HL Deb 02 November 2004 vol 666 cc203-22

(1) In Chapter 1 of Part 12 of the Criminal Justice Act 2003 (c. 44) (general provisions about sentencing), after section 161 insert—



(1) A court when dealing with a person for one or more offences must also (subject to subsections (2) and (3)) order him to pay a surcharge.

(2) Subsection (1) does not apply in such cases as may be prescribed by an order made by the Secretary of State.

(3) Where a court dealing with an offender considers—

  1. (a) that it would be appropriate to make a compensation order, but
  2. (b) that he has insufficient means to pay both the surcharge and appropriate compensation,
the court must reduce the surcharge accordingly (if necessary to nil).

(4) For the purposes of this section a court does not "deal with" a person if it—

  1. (a) discharges him absolutely, or
  2. (b) makes an order under the Mental Health Act 1983 in respect of him.


(1) The surcharge payable under section 161A is such amount as the Secretary of State may specify by order.

(2) An order under this section may provide for the amount to depend on—

  1. (a) the offence or offences committed,
  2. 204
  3. (b) how the offender is otherwise dealt with (including, where the offender is fined, the amount of the fine),
  4. (c) the age of the offender.
This is not to be read as limiting section 330(3) (power to make different provision for different purposes etc)."

(2) In section 164 of that Act (fixing of fines), after subsection (4) insert—

"(4A) In applying subsection (3), a court must not reduce the amount of a fine on account of any surcharge it orders the offender to pay under section 161A, except to the extent that he has insufficient means to pay both."

(3) In Part 1 of Schedule 9 to the Administration of Justice Act 1970 (c. 31) (cases where payment enforceable as on summary conviction), after paragraph 12 insert—

"13 Where under section 161A of the Criminal Justice Act 2003 a court orders the payment of a surcharge."

(4) In Schedule 5 to the Courts Act 2003 (c. 39) (collection of fines), in paragraph 1(1) (application of Schedule), after "a fine" insert "or a surcharge imposed under section 161 A of the Criminal Justice Act 2003".

(5) The Secretary of State may by order—

  1. (a) make provision amending Schedule 5 (collection of fines) or Schedule 6 (discharge of fines by unpaid work) to the Courts Act 2003 in its application by virtue of subsection (3) or (4) to surcharges;
  2. (b) make provision for any part of Schedule 5, or the whole or any part of Schedule 6, not to apply to surcharges;
  3. (c) make amendments to any enactment that are consequential on provision made under paragraph (a) or (b)."

Baroness Scotland of Asthal

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8.

Lord Carlisle of Bucklow

My Lords, may I inquire whether this is the new clause that deals with surcharges? The two new clauses after it raise the same principle with regard to fixed penalty offences. Does the Minister propose to deal with the issue of Amendments Nos. 8, 9 and 10 together; namely, the imposition of a surcharge both in conviction cases and as regards fixed penalties? Does that mean that we can speak to the principle of those three amendments as one?

Baroness Scotland of Asthal

Yes, my Lords. The noble Lord, Lord Carlisle, is absolutely correct. When I started cantering through this earlier, I said that I intended to deal with three categories. Again, I am sorry, if I have misled noble Lords.

These amendments aim to add a surcharge to criminal convictions in the courts; to fixed penalty notices for road traffic offences; and to penalty notices for disorder. They divide into three categories, as just indicated by the noble Lord, Lord Carlisle. I shall deal with each individually.

First, for the surcharge payable on conviction, Amendment No. 8 inserts two new sections into the Criminal Justice Act 2003, that impose a duty on the court to impose a surcharge on a person convicted of an offence, except where the court makes an absolute discharge or a mental health disposal. That is category number one.

In category number two, the surcharge payable in respect of penalty notices for disorder can be achieved principally through existing powers, as I mentioned earlier, to make secondary legislation. However, Amendment No. 9 will change the maximum amount that can be prescribed as a penalty for disorderly behaviour from a quarter of the maximum fine to a quarter of the fine plus half of the maximum surcharge

The surcharge payable in respect of road traffic fixed penalty notices can also principally be achieved through existing powers to make secondary legislation. Amendment No. 10 allows us to do two things: first, to prescribe a higher penalty for repeat offenders; and secondly, for the fixed penalty clerk to collect the surcharge separately from the fixed penalty.

The proposal to add a surcharge to criminal convictions and fixed penalty notices was one of a number of proposals set out in the consultation paper Compensation and Support for Victims of Crime, issued on 12 January 2004. There was overwhelming support for more and better services for victims of crime, although opinion was divided on the introduction of the surcharge. The majority of objections were to the addition of the surcharge to fixed penalty notices for speeding. The amendments set out here will add the surcharge only when a driver speeds or commits other endorsable motoring offences that attract fixed penalty notices on repeated occasions.

When this issue was debated in the other place, there was some disagreement over who should be liable to pay the surcharge. Some took the view that the offenders should have to pay the surcharge only when they had committed enough offences to be disqualified from driving.

We believe that a fair system is for drivers to receive one warning, and if they commit another endorsable offence within three years they should be liable for the surcharge. I should clarify that examples of the types of offences we are talking about are speeding offences, driving through red lights or ignoring pedestrian crossings.

It is incorrect to say that these offences are victimless crimes; 3,400 people are killed on the roads through speeding each year and 36,000 people are seriously injured. At 40 miles per hour, 85 per cent of people hit by a vehicle die, compared to 20 per cent at 30 miles per hour and 5 per cent at 20 miles per hour.

The House of Commons Transport Committee this week published a report on Traffic Law and its Enforcement. It states: Bad driving is not victimless … Changes are needed to ensure that we no longer have the culture which considers poor driving standards as acceptable, or at worst careless. It is unacceptable that speeding should be seen as unimportant, until such time as death or injury occurs". We concur with that. The report goes on to say that drivers who receive automatic penalties for speeding have not committed a minor transgression but have significantly exceeded the speed limit. Someone would have to be driving at 35 miles per hour in a 30 miles per hour zone to receive a fixed penalty notice. That could be the difference between life and death for many of those involved in collisions.

It is clear that road traffic offences are serious offences and can have grave consequences. Offenders should be made to pay the surcharge. What we are aiming to do is to make offenders pay a small sum to a fund for the victims of crime. The fund will provide practical and emotional support to a range of victims, including those who have been victims of road traffic offences. Victim Support, for example, can only do so much with the annual grant it receives, even though the grant has almost trebled since this Government took office—from £10.7 million to £30 million. Its focus is on providing core services to victims and witnesses through its community and court-based services. It would very much like to do more. There are other specialised support groups which deserve our support too; not least voluntary organisations which provide help to those injured or bereaved by death on the road, often as a result of speeding motorists.

We want to provide more funding to the voluntary sector and to communities to meet local needs. We are determined that victims should receive the practical and emotional support they need, in many cases to rebuild their lives. There is no provision in the Bill for the establishment of the victims' fund. That is because we can do so without primary legislation, by agreeing with the Treasury that a certain portion of the consolidated fund will be ring-fenced. A recent precedent for that is the Recovered Assets Fund, into which was paid the proceeds of crime recovered through confiscation orders. Many of your Lordships may be aware that similar schemes have been very successfully employed in other countries.

Turning first to the surcharge imposed on a criminal conviction, subsection (1) of Amendment No. 8 inserts into the Criminal Justice Act 2003 two new sections, Sections 161A and 161B. New Section 161A would impose upon the court a duty to order payment of the surcharge with a criminal conviction, except when the court makes an absolute discharge or mental health disposal. However, a compensation order would take priority over the surcharge. If the court considers that the offender should pay compensation and has insufficient means to pay the surcharge as well, it must reduce the surcharge accordingly—if necessary to nil.

The Secretary of State would also have power to prescribe further exceptions. We envisage using this power, which will be subject to the negative resolution procedure, if experience of operating the surcharge shows that certain categories of defendants are being unfairly penalised by the surcharge.

New Section 161B deals with the amount of the surcharge, which it states will be as specified by order by the Secretary of State, subject to the negative resolution procedure. It will enable higher surcharges to be ordered for more serious offences. The intention, however, is that the surcharge will be a relatively small amount—up to £30 at present—in order to maximise payment by the vast majority of offenders to a wide range of victims.

Subsection (2) of Amendment No. 8 amends the provisions on the fixing of fines to ensure that the court does not reduce a fine on account of the surcharge. The aim is to ensure that, as far as possible, the court orders the surcharge to be paid on top of any fine it would otherwise have given. The only exception is to be when the offender simply does not have enough money to pay both, in which case the surcharge will take priority. We think that the new powers in the Courts Act 2003 will improve the overall likelihood of payment so that offenders do pay both the fine and the surcharge.

6.45 p.m.

Subsection (3) of Amendment No. 8 has the effect that the surcharge will be treated as a fine for the purposes of collection and enforcement. Subsection (4) provides that the new provisions in the Courts Act on the collection and enforcement of fines will apply. Subsection (5) provides that the Secretary of State may amend the way in which the relevant provisions of the Courts Act apply to the surcharge. That is because these measures are currently being piloted.

The evaluation of the pilots may necessitate changes. Section 97 of the Courts Act provides a power to amend the provisions in the light of the pilots, but this would not extend to the surcharge, which will not be part of the pilot. This order-making power simply ensures that we can ensure that the Courts Act provisions, in their final form, apply properly to the surcharge. It will be subject to the affirmative resolution procedure, by virtue of Amendment No. 94.

Amendments Nos. 54, 69, 70, 77, 81, 87, 100 and 101 are consequential amendments to Amendment No. 8. Amendment No. 54 specifies that the order to be made under subsection (5) of Amendment No. 8 is subject to affirmative resolution. Amendment No. 69 amends the Rehabilitation of Offenders Act 1974 so as to ensure that the surcharge is disregarded for determining when a conviction is spent and the rehabilitation period will be applicable to the other parts of the sentence given by the court.

I hope that what I have said in relation to all three of the new changes will suffice. I am happy to give more detail if noble Lords would like it. I am sure that the House will agree that it is right that, whenever possible, offenders should be made to pay for the consequences of their crimes. A small contribution towards a fund to provide much needed support for a wide range of victims, we believe, is a fair and logical step. It will build on and complement existing services, including the criminal injuries compensation scheme and grant aid to Victim Support, made at the taxpayers' expense, to offer practical and emotional support.

I invite your Lordships to accept these amendments to add a surcharge to criminal convictions in the courts, to fixed penalty notices for road traffic offences and to penalty notices for disorder in order to provide revenue for the victims' fund.

I should now like to address the amendments which have been tabled to these proposed clauses. Amendment No. 8A in the name of the noble Baroness, Lady Anelay, seeks to remove the obligation on the court to order an offender to pay the surcharge when it deals with him. Instead it provides the court with a discretion in each case. Our intention is that the surcharge must be added unless the court has not dealt with the person under the terms specified in subsection (4) or the case is of a type which has been excepted from the surcharge provisions by an order made under subsection (2).

Amendment No. 8C, again in the name of the noble Baroness, Lady Anelay, would remove subsection (2) meaning that no such order could be made. So, instead of a clear list of exceptions being set out in an order, the court would consider each case on an individual basis.

Amendment No. 8B is consequential and would subsequently remove the mention of subsection (2) from subsection (1). These amendments would create additional work for the courts as they would have to carry out a detailed assessment of each case before deciding whether or not the surcharge should be added.

We believe that the courts should, assuming that they have dealt with the offender, automatically apply the surcharge unless the case meets the requirements set out in an order made by the Secretary of State. We appreciate that the intention behind the noble Baroness's amendments is to introduce some flexibility to the scheme, but we feel strongly that the surcharge should be compulsory. If people have committed and been found guilty of an offence which, in most cases, will have a direct victim, we think it right that there should be clarity about how much they should be asked to pay.

There are very few circumstances in which there will be a good reason why a small surcharge, to provide support and services to victims, should not be added by the court. Once the surcharge has been operating, the Secretary of State will be able to make an order setting out those circumstances and to add to them over time. That introduces a degree of flexibility, which I know that the noble Baroness seeks. Further, in the context of compensation, as stated in the Bill, where the court considers that the offender has insufficient means to pay both compensation and the surcharge, the court may reduce the amount of the surcharge, if necessary, to nil. Therefore, there is already some flexibility to the application of the surcharge. We would resist any amendments to introduce any more flexibility or discretion.

Amendments Nos. 8D and 8E, tabled in the name of the noble Baroness and the noble Viscount, Lord Bridgeman, who, happily, I see in his place, would change the procedure for making orders under Commons Amendment No. 8 from negative to affirmative resolution. Amendment No. 8D would mean that the power allowing the Secretary of State by order to exempt certain cases from payment of the surcharge of new Section 161A(2) would be subject to the affirmative procedure. We believe that the intention of Amendment No. 8E is to make the power to set the level of surcharge by order in new Section 161B(1) subject to the affirmative procedure.

We want to be able to make the orders by negative resolution, as we would like to have the flexibility to make additions or alterations to the orders fairly easily, once the surcharge has been in operation for some time. We therefore think it sensible to use the negative resolution procedure. Also, we are not dealing with large amounts.

Further, the Government believe that it would be rather odd to have the order-making power to set the amount of the surcharge payable on conviction subject to the affirmative procedure, when the surcharge on road traffic fixed penalty notices will be dealt with using the existing powers in Section 53 of the Road Traffic Offenders Act 1988, as amended by the Bill, which is subject to the negative resolution procedure. In addition, the power to set the level of on-the-spot penalties for disorderly behaviour under Section 3 of the Criminal Justice and Police Act 2001 is, by order, subject to the negative resolution procedure. I remind your Lordships of Section 3(6) of that Act.

I should also like to clarify, however, that, as the Bill stands, any amendment made to the Courts Act 2003 through the order-making power provided for in subsection (5) of Commons Amendment No. 8 will be subject to the affirmative resolution procedure. That is to be found in Commons Amendment No. 54.

As for Amendment No. 10A, which would remove Commons Amendment No. 10 in its entirety, I hope that I have already explained why we consider those who have received fixed penalty notices for enforceable road traffic offences still to be offenders. Their actions cause harm to other people, both pedestrians and other drivers. We feel strongly that they should be asked to pay a small surcharge towards the victims' fund. As well as raising funds for the support of victims of crime, we hope that the introduction of the surcharge on fixed penalty notices for repeat offenders will encourage drivers to think twice about speeding or committing other enforceable road traffic offences, which would, in return, reduce the numbers.

Amendment No. 10B is intended to increase the application of the surcharge to those who have committed an endorsable offence or those who have been previously disqualified from driving within the past five years, instead of the past three years. Our reason for deciding to apply the surcharge to those who have committed more than one offence within a three-year period was that that is the length of time that an endorsement will remain on a driver's licence. After three years, the penalty points are removed and the driver's licence will then be clean. If the time limit were changed to live years, it would be administratively difficult, if not impossible, to find out if someone committed an endorsable offence more than three years ago, so we would not be able to identify those offenders and apply the surcharge to them.

I turn to Amendment No. 10C, which would remove the ability of the regulations permitted to be made in relation to conditional offers to apply the relevant part of the Road Traffic Offenders Act 1988 with modifications. Modifications may be needed to make the provisions work and we want to ensure that we have the flexibility to do that. I hope that noble Lords will accept there is nothing untoward about that intent.

We therefore reject these amendments but ask your Lordships to accept Amendments Nos. 8, 9 and 10. I hope that, after that lengthy exposé, there will be no questions that I have not already answered.

Moved, That the House do agree with the Commons in their Amendment No. 8.—(Baroness Scotland of" Asthal.)

Baroness Anelay of St Johns rose to move, as an amendment to Commons Amendment No. 8, Amendment No. 8A: 8A Line 7, leave out "must" and insert "may

The noble Baroness said: My Lords, in moving this amendment, as an amendment to Commons Amendment No. 8, I shall speak also to Amendments Nos. 8B to 8E and 10A to 10C.

When we were all trying to jump the gun a bit to get to these exciting new government proposals, my noble friend Lord Carlisle of Bucklow made the point for us all. Here we have three ways in which a new surcharge is to be imposed by the Government: three new clauses making substantial changes, and yet, all together in one group, very difficult for all of us to be able adequately to debate.

All my amendments were tabled with the sole aim of trying to signal in advance some of the questions that I might pose. Indeed, the noble Baroness has answered most of them—although, I must say, not quite all; I have one or two left. Overall, I thought that it was important for the Government to bring rather more clarity and transparency to the proposals than they had so far in another place. There was little or none there until the 11th hour, on Report last week.

As the noble Baroness said today, the Government proposals first saw the light of day in their consultation paper published on 12 January this year—after the Bill had started its progress through this House. When that consultation paper was produced, there was overwhelming support in response for better services for victims but very divided opinion on the matter of the surcharge. The majority of objections to the Government's proposals concerned the road traffic surcharges. If we were in Committee or on Report, I would quote extensively from those objections, but I shall certainly not do that at this stage. I merely mention that bodies such as the Police Federation and the Magistrates' Association are against those surcharges for practical reasons.

There was a furore in the press. The Government appeared to back off. On Second Reading, the Home Secretary said that the measure would not apply to the vast swathes of motoring offences. At that stage, public opinion settled back down again, as did the red-top newspapers, in the belief that the Government would surcharge only the most serious traffic offenders and criminals who commit theft and violent offences.

The government new clauses in Amendments Nos. 8 and 9 are therefore pretty much what the public expected. They are certainly what we expected. But we should note that the proposal to surcharge those who are committed to prison makes a significant departure from the principle that I understood had always underpinned sentencing practice: that you should not mix a custodial with a financial penalty. Does the Minister agree that it has been usual practice in sentencing that, if there is a fine to be paid, as distinct from compensation, and a person is to be committed to prison, it has been good practice to commute the fine to extra days in prison? That recognises the importance of ensuring that when the offender is released, he or she makes a clean start and therefore should not be tempted to steal to pay the fine.

7 p.m.

My amendments concerning the surcharge on people put into custody were indeed there to probe just what flexibility the Government want. As all governments do, perhaps, they want even more flexibility than I was prepared to concede. I was trying to argue, through those amendments, that we should be able to trust the judiciary properly to look at the circumstances of each offender to determine whether it was appropriate to add the surcharge. As on many occasions throughout the Bill, the Government's response was to say, "That is not the way we want to do it. We want to have this flat rate, and we will have the Secretary of State with his own power. If, later on, we think that the approach is not working then we will have the Secretary of State issue an order saying when the penalty shall not be imposed".

At this late stage I shall certainly not contest that position. I shall look very carefully at how the system works on the RDS section of the Home Office website, which is a very good facility for letting us know what the department is getting up to—sometimes it is even quite clear about what it is getting up to, but not always. I shall certainly keep an eye on the matter.

There are greater problems with the third group of surcharge proposals for road traffic offenders. I shall outline my amendments on the subject. When the Home Secretary said what he was going to do, his proposal did not let people realise that committing a second endorsable offence of itself would be sufficient to trigger the surcharge. As the noble Baroness says, that is within a three-year period. I accept entirely her argument about why it should be three and not five; the amendment was intended only to elicit that explanation.

Amendments Nos. 10B and 10C are devices to ask the Minister certain questions. First, when do you get a penalty notice? What for? Much of the Commons debate and the remarks of the noble Baroness today have related to speed cameras. I am at one with the noble Baroness on that: I accept, and always have, that speeding can be dangerous, especially in urban areas. I am arguing for transparency in sentencing and revenue raising. I am not arguing for an open sesame for boy-racers or girl-racers; however, I am certainly not arguing for an open sesame for the Government, who are desperate to find stealthier ways of getting extra funds. We all want victims' services properly funded, but I am not convinced that this is necessarily the right way to go about it.

There are plenty of other offences apart from speeding for which one could face the surcharge; for example, having your tyres under-inflated or over-inflated. The Government's definition of a "serious and persistent criminal" seems rather grotesque, because it includes someone who gets stopped twice in three years, perhaps for having under-inflated tyres. The Government argued in the other place that that was pretty much a middle-class crime and therefore it was okay to slap on a surcharge for the middle classes to pay up to assist victims of crime generally. I am glad that the noble Baroness did not take that line; it was not a particularly helpful one. It could well be the single parent on low income, who can just about afford an ancient runabout to take her children to school or the hospital and does not always have the tyres at the right pressure at the right time, who could be affected by this surcharge.

My second question is: how much will the penalty be? The noble Baroness has said that it will be only a small amount. That was a little coy, because in the other place sums of £5, £10 and £30 were bandied around. We were told, "We will let it run and then the Government will decide". By negative resolution they will be able to increase the amount when they wish. Surely the danger is that, if we all do as the noble Baroness says and think twice before speeding—I shall try; I have no points on my licence yet, but that is not through virtue—and become considerate drivers so that the government income from the fines goes down, surely the Government will be tempted to raise the surcharge to keep up the trickle of money into the fund to help victims. That would not be a transparent system.

My final question has not yet been addressed by the noble Baroness. When exactly does a surcharge fall due to be paid by the motorist? I shall take as an example a relatively common scenario, which I faced as a magistrate. One might be stopped for speeding once, say, for travelling at 36 m.p.h. in a 30 m.p.h. limit in one year, and within three years one is then stopped for having two tyres under-inflated and one tyre over-inflated. That is two occasions but four endorsable offences. If the surcharge is £5, does the person pay £5, £10 or whatever multiple thereafter?

The reason that I ask that question is because the noble Baroness's colleague Mr Goggins was less than clear in another place. He started off by saying that it would be clear: It will be clear that the second endorsable offence, not the value of the penalty points, will attract the surcharge". But then he said: The number of occasions on which an offence is committed will be considered". Did he leave out the word "not"? I do not know. He went on to say, twice is once too often, whether it is on the same day or over a period of three years".—[Official Report, Commons, 27/10/04; cols. 1506–08.] It did not sound as though Mr Goggins quite knew whether it was two occasions, four offences or how it would be worked out. I beg to move this probing amendment.

Moved, as an amendment to Commons Amendment No. 8, Amendment No. 8A.—(Baroness Anelay of St Johns.)

Lord Carlisle of Bucklow

My Lords, I find this very strange. Like other noble Lords, I took part in the Committee stage of the Domestic Violence, Crime and Victims Bill, which was looked at line by line, as happens in Committee. Then, suddenly, without any reference at all, the Government in the House of Commons start adding clauses which had never been mentioned, have never been considered by noble Lords and have no direct relationship to the Bill. Three of them deal with surcharges. I should have thought that these three clauses would have cried out for careful examination in Committee. So far as I am concerned, the principle itself is very dubious.

The principle as I understand it is that anybody who appears before a court and is convicted of a criminal offence, if he is not mentally affected or granted an absolute discharge, will be subject to paying a surcharge. Equally, anyone driving a motorcar who has one speeding offence as a result of travelling past a speed camera, maybe on an open road in the early hours of the morning, and who commits a similar speeding offence during the following three years will immediately become subject automatically to a surcharge.

What is the surcharge for? The Minister, Mr Goggins, told us: Our aim is to make offenders pay a small sum to a fund for the victims of crime. The fund will provide practical and emotional support to a range of victims".—[Official Report, Commons Standing Committee E, 1/7/04; col. 293.] Why should there be a greater responsibility on someone who has committed a second motoring offence, for example, to pay for the establishment of a fund to deal with the emotional support needed by an elderly lady who is, say, the victim of a burglary? Surely, it is society's duty to provide support for victims. Whether or not you have committed a second fixed-penalty offence seems totally irrelevant and in no way increases the responsibility of that individual to compensate that victim.

Who will be the victims? We are told that the fund will provide practical and emotional support for a range of victims. There is no provision for the establishment of a victims' fund. Who is to decide who the victims are? Is it to be Victim Support with more money from the Government than before? I declare now an interest that I would have had to declare later in any event as a former chairman of the Criminal Injuries Compensation Board. Is it merely a method of increasing the money available to the Criminal Injuries Compensation Authority to compensate for the substantial cut in the budget that, I understand, it has received in the past few months?

What is the principle behind it? The Minister said that it was right that people should pay for their crimes. Of course they should, but I still do not understand why someone who is convicted of an offence of, say, shoplifting or drinking after hours should be more responsible than society as a whole to the victim of a wounding. The principle is highly questionable.

What about the practicality? First, there is the intention to surcharge the offender. As my noble friend Lady Anelay of St Johns asked, does that mean that, in future, everybody who is sentenced by any court to a term of imprisonment will, as well as being sent to prison, have a surcharge imposed on him? If that is so, is that not, as my noble friend said, contrary, in many ways, to the principle used in the past by the courts that if a person is incarcerated for his offence, we should not add a financial penalty?

The new clause does not say, "a court may"; it says, "a court … must". Presumably, anybody who is imprisoned for any offence, however serious and however long the sentence, will be surcharged. We are not told the amount, but he will have to pay a sum that will ensure that, when he comes out, he will have no money left with which to start, if he wishes, to live an honest life. It is an extraordinary proposal.

What about the motorist? Again, everyone who is convicted of an offence carrying a fixed penalty will, as I understand the proposals, be ordered to pay a surcharge. I agree with the Minister that motoring offences are serious. I agree with her that those who commit more than one motoring offence are a serious problem. I am not sure, however, that I would necessarily describe a person who committed one offence of speeding and one of having a bald tyre as a repeat offender.

If the view is that speeding for a second time is more serious than speeding the first time, why not put up the fixed penalty? The fixed penalty for a first offence is £60. In future, for a second offence, it will be £60 and something called a surcharge, amounting to £30. If we are concerned at the gravity of the offence, we should put up the fixed penalty to £90, rather than dressing the increase up by pretending that it is a surcharge that goes, in an unexplained way, through a victims' fund, which is not to be established, to help with the emotional and practical problems of victims of crime who have no relationship to the individual who has committed the speeding offence or driven with bald tyres.

I have spoken longer than I should have, but the proposal is nonsense in principle and will be shown in practice to be unworkable.

7.15 p.m.

Lord Renton

My Lords, my noble friends Lady Anelay of St Johns and Lord Carlisle of Bucklow have drawn our attention to a confusing situation, caused mainly by the amendments moved in another place that the Government are asking your Lordships to accept this evening.

I am moved to draw attention, perhaps prematurely, to Amendment No. 8, which includes two new clauses to be added to the Criminal Justice Act 2003. The one that surprises and worries me is new Clause 161B, which deals with the amount of the surcharge. The Secretary of State will specify it by order. We find in the next subsection that the order may provide for the amount to depend on the offence or offences committed, how the offender is otherwise dealt with and the age of the offender.

In effect, the Secretary of State will be able to legislate in important ways on a matter that, essentially, should be dealt with in the Bill, rather than being delegated to him. We are not sure from new Clause 161B whether the Secretary of State will have the power to apply his recommendations to individual cases. I hope not. That would be the wrong way to legislate.

I sympathise greatly with the noble Baroness, Lady Scotland of Asthal. She has been given an impossible task. Theoretically, we are on the way to Royal Assent to this complicated Bill, but I hope that, somehow or another, it may not be passed in this Session. It should be thought out again and reconsidered in the next Session.

Lord Mayhew of Twysden

My Lords, one always tries to be charitable on such occasions, but the best that I can do is to call the proposals half-baked.

We are told that the Magistrates' Association opposes the proposals. I can see why. It would be helpful to be told what it said in response to the consultation. I cannot remember, but I imagine that the magistrates objected to being treated as tax collectors for the Government, who would be able thereafter to apply to matters outside the purview of magistrates the product of the so-called surcharge. Why is it called a surcharge? Why is it not called a penalty? That is what it is. What is it a surcharge on? It is a surcharge on a penalty that the magistrate thinks it right to impose.

I thought that those of us who took an interest in penal matters were agreed that custody should be avoided if other penalties were available and that financial penalties should be assessed according, in part, to the means of the offender. We all know how keenly the public feel that punishments should be appropriately severe, though not inappropriately severe. If, in a particular case, a court—any court—decides to respond to the offender's guilt by imposing a fine, it will do so by reference to his means and his ability to pay. We do not know what the Secretary of State will, by order, fix as the level of the surcharge. Presumably, it will be significant. The consequence will be that magistrates will reduce the amount of fines, to take account of the additional liability to pay the surcharge. If that is so, there will be a great deal of dissatisfaction among people who say that the fine is insufficient. Should not the Government better think about all that again?

Baroness Walmsley

My Lords, the Home Office must have a very large and dusty box of Christmas baubles in its attic. It seems to raid that box very frequently and hang them on any unsuspecting passing Bill. These amendments fall within that category. So disconnected is the issue of these surcharges from the substance of the original Bill that I notice that the Government have had to introduce Amendment No. 101 to change the Title of the Bill.

Turning now to the substance of these amendments, while we support the Government's wish to provide more adequately for Victim Support and commend the work of the Victim Support organisations, we have our reservations about the detail of the proposals to surcharge, in particular, motorists convicted of speeding. We do not, however, support any campaign against speed cameras in general. They have an important role to play in road safety as long as there is sound evidence for the location of their deployment.

We are concerned, first, that when the Home Secretary first proposed this measure, he suggested that the victim fund would be paid for by the mugger and not by the motorist. Then, lo and behold, we find a proposal introduced in another place to surcharge the motorist. When challenged on that by my honourable friend the Member for Somerton and Frome in another place, the Minister, Paul Goggins, claimed that it would apply only to serious or persistent offenders.

Now I come to our second concern, which is clearly shared by many other Members of your Lordships' House. Mr Goggins's definition of a persistent offender is someone who already has some points on his licence. That might be for an infringement of a very minor kind, as described by other noble Lords, or perhaps an infringement of a speed limit that occurred two years and 11 months ago. Indeed, it is quite possible for someone to commit two offences of that kind within 50 yards of road if he is caught on two cameras in the same journey. In my view, that does not make him a persistent offender. One of the proposed amendments would give the court a certain amount of discretion that might deal with anomalies of that kind.

My honourable friend suggested that a more appropriate definition of someone who should be surcharged would be someone who had been disqualified from driving for a serious or a series of motoring offences. Sadly, as the Minister has confirmed again today, the Government do not agree.

On these Benches, we believe that it is important to have public support for the law. Since about 1.5 million endorsable speeding offences occur every year, I fear that this measure will only reinforce the public's view that the Government see speed cameras more as a convenient cash cow than as a serious attempt to improve road safety. That would be a great pity. Cannot the Minister give us any comfort about the definition of those to whom these surcharges would apply?

Another thing that worries me is the link between the amount of support available for victims and how law-abiding motorists are. I certainly echo the concern of the noble Baroness, Lady Anelay, in that respect. The public prefer to see a link between the punishment and the crime. I also echo the words of the noble Lord, Lord Carlisle, on that matter. He had it absolutely right.

We do not support the Government's amendment. We support many of the amendments that have been put down to try to neutralise some of the effects of them.

Lord Donaldson of Lymington

My Lords, unlike any speaker in the House on this topic, including the Minister, I have an interest to declare. I have paid a fixed penalty within the past three years for speeding. I am very aggrieved about that, but that is beside the point.

First, I want totally to support everything that the noble Lord, Lord Carlisle, said. It is a very startling innovation that is really outside the scope of the Bill. Well, it would be outside the scope of the Bill but for the change in the Long Title, which is remarkable in itself.

I turn now to the suggestion that magistrates will reduce the fine to take account of the surcharge. We are not dealing with the gaming Bill at the moment, but I would take a small bet that they will, notwithstanding that in new subsection (4A) at the top of page 5, they are told that they cannot do that. Of course, it would be quite impossible to prove whether they have or have not. In the interests of justice, as they see it—probably rightly see it—I fancy that they will.

The objection here is one that I have had to the Home Secretary's activities over quite a long period of time; namely, that he wishes to take away the discretion of the court at all levels to decide the appropriate penalty. He has introduced minimum sentences for other offences, subject to some slight get-out clause. Now he will do the same here.

It may be said that a surcharge is not the same as a penalty, but it certainly is from the point of view of the repeat offender, as I fear I may become before I get to the end of the three years.

Baroness Scotland of Asthal

My Lords, I hope to reassure the noble and learned Lord that even if he were to become a repeat offender, which I am sure he will not because of the salutary effect of having received his penalty already, the penalty that will be imposed on him is likely to be within his ability to pay.

Perhaps I may straight away tell noble Lords the sort of figures that we have in mind. For fixed penalty notices, including penalty notices for disorder, up to £80, the proposed surcharge level is between £5 and £10. For a fixed penalty notice, including penalty notices of disorder, which are imposed between £81 and £200, the proposed surcharge is £10. For a fine of up to £1,000, the proposed surcharge is £15. For all community penalties and fines of more than £1,000, the proposed surcharge is £30. The surcharge is £30 for a custodial sentence that is suspended. It is also £30 for an immediate custodial sentence. Noble Lords will see that the amounts that we propose are of a relatively modest nature.

I hope that noble Lords will understand that we have tried in recent years to ensure that the victim is put very much at the heart of those proceedings. The victim has often felt—certainly this is something that a number of victims' organisations have told me—very much the "forgotten guest at the feast", the unregarded. We would very much like to change that. Huge amounts of effort and money are currently going into victim services. I am not just talking about the increase from £10.7 million to £30 million that is given to Victim Support.

In all, the Government, I believe, spend in excess of £600 million on various different services for the benefit of victims. But there is clearly much more that can be done. I have said already that we do not believe that road traffic offences are victimless crimes. I very much welcome the comments made by the noble Baroness, Lady Anelay, in support of that sentiment.

The best way of avoiding victims would be of course for civil obedience to break out. No surcharges would be payable because no one will have committed any offences. If that were to happen, I can assure noble Lords that no one would be happier than the Government. We would not have victims; we would not have those who were adversely affected; and we would not have to try to care for them in the way that we now do because they would not have so suffered.

Lord Carlisle of Bucklow

My Lords, how is a person mugged in the street the victim of a motorist speeding in another part of the country rather than the victim of the person who committed the mugging, or the victim of the society which failed to protect him from attack?

7.30 p.m.

Baroness Scotland of Asthal

My Lords, the victims' fund will be for everyone and we are refusing to exclude road traffic offences from that list. It is absolutely right to remember that if any other group of offences was causing the death of 3,400 people a year, there would be uproar about it. If any other group of offences involved injury to 36,000 people a year, there would be uproar about it. The fact that this is happening on our roads does not excuse the enormity of the pain caused by motoring offences.

Lord Carlisle of Bucklow

My Lords, I was not for a moment suggesting that there are no victims of road accidents; of course there are. However, what I sought to ask is why is someone mugged in Edinburgh more the victim of someone speeding in Scarborough than the victim of society as a whole, which should protect him?

Baroness Scotland of Asthal

My Lords, society, through moneys already made available through the taxpayer, already plays its part. But what we are saying is that it should not be the taxpayer alone who makes this payment; each perpetrator of an offence should also make a contribution to a fund which will be set up and made available to various organisations which will be able to apply to it. That is similar to the way we have used recovered assets. For example, many noble Lords will know that recently we received around £4 million that will be used principally to set up sexual assault referral centres to which various bodies will be able to apply for funds. So it will be possible for various associations and organisations to apply to the victims' fund for support.

Those organisations will represent all sorts of victims: victims of road traffic offences, of sexual assault, of theft and of all kinds of other crime. Through their various organisations, victims will be able to access the fund. Equally, all sorts of perpetrators of all sorts of criminal offences will be asked to make a contribution.

Noble Lords may know that this arrangement has been used to great effect in many other countries around the world. It has succeeded in delivering the enhancement of high quality services for victims in need. We seek to do something similar.

The noble Baroness, Lady Anelay, asked what would happen in the case of multiple offences. The scenario that we envisage is this. Where a person is convicted of several offences at the same time, we would want the surcharge to be levied on the punishment for the most serious of those offences. I have already indicated that the level of the surcharge will be dependent on the level of the punishment. For example, a fine of up to £1,000 would attract a surcharge of £15, while a fine of £1,000 would attract a surcharge of £30.

In response to the point raised by the noble Lord, Lord Carlisle, I also made clear when I sought to outline how this is to work that it will be open to the court, if it felt that the fine as well as the surcharge could not be paid, for it to say that, if necessary, the surcharge could be reduced to nil. So it is not a case of saying that the fine may be improperly depressed or reduced because of the payment of the surcharge. A level of flexibility will be provided.

It is also wrong of the noble and learned Lord, Lord Donaldson, to fear that this is another removal of discretion. We have very much taken on board the fact that the courts would have real difficulty in setting individual surcharges. We have enabled the courts to make the charge quickly and effectively, and without any administrative or other difficulty. We think that we have provided sufficient flexibility for that.

The noble Baroness, Lady Walmsley, commented that this would be a raid on the Christmas box. Perhaps I may assure her that it is not. This is something that will very much inure to the benefit of victims and therefore, contrary to what was suggested by the noble Lord, Lord Carlisle, it is directly related to the Bill because this measure is concerned with domestic violence, crime and the victims of crime. We have created the Commissioner for Victims and Witnesses, who I am sure will be very anxious to monitor how we deal with this.

We say that this penalty is not being improperly imposed. It is not unusual for a sentence to include more than two elements. While it may be unusual in practice, there is nothing here which goes contrary to principle. Someone can receive a term of imprisonment along with a demand for a payment along the lines of this surcharge.

I accept that noble Lords would have preferred to have debated these matters earlier, and of course I take on board all the concerns and criticism in that regard. But we are where we are, and we believe that this will make a material and advantageous improvement to the ability not only to assist victims, but also—it is hoped—to underscore to those who do participate in committing offences that there is a cost attached, and that they will have to discharge their responsibilities. I hope that it will serve as a good reminder to people who have to pay the surcharge. Although they may think that they have committed a victimless crime, the surcharge will indicate that they have not. This small payment may serve as an appropriate reminder.

Lord Mayhew of Twysden

My Lords, I was hoping to hear an answer to a point I endeavoured to raise about magistrates reducing a fine they consider it appropriate to impose in order to permit the surcharge to be paid. The noble and learned Lord, Lord Donaldson, said that Section 164(4A) would deal with that, but in practice magistrates would do just what I have outlined if the justice of the case required it. Indeed, the whole wording of new subsection (4A) makes it clear that they are entitled to do that by stating, a court must not reduce the amount of a fine on account of any surcharge it orders the offender to pay … except to the extent that he has insufficient means to pay both". That states in terms that they may do that.

I hope to hear an answer to this, because the only response that I have heard seemed to be along the lines that it is a small payment, given that I think I am right in saying that the surcharge will be only £15 for a fine of up to £1,000. However, surely the next thing that will happen is this: enthusiasts of victim support services will say, "Look at this. The surcharge is a tiny proportion of the total fine. You must increase it, Secretary of State. You have the power to do so". As my noble friend beside me pointed out, income tax began at sixpence in the pound, and we know all about the rate of progression of these devices. I hope that the Minister will respond to that point.

Baroness Scotland of Asthal

My Lords, even if I did not specifically refer to the noble and learned Lord, Lord Mayhew, by name, I believe that I answered the point by saying that the surcharge would not operate so as to reduce the level of the fine. The discretion is provided so that if the court is of the view that the level of the fine would be improperly depressed because of the inability of the defendant to pay both the fine and the surcharge, it would be open to the court, if it so desired, to reduce the surcharge—to nil, if that was necessary. I had hoped that I made that clear. Knowing how the noble and learned Lord usually attends to these matters, clearly I did not.

Baroness Anelay of St Johns

My Lords, as ever I am grateful to the noble Baroness for her answers. We have scratched the surface at this late stage of the Bill, but we have done no more than that. My noble friend Lord Carlisle of Bucklow started us on the right line when he said that what we really should be looking at is the principle behind this arrangement. When we start to look at that principle, I think that we have to agree with the judgment of my noble and learned friend Lord Mayhew of Twysden, that this is a half-baked measure. Unfortunately, it is a half-baked measure presented so late in the day that we shall not be able to take the ingredients out and start all over again. I wish that the Government felt able to do that.

I agree with the noble and learned Lord, Lord Donaldson, that this is one more piece of evidence to show that the Government are moving away from using the discretion exercised by judges towards trying to impose a straitjacket, in this case taking the form of surcharges. The fact that the noble Baroness says that the amount of the surcharge may be sufficient for the noble and learned Lord to pay if he is so unlucky as to be caught by another speed camera is not the point. We are talking about the imposition of a surcharge on everyone for which there is as yet no fettering on the Government; it is an amount that could be raised at any time in the future.

The half-baked aspect of this came out when the noble Baroness was striving to persuade us about the principle behind it; about where the money would go and why. She started by saying that it would be nice if there was an outbreak of civil obedience because then there would be no surcharge because there would be no victims. However, the whole tenor of her argument is that if there were no road traffic victims, there would still have to be a surcharge because road traffic offenders would be paying for everyone else. Even if there were complete civil obedience and no one ever broke a road traffic direction ever again, penalties would still be imposed by the Government if they needed to pay for other victims.

Although it is an illogical and half-baked proposal, I shall certainly not be able to sort it out at this late stage. It merely goes to prove that in future we need to be sure that when the Government start a Bill they put into it at the very beginning the proposals that they hope to see at the end; that they do not put them into the Bill as though it was a skip passing in front of the House into which they can throw the goods they wish to see in it.

It is not a satisfactory position. People who consider themselves to be honest drivers will find themselves called "serious and persistent offenders" for the first time in their lives when perhaps they have once in a three-year period exceeded the speed limit at a modest level. I hope that they never do so, but it is an extraordinary title to apply to such people. I beg leave to withdraw the amendment.

Amendment No. 8A, as an amendment to Commons Amendment No. 8, by leave, withdrawn.

[Amendments Nos. 8B and 8E, as amendments to Commons Amendment No. 8, not moved.]

On Question, Motion agreed to.