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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.

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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Amendment, by leave, withdrawn.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[Amendments Nos. 160BD to 160BF had been withdrawn from the Marshalled List.]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[Amendment No. 160BG had been withdrawn from the Marshalled List.]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[Amendment No. 160BJ had been withdrawn from the Marshalled List.]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

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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.

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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

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police methods and the fairness of the trial process be taken into account in such a case? With some relief, I beg to move.

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