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Baroness Scotland of Asthal: My Lords, I thank the noble Baroness. I think I have skipped a whole group. I have gone straight to the substantive group, but I have not dealt with the technical government amendments. The noble Baroness is absolutely right and I apologise to the House.

The government amendments to which I should have been speaking are those that were discussed in the other place, relating to the clause dealing with restraining orders. Attention was drawn to an inconsistency between the proposed procedures for making restraining orders following an acquittal, and those making an order on conviction. I think I skipped to the most substantive one, as I knew we would spend some time on it and so I did not highlight this group. I thank the noble Baroness very much. With her normal
 
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acuity, she is right on the button and has assisted me greatly. I was perhaps somewhat thrown by the generosity of the noble Lord, Lord Thomas of Gresford, in withdrawing the previous amendment.

In relation to Amendments Nos. 4 to 7, it was pointed out that whereas the subsection dealing with the restraining orders following an acquittal specifically provides for both the prosecution and the defence to inform the court's decision by leading additional evidence that would be admissible in civil proceedings, there is no explicit provision for further similar evidence to be adduced following a conviction. The Government undertook to consider that point further.

The Government's original position was that where restraining orders are made following a conviction for an offence under the 1997 Act, the court will already have heard sufficient evidence of harassment or intimidation to make an informed decision about the need for an order. However, where a defendant has been acquitted, the court might have need of further evidence before it can make an informed decision about whether a restraining order was necessary to protect the victim from harassment. That is why we made explicit provision for the prosecution and defence to lead such evidence following an acquittal.

The Bill will make restraining orders available on conviction for any offence—not just those under the 1997 Act. The Government accept that there will, as a result, be cases where the court has not heard evidence of harassment during the criminal proceedings, and may require additional information to judge whether an order is appropriate. Although we believe that further evidence admissible under the Civil Evidence Act 1995 probably would be admissible in such circumstances, we accept that courts and practitioners in such cases would benefit from the greater clarity that would be provided by an explicit provision on the face of the Bill.

It is for that reason that we have introduced these amendments, which will remove the current inconsistency. The effect will be to make it clear that following both a conviction and an acquittal, the court can inform its decision about whether to make a restraining order by considering additional evidence that would be admissible in civil proceedings. I hope that the amendment addresses the problem that noble Lords highlighted on the last occasion that the Bill was before the House.

Moved, That the House do agree with the Commons in their Amendments Nos. 4 to 7.—(Baroness Scotland of Asthal.)

Lord Renton: My Lords, before the noble Baroness sits down, perhaps she would explain something to me, and I dare say to various noble Lords, that has caused
 
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great confusion. In Amendment No. 8, which adds a new clause after Clause 11, we find under new Section 161B—

Lord Davies of Oldham: My Lords, excuse me. If the noble Lord would allow me, we are discussing Amendments Nos. 4 to 7 at the moment and not Amendment No. 8.

Baroness Scotland of Asthal: My Lords, I believe that the noble Lord was misled by me earlier as I went straight on to the substantive amendments on surcharges, not having dealt properly or at all with this group of amendments. I have apologised for that and we are now on track, with the help of the noble Baroness, Lady Anelay. We are now dealing with the tidying up issues raised on the previous occasion.

Lord Renton: My Lords, I thank the noble Baroness for trying to explain the matter. I find it a very puzzling situation. If a surcharge is payable—

Baroness Scotland of Asthal: My Lords, I apologise. We have not yet come to that group of amendments. As I tried to explain, I wrongly started on the wrong group; I have totally acknowledged my error; I am back on track; and we shall come to the next group in a moment.

On Question, Motion agreed to.

COMMONS AMENDMENT
8 After Clause 11, insert the following new clause—
"SURCHARGE PAYABLE ON CONVICTION
(1) In Chapter 1 of Part 12 of the Criminal Justice Act 2003 (c. 44) (general provisions about sentencing), after section 161 insert— "Surcharges
161A COURT'S DUTY TO ORDER PAYMENT OF SURCHARGE
(1) A court when dealing with a person for one or more offences must also (subject to subsections (2) and (3)) order him to pay a surcharge.
(2) Subsection (1) does not apply in such cases as may be prescribed by an order made by the Secretary of State.
(3) Where a court dealing with an offender considers—
(a) that it would be appropriate to make a compensation order, but
(b) that he has insufficient means to pay both the surcharge and appropriate compensation,
the court must reduce the surcharge accordingly (if necessary to nil).
(4) For the purposes of this section a court does not "deal with" a person if it—
(a) discharges him absolutely, or
(b) makes an order under the Mental Health Act 1983 in respect of him.
161B AMOUNT OF SURCHARGE
(1) The surcharge payable under section 161A is such amount as the Secretary of State may specify by order.
(2) An order under this section may provide for the amount to depend on—
(a) the offence or offences committed,
 
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(b) how the offender is otherwise dealt with (including, where the offender is fined, the amount of the fine),
(c) the age of the offender.
This is not to be read as limiting section 330(3) (power to make different provision for different purposes etc)."
(2) In section 164 of that Act (fixing of fines), after subsection (4) insert—
"(4A) In applying subsection (3), a court must not reduce the amount of a fine on account of any surcharge it orders the offender to pay under section 161A, except to the extent that he has insufficient means to pay both."
(3) In Part 1 of Schedule 9 to the Administration of Justice Act 1970 (c. 31) (cases where payment enforceable as on summary conviction), after paragraph 12 insert—
"13 Where under section 161A of the Criminal Justice Act 2003 a court orders the payment of a surcharge."
(4) In Schedule 5 to the Courts Act 2003 (c. 39) (collection of fines), in paragraph 1(1) (application of Schedule), after "a fine" insert "or a surcharge imposed under section 161A of the Criminal Justice Act 2003".
(5) The Secretary of State may by order—
(a) make provision amending Schedule 5 (collection of fines) or Schedule 6 (discharge of fines by unpaid work) to the Courts Act 2003 in its application by virtue of subsection (3) or (4) to surcharges;
(b) make provision for any part of Schedule 5, or the whole or any part of Schedule 6, not to apply to surcharges;
(c) make amendments to any enactment that are consequential on provision made under paragraph (a) or (b)."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8.

Lord Carlisle of Bucklow: My Lords, may I inquire whether this is the new clause that deals with surcharges? The two new clauses after it raise the same principle with regard to fixed penalty offences. Does the Minister propose to deal with the issue of Amendments Nos. 8, 9 and 10 together; namely, the imposition of a surcharge both in conviction cases and as regards fixed penalties? Does that mean that we can speak to the principle of those three amendments as one?

Baroness Scotland of Asthal: Yes, my Lords. The noble Lord, Lord Carlisle, is absolutely correct. When I started cantering through this earlier, I said that I intended to deal with three categories. Again, I am sorry, if I have misled noble Lords.

These amendments aim to add a surcharge to criminal convictions in the courts; to fixed penalty notices for road traffic offences; and to penalty notices for disorder. They divide into three categories, as just indicated by the noble Lord, Lord Carlisle. I shall deal with each individually.

First, for the surcharge payable on conviction, Amendment No. 8 inserts two new sections into the Criminal Justice Act 2003, that impose a duty on the court to impose a surcharge on a person convicted of an offence, except where the court makes an absolute discharge or a mental health disposal. That is category number one.
 
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In category number two, the surcharge payable in respect of penalty notices for disorder can be achieved principally through existing powers, as I mentioned earlier, to make secondary legislation. However, Amendment No. 9 will change the maximum amount that can be prescribed as a penalty for disorderly behaviour from a quarter of the maximum fine to a quarter of the fine plus half of the maximum surcharge.

The surcharge payable in respect of road traffic fixed penalty notices can also principally be achieved through existing powers to make secondary legislation. Amendment No. 10 allows us to do two things: first, to prescribe a higher penalty for repeat offenders; and secondly, for the fixed penalty clerk to collect the surcharge separately from the fixed penalty.

The proposal to add a surcharge to criminal convictions and fixed penalty notices was one of a number of proposals set out in the consultation paper Compensation and Support for Victims of Crime, issued on 12 January 2004. There was overwhelming support for more and better services for victims of crime, although opinion was divided on the introduction of the surcharge. The majority of objections were to the addition of the surcharge to fixed penalty notices for speeding. The amendments set out here will add the surcharge only when a driver speeds or commits other endorsable motoring offences that attract fixed penalty notices on repeated occasions.

When this issue was debated in the other place, there was some disagreement over who should be liable to pay the surcharge. Some took the view that the offenders should have to pay the surcharge only when they had committed enough offences to be disqualified from driving.

We believe that a fair system is for drivers to receive one warning, and if they commit another endorsable offence within three years they should be liable for the surcharge. I should clarify that examples of the types of offences we are talking about are speeding offences, driving through red lights or ignoring pedestrian crossings.

It is incorrect to say that these offences are victimless crimes; 3,400 people are killed on the roads through speeding each year and 36,000 people are seriously injured. At 40 miles per hour, 85 per cent of people hit by a vehicle die, compared to 20 per cent at 30 miles per hour and 5 per cent at 20 miles per hour.

The House of Commons Transport Committee this week published a report on Traffic Law and its Enforcement. It states:

"Bad driving is not victimless ... Changes are needed to ensure that we no longer have the culture which considers poor driving standards as acceptable, or at worst careless. It is unacceptable that speeding should be seen as unimportant, until such time as death or injury occurs".

We concur with that. The report goes on to say that drivers who receive automatic penalties for speeding have not committed a minor transgression but have significantly exceeded the speed limit. Someone would have to be driving at 35 miles per hour in a 30 miles per
 
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hour zone to receive a fixed penalty notice. That could be the difference between life and death for many of those involved in collisions.

It is clear that road traffic offences are serious offences and can have grave consequences. Offenders should be made to pay the surcharge. What we are aiming to do is to make offenders pay a small sum to a fund for the victims of crime. The fund will provide practical and emotional support to a range of victims, including those who have been victims of road traffic offences. Victim Support, for example, can only do so much with the annual grant it receives, even though the grant has almost trebled since this Government took office—from £10.7 million to £30 million. Its focus is on providing core services to victims and witnesses through its community and court-based services. It would very much like to do more. There are other specialised support groups which deserve our support too; not least voluntary organisations which provide help to those injured or bereaved by death on the road, often as a result of speeding motorists.

We want to provide more funding to the voluntary sector and to communities to meet local needs. We are determined that victims should receive the practical and emotional support they need, in many cases to rebuild their lives. There is no provision in the Bill for the establishment of the victims' fund. That is because we can do so without primary legislation, by agreeing with the Treasury that a certain portion of the consolidated fund will be ring-fenced. A recent precedent for that is the Recovered Assets Fund, into which was paid the proceeds of crime recovered through confiscation orders. Many of your Lordships may be aware that similar schemes have been very successfully employed in other countries.

Turning first to the surcharge imposed on a criminal conviction, subsection (1) of Amendment No. 8 inserts into the Criminal Justice Act 2003 two new sections, Sections 161A and 161B. New Section 161A would impose upon the court a duty to order payment of the surcharge with a criminal conviction, except when the court makes an absolute discharge or mental health disposal. However, a compensation order would take priority over the surcharge. If the court considers that the offender should pay compensation and has insufficient means to pay the surcharge as well, it must reduce the surcharge accordingly—if necessary to nil.

The Secretary of State would also have power to prescribe further exceptions. We envisage using this power, which will be subject to the negative resolution procedure, if experience of operating the surcharge shows that certain categories of defendants are being unfairly penalised by the surcharge.

New Section 161B deals with the amount of the surcharge, which it states will be as specified by order by the Secretary of State, subject to the negative resolution procedure. It will enable higher surcharges to be ordered for more serious offences. The intention, however, is that the surcharge will be a relatively small amount—up to £30 at present—in order to maximise payment by the vast majority of offenders to a wide range of victims.
 
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Subsection (2) of Amendment No. 8 amends the provisions on the fixing of fines to ensure that the court does not reduce a fine on account of the surcharge. The aim is to ensure that, as far as possible, the court orders the surcharge to be paid on top of any fine it would otherwise have given. The only exception is to be when the offender simply does not have enough money to pay both, in which case the surcharge will take priority. We think that the new powers in the Courts Act 2003 will improve the overall likelihood of payment so that offenders do pay both the fine and the surcharge.

Subsection (3) of Amendment No. 8 has the effect that the surcharge will be treated as a fine for the purposes of collection and enforcement. Subsection (4) provides that the new provisions in the Courts Act on the collection and enforcement of fines will apply. Subsection (5) provides that the Secretary of State may amend the way in which the relevant provisions of the Courts Act apply to the surcharge. That is because these measures are currently being piloted.

The evaluation of the pilots may necessitate changes. Section 97 of the Courts Act provides a power to amend the provisions in the light of the pilots, but this would not extend to the surcharge, which will not be part of the pilot. This order-making power simply ensures that we can ensure that the Courts Act provisions, in their final form, apply properly to the surcharge. It will be subject to the affirmative resolution procedure, by virtue of Amendment No. 94.

Amendments Nos. 54, 69, 70, 77, 81, 87, 100 and 101 are consequential amendments to Amendment No. 8. Amendment No. 54 specifies that the order to be made under subsection (5) of Amendment No. 8 is subject to affirmative resolution. Amendment No. 69 amends the Rehabilitation of Offenders Act 1974 so as to ensure that the surcharge is disregarded for determining when a conviction is spent and the rehabilitation period will be applicable to the other parts of the sentence given by the court.

I hope that what I have said in relation to all three of the new changes will suffice. I am happy to give more detail if noble Lords would like it. I am sure that the House will agree that it is right that, whenever possible, offenders should be made to pay for the consequences of their crimes. A small contribution towards a fund to provide much needed support for a wide range of victims, we believe, is a fair and logical step. It will build on and complement existing services, including the criminal injuries compensation scheme and grant aid to Victim Support, made at the taxpayers' expense, to offer practical and emotional support.

I invite your Lordships to accept these amendments to add a surcharge to criminal convictions in the courts, to fixed penalty notices for road traffic offences and to penalty notices for disorder in order to provide revenue for the victims' fund.
 
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I should now like to address the amendments which have been tabled to these proposed clauses. Amendment No. 8A in the name of the noble Baroness, Lady Anelay, seeks to remove the obligation on the court to order an offender to pay the surcharge when it deals with him. Instead it provides the court with a discretion in each case. Our intention is that the surcharge must be added unless the court has not dealt with the person under the terms specified in subsection (4) or the case is of a type which has been excepted from the surcharge provisions by an order made under subsection (2).

Amendment No. 8C, again in the name of the noble Baroness, Lady Anelay, would remove subsection (2) meaning that no such order could be made. So, instead of a clear list of exceptions being set out in an order, the court would consider each case on an individual basis.

Amendment No. 8B is consequential and would subsequently remove the mention of subsection (2) from subsection (1). These amendments would create additional work for the courts as they would have to carry out a detailed assessment of each case before deciding whether or not the surcharge should be added.

We believe that the courts should, assuming that they have dealt with the offender, automatically apply the surcharge unless the case meets the requirements set out in an order made by the Secretary of State. We appreciate that the intention behind the noble Baroness's amendments is to introduce some flexibility to the scheme, but we feel strongly that the surcharge should be compulsory. If people have committed and been found guilty of an offence which, in most cases, will have a direct victim, we think it right that there should be clarity about how much they should be asked to pay.

There are very few circumstances in which there will be a good reason why a small surcharge, to provide support and services to victims, should not be added by the court. Once the surcharge has been operating, the Secretary of State will be able to make an order setting out those circumstances and to add to them over time. That introduces a degree of flexibility, which I know that the noble Baroness seeks. Further, in the context of compensation, as stated in the Bill, where the court considers that the offender has insufficient means to pay both compensation and the surcharge, the court may reduce the amount of the surcharge, if necessary, to nil. Therefore, there is already some flexibility to the application of the surcharge. We would resist any amendments to introduce any more flexibility or discretion.

Amendments Nos. 8D and 8E, tabled in the name of the noble Baroness and the noble Viscount, Lord Bridgeman, who, happily, I see in his place, would change the procedure for making orders under Commons Amendment No. 8 from negative to affirmative resolution. Amendment No. 8D would mean that the power allowing the Secretary of State by order to exempt certain cases from payment of the surcharge of new Section 161A(2) would be subject to the affirmative procedure. We believe that the
 
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intention of Amendment No. 8E is to make the power to set the level of surcharge by order in new Section 161B(1) subject to the affirmative procedure.

We want to be able to make the orders by negative resolution, as we would like to have the flexibility to make additions or alterations to the orders fairly easily, once the surcharge has been in operation for some time. We therefore think it sensible to use the negative resolution procedure. Also, we are not dealing with large amounts.

Further, the Government believe that it would be rather odd to have the order-making power to set the amount of the surcharge payable on conviction subject to the affirmative procedure, when the surcharge on road traffic fixed penalty notices will be dealt with using the existing powers in Section 53 of the Road Traffic Offenders Act 1988, as amended by the Bill, which is subject to the negative resolution procedure. In addition, the power to set the level of on-the-spot penalties for disorderly behaviour under Section 3 of the Criminal Justice and Police Act 2001 is, by order, subject to the negative resolution procedure. I remind your Lordships of Section 3(6) of that Act.

I should also like to clarify, however, that, as the Bill stands, any amendment made to the Courts Act 2003 through the order-making power provided for in subsection (5) of Commons Amendment No. 8 will be subject to the affirmative resolution procedure. That is to be found in Commons Amendment No. 54.

As for Amendment No. 10A, which would remove Commons Amendment No. 10 in its entirety, I hope that I have already explained why we consider those who have received fixed penalty notices for enforceable road traffic offences still to be offenders. Their actions cause harm to other people, both pedestrians and other drivers. We feel strongly that they should be asked to pay a small surcharge towards the victims' fund. As well as raising funds for the support of victims of crime, we hope that the introduction of the surcharge on fixed penalty notices for repeat offenders will encourage drivers to think twice about speeding or committing other enforceable road traffic offences, which would, in return, reduce the numbers.

Amendment No. 10B is intended to increase the application of the surcharge to those who have committed an endorsable offence or those who have been previously disqualified from driving within the past five years, instead of the past three years. Our reason for deciding to apply the surcharge to those who have committed more than one offence within a three-year period was that that is the length of time that an endorsement will remain on a driver's licence. After three years, the penalty points are removed and the driver's licence will then be clean. If the time limit were changed to five years, it would be administratively difficult, if not impossible, to find out if someone committed an endorsable offence more than three years ago, so we would not be able to identify those offenders and apply the surcharge to them.
 
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I turn to Amendment No. 10C, which would remove the ability of the regulations permitted to be made in relation to conditional offers to apply the relevant part of the Road Traffic Offenders Act 1988 with modifications. Modifications may be needed to make the provisions work and we want to ensure that we have the flexibility to do that. I hope that noble Lords will accept there is nothing untoward about that intent.

We therefore reject these amendments but ask your Lordships to accept Amendments Nos. 8, 9 and 10. I hope that, after that lengthy exposé, there will be no questions that I have not already answered.

Moved, That the House do agree with the Commons in their Amendment No. 8.—(Baroness Scotland of Asthal.)

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