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The Parliamentary Under-Secretary of State for the Home Department (Fiona Mactaggart): I join other hon. Members in congratulating the hon. Member for Ribble Valley (Mr. Evans) on raising this important subject in the Chamber. The Government are determined to deal effectively with the menace that drugs cause in our community.

The right hon. Member for Bromley and Chislehurst (Mr. Forth) asked why people were, or were not, here this morning. It seems to me that the Bill's provisions are largely dealt with by existing legislation or can be dealt with in other ways, so hon. Members might be absent because, like me, they do not think that the Bill would
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necessarily move us forward. However, the discussion and unanimity of concern among Members about the harm caused by drugs and our determination to tackle that harm might help us to make progress.

Let me explain why the proposals in the Bill are unnecessary and would not be effective. At first sight, the mandatory sentencing provisions might seem superficially attractive, but I am afraid that consideration shows them to be flawed and redundant. Section 110 of Powers of the Criminal Courts (Sentencing) Act 2000 already requires a court to impose a custodial sentence of at least seven years where a person is convicted of a class A drug trafficking offence—including the offence of supply of a class A drug—that was committed after 30 September 1997. The date is important because of the principle of not imposing a retroactive penalty. If we believe that sentencing provisions have a deterrent effect, it is important that we do not create retroactive penalties.

If, at the time the offence was committed, under the existing Act, the offender was aged 18 or over and had been convicted in the United Kingdom of two other class A drug trafficking offences, one of which was committed after he had been convicted of the other, the court may impose another sentence—that is, one of less than seven years—if it is of the opinion that there are particular circumstances that relate to any of the offences or to the offender that would make it unjust to apply a custodial sentence of at least seven years in all circumstances.

The provisions in clauses 1 and 2 are inappropriate because they remove the discretion of the courts to impose less than the mandatory minimum sentence for a third section 4(3) offence. We believe that the courts must be given discretion to allow for particular mitigating circumstances in those cases where a seven-year sentence might not be appropriate. Examples include cases where there has been coercion or intimidation, where addicts are dealing very small amounts to fund their habit, or where schoolchildren are passing on drugs to their friends. In such circumstances, it is important that while Parliament sets a clear framework, we allow, where mitigating circumstances absolutely exist in a particular case, the judiciary to take those into account.

Mr. Evans: Is not the Under-Secretary staggered by the low level of such cases where the minimum sentence is given? What does she put that down to? There have been a mere half a dozen since 2000.

Fiona Mactaggart: The figures have not been collected for very long and because of the date timing, there is an impact on the number. I do not know the answer; I have asked officials to try to find out the background to the cases but it looks like we do not have that information. In fact, we are trying to remove from the courts and the police the burden of providing vast amounts of information to the Home Office. That said, I do not think that there is evidence to suggest that the courts have used in a cavalier manner the discretion—indeed, it is quite a narrow one—available to them under the Act.
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The hon. Gentleman is right to say that not many mandatory minimum sentences seem to have been passed by the courts, but I am confident that the courts would not cavalierly reject the mandatory minimum sentence; actually, they do not have that power and must take into account specific circumstances. That may suggest that what he fears is not happening. I hope that that is the case, but we must drill down further.

In most respects, I have great confidence in the judiciary, although there will be moments of disagreement, inevitably. But I do not think that where Parliament clearly sets out a minimum sentence framework and allows the courts some element of discretion, they would be inclined to discard the framework established by Parliament. Were the courts to do so, my right hon. and learned Friend the Solicitor-General and my noble Friend the Attorney-General have the power to take the accused to court to overturn an unnecessarily lenient sentence. The hon. Gentleman will have seen my right hon. and learned Friend on the Bench beside me and we were discussing that particular point. She said clearly that she and the Attorney-General were very eager to use that power, were there to be inappropriately lenient sentences for drug dealers.

A mandatory prison sentence for a person aged 17 or under for dealing for a profit is unnecessary and unworkable. It removes discretion from the courts and cuts across the role of the Sentencing Guidelines Council. Courts already have the discretion to take into account, as an aggravating factor when considering the seriousness of an offence, the deliberate targeting of vulnerable victims. Let us be clear; "vulnerable victims" includes those under 17. A victim is the child to whom drugs are sold. There is no doubt that children are covered by that offence, as is made clear by the guidelines issued by the Sentencing Guidelines Council in December 2004 regarding the overarching principles to be followed when deciding the seriousness of offences.

Every court must have regard to the guidelines that the Sentencing Guidelines Council issue on the principles of sentencing, including aggravating and mitigating circumstances. That is in its work programme for 2005. Parliament will have the opportunity to comment on that draft guidance before it is published, so there will be a further opportunity to toughen up the impact of sentencing guidance for crimes in which children are victims.

A child who purchases from a dealer is a victim of a criminal offence, as well as being involved in an offence. I am confident that the courts will accept that and that the sentencing guidelines will provide an opportunity effectively to achieve the hon. Gentleman's ambition, which I share, that when a child is the victim of a dealer that should be taken into account when sentencing the dealer. Removing the courts' discretion when sentencing in the sort of cases envisaged in the Bill could mean that a dealer who deals only on a small scale to fund his habit and not for profit, and who may not be much younger than the victim, could automatically end up in prison when a non-custodial sentence involving treatment for drug misuse and reparation activity might be more appropriate. For example, the community order in the Criminal Justice Act 2003 provides the courts with a tough and flexible non-custodial sentence, which may be appropriate in some cases. It will enable the courts to construct a bespoke community penalty tailored to the offender and the offence.
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The range of options that will become available from April this year includes participation in a specified activity—for example, to make reparation—and programmes aimed at changing the offending behaviour. The hon. Gentleman referred to the importance of such programmes in prisons, but they can also be used as part of a non-custodial sentence within the new sentencing framework. They can be a mandatory part of the framework and include curfews, exclusion from certain areas—that is often relevant with such offences—residence requirements, drug rehabilitation, including treatment and testing, and supervision. In some cases, such a sentence may be more effective. The hon. Gentleman and the Government share the ambition to find sentences that are effective in reducing drug dealing and misuse, and such a sentence may be more effective than that proposed by the hon. Gentleman.

In the Drugs Bill, the Government are introducing measures to protect young people and further close the loopholes open to dealers. It will make dealing by someone over the age of 18 on or in the vicinity of school premises, when they are in use by young people, an aggravating factor that the court will have to take into account when considering the seriousness of the offence of supply. The hon. Member for Chesham and Amersham (Mrs. Gillan) argued for an amendment referring to the hours when the offence should be applicable. She knows that the purpose of the aggravating offence is to protect young people. To make dealing in the vicinity of a school at 2 am in the morning an aggravating offence would not achieve the ambition that the offence is designed to achieve. That is why we limited the hours during which the offence is available.

Mrs. Gillan: The hon. Lady is poorly briefed because the Drugs Bill provides that the offence occurs only within one hour of the school being used as a place of education for young people. If the school shuts down at 7 o'clock in the evening, the aggravated offence would not apply as early as five past 8. Surely she can see that it would have been much simpler to make the offence an aggravated offence if it occurred in or around a school at any time, without the rider referring to the timing of the usage of the school, which will be a gift to defence lawyers.

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