amendment No. 161EA would fall happily within the framework.

On Amendment No. 161EB, I say to the noble Lord, Lord Goodhart, as has already been said by the noble Lord, Lord Carlisle, and the noble Viscount, Lord Colville of Culross, the circumstances of a case can vary so widely that it would be impossible to be prescriptive in the principles. Prescribing principles in such a way would not be helpful. I respectfully suggest that the best course would be to leave matters to guidelines and the good judgment of the sentencer who hears the case.

Lord Goodhart

I am grateful to the Minister for what she said about Amendment No. 161EA. It may be that guidelines are the proper place for such consideration. I am also grateful to her for the recognition that this is an extremely important consideration that would need to be taken into account in all appropriate cases when sentencing.

It is clear that I have no support for Amendment No. 161EB in your Lordships' House. Indeed, I can see the force of the arguments. In that case, the amendment will not trouble this House again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 161EB not moved.]

Clause 144 agreed to.

Clause 145 [Length of discretionary custodial sentences: general provision]:

Baroness Anelay of St Johns

moved Amendment No. 161F: Page 88, line 20, leave out "the shortest" and insert "such The noble Baroness said: Clause 145 makes provision about the appropriate length of custodial sentences and replaces the current provision in Clause 80 of the Powers of Criminal Courts (Sentencing) Act 2000. The Government have made a slight but, perhaps, important change to the wording.

At present, the statute states that the length of a custodial sentence must be, for such term…as in the opinion of the court is commensurate with the seriousness of the offence". Clause 145 changes the words "for such term" to "for the shortest term". In Committee in another place, the then Under-Secretary of State, Mr Hilary Benn, stated that the alteration in the wording was, a deliberate change".—[Official Report, Commons Standing Committee B, 4/2/03; col. 780.] What he did not do was to explain what the deliberate change was and how it had been arrived at. This is an opportunity for the Government to put that omission right.

My question is a lesser one: what will be the effect of the change to "the shortest term" on sentences passed for a deterrent effect? By definition, they are longer than those that would ordinarily be passed without the need for deterrence. I beg to move.

Lord Carlisle of Bucklow

When we debated Clause 135, the Minister chose not to answer my question about whether the words, must have regard to the following purposes of sentencing were right or whether we should consider them again. I think that it was with particular regard to the combination of Clauses 135 and 145 that Justice suggested that there could be a possible contradiction in the Bill. How can we be sure that a sentence is for, the shortest term … that in the opinion of the court is commensurate with the seriousness of the offence", if, at the same time, the court must have regard to the deterrent effect on others? There is a possible conflict of principles. As Justice said, we should look again at the words "must have regard" in Clause 135(1).

Baroness Scotland of Asthal

I apologise to the noble Lord for not dealing with his point on Clause 135. It is the view of the Government that the phrase "must have regard" is appropriate. The noble Lord suggested the phrase "shall have regard".

Lord Carlisle of Bucklow

I suggested "have in mind" or "bear in mind".

Baroness Scotland of Asthal

The importance of Clause 135 is that the court must take into account and "have regard to" the purposes of sentencing in determining the appropriate sentence. That is not in conflict with Clause 145. In having regard to all those purposes, the court can still, in deciding the length of sentence, consider what the shortest term should be, taking those factors into account. They are not in conflict; they are complementary and helpful. A range of possible lengths of sentence may be considered by the court. The clause directs it to consider the shortest term. The Bill invites the court to consider the shortest term, in taking all those factors into consideration.

The noble Baroness is right to say that, in Clauses 144 and 145, we have chosen deliberately to move away from the formulation used in the Powers of Criminal Courts (Sentencing) Act 2000. We have retained the principle that a custodial sentence must be imposed only when the offence is so serious that, neither a fine alone nor a community sentence can be justified for the offence". We wanted to reinforce the point that a custodial sentence should be used only as a last resort. Similarly, in Clause 145, we have said that the length of the custodial sentence should be for the shortest time, commensurate with the seriousness of the offence". We would not want to revert to the wording of the Powers of Criminal Courts (Sentencing) Act, as proposed in Amendment No. 161F.

With that, I hope that the noble Baroness will Find that she has had a clearer, if not a better, explanation.

Baroness Anelay of St Johns

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 145 agreed to.

Clause 146 [General limit on magistrates' court's power to impose imprisonment]:

Lord Goodhart

moved Amendment No. 161FA: Page 88, line 27, leave out "12 months" and insert ".51 weeks The noble Lord said: In moving the amendment, I shall speak also to Amendments Nos. 161FB and 161FC.

Clause 146 has caused a good deal of controversy. It has caused concern in a large number of organisations that have put forward arguments about it. We are not proposing that the increase in the power of sentencing from six months to 12 for a single offence should be removed. We are not proposing that Clause 146 should not stand part of the Bill. However, we are concerned about two things, both of which relate to the custody plus system.

I shall leave Amendment No. 161FA for the moment and go on to Amendments Nos. 161FB and 161FC. We are concerned that the increase in the power of sentencing should not come into effect until the provision for custody plus has also come into force. Once the provisions for custody plus have come into force, they will cover any sentence shorter than exactly 12 months imposed by a magistrates' court. It would be highly undesirable to have an interim period, during which magistrates could, say, impose a sentence of nine months, which would have to be served, as opposed to what would happen under the custody plus system. At the end of such a period, magistrates' courts would lose that power, and we think that, during the interval, magistrates' courts, flexing their muscles, would be tempted to impose sentences of imprisonment of longer than six months that would have to be served.

With Amendment No. 161FA, we want to go further. If the Bill becomes law as it stands, it will bring into force the increased sentencing powers and the custody plus powers. The effect of the Bill will be that magistrates' courts will be able to avoid custody plus by sentencing somebody to a sentence of exactly one year.

That is inappropriate and liable to lead to an increased use of the power to sentence to 12 months. Magistrates unwilling to impose custody plus, but who might otherwise have imposed a sentence of six months, might say, "Oh well, we will have to put it up to 12 months because if it is for anything less it cannot be served and will be caught by the custody plus rules". Therefore, magistrates courts' powers should be limited to a sentence of 51 weeks—that is, less than 12 months—so that magistrates cannot escape the custody plus rules by imposing a 12 month sentence; the maximum would be 51 weeks which would not be caught by custody plus. Otherwise, we, and a number of organisations, fear that there will be an increase in the jail population because of magistrates increased use of the 12-month power of sentencing. I beg to move.

Baroness Scotland of Asthal

I understand the sentiments and anxiety of the noble Lord, Lord Goodhart, which we do not share. We want magistrates to make full use of the new sentence of custody plus—with which the noble Lord has indicated that he is in agreement—up to its limit of 51 weeks, as well as to be able to impose a sentence of 12 months custody, which will be served half in custody and half under conditions in the community. Therefore, we do not wish to restrict the increase to 51 weeks as proposed in Amendment No. 161FA.

In Committee in the other place very similar amendments were tabled. A final decision on when sentencing reforms will be implemented has not been made. However, it is likely that elements of sentencing reforms will be introduced in phases over several years to allow the system to absorb new measures gradually without too much disruption and to enable the correctional services—in particular, the probation service—to reach the capacity necessary to implement them successfully. In particular, custody plus will create a large additional caseload for the probation service, which will need to be well planned so that it can deliver what is intended in a seamless way between the correctional services.

Therefore, we do not wish to be restricted by Amendments Nos. 161FB and 161FC, which would limit the introduction of new magistrates sentencing powers until the new short custodial sentences are available. Furthermore, the increase in magistrates' sentencing powers is closely tied in with the changes to allocation of offences between courts set out earlier in the Bill, both of which seek to encourage magistrates courts to retain more cases. We want to introduce these at the same time. Although I understand the noble Lord's anxiety, I hope that the way in which we propose introducing the provisions will meet his concerns without needing to have the restrictions proposed in the amendments.

Lord Goodhart

I am grateful to the noble Baroness for her reply. We shall consider what she said when deciding whether to bring these amendments back. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 161FB not moved.]

Clause 146 agreed to.

Clause 147 [Consecutive terms of imprisonment]:

[Amendment No. 161FC not moved.]

Clause 147 agreed to.

Lord Davies of Oldham

My Lords, I beg to move that the House do now resume and, unless any noble Lord objects, that further consideration of the Fire Services Bill be postponed until after the Unstarred Question. In moving this Motion, perhaps I may suggest that we start the Fire Services Bill no earlier than 8.35 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

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