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Lord Thomas of Gresford: I must challenge the rhetoric of the offender dictating the sentence to the court. In my experience, that never happens. An offender is faced with a number of possible methods of disposal. One method of disposal would be a community-based sentence. If a court were minded to pass a community-based sentence, the reaction of the defendant and his family is not one of smug satisfaction but of gratitude that they have been allowed to escape a more serious future.
Whoever thought of the rhetorical phrase of the defendant dictating the sentence to the court cannot have been in a proper court and cannot begin to appreciate the dynamics of the situation. The sentencer who has the power to dispose of the individual before him, and the attitude of the defendant awaiting his fate, are completely opposite to the concept of dictating the sentence. I support my noble friend Lord Mar and Kellie.
The Earl of Mar and Kellie: I still wonder why the clause was put into the Bill. It creates nothing new. It changes a provision which has been operating. Whenever a probation officer, or in Scotland a criminal justice social worker, prepares a report for the court recommending probation with a condition such as community service, if he could not state that the subject of the report expresses his or her willingness to comply there would be no basis for making that recommendation.
I accept that the offender may not understand exactly what has been said to him or her in court when the community sentence was passed. But one of the first tasks at the beginning of a probation order is to serve the order and to go through what it says. It states that the court accepts that the offender committed the
offences and on being informed by the court that a probation order will be made the defendant gives his consent. I believe that the probation order document will have to be changed. I do not have such a form with me; nor do I expect the Minister to have one. Perhaps we can resolve the issue by letter afterwards. But not to have consent renders the offender liable to further punishment. I find that difficult.However, I have listened to Members of the Committee. A number agreed with me. Some disagreed in varying degrees. However, I shall not press the issue.
Lord Thomas of Gresford moved Amendment No. 99A:
The noble Lord said: The amendment deals with the proportionality of the sentence of disqualification from holding or obtaining a driving licence under the proposed section. I shall deal with the desirability of driving disqualifications in the course of discussion on the next amendment.
However, in sentences which involve custody, community sentences and fines, provisions in legislation require proportionality; that is, that the degree of punishment inflicted should be appropriate to the seriousness of the offence. For example, Section 1 of the Criminal Justice Act 1991 provides that the main criterion for passing a custodial sentence is that,
It is the formula which judges will always pronounce at the beginning of sentencing a person to a term of imprisonment. Under Section 2 of the same Act, the length of the custodial sentence must normally be,
Section 6 provides that the restrictions on liberty imposed by community sentences must be commensurate with the seriousness of the offence. Section 18 of the same Act provides that the amount of the fine shall be such as in the opinion of the court reflects the seriousness of the offence.
If, in relation to each of those methods of disposal (punishment) the court is enjoined to consider before passing such sentences the proportionality of the sentence--what is appropriate to the seriousness of the offence--why should that not happen with driving disqualification in non-motoring cases?
Both the Magistrates' Association and the Justices' Clerks' Society have expressed concern that the use of driving disqualification in non-motoring cases could involve a degree of punishment that is disproportionate to the offence. The most obvious example is that of a person who relies on his motor vehicle in order to get to work or to carry out his particular livelihood. The result to him of a driving disqualification could be the
The Magistrates' Association has urged statutory guidance, stipulating that disqualification should be used only for offences which are serious enough to qualify for a community sentence. The purpose of this amendment is to introduce that standard approach to sentencing into the proposed new order on driving disqualification for non-motoring offences. I beg to move.
The Earl of Mar and Kellie: I support my noble friend's amendment. I am concerned about the indiscriminate use of this new community sentence. I am not against new community sentences as such, nor necessarily against this particular one. However, I hope that it will be piloted and evaluated properly.
The scheme allows for the use of a driving ban for non-motoring offences. Sentencers will need to be very clear about the effect that such a scheme will have. If, for example, it would lead to a loss of livelihood, it should be applied only in extreme circumstances--if indeed there are circumstances in which the punishment should be that the offender should lose his job. As that clearly does happen when someone is imprisoned, this driving ban would be appropriate for an imprisonable offence for someone who needs the car at work. However, in the case of the recreational driver, the driving ban would have substantially less effect and could be used for much less serious offences.
My main concern about the new sentences relates to the effects of non-compliance. The prospect of the driving ban being ignored and yet another uninsured driver being on the road suggests that a full social background report will be required prior to the passing of this type of sentence. This amendment would probably ensure that.
Baroness Blatch: I do not disagree in principle with the intention behind the amendment. However, I believe that the amendment itself is unnecessary. The general principles of sentencing that apply to all sentences will ensure that these aims are met without a specific statutory requirement.
The fundamental principle of sentencing is that the punishment should fit the crime. In determining what sentence to impose for an offence, the judge or magistrate must consider the nature of the offence, its seriousness or otherwise and any aggravating or mitigating circumstances. The sentence must also always be appropriate to the particular circumstances of the offender as well as the circumstances of the offence.
It follows therefore that, in deciding to impose disqualification from driving for an offence and in deciding how long the period of disqualification will be, a court will consider the degree of punishment involved and will decide on a sentence that it believes is appropriate to the seriousness of the offence. The new subsection which this amendment would insert is unnecessary.
The noble Lord, Lord Thomas of Gresford, referred to the seriousness of the offence in relation to disqualification. It may be that some guidance for sentencers will be required in imposing disqualification for non-driving offences and it will be open to the Magistrates' Association and the senior judiciary to develop such guidance. That is not a matter for the Government but we certainly believe that, as this would be a new disposal for the courts in this context, guidance would indeed be appropriate.
Again there is nothing between us. I believe that what I said is commensurate with what is contained in the amendment. I shall read Hansard carefully following our deliberations today but, from where I stand and from what I have seen of the amendment, I believe that it is unnecessary.
Lord Hylton: As this is a completely new type of penalty which in theory could be applied to a wide range of offences, it is important to have a provision such as that contained in the amendment on the face of the Bill so that those who have to apply this penalty can find all the information in one place.
Baroness Blatch: In order to make a disposal in court, a sentencer would need to have all the information in place before deciding what the sentence should be. We come back to the pre-sentence reports. The court would have all the information that was presented to it in the course of the hearing of the case and could call for whatever reports it felt appropriate, such as reports from medical people or probation officers. Only with all the information which it believed it needed in order to make a disposal could the court then apply a sentence.
We are adding this sentence for the court's disposal in a new context. As the noble Lord knows, until now it has been driving-related or car-related offences for which this disposal has been used. We are simply widening that base. The principle of courts making penalties fit the crime is not compromised at all by what is proposed.
Page 26, line 13, at end insert--
("( ) Where a court orders a person to be disqualified from holding or obtaining a driving licence under this section, the degree of punishment inflicted by the order, or by the combination of the order and any other order or orders made in respect of the offence, shall be such as in the opinion of the court are commensurate with the seriousness of the offence.").
"the offence ... was so serious that only such a sentence can be justified".
"commensurate with the seriousness of the offence".
9.30 p.m.
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