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Baroness Scotland of Asthal: Once again, now that I understand the purpose of the amendments tabled by the noble Baroness, I shall seek to give as much clarification as I can. I should perhaps preface that comment by saying that, as the noble Baroness will

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understand, the nature of each case will vary with the number of cases that come before the courts. Therefore, we cannot be entirely prescriptive.

We have already said that many of the areas touched upon by the noble Baroness will be subject to guidelines and guidance given by the sentencing council. I prefaced with those remarks because I do not think that it would be helpful for me to go into incredible detail as to what this offence would and this offence would not do. We are not seeking to usurp the function either of the judiciary determining the case or, indeed, the council when it has had the benefit of listening to what the panel says as to when it should and should not bear this in mind and the kind of considerations that it will have to take into account.

While we appreciate the wish inherent in Amendment Nos. 177G, 177H and 179A, to ensure compliance with licence conditions and suspended sentence requirements through electronic monitoring, we think that removing the discretion of the courts on whether such a condition is either a necessary or proportionate response would lead to monitoring in cases where it is not necessary on the basis of risk. We think that this could not be justified because each case will demand of the judiciary an exercise of discretion as to risk assessment that a particular offender may pose on a whole plethora of bases.

I should also point out that in the conditions set out in Clause 175(3) there is an implied presumption that where the courts believe it is necessary to impose a curfew or an exclusion zone these will be monitored electronically. However, there may well be cases where it is not appropriate or possible electronically to monitor. If so, in the light of Amendment No. 177G, the courts may be deterred from imposing a curfew or exclusion condition. I am sure that that is not what the noble Baroness seeks to secure.

On Amendments Nos. 177H and 179A, it is likely that a substantial proportion of offenders sentenced to custody plus or a suspended sentence will have one or more of the conditions listed in these clauses included in their licence or sentence. However, in many cases, there will be no evidence to suggest that the offender presents a high risk of failing to comply with these conditions. Therefore, if we were electronically to monitor those offenders, regardless of the risks they pose, that would have substantial resource implications and could reasonably be described as a disproportionate response. For those reasons, the amendments are unattractive.

Intermittent custody is a new and radical form of prison sentence. It will be between 26 and 51 weeks long, of which up to 90 days are spent in custody. The custodial days will not be served consecutively as in other prison sentences but in blocks of several days. The offender will be on licence between the custodial blocks and beyond their end until the end of the sentence.

So one can imagine cases in which, for example, if we consider the pattern of offending behaviour, the individual may be prone to drink on a Friday night through to Saturday and Sunday. We may want to interrupt that behaviour to deprive that person of that opportunity, because he seems to be perfectly sober and

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proper between Monday and Friday. That is a way to allow the court to craft something that will have the desired effect—perhaps of denying the person his liberty and giving him an opportunity to consider the nature of his behaviour—but also to protect him by depriving him of an opportunity to behave badly again. Obviously, that may be very useful.

The sentence is also aimed at offenders who have crossed the custodial threshold but who have strong ties with the community, such as employment, education or caring responsibilities. Serving the custodial part of their sentence around those responsibilities should reduce the chance that they will reoffend, as those are all factors associated with reducing offending.

Amendment No. 177J removes an order-making power. That power allows the Secretary of State to make an order specifying that intermittent custody licence periods will consist of a prescribed duration; that they will begin or end at prescribed times of day; or that they should include or not include certain days of the week. Due to intermittent custody being such a new type of sentence, the order is intended to ensure that offenders end up with broadly similar intermittent custody licences. It should prevent offenders serving, for example, custodial blocks that consist of a single day, which would be impossible for the prison and probation services to manage.

The specifications in the order will be drawn up and, if necessary, amended for the optimal functioning of intermittent custody, as evidenced by the two pilot schemes due to be launched in January. We want to learn from those pilot schemes, look to see what works well and identify any difficulties so that before the scheme is applied more generally we shall have a better handle on how they should be crafted.

Amendment No. 177K would restrict the imposition of intermittent custody by excluding certain offences. Intermittent custody is not intended for offenders such as those listed in the amendment. First, at its maximum it is less than 12 months long. Secondly, such offenders would be screened out by the suitability requirement in Clause 177(2)(a). That states that the court may not make an intermittent custody order unless it has consulted an officer of a local probation board.

In practice, intermittent custody would be recommended in a pre-sentence report, following an assessment of the offender's personal circumstances and needs and a risk assessment of the offender's suitability for a punishment with a community element. I am sure that the noble Baroness will appreciate that those risk assessments are infinite in their variety. I have not yet—perhaps she has—ever met two identical offenders. They all seem to have some slight variation that we must take into account.

There may be additional dangers in listing those offences which are excluded from intermittent custody, in that sentencers may assume that it is thus suitable for any other offender, when in fact the decision must be made on a case-by-case basis. It is

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likely that the offences most likely to result in intermittent custody include theft, fraud, forgery and the less serious driving offences. But it may be possible to extend it.

It is interesting that Members of the Committee have expressed strongly a wish for judges to be independent and to have discretion. In all these amendments, I hope that Members of the Committee will see clearly why we think that discretion needs to be left with the sentencer, who will have the flexibility to do that which will best suit the needs of the victim, the justice of the case and the defendant in terms of his reformation and punishment. Our framework allows judges and sentencers to do just that.

Baroness Anelay of St Johns: I am grateful to the Minister for her careful response. I was trying to tease out a little more information about the Government's approach to the basis on which intermittent custody might be appropriate. She rightly responded that the Opposition want the judiciary to have discretion so the Government are giving it discretion. My response is that, as ever, I agree entirely with the idea of judicial discretion and, in particular, that the sentencer needs flexibility to impose the right solution for each particular person and offence.

I shall return to a debate that we had before the dinner break—that can happen only when the resources are there properly to effect it, where the sentencers have the confidence of knowing that the resources are there, and where they have the confidence of the executive that they are imposing such sentences in the kind of cases to which the public expects them to apply. It is not quite as easy as the Minister says it is for us to accept that it is just a matter of judicial discretion. There is a lot more responsibility on all of us to ensure that the judiciary is supported.

I will look carefully at these issues before Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 177H and 177HA not moved.]

Clause 175 agreed to.

Clause 176 [Intermittent custody]:

[Amendments Nos. 177J to 177JB not moved.]

Clause 176 agreed to.

Clause 177 [Restrictions on power to make intermittent custody order]:

[Amendment No. 177K not moved.]

Clause 177 agreed to.

Clause 178 agreed to.

Clause 179 [Further provisions relating to intermittent custody]:

Baroness Scotland of Asthal moved Amendment No. 177KA:

    Page 106, line 11, leave out subsection (3).

The noble Baroness said: This group of amendments concerns intermittent custody, a new sentence designed to retain an offender's ties to the community, which are

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associated with reduced reoffending. The sentence might be especially appropriate if an offender has employment, education or childcare responsibilities.

Amendment No. 177KA removes a restriction on the Secretary of State paying discharge grants to intermittent custody only at the end of the final custodial period. Intermittent custody is a sentence to which an offender consents. If the offender does not consent, ordinary custody is imposed. It is unlikely that any offenders will consent to it if they have to pay for transportation to and from the prison. That is especially important in the women's estate, where the "catchment area" is so large that women are likely to travel long distances to an intermittent custody centre. The removal of the subsection will allow the Secretary of State to subsidise offenders' travel to and from the centre where they are to serve their sentence.

Amendments Nos. 177KB, 203ZA and 203AA deal with procedures to apply when an intermittent custody offender is unlawfully at large. Amendment No. 177KB clarifies what is meant by "unlawfully at large" in the context of intermittent custody. The amendment makes it clear that in addition to absconding from custody, an offender who does not return to custody following a licence period will also be at large.

Amendments Nos. 203ZA and 203AA provide for what will happen to an intermittent custody prisoner after being returned to custody following a period unlawfully at large. The new clause ensures that the offender does not have to be released again for his next intermittent licence period. Instead, the Secretary of State can keep him in custody while an application to the court is made to vary the order to full-time custody. The Secretary of State does not have to do this if it turns out that the offender was unlawfully at large for good reason. The Secretary of State can allow him to resume his intermittent sentence.

The Secretary of State must make the application within 72 hours. Once the application is made, the offender stays in full-time custody until the application is decided by the court. The new clause also makes it clear that if an intermittent custody offender has been recalled to prison, the Secretary of State does not have to release him for his next licence period. His sentence becomes one of full-time custody. The Committee will see why we need to make those re-adjustments.

Amendment No. 208B allows an intermittent custody prisoner who has been recalled but immediately re-released by the parole board to resume his intermittent custody, rather than requiring him to serve full-time custody. If the parole board does not re-release him immediately, it must decide when the prisoner should be released, as with all prisoners, under Clause 245.

Amendment No. 208C inserts a definition of intermittent custody prisoners into the interpretations, which is now necessary on the basis of the amendments tabled.

Amendment No. 250 provides for the early commencement under Clause 305 of the order-making power in Clause 176(8). This allows the Secretary of State to make provisions about the licence periods that the court may specify as part of the new sentence of

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intermittent custody. It would enable him to specify the length of the licence periods, particular days of the week on which the licence periods can begin or end and periods including or not including specified parts of the week. We need this provision in force upon Royal Assent, in order to draft the necessary secondary legislation in time for a pilot of intermittent custody which is due to start on 19th January 2004.

Amendment No. 179ZA—the last, the Committee will be pleased to know—allows the Secretary of State, in addition to the responsible officer and the offender, to apply to the court to change the pattern of intermittence in an intermittent custody order. That might be necessary if an offender on intermittent custody behaves so badly that he is clearly unfit for this type of sentence. I have taken a little time to clarify the way in which the provision will operate because I know that practitioners and others need to understand how it all fits together.

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