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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.

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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 D1 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.

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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

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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.

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