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Lord Woolf: Like Members of the Committee in general, I should acknowledge that it is welcome that the Home Secretary has felt it possible to propose the amendment introduced by the noble and learned Lord the Attorney-General. I acknowledge straightaway that the proposal is much more satisfactory than what was previously contained in the Bill. However, the clause in its original form and in that proposed in the amendment raises an issue of principle and I consider it right to detain the Committee with a brief discussion of the matter.

Prior to taking up my present office, for almost 10 years I had not been directly concerned with our criminal justice system. I found to my regret that in the intervening period the system had not improved. I am afraid that it was my clear impression that it had deteriorated. That was despite--or, more accurately, partly because of--a flood of legislation in the intervening period. That legislation was no doubt well intended and was passed with objectives in mind which many would say were commendable. However, its effect has been to make the task of the sentencing judge or magistrate extraordinarily convoluted and difficult.

Because of my change of role, I thought it important that I should return to school. Therefore, I attended a refresher course for a week during the summer which was held by the Judicial Studies Board. The course work was impressive, as were the skills of those who attended. They needed to be. In order to pass a lawful sentence today, you have to pass through hoop after hoop imposed by the legislature. Although unintentionally, I am sure, the legislation has created an obstacle course. The sentences which can be passed and those which cannot are hedged around with a myriad of technical restrictions. What has to be

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explained in open court when passing sentence has become subject to a mass of technical requirements--so much so that a hot topic at the seminar that I attended was: is the better practice to go through the statutory hoops before telling the offender what is his or her sentence; or is it better to tell him or her the worst and then go through the hoops? From the offender's point of view, and that of the expeditious and efficient administration of justice, neither alternative has much to commend it.

Clause 48, in its original form, had the disadvantage that, although it was designed to give non-custodial sentences more credibility in the case of a breach of the conditions, it was in practice likely to lead to the opposite result. That is for the simple reason that it would make probation officers more reluctant than they should be to give warnings, and even more reluctant to bring offenders back to court. Those who have had anything to do with sentencing know that in many cases what is most effective if someone is brought back to court should a community sentence have had conditions breached is for the offender to be brought back into court. That is in itself salutary. A stern warning from the court can then have the effect that is required and the original intention of the sentencer when imposing the community sentence can be achieved.

What is the evidence that magistrates or judges are being unduly lenient when offenders are brought back before the courts for a breach of a condition imposed on a custodial sentence? That is not the impression of probation officers with whom I have discussed the matter. If we are treating offenders unduly leniently, training plus guideline decisions from senior judges can produce the required result. Why place a judge in the entirely artificial situation of having to impose an artificial sentence of imprisonment?

The new provision requires the court, if it is not satisfied that a community sentence can be completed, still to impose a sentence of imprisonment. What are the requirements with regard to that sentence of imprisonment? The court must ask itself what would be the sentence if the offender had just been convicted. But that is not the situation. A period of time would have elapsed before the sentence would have been imposed. Secondly, the sentencer has to consider what decision he would have imposed when the matter was originally before him. But that is putting the sentencer in an entirely artificial position. His intention at the time was not to impose a sentence. So he is asked to go through a hoop which serves no purpose.

Then, the court is being asked to impose imprisonment in some circumstances for an offence in relation to which no imprisonment could be imposed. A sentence of imprisonment is imposed for that offence in substitution for the means of disposal in the community which had originally been imposed. It is justified on the basis: "Ah, but the offender has since committed a breach of the order that was made". But imposing imprisonment in those circumstances is still imposing a sentence for the original offence. If Parliament had previously said that the proper sentence was not imprisonment, is it right, as a matter

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of principle, to impose imprisonment because the community sentence that was imposed has not been complied with?

It is now accepted that great improvements have been made by the legislation that this Bill seeks to amend; namely, the Powers of Criminal Courts (Sentencing) Act, which was passed this year. That Act brought together legislation that was spread across numerous Acts of Parliament. The consolidation was very much a step to be commended. However, we are now in the process of repeating the mistakes of the past by trying to deal piecemeal with particular problems that have been identified, frequently without conducting the investigation that should have been carried out to see whether the amendments to what has been consolidated in that Act are justified.

Complexity is a menace in any system of justice. What we are constantly doing is increasing that complexity. We have reduced the complexity in the civil justice system. That has assisted the administration of justice. What is being done now, and what has been done over the preceding years, is to move in the opposite direction with regard to the criminal justice system. I respectfully suggest to noble Lords that that process should be avoided unless an overwhelming case is made out to move in the other direction. As far as concerns this amended Clause 48, I know of no such case.

Finally, I should like to associate myself with what the noble Lord, Lord Windlesham, said with regard to an alternative of a fine. With the greatest respect to the noble and learned Lord the Attorney-General, I suggest that it is not an answer to the non-inclusion of a fine to say that that is a lower sentence in the tariff than the community sentence that has been imposed. The situation could arise where the offender would still have to fulfil his community sentence but could pay a fine in addition. As we have heard, that form of sentencing is regularly used now. I can see no purpose in depriving the courts of that additional weapon.

When sentencing, it is vital for a court to have as many options as possible. Of course, that means that the outcome is less certain; but it does not mean that the outcome is less desirable. Sentencing requires flexibility. We must avoid removing that flexibility if we can.

9 p.m.

Lord Brennan: I am sure that I speak on behalf of all Members of the Committee in acknowledging the value to us, and to the community, of listening to the views of the noble and learned Lord the Lord Chief Justice on the matter of sentencing with which we are concerned tonight. We shall need carefully to consider what he said in relation to the structure of legislation about future sentencing because that illustrates to us the particular tensions that arise in the present Bill which so concern him on the part of the judiciary and the system of criminal justice.

Why is this debate an example of that concern? We are here debating the question of how those who receive what must be described as a "lenient

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sentence"--that is to say, a non-custodial sentence--by way of a community order should be dealt with when they breach the terms of that order. That question raises the three issues that so concern the Lord Chief Justice. First, there are the interests of the offender; secondly, there is the question of protecting the public; and, thirdly, in seeking to resolve those two, often conflicting, considerations, there is the question of how the judges can best be assisted in sentencing.

I hope that the reasoned and, in my view, effective compromise on the question presently before the Committee by way of this amendment will give the noble and learned Lord some assurance that, with careful thought, the right solution can be achieved from time to time, despite the fact that it may be accompanied by one of two of those "hoops" that he has deprecated so much--and rightly so.

In the context of this debate it is important for the legal profession, and those in the criminal justice system, briefly to explain the purpose of the present amendment. As I understand it, a community order is regarded in many cases as an alternative to a custodial sentence. But for mitigating circumstances, the particular defendant ought otherwise to go to prison or to youth detention by way of sentence. That decision as the result of a pre-sentence report and the considerations surrounding the decision then made by the judge are designed to protect the public from harm on the part of the offender; to prevent the commission of further offences; and to secure the rehabilitation of the offender. However, I suggest that it should never be forgotten that behind those objectives is the belief that, if they cannot be achieved, that which was first worthy of consideration--namely, a custodial sentence--should be worthy of fresh consideration as regards those who breach those objectives by their conduct.

The Bill before us talks about an "unacceptable failure" in relation to the requirements of a community order. It is not a simplistic requirement to ask of a defendant that he observes an order of a court. Therefore, having identified the nature of the sentence, I invite Members of the Committee, and those who will read the Hansard report of this debate, to consider the purpose of the order: it is to make the defendant obey the requirements of the probation officer by completing the community order--whether it be community service, probation, or whatever--instead of going to prison.

With that background I ask three questions. First, what is the position of the offender with regard to the proposal in Amendment No. 129? At the day of sentence the judge will have to tell him or her in plain language that if the order is breached there will be a penalty, which may be the very penalty that would have been passed but for the mitigating circumstances that justify a community order. The defendant will be told in plain English, "If you do not do what you are told, you will be brought back and you may be sent to prison". That is not difficult to understand.

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I am quite sure that that warning will be repeated by every probation officer at their first meeting with a defendant. It may be the subject of a nudge from time to time as the months go by. It may, unfortunately, result in a first official warning. No defendant can plausibly say that that would take him by surprise; the opposite is the case. It gives him opportunity after opportunity to obey and to fulfil the terms which the court required of him.

Secondly, what is the position of the probation officer? As the noble Lord, Lord Windlesham, told us, it is significant that the Association of Probation Officers accepts the approach I have mentioned. I speculate on the reasons for that. It gives control which is reasoned and not indiscriminate. In my view it is a control which assists the effective completion of a community order; it does not hinder it. It enables the officer to say to the defendant, "I want to help you. You tell me you want to help yourself. You must follow the rules. If you do not, there are consequences". That is the kind of regimen which many of us observe in our ordinary lives; why not a defendant in these circumstances?

Thirdly, what is the position of the sentencing judge? The judge must ask himself: if there is a breach under this system, is the sentence likely to be successfully completed if I do not return to the sentence that ought originally to have been imposed? That is a perfectly reasonable question. If the sentence is likely to be successfully completed, there is every motive to allow it to stand. If that is not the case, I cannot foresee any cogent reason why the court should not return to square one; namely, to what the defendant was told would happen if he did not obey. The judge in so sentencing has his powers restricted by Parliament, but advisedly so because Parliament wishes a sentence to have penal effect if it is not observed by the person receiving it.

Those three considerations of the offender, the probation officer and the judge all lead me to conclude that this is--as I described it initially--a reasonable and effective method of ensuring that those who receive lenient sentences must take the consequences if they do not obey the rules. On several occasions in this Chamber I have heard the liberal--I use that word with affection rather than disdain--sentiment that there are many in our community who are so disadvantaged by background, drug addiction or whatever, that they need special attention. That is quite right. However, there are many more who are not so disadvantaged who treat such sentences as ones with which they can play. That must stop.

I therefore commend the amendment to the Committee, but I do so with restraint because, as my noble and learned friend the Lord Chief Justice said, this Bill is an amendment to a Bill which was a consolidating Bill this year of two Bills passed in the previous two years. This has got to stop. Sentencing and crime merit parliamentary attention, but not month by month or several times in one Parliament.

I make that suggestion seriously because we are dealing with important questions which affect public confidence in our system. The more carefully we

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prepare, the more detailed our examination of the resulting legislation, the more effective will be the result.

I conclude by inviting us all when next we examine legislation of this kind to remember what the Lord Chief Justice has told us. For us it is legislation. For the criminal justice system is human activity day by day which everyone should be able to understand and be able to follow and which, we hope, will benefit the community. I endorse the amendment and ask the Committee to support it.

9.15 p.m.

Lord Dholakia: Amendment No. 128 stands in the name of the noble Lord, Lord Windlesham, the right reverend Prelate the Bishop of Lincoln, and myself, and the noble Baroness, Lady Stern, who asks me to give her apologies. She is in Sweden and unable to be here on time.

I am delighted that the noble and learned Lord the Attorney-General has considered our concern. It is in his nature to find ways in which we can move forward. Much of the case has been made. I am delighted to hear the views of the noble and learned Lord the Lord Chief Justice.

The government amendment will improve the clause considerably by enabling the court to let an order continue if it considers it likely that the order can be successfully completed. The only oddity about this part of the amendment is that it requires the court to pass a community service order, a curfew order, or an attendance order for the breach but not a fine. Sufficient emphasis has been given to this and it would be right and proper for the Minister to consider whether a fine might be appropriate in certain cases.

Under the amended clause, if the court decides that it is not likely that the order can be successfully completed, it will be required to imprison the offender unless there are exceptional circumstances. This remains excessively rigid. For example, in the case of an offender with a chaotic lifestyle who has breached a community service order a court resentencing the offender might conclude that the probation order or curfew order with electronic monitoring would be a suitable punishment as well as having a better chance of injecting some structure into the offender's life. It would be more likely to steer the offender away from further crime than a short period of imprisonment.

The amendments considerably improve the clause and have the support of the Association of Chief Officers of Probation. I hope that the Minister will look at the amended clause. It still ties the hand of the resentencing court in a way which seems somewhat excessive and undesirable. The proposals improve it. Let us hope that it will work.


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