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Baroness Scotland of Asthal: My Lords, from my memory, the noble Lord has correctly repeated what
he said in Committee. However, I do not agree with him. It might be easier if the House could take as read the comments I then made in order to avoid noble Lords having to hear them all over again.Amendment No. 197 seeks to make what, at first flush, appears to be a minor drafting change to the clause setting out the purposes of sentencing. It would place any court dealing with an offender in respect of his offence under a duty to consider the purposes of sentencing. The current drafting which sets out that a court "must have regard" to these purposes is considered to be preferential because it is consistent with the drafting of other provisions in Part 11 of the Bill and has a certain synergy. For example, Clause 154(1) states that in sentencing an offender every court must have regard to any guidelines which are relevant to the offender's case.
I hear what is said about the difference between the conditions and that they may pull in different directions— but that is what judgment is about. If one of my noble friends was on the Back Benches now—I do not see him in his place—he would say that this is typical of a lawyer's "on the one hand and on the other hand". He is always seeking a one-handed lawyer. The court will have to take into consideration different features and factors which may pull in different directions and come to a conclusion as to how they can be balanced.
Amendment No. 197A, standing in the name of the noble Lord, Lord Dholakia, repeats an amendment tabled in Committee which seeks to replace the purpose of punishment with one which refers to the holding of offenders to account for their offences. I understand the genesis of that from the Prison Reform Trust. I hope to be able to explain why the Government believe that what is in the Bill suffices.
I hope the House will forgive me if I reiterate that we prefer our drafting because "punishment" is a better recognised and more widely used definition of one of the purposes of sentencing. We also believe that it better conveys that sentencing is about the loss of liberty, property and other rights and freedoms and that it is necessary to achieve crime reduction, the rehabilitation of offenders and reparation. Indeed, the goal must be to achieve punishments that work as well as they possibly can in terms of crime reduction and the satisfaction of victims and communities. The word "punishment" achieves that in a better way.
With that explanation, I hope that the noble Lord, with his usual understanding and good grace, will not press the matter further.
Baroness Anelay of St Johns: My Lords, I am grateful to the noble Baroness for elaborating on the explanation she gave in Committee and adding very effectively to it. I certainly accept her assurances in this regard although I still agree with my noble friend Lord Carlisle of Bucklow that it will be very hard for sentencers to balance this "on the one hand and on the other hand" factor. It will be a matter of judgment.
I am not too surprised that my noble friend Lord Carlisle of Bucklow was not able to cast his mind back immediately to the beginning of October to recall his words. The fault is all mine—when we talked earlier today about how far we might get, I gave him what can only be called, in colloquial language, duff information, because we did not expect at that juncture to reach sentencing. However, we have gone like an express train today and have therefore reached this part of the Bill. Those who attack lawyers for going on endlessly were wrong on this occasion. My noble friends were succinct to the point of virtue, so we got further than the Government expected. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 197A not moved.]
Clause 126 [Determining the seriousness of an offence]:
Lord Dholakia moved Amendment No. 197B:
- Page 78, line 35, at end insert—
The noble Lord said: My Lords, we had a considerable discussion on this amendment at an earlier stage. I do not object to raising some of the issues again because the impact of sentencing on the prison population is considerable.
There is a grave danger that the content of the clause will lead to a major and costly escalation in severity of sentencing. This is contrary to the 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.
In addition, the generic community sentences introduced by Chapter 2 create a risk that sentencers will be reluctant to make repeated use of community sentences for the same offender. This could considerably shorten the path to prison for many moderately persistent offenders whose offences would not otherwise justify a custodial sentence. Our amendment is designed to rectify this situation. I beg to move.
Baroness Scotland of Asthal: My Lords, in dealing with Amendment No. 197B, it might help if I briefly explain the purpose of Clause 126 and how it is intended to work.
We have made a clear policy decision to move away from the current position in which the court is simply required to take into account any previous convictions
Persistent offenders must know that they will be dealt with progressively more severely each time they offend. This does not mean that wildly disproportionate sentences will result. Sentencers will, of course, operate within the principle that the severity of the resulting sentence should reflect the seriousness of the current offence. The clause simply modifies the proportionality principle so that previous relevant offences can act as an aggravating factor.
I remind the House of what quite often happens. You look at the maximum sentence and then ask what discounts should be given because of the factors in the case, so down it comes. We are saying that because we are creating a new fabric around the sentencers so that they can use those sentences more flexibly, it should be understood by defendants who come before the court that the court will try to target their offence and the offending behaviour, the root causes underneath it, and will work with them. However, if they do not respond in a positive way, the court has an option to treat them progressively more robustly if circumstances demand. However, that does not mean that sentencers should be able to use the full panoply of sentencing tools available to them under the Bill as previous convictions lead them progressively up the sentencing scale. So while custody and longer periods of custody are not intended to be the immediate impact, instead the courts could put together a variety of different interventions as part of a community sentence or impose a suspended sentence. They may well need to move between sentencing bands, and Amendment No. 197B would prevent them from doing so.
That flexibility will, we hope, inure to the benefit of the defendant, who has to have this behaviour addressed. However, noble Lords should be reassured that the Sentencing Guidelines Council is required, under Clause 152(7), in drafting guidelines to include criteria for determining the weight to be given to any previous convictions of offenders so that they will set out in guidelines the extent to which the severity of sentence could increase in relation to what the previous convictions were and the nature of the current offence. We therefore do not set out any restrictive criteria in statute, as proposed in the amendment. It will be up to the Sentencing Guidelines Council to spell out the effect of the principle in Clause 126.
With that explanation, I hope the noble Lord will be satisfied that if the court feels in all the circumstances of the case that a proper, targeted community sentence is justified within the meaning of these provisions, it will have the opportunity to impose that. We said earlier that community sentences can be targeted at different forms of offending behaviour, and I am sure the court will be able to take those factors into consideration when deciding whether it is or is not appropriate to mark the increasing seriousness of offences by using or not using community sentences.
Lord Dholakia: My Lords, I am grateful to the Minister and thank her for her explanation. Although
Amendment, by leave, withdrawn.
"(6) Treatment of previous offending as an aggravating factor under subsection (2) is to be interpreted as permitting the imposition of a more demanding sentence within the band of community or custodial seriousness, but it does not permit—
(a) a current offence that is, on its own, defined as "not serious enough" to warrant a community disposal to become suitable for a community sentence;
(b) a current offence that, is, on its own, defined as "serious enough" to warrant a community disposal to become suitable for a custodial sentence;
(c) a current offence that is already "so serious" or defined in statute as requiring sentencers to pass a custodial sentence to increase the length of the custodial sentence that would otherwise be passed."
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