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Lord Carlile of Berriew: I, too, support these amendments on the grounds that almost anything that mitigates the rigour of these clauses is to be welcomed.

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When she responds, will the Minister explain to the Committee why the Government no longer trust the judges? When they came into office, I was foolish enough to hope that the new Government would give the judges the tools they needed to have a full range of sentences available, and then trust them to pass appropriate sentences subject to the normal appellate procedures. The Committee will know that where a serious offence is committed and the judge passes a seriously inadequate sentence, an appeal is available to the Crown. The number of Attorney-General references to the Court of Appeal has increased exponentially as the years have gone by and in 2002 there were in excess of 100 relating to sentences which the Crown Prosecution Service considered inadequate.

The Government have taken the opportunity to increase maximum sentences—there are many offences for which the maxima have been increased—but there is very little evidence indeed that judges have passed inadequate sentences. Many of the references made to the Court of Appeal have resulted in it rejecting the prosecution's appeal against the sentence passed by the judge.

These clauses refer to offences for which judges have considerable powers of imprisonment. Clause 215(2) defines a "serious offence" as one punishable by imprisonment for life or imprisonment in excess of 10 years. Why is it not enough for the judge to exercise his discretion within those maxima?

I am not exaggerating when I say that much of sentencing law is becoming a macabre parlour game which judges are required to play when trying to thread their way through sentencing provisions which remove their discretion. If one takes the example of violent robbery, how is a judge, applying the provisions of Clause 216 with intellectual rigour, to conclude that because a person has committed a violent robbery once there is not a significant risk of that person committing a violent robbery in the future? This is not three and out or two and out; it has the potential of being one and out.

I regret to say that these provisions have all the hallmarks of Kafka by the rules of cricket. I urge the Government to return to a system which is good enough to give the judges the equipment they need when sentencing but does not impose unrealistic obligations on them which will result in the Court of Appeal Criminal Division trying to weave its way through these provisions to do substantial justice, and Ministers once again attacking the judges, not on their merits but on the basis that bad laws have been introduced.

Lord Waddington: I doubt whether these clauses break new ground in the way suggested by my noble friend Lord Renton. In the old days judges could pass a sentence of preventive detention. What happened then was that the very fact that a person had committed a number of offences meant there was a risk of him committing further offences, and therefore the judges were entitled to pass a sentence of preventive detention. So to that extent these clauses are better than that old law because at least some assessment of

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risk has to be made. An assumption is not made that there must be a risk simply because there have been a number of previous offences.

I agree entirely with my noble friend that "substantial risk" is a much better form of words than "significant risk". "Significant" means anything that is not insignificant. "Substantial" means "great". I believe that there should be a great risk rather than a risk which is not insignificant.

Baroness Scotland of Asthal: It may be necessary for me to say a word or two about the history. I have listened to what was said by the noble Lord, Lord Renton, and I feel that there may not be a proper understanding of the root from which these provisions have sprung.

The Committee will know that a disparate set of provisions for the sentencing of dangerous offenders has been added to the statute book over a period of years. There are provisions for extended supervision periods for sexual and violent offenders and, where public protection issues are apparent, the court may impose longer than commensurate custodial sentences for offences that would otherwise not warrant them. That is the structure that we have now, which can be found in various Acts.

The creation of a new sentence specifically designed for offenders who have been assessed as dangerous by the courts was a recommendation of the Halliday report. The report identified a lack of disposal for offenders who had committed offences which do not carry life but who, nevertheless, have a high risk of committing a further offence that would cause serious harm to the public. Consultation on the Halliday report found strong support from the police and probation services for new sentences specifically designed for dangerous offenders. They welcomed a sentence which would limit the premature release of dangerous offenders.

So, in answer to the concern raised by the noble Lord, Lord Renton, and others—the noble Lord, Lord Waddington, is right to remind the Committee that the previous position was somewhat more complex—that is the root of what we are trying to achieve under Clause 216. We are trying to make sense of that which went before and to produce coherence in the way in which it is applied.

I hear what the noble Lord, Lord Carlile, says. Time and time again I have heard the refrain, "Why do we no longer trust the judges?" I cannot recall how many times I have said this but I am very happy to say it again: we do trust our judges. They are deserving of our admiration and our support. The judges in this country are among the very best in the world and I give no quarter to anyone who says differently. We are right to be proud of them.

On each and every amendment dealing with issues on which noble Lords want to be more restrictive—I know that the noble Lord, Lord Carlile, has been with

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us in part but not on each and every occasion and so has not had the benefit of listening to me say this over and over again, which I am happy to do—

Baroness Anelay of St Johns: Perhaps the Minister would indicate whether she is referring to the noble Lord, Lord Carlile of Berriew, or to my noble friend Lord Carlisle of Bucklow.

Baroness Scotland of Asthal: I am referring to the noble Lord on the Liberal Democrat Benches. I tend to get confused as to which noble Lord is "Bucklow" and which one is not. Perhaps I should say that the noble Lord, Lord Carlile, who sits comfortably on the Liberal Democrat Benches, is not always with us and the noble Lord, Lord Carlisle, who sits on the Tory Benches, is almost never without us. We very much rejoice at his presence in all our deliberations.

So that is the history. In this case, it is quite clear that, once again, we will be totally dependent on our judges to exercise their discretion in determining, in accordance with the structure, whether or not a defendant is dangerous. The Bill sets the framework. What we ask our judges to do—and they do it splendidly—is to exercise that discretion so that justice can be done. I hear what the noble Lord says about Kafka. I am sure that he enjoys the rhetoric, but that is far from the reality.

Let me now turn to the amendments and deal with the points raised by the noble Baroness, Lady Anelay. I say straightaway that the Bill is compliant. The Government are content that its provisions comply with all propriety to the ECHR.

Amendment No. 195B seeks to alter the threshold of dangerousness which must be met in order for a life sentence of imprisonment for public protection to be passed by the courts. The alternative test proposed by Amendment No. 195B would require the court to focus upon the risk of the offender committing a further specified offence involving a risk of serious harm to the public. As my right honourable friend in another place said, there cannot be a possibility of significant risk to the public if there is no risk of a further offence being committed. However, this does not mean that the risk of reoffending should become the basis of the assessment of dangerousness, as is proposed by Amendment No. 195B. Rather, the central element of the test of dangerousness should be the risk to the public of serious harm through the commission of a further offence.

The whole purpose of the test is to establish whether an offender is dangerous or no. In making such a judgment, the court must focus primarily on the degree of risk of harm that any future offending may pose as opposed to the risk of reoffending itself.

Amendment No. 195GA also attempts to alter the threshold for the test of dangerousness. This amendment would raise the threshold by requiring the courts to establish that the risk to members of the public of serious harm occasioned by the commission by the offender of further offences was a substantial risk rather than a significant risk. We think that

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"significant" is the proper test. The court will then be put on inquiry whether it is satisfied about the dangerousness. It can exercise its discretion and make that judgment. It is the assessment of the risk and the risk to the public that we are trying to direct attention to.

4.30 p.m.

Lord Waddington: What does significant mean? Am I not right that significant means "not insignificant"? It is a very small test to pass.

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