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Lord Windlesham moved Amendment No. 68:

("(1D) In addition to making an order under sub-paragraph (1C) above, the magistrates' court may impose a fine which shall not exceed £1,000."").

The noble Lord said: My Lords, we come now to another item of unfinished business from the earlier stages of the Bill. In the form in which it was debated on Second Reading, Clause 50--originally numbered Clause 48--was one of the most objectionable in the entire Bill. To remind ourselves of the nightmare that has now passed, it provided for a mandatory sentence of up to three months' imprisonment, other than in exceptional circumstances, for the breach of a community order, the offender having received one prior warning.

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Fortunately, the Summer Recess afforded time for second thoughts on the part of the Home Secretary, prompted by representations from various Members of your Lordships' House and others, notably the Lord Chief Justice.

In Committee earlier this month, what is effectively a new clause (now Clause 50) was inserted by way of a government amendment. Although the process that has been substituted is extremely complicated and will take a lot of getting used to in the courts--difficult decisions will have to be taken when an offender is brought back for breach--nevertheless, the unacceptable degree of rigidity has been relaxed, and that is very welcome. Within some limits, sentencing discretion has been returned to the courts, where it belongs.

There is, however, scope (as there always is) for one further improvement. It does not affect either the principle of certainty of outcome, to which the Government are so wedded, or the way in which the clause is now drafted. Both of those are in general acceptable. But there is one omission; namely, the question of the ability of the court to impose a fine.

Perhaps I may briefly rehearse the sequence of events proposed in the amended Bill. As it stands, if an offender is over 21 years of age, and the court decides that the original order can continue, then the options are: a community punishment--that is, unpaid work for the benefit of the community--or a curfew order. These are the two principal penalties available to the court.

There are cases where the offender may not be suitable for a community punishment order--for reasons such as addiction, mental illness, or incapacity because of poor health, when it would not be within the capacity of the offender to carry out the obligations under such an order--and where a curfew order may be unsuitable. These two orders look all right in government discussion papers; but the curfew order would simply not be appropriate where there is unstable accommodation, and many offenders have no stable home address. Then there is the question of domestic violence. What happens if an offender is sent back to a home at which a partner will be at risk? In such cases the courts would be wrong to consider a curfew order; nor would they be willing to do so. In these circumstances a fine should be available to the court.

That sanction is not currently listed in the Bill as an option, although its inclusion was urged by several speakers in our earlier debate, including the Lord Chief Justice, the noble and learned Lord, Lord Woolf. We might pause here to note that it was the noble and learned Lord's first speech in his new capacity as Lord Chief Justice, bearing in mind that he was only appointed to that high office during the summer, although he had previously been a Lord of Appeal in Ordinary and Master of the Rolls. It was very welcome that he allowed so little time to elapse before following the practice set by his predecessors in office of bringing high judicial experience of sentencing to bear in debates in this House on criminal justice.

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So without the possibility of a fine, where an offender is unsuitable for any other disposal, the alternative left to magistrates and judges would be to revoke the order and to re-sentence to imprisonment. That would be cumbersome and also--surely more importantly in the interests of justice--it would be disproportionate.

I am aware that the Government are concerned about the failure rate in collecting fines, but there are grounds for hoping that the changes in enforcement to be brought in by the Access to Justice Act 1999 will improve the situation. The only reason offered by the noble and learned Lord the Attorney-General, in response to our earlier debate, for not including fines--namely, that it was a lower sentence in the tariff than the community sentence originally imposed--was, if I may say so, blown out of the water by no less a figure than the Lord Chief Justice, whose comments on that proposal can be found in Hansard.

In the circumstances, I hope that the Government will be willing to think again about making this relatively small, but potentially useful, change. I beg to move.

10.15 p.m.

Lord Dholakia: My Lords, I support this amendment to which I have attached my name. We were delighted in Committee when the noble and learned Lord the Attorney-General put forward certain amendments that brought some flexibility to a clause that we found very objectionable in the first instance. The one aspect missing here is something that the noble Lord, Lord Windlesham, demonstrated; namely, the fact that, although there is some flexibility, what is required is the inclusion of fines as one of the alternatives that a magistrate and a Crown Court could consider.

The amendment has the backing of the Association of Chief Officers of Probation. I hope very much that the arguments put forward by the noble and learned Lord the Lord Chief Justice and by the noble Lord, Lord Windlesham, will be taken into account and that fines can be included as an alternative in the clause.

Lord Brennan: My Lords, in my view, the amendment is unnecessary and unhelpful because it would undermine the effectiveness of the new system for dealing with breach of community orders, at which Clause 50 is directed. There are three reasons for my disagreement. First, if fines become an alternative, the amendment would produce an inconsistency in sentencing. Those on the Benches opposite will remember the events of 1991 when the Criminal Justice Act introduced the concept of unit fines, which was rapidly withdrawn--in fact, abolished--by the Criminal Justice Act 1993. That piece of history is not put forward critically but merely to indicate the complexity with which the philosophy of fines has affected this House and the courts. There is no philosophy. We are now left with Section 18, as

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amended in the 1991 Act, which leaves a wide and ill-defined scope to the power to impose a fine. The court must reflect the seriousness of the offence and the offender's financial circumstances.

In that loosely-defined regime, one can readily see, despite the good intentions of those proposing the amendment, that many courts will treat the possibility of a fine as a cheap and easy alternative, which, in some cases, they will adopt, while in others they will go to the other extreme. However, in either event, they will undermine the effectiveness of the alternative penalties of curfew or a community punishment order. The state of thinking about fines has led a distinguished academic to talk about the "diversity and indiscipline" with which courts apply them. Hence my first reason; namely, that there is a real risk that the amendment would introduce inconsistent sentencing.

My second reason is practicality. Many of those who will be in breach of such orders as we are concerned with will be living upon the minimum state security benefits to which they are entitled. A fine may have some punitive effect on a rich or well off defendant; it will always have a serious punitive effect on someone on a minimum income. If the state has designed that income to reflect the minimum that is necessary for ordinary life, to impose a fine on such a person is immediately to put him or her below the standard which the state has said is the minimum that is reasonably acceptable. That hardly becomes a theory of effective penal reform. It is therefore, I submit, impractical.

Finally--this is perhaps much the most important point--if introduced, fines imposed on this kind of offender create the real risk that because they cannot afford to pay they will reoffend. I can find only one piece of research carried out by the Home Office in 1973 based upon reasonable data. It sought to investigate the effect of courts imposing fines on probationers and consequent reoffending. The data led the study to conclude that there was a consistent tendency for probationers who had been fined to have a relatively high failure rate; in other words, to reoffend. The literature is based on reasonable data and is against the concept of fining those who are the subject of conditional orders such as community orders.

I hope that my noble and learned friend the Attorney-General will deal with my next point. The terms of the amendment appear to suggest that the fine will be an additional penalty rather than an alternative one. However, I shall leave that to him to explain. I conclude by opposing the amendment on the basis that a reasoned critique shows it to be inappropriate.

Baroness Blatch: My Lords, the noble Lord, Lord Brennan, made some interesting points about fines. I do not know whether he will be present when we discuss the proposal in Clause 69 to double fines for another group of people to whom many of the arguments made by the noble Lord apply.

I shall leave my noble friend to respond to some of the detailed technical points made by the noble Lord, Lord Brennan. However, my understanding of the

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amendment is that it seeks to increase the choices available to the courts which have at least one primary obligation; namely, to mete out the most effective and appropriate punishment for the criminal activity that has been committed by the person before them. The amendment offers one further option to the courts; namely, to be able to consider a fine alongside all the other available measures. If the imposition of a fine is appropriate and has the effect of appropriately punishing an individual, why deny the court that choice?

The noble Lord, Lord Brennan, made some interesting points on the effect of the imposition of a fine and the impact on the effectiveness of the proposals that the noble and learned Lord is defending on behalf of the Government. I look forward to hearing my noble friend address the points I mentioned. As I say, I hope that the noble Lord, Lord Brennan, will repeat some of the arguments he has made when we discuss the option of a fine for parents whose children are truanting from school.

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