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The Deputy Chairman of Committees (Lord Carter): If Amendment No. 160BCA is agreed to, I shall not be able to call Amendments Nos. 160BCB to 160BFA inclusive on the grounds of pre-emption.

5.30 p.m.

Lord Dholakia: The grouping under Amendment No. 160BCA contains a number of amendments tabled by my noble friend Lord Thomas of Gresford and myself; that is, Amendments Nos. 160BCB, 160BCD, 160BJB, 160BJC and 160BJD. A number of other amendments have been tabled by my noble friend Lady Walmsley and myself: Amendments Nos. 160BCC, 160BFA and 160BJA.

Perhaps I may say at the outset that we support much of what has been said by the noble Baroness, Lady Anelay, in relation to her Amendments Nos.

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160BCA and 160BH. Perhaps I may also mention that we shall not move Amendments Nos. 160C, 161 and 257 at this stage in order to facilitate discussion on these important matters.

Amendment No. 160BCB is designed to ensure that all the factors must be considered by the court as opposed to it simply having regard to the five factors that have already been mentioned. Clause 135 contains a declaration of the purposes of sentencing regarded by the Government as the cornerstone of the proposals and an essential element of the new strategy.

Justice has pointed out that the declaration is confused and liable to produce greater inconsistency in sentencing. The Bill states that the court must have regard to five purposes each time it passes sentence: punishment, crime reduction and deterrence, the reform and rehabilitation of offenders, public protection and reparation to victims. In fact there are probably six or more different purposes because "crime reduction" is said to include its reduction by deterrence and the White Paper stated that both the deterrence of the offender and the deterrence of others should be taken into account.

Amendments Nos. 160BCC and 160BJA are designed to identify clearly the age groups to which the clause relates. Clause 126 sets out a framework for the court in relation to the purposes of sentencing which specifically excludes children—that is, offenders under the age of 18. NCH, the National Children's Bureau, Barnardo's, the Children's Society, NACRO and the National Association of Youth Justice support the principle of separating the framework for adults from that for children and further believe that there is a need to set out clearly in primary legislation the court's duty under domestic and international law to consider children's welfare as a primary consideration in all matters affecting them.

We believe that the proposed amendment would retain the primary overall aim of the youth justice system—the prevention of offending by children—while reinforcing and clarifying the necessary safeguards for children and better compliance with children's human rights obligations. If accepted, the amendments would ensure that, when passing sentence, the courts would have regard to the welfare of the child in order to best respond to their vulnerability, developmental need and relative immaturity. Ignoring these considerations can result in unnecessary, harmful and lengthy custodial sentences—itself a contravention of Article 37 of the UNCRC.

Amendment No. 160BCD seeks to insert a more accurate and less emotive expression of a core function of sentencing. Amendment No. 160BFA seeks to add a rehabilitation element to the purposes of sentencing, which a court must consider during the sentencing exercise. Amendment No. 160BJB is self-explanatory. It provides a chance to rehearse and confirm the "prison does not always work" argument and provides that the alternative must be considered.

As to Amendment No. 160BJC, Clause 135 states that a court must have regard to the purposes set out in the clause but in many cases the five purposes may

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point in different directions and the court will have to make a choice. Clause 135 gives no clue as to how the choice should be made and establishes no order of priority among its various aims, as the noble Baroness, Lady Anelay, pointed out.

We support Amendment No. 160BJD on the basis of the proposal in the Halliday report that a fundamental principle of sentencing is that it should be proportional to the seriousness of the offence. At a minimum, the Bill should adopt the recommendation of the Council of Europe, Principle A4, to the effect that no sentence should be disproportionate to the offence. In order to establish the primacy of this principle, the relationship between Clauses 135 and 136 must be established. This could be achieved by an additional subsection to Clause 135.

Lord Renton: If the amendment moved by my noble friend Lady Anelay of St Johns and the other amendment standing in her name and that of my noble friend Lord Kingsland are not accepted and do not become part of the Bill, there might be something to be said for the amendments to which the noble Lord, Lord Dholakia, has spoken. However, I would prefer the Bill to be amended fundamentally in the way proposed by my noble friend rather than by the patching-up amendments brought forward by the Liberal Democrat Front Bench.

I strongly agree with my noble friend's suggested replacement of subsection (1). Like other noble Lords, I have had to sentence a good many people in the various part-time judicial capacities I have held. When carrying out that work, we never had available to us such a clear statement of the purposes of sentencing as that expressed in the amendment. It contains valuable statements of principle for the guidance of courts and it points out the need for the court to be flexible according to the circumstances.

However, I should mention two points of detail. I am not sure that the expression "reparation by offenders" in paragraph (e) will always be widely understood. It may be the best expression but it means "compensation", and "compensation" may be better understood.

My other point arises out of what was said in a previous debate—in which, I am thankful to say, the noble Baroness, Lady Scotland, agreed with me. Paragraph (f) refers to the maintenance of public confidence,


    "and the prevalence of the offence in question in the locality".

That point needs to be borne in mind by Parliament when giving powers of sentence. It is rather unfortunate and extraordinary that in some areas, especially in large cities, one type of offence will grow too prevalent and not be heard of much elsewhere. It is only right that we should bear that factor in mind when legislating.

However, returning to the generality of my noble friend's amendments, Amendment No. 160BCA would make Clause 135 more practical, more flexible and necessarily part of our law. As to Amendment No. 160BH, it should be made clear to lay Members of

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the Committee that the Sentencing Guidelines Council can only issue guidelines. It cannot change the sentencing powers provided by Parliament.

Lord Carlisle of Bucklow: In her reply to the previous debate the Minister was kind enough to mention the modest words with which I described Part 12 of the Bill. I therefore have a requirement to justify one or two of them briefly.

Among other things, I said that I felt the Bill was "platitudinous". I was referring particularly to Clause 136(1). I would not have thought that it was necessary to advise anyone sitting in any form of judicial capacity that,


    "In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might forseeably have caused".

That adds nothing to the phrase "seriousness of the offence".

I also remarked that the Bill was in some ways self-contradictory. Like the noble Lord, Lord Dholakia, I was there referring to the paper produced by Justice—which no doubt the Minister has seen—in regard to this part of the Bill. Clause 135(1) states that:


    "Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing".

If I understand its argument correctly, Justice is saying that the use of the word "must" could make some of the proposals self-contradictory in that one could well be in a position where the reform and the rehabilitation of the offender was pulling one way and the need for the reduction of crime, including its reduction by deterrence, was pulling in the other direction. Justice gave various examples where it believes that the other intentions of the Bill to achieve shorter sentences could be affected by the use of the word "must" and the purposes of sentencing set out in Clause 135.

At this stage, all I ask of the Minister is whether—with reference to the word "self-contradictory"—she would look again and consider whether "must" is the right word. I do not know whether "shall" would reduce the strength of the wording in any way. However, it could lead to a conflict of intention to say that in each case one must take account of the reduction by deterrence, when one is dealing with a person who, in the light of his individual circumstances, may be reformed better without a prison sentence.

No part of the clause says what weight is to be given to any of the particular purposes of sentencing. One might perhaps say something like,


    "have in mind the following purposes of sentencing",

or,


    "must be aware of the following purposes of sentencing",

rather than, "must have regard", which implies that any sentence must meet all those six purposes when they may in some cases be self-contradictory.


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