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The noble Lord said: I can be extremely brief in introducing this amendment. Clause 17 amends Section 229 of the Criminal Justice Act 2003, which deals with the assessment of dangerousness in connection with public protection sentences. As currently drafted, the amendment to Section 229 would allow the court to take into account information available to it about any previous United Kingdom convictions. My question is: what about convictions in other parts of the world? I beg to move.
Lord Bach: Government Amendment No. 89A is in this group. The background is that my right honourable friend the Minister of State with responsibility for justice, Mr Hanson MP, gave a commitment in the other place to consider an amendment in similar terms to this one. Government Amendment No. 89A, which is along similar lines to Amendment No. 89 in the name of the noble Lord, Lord Kingsland, is the result. We do not believe that the current clause prevents courts looking at foreign convictions—where evidenced, of course—when assessing risk, and obviously they would be sensible to do so. However, we accept that clarity would be helpful. In our view, government Amendment No. 89A puts beyond doubt that courts may consider not only UK but also overseas convictions in assessing risk. I hope that the noble Lord will support Amendment No. 89A.
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Lord Kingsland: I do. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bach moved Amendments Nos. 89A and 89B:
Clause 17, page 12, line 17, leave out “in any part of the United Kingdom” and insert “by a court anywhere in the world”
On Question, amendments agreed to.
Clause 17, as amended, agreed to.
Lord Kingsland moved Amendment No. 90:
Section 282 of the Criminal Justice Act 2003 (c. 44) (increase in maximum term that may be imposed on summary conviction of offence triable either way) shall come into force on the passing of this Act.”
The noble Lord said: I can be exceedingly telegraphic about this amendment. After Clause 19, we wish to introduce a clause entitled,
Section 282 of the Criminal Justice Act 2003, which provided for an increase in the maximum term that may be imposed on summary conviction of an offence triable either way, should come into force on the passing of this Act. In effect we are implementing a clause that originally appeared in the Government’s 2003 Act but which has not been implemented. I think that, originally, the idea behind the clause was to supplement the custody-plus scheme, which was subsequently scrapped. However, we think that, quite independently of that scheme, it is right that magistrates be given the power to sentence for a term of up to 12 months.
Just in case the Government might have some fears about the impact that that would have on prison places, I see no reason why the clause should lead to an increase. Magistrates sentence in accordance with the current sentencing framework, which is set out in statute. They use a structured decision-making process and consider the appropriate principles. All terms of custody must be justified by the seriousness of the offence. I am in no doubt that magistrates will use this new power responsibly. I beg to move.
9 pm
Lord Bach: This new clause proposes a significant extension of magistrates’ sentencing powers. The noble Lord, Lord Kingsland, is of course right that the increase in their powers was originally enacted in the Criminal Justice Act 2003 to enable magistrates’
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Implementing the increase in sentencing powers separately from custody plus would be a major change to our sentencing framework and we are not persuaded that there is a strong case for making such a radical change. If the increased custody limit were implemented together with custody plus, the maximum actual custodial period that could be imposed by the magistrates’ court would be 13 weeks for one offence, which is the equivalent of the three months’ actual custody time that can currently be imposed. It was never envisaged that the magistrates’ courts would make use of the increased custodial sentencing power without custody plus.
The new clause would mean a substantial increase in the magistrates’ ability to impose actual prison time; indeed it would be doubled. As I said, it would be a major change to increase the sentencing powers of the magistrates’ courts in this way. They are, after all, lay courts and are not intended to deal with the most serious and dangerous offenders who may require long custodial sentences. That is not in any way to disparage the magistracy, who remain a vital part of our criminal justice system and whose committed hard work, as all noble Lords know, is voluntary and deals with huge numbers of criminal cases.
The current system ensures that defendants receive appropriate sentences. Magistrates’ courts can of course direct cases to the Crown Court when they assess that the defendant would be likely if convicted to require a heavier sentence than they are empowered to give. They can also commit a defendant who has been convicted to the Crown Court for sentence. Clause 103 ensures that the latter power will be available undiminished under Schedule 3 to the 2003 Act when it is implemented. In those circumstances, I hope the noble Lord will withdraw his amendment.
Lord Kingsland: I am of course grateful to the Minister for his reply, but this is a summary consideration of offences triable either way. There are advantages in magistrates rather than the Crown Court dealing with these matters. Given that offences are triable either way, it is only right that the magistrates should have larger powers of sentencing than they would otherwise have. The logic behind my amendment is extremely powerful. I am disappointed by the Minister’s reaction.
The fact that this was originally in the 2003 Act gives rise to the question of how much of that Act is still unimplemented. I am almost tempted to ask the Minister to do a calculation. I shall not do so, but a substantial part of that Act has fallen into desuetude for a variety of reasons. I am sure that the Government are extremely disappointed after having put so much effort into what was the flagship of their criminal justice strategy in the early 1990s. They must be deeply disappointed that so much of it has run into the sand.
I shall consider whether to bring this matter back on Report, but meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 [Consecutive terms of imprisonment]:
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Lord Kingsland moved Amendment No. 91:
(1) Section 181 (prison sentences of less than 12 months) of the Criminal Justice Act 2003 (c. 44) is amended as follows.
“(6A) Where a court imposes two or more terms of imprisonment in accordance with this section to be served consecutively, the court shall have complete discretion to set the aggregate length of the terms of imprisonment subject to a maximum of 65 weeks and may suspend all or part of the total period of imprisonment.””
The noble Lord said: This is not as dramatic a proposal as my previous one. It is a more nuanced approach to a provision in the Bill concerning consecutive terms of imprisonment. We suggest that the Government kindly leave out Clause 20 and insert this new clause. It is simply another attempt to encourage the Government to give the courts greater discretion than they appear inclined to do. We are perfectly content to abide by the Government’s maximum of 65 weeks but, within that, the Government should give the court clear discretion to set the appropriate length of sentence. That would include the power to suspend all or part of the total period. I beg to move.
Lord Bach: I hope to respond in as nuanced a way as the noble Lord, Lord Kingsland, moved his amendment. Our Clause 20 is intended to provide a solution to the problem that, under the current custody-plus legislation—which, I repeat, is not in force yet, before anyone else says it—a court cannot impose more than 13 weeks’ custody for consecutive offences without exceeding limitations on what must be the licence portion of custody plus. It would enable the courts to put into practice an option which theoretically is available to them when sentencing for more than one offence: the option to impose 26 rather than 13 weeks’ custody and 26 weeks on licence in order to preserve the rehabilitative benefits of custody plus.
The amendment would remove Clause 20 altogether and replace it with a new formulation. It would remove entirely the current restriction on the amount of the aggregated sentence that can be dedicated to custody. I understand that the intended effect is that the courts would not be limited at all in putting together consecutive custodial sentences and would be able to add them together until the threshold of 65 weeks had been reached, meaning that an offender could be sentenced to 65 weeks’ prison time if enough offences were sentenced together.
Our difficulty with the amendment is that the new clause would pretty directly undermine the custody-plus concept. It would mean that the court could disregard entirely the need for a licence period, or could significantly reduce it. The long-term, post-custody licence is the key feature of custody plus, allowing these offenders to be supported and supervised in the community on release. That does not, as I understand it, happen for short prison sentences in any event, and is one problem with which this Committee—and beyond the Committee, if I may say so—has attempted to battle.
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The proposed new clause would also introduce a substantial change to our sentencing framework by increasing the magistrates’ ability to impose actual prison time, which is currently six months for consecutive offences. Under custody plus, 26 weeks will be the maximum figure, which is the same. When magistrates’ courts assess that the defendant would be likely, if convicted, to require a heavier sentence than they are empowered to give, they can direct cases to the Crown Court. As I said in response to the previous amendment, they also have the power to commit a defendant for sentence to the Crown Court.
The proposed new clause would also allow these sentences to be suspended. That is unnecessary. As the law stands, consecutive sentences may be suspended anyway, but in case anyone had forgotten, we have just debated the wider issue of the offences for which sentence may be suspended.
I pause briefly to pay tribute to the work of the magistrates. All Members of the Committee, on whatever side they sit, know that magistrates play a vital role. They deal with 95 per cent of all criminal cases, either in the adult court or in the youth court. My noble friend Lord Hunt mentioned the 30,000 magistrates who serve voluntarily, giving their time freely in the name of public service and with commitment and dedication. I am sure that, in paying tribute to them, I do so on behalf of the whole Committee.
Lord Kingsland: The Minister makes it sound as though I just made a major attack on the magistracy. That is surely not the case. I do not need to say all the things that the noble Lord has said about the magistrates for it to be absolutely clear that we on this side of the Committee are sterling supporters of the magistracy, and have been since time immemorial.
I confess that I had not understood that the clause had custody plus in mind. The whole basis of the Minister’s response to me is that custody plus is a policy that is still up and running, and that the Government intend to implement as soon as possible. That, as I understand it, is the tenor of his response.
Lord Bach: Let me make the position clear. It is on the statute book. It needs to be brought up to date with the present legislation, but, as I think I said in response to the last amendment, we have no immediate intention of bringing it in. I certainly do not want to mislead the Committee on that.
Lord Kingsland: In that case, why is custody plus the main reason for opposing my amendment?
Lord Bach: It is certainly a reason, because one day custody plus may be brought in. Another reason is that we do not believe that the magistrates’ powers should be given to pass a sentence of up to 65 weeks’ custody. I hope that that was clear from our objection to the noble Lord’s last amendment to raise the maximum sentence for a single offence from six months. Everyone knows that the maximum sentence that the magistrates can impose for however many offences they deal with is a total of 12 months; in other words, 52 weeks.
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Lord Kingsland: So the real reason is not custody plus; it is because the Minister thinks that more people would be sent to prison as a result of our amendment.
Lord Bach: On this rather less dramatic but more nuanced amendment, as the noble Lord described it, we have more than one reason for objecting to it.
Lord Henley: I did not hear it.
Lord Bach: I would hope that the noble Lord, Lord Henley, heard me, but if he did not, let me repeat myself. Our reasons were based on custody plus, which we think this would absolutely destroy if it were ever brought in. There more likely would be a complete custodial element and no licence element. The whole point is to have a licence period after custody. In addition, it would—as it were, by the back door—increase the amount of time that the magistrates are entitled to send someone to prison for.
Lord Kingsland: I must admit, I find myself in a state of deep occlusion. I believe that the only way that I can clear it is by testing the opinion of the House.
9.14 pm
On Question, Whether the said amendment (No. 91) shall be agreed to?
Their Lordships divided: Contents, 31; Not-Contents, 32.
Alton of Liverpool, L.
Craigavon, V.
D'Souza, B.
Dundee, E.
Fookes, B.
Fowler, L.
Harris of Peckham, L.
Henley, L. [Teller]
Howe of Idlicote, B.
Kingsland, L.
Lawson of Blaby, L.
Liverpool, E.
Lyell, L.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Montrose, D.
Morrow, L.
Naseby, L.
Norton of Louth, L.
O'Cathain, B.
Ramsbotham, L.
Renfrew of Kaimsthorn, L.
Seccombe, B. [Teller]
Selkirk of Douglas, L.
Sheikh, L.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Trefgarne, L.
Ullswater, V.
Waddington, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Bassam of Brighton, L.
Bradley, L.
Campbell-Savours, L.
Clark of Windermere, L.
Crawley, B.
Davies of Oldham, L. [Teller]
Dubs, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Haworth, L.
Hunt of Kings Heath, L.
Jones, L.
Judd, L.
Malloch-Brown, L.
Maxton, L.
Patel, L.
Patel of Bradford, L.
Pitkeathley, B.
Radice, L.
Royall of Blaisdon, B. [Teller]
Smith of Leigh, L.
Steel of Aikwood, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Thornton, B.
Tunnicliffe, L.
Vadera, B.
Wall of New Barnet, B.
Whitaker, B.
Woolmer of Leeds, L.
26 Feb 2008 : Column 642
Resolved in the negative, and amendment disagreed to accordingly.
9.25 pm
Clause 21 [Credit for period of remand on bail: terms of imprisonment and detention]:
On Question, Whether Clause 21 shall stand part of the Bill?
Lord Kingsland: Clauses 21 to 23 concern curfew on remand being used as custodial time. We are concerned at the proposal to credit time spent on an electronic tag against a subsequent custodial sentence. Bail conditions are not imposed as punishment and cannot be considered as part of an eventual sentence.
A qualifying curfew condition requires a curfew of not less than nine hours, so one of, say, eight and a half hours from 9.30 in the evening to 6 o’clock in the morning would accrue no credit. This could lead defence solicitors to ask for longer curfew periods where a custodial sentence is likely, or for a reduction in, say, the unpaid work requirement. Often a court is invited to consider a condition to reside at a bail hostel and abide by the conditions at the hostel. This can be a far more onerous condition than a curfew with electronic tagging as the offender is removed from their home. However, such a condition would not be credited—nor, indeed, should it be.
I am puzzled by these clauses. The Government must be aware that the public will not warm to this proposal. As someone who is tagged with curfew conditions will be able to live at home, they may well be living in great comfort. Why should that period be set against any ultimate custodial sentence?
Lord Mayhew of Twysden: This provision takes up more than 90 lines of legislation. When the Minister comes to reply, will he answer the question: is it really worth it? What does he hope to achieve by it in terms of satisfaction for the public or a reduction of prison occupancy? Is it really worth it? To adopt the language of the noble and learned Baroness, Lady Butler-Sloss, I will answer the question myself: it cannot be.
Lord Hunt of Kings Heath: I am sorry that the clause does not lend itself warmly to the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Kingsland. In answer to the question, “Is it worth it?”, clearly the Government believe that it is worth it even given its 91 lines in this modest Bill. Perhaps the noble Lord, Lord Kingsland, will care to put this to the vote as well. The Government feel they are on a roll at the moment.
9.30 pm
Clauses 21 to 23, as the noble Lord said, give effect to a measure that was recommended by my noble friend Lord Carter in his review of prisons to help manage demand for prison spaces. They introduce a new provision in the Criminal Justice Act 2003 to provide that time spent on bail, while subject to an
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