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Baroness Stern: I support all the amendments which propose that previous convictions should be taken into account at the discretion of the court, but should not be considered as an aggravating factor which must be taken into account when sentencing. The noble Lord, Lord Goodhart, and the noble Baroness, Lady Anelay,

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have expressed the arguments well on why discretion should be retained. In jurisdictions where previous convictions are regarded as an aggravating factor—and I made this point at considerable length at Second Reading—many people are in prison for minor offences. When one tries to discover why people who have committed minor offences are serving such long sentences, the answer is, "They have done it before. They steal from the market very often".

The path that we are taking regarding previous convictions as an aggravating factor is a path to injustice and disproportion in punishing people not for what they have done but for being a bad person, a feckless person, a person who does not conform. For that reason, I support the amendment.

6.30 p.m.

Earl Russell: I believe I owe an apology to the Committee for contributing to the debate so soon after my arrival. I apologise for my earlier absence from the proceedings. However, in the minutes since I arrived in the Chamber, and even more so on reading the Bill with some care before I came in, I have had an uncomfortable sense of deja vu. I suddenly feel that I am back in the first Bill in which I took part—the Education Reform Bill 1988, which was the beginning of the assault on the autonomy of the universities. There was a continual pile-up of verbiage, demanding that we justified, explained and rationalised and that we gave the latest subsection and sub-paragraph on everything we had done. It stopped there for a while but not for long.

I believe that the problem behind this issue is the Whitehall fetish for accountability. I can understand perfectly well why Whitehall becomes worried about accountability—after all, people try to hold them accountable for all sorts of things. In the words of Pope Gregory VII to William the Conqueror, which I believe puts the basic point more clearly than anyone since has ever done:

    "As I have to answer for you at the awful day of judgment, ought you, can you refuse obedience to me?".

That is the voice of Whitehall in all centuries. It changes very little.

However, the point is that Ministers are not answerable for the actions of the judiciary. That is a very big difference. I believe that in the course of piling up this verbiage, we are in danger of forgetting that distinction. I know that the Daily Mail has never even known it, but one can speak truth occasionally, even to the Daily Mail. I know: I have tried. And once in a blue moon it is even correctly reported.

I believe the idea that Ministers are answerable for the actions of the judiciary is one of such very great danger that we cannot encourage it, no matter what the papers say. Therefore, I hope that some of this verbiage can be dispensed with because we are standing at the top of a slope which, I have learnt from experience, is very slippery indeed.

Baroness Scotland of Asthal: None of us could greet the intervention of the noble Earl, Lord Russell, with

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anything other than acute pleasure. I wish to reassure him that I do not believe we are standing at the top of a slippery slope; we are trying to bring a certain degree of consistency to what we have.

Earl Russell: The Minister said that we are not standing at the top of a slippery slope but endeavouring to bring a degree of consistency. That is the slippery slope.

Baroness Scotland of Asthal: Then I pray forgiveness because those of us who like consistency, equity and parity are therefore always standing at the top of a slippery slope.

I want to put Clauses 135 and 136 into context. Clause 135 deals explicitly with how the court should determine the seriousness of an offence and it sets out a number of factors which it must consider in doing so. The surrounding circumstances of the offence are relevant when considering, for example, whether there are any aggravating or mitigating factors but not when considering how serious the offence is. We do not wish to include some of the amendments because we believe that the current drafting of,

    "any harm which the offence caused",

already suggests that the court can consider harm caused to the victim, the public or anyone else, and we do not need explicitly to spell that out. I know that the noble Baroness asked about the words "any harm", and I hope that that gives her the clarification that she seeks.

I turn out of sequence to address the issue raised by the noble Baroness, Lady Stern. She rightly pointed out the difficulty when proportionality goes out of the window in sentencing. Nothing in the Bill should be misconstrued to suggest that we wish to have disproportionate sentences. However, it is important that previous convictions are taken into account and that they are capable of forming an aggravating feature. The noble Baroness will know that the courts would equally have to take into account other mitigating features in order to balance the issues before them and to ensure that justice was done in any given case.

I shall preface my remarks on the amendments by answering the comment of the noble Baroness, Lady Anelay, on treating each previous conviction as an aggravating factor. We do not consider it appropriate to include a caution in the requirement imposed on the court under Clause 136(2). But requiring the court to treat a previous conviction in a particular way does not of itself prevent the court taking a previous caution into consideration as part of the overall sentencing exercise.

I shall take each of the amendments in turn. We do not want to widen the clause, as Amendment No. 160BP proposes, so that cautions, as well as previous convictions, count as aggravating factors. That is a policy decision that we have made. That is the case, first, because, if an offender has simply been cautioned in the past and not convicted and sentenced

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for an offence, it would be unfair for that caution to act as an aggravating factor in a future sentencing decision.

Secondly, if we did include cautions, that could have the potential of leading to a huge and perhaps unnecessary increase in sentencing severity. Of course, we take into account that in the way that we are now refashioning cautions, we are trying to make every intervention count, and those factors will form part of the circumstances that the court will take into consideration. Therefore, for example, if a person is given a caution and undergoes rehabilitation, drug treatment or something of that kind, the court will want to know about those circumstances. Particularly if cautions are to be used early on, we want people to grasp the opportunity for change and to change their behaviour if they are able, with the help of the court, to do so.

Therefore, we made a clear policy decision to move away from the current position where the court is simply required to "take into account" any previous convictions to the position set out in this clause where recent and relevant previous convictions must be treated as aggravating factors. Persistent offenders must know that they will be dealt with progressively more severely each time they offend. As I said, that does not mean that wildly disproportionate sentences will be the result. Sentencers will of course operate within the principles laid down further on in the Bill. Those dictate that the severity of the resulting sentence should reflect the seriousness of the current offence committed by the defendant. This clause simply modifies the proportionality principle so that previous, relevant offences can act as an aggravating factor.

We also do not consider that Amendment No. 160BK adds to the effect of this clause. The clause concerns how the court should determine the seriousness of the offence. The circumstances of the offence are an important factor when considering, for example, whether there are any aggravating or mitigating factors. However, here it is the seriousness of the offence that the court is being required to consider in order to determine what sentence to impose. The sentencing principles set out in the clause are to guide the sentencer in reaching a decision on the seriousness of the offence. If we may respectfully say so, the surrounding circumstances are not relevant to that.

For similar reasons, we do not consider that it would be possible to accept Amendment No. 160BR. Aggravating and mitigating factors which courts already take into account are relevant to the determination of the overall severity of the sentence rather than the seriousness of the offence, which is far more specific. In any case Clause 159 already does the job of providing the court with powers to mitigate sentences.

Amendments Nos. 160BL to 160 BN all attempt to amend the drafting of subsection (1) and to redefine harm caused in ways that we do not think are entirely helpful. The current drafting refers to "any harm" that could already include harm to the victim, to the public or to anyone else connected to the offence as suggested by Amendment No. 160BL. The harm caused could be

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indirect or direct and similarly we do not wish to overcomplicate the drafting by adding this formulation. Nor do we wish to widen the scope, as proposed in Amendment No. 160BJC, so as to include a consideration of any distress as well as harm caused, although of course we accept that "harm" could include psychological harm where that has been caused. We think that that would weaken the impact of the provision.

Neither do we think that inviting the court to consider the circumstances of a conviction secured in a non-UK court is relevant. The fact that the offender has such a conviction is the key fact, regardless of any other circumstances, just as such a consideration of a previous conviction incurred in England or Wales would not be relevant. The key factors are whether the offender has a previous record and how long it is.

I turn to Amendments Nos. 160BNA to 160BSA in the name of the noble Lord, Lord Dholakia, and spoken to today by the noble Lord, Lord Goodhart. They seek either to remove the principle in this clause that recent and relevant previous convictions should act as an aggravating feature in sentencing or to restrict it by inserting criteria that the court must follow when treating previous convictions as an aggravating feature in sentencing.

We would not want to accept any of these amendments because we have been quite clear that we expect persistent offenders to be treated progressively more severely—although that does not necessarily mean through the imposition of custody—in a way that ensures consistency and so that they recognise what the impact of their offending will be. We are clear that this must not result in disproportionate sentences, which is why we have said that only recent and relevant previous convictions should count. So at each stage of the offending behaviour we would hope that the sentencer has an opportunity not only to punish the defendant but also to seek to interrupt his or her offending behaviour. They can consider which method of sentencing is more likely to do that.

In effect, we are introducing, as I said earlier, a modified version of the proportionality principle. It will be up to the Sentencing Guidelines Council to set out in guidelines the extent to which severity of sentence could increase in relation to the kind of previous convictions and the nature of the current offence. We would not want to set out any restrictive criteria in statute; it will be up to the Sentencing Guidelines Council to spell out the effect of the principle. All the sentencing principles set out in this chapter that replace those in the Powers of Criminal Courts (Sentencing) Act, apply to juveniles and we do not want to change that either.

I hope that I have explained the framework into which this sits. Noble Lords will not have found me guilty of verbiage and will, I hope, better understand that which we seek to do.

6.45 p.m.

Baroness Anelay of St Johns: I am grateful to the Minister for her clarification. My amendments were probing amendments to achieve that end. I assure my

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noble friend Lord Renton that I have no intention of pressing any of these amendments. I always bear in mind his direction to the Committee in general, and I am sure to me in particular, that one should never have more words in a Bill than are strictly necessary. So I certainly would not dream of seeking to add to the Bill all these amendments to which I have spoken. However, they have elicited the response for which I had hoped from the Minister.

My noble friend Lord Renton was particularly concerned about my probing Amendment No. 160BP which referred to the inclusion of cautions within those matters that the courts should take into account as aggravating factors. I am glad to have elicited such a clear response from the Minister that there is a policy decision on cautions that they should not form part of the aggravating factors. I am prepared to accept that.

I am interested in the points that my noble friend Lord Renton raised about a caution being administered. Although it involves someone admitting that he or she has committed an offence, that person may admit an offence merely to get the matter out of the way and to move on. My noble friend has highlighted an important matter. As all noble Lords who have witnessed or taken part in cases in courts will know, not only when someone faces a caution but also when someone faces the imposition of a sentence, that person may admit the offence which they have not committed because they want the matter out of the way. Sometimes that comes to light early in proceedings. When I was a magistrate on more than one occasion I heard people say, "I didn't do it, but I can't afford to take more days off work; the witness did not turn up yesterday; I'm here again today; I can't come another day; I'll plead guilty and let's get it out of the way". The court immediately has to say, "Stop, we cannot take this case; if you are not guilty we cannot hear it".

Of great concern to us all is those people who do not make such a statement out loud and who, therefore, may have a conviction on their record of which they were not actually guilty. It behoves all of us to consider how to get round that and how we shall get across the message of what is in the Bill for people in the future so that they do not fall foul of some of the provisions in these clauses that may mean that when they subsequently commit an offence they find that a previous conviction—something that they did not do—suddenly wallops them on the head and results in them receiving a stiffer sentence.

I believe that it was vital that the noble Lord, Lord Goodhart, said what he did, referring to the need to debate the appropriate role of previous convictions in general. That did not happen in another place but it is right that it should happen here. The noble Lord, Lord Borrie, pointed us in an important direction in regard to this clause—subsection (3), relating to the scenario of an offence that is committed when someone is on bail. Before Report stage we need to consider the whole issue of judicial discretion, a

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court's discretion in deciding whether an aggravating factor is taken into account. Here the court is directed that it must take it into account.

Whenever I sat as a sentencer with others in a magistrates' court, and someone had committed an offence while on bail for another offence, of course we considered it a very serious matter indeed. I am not sure that courts need to be directed to do that. It may be that it is perfectly right to express in statute what already happens in practice. We shall have to consider that. As I said the amendments are probing amendments. I am grateful to the Minister for her response and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 160BL to 160BSA not moved.]

Clause 136 agreed to.

Clause 137 [Reduction in sentences for guilty pleas]:

[Amendment No. 160BT not moved.]

Clause 137 agreed to.

Clause 138 [Increase in sentences for racial or religious aggravation]:

[Amendment No. 160C not moved.]

Clause 138 agreed to.

[Amendment No. 161 not moved.]

Clauses 139 and 140 agreed to.

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