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Baroness Anelay of St Johns moved Amendment No. 161A:

(1) This section applies when—
(a) an offender is sentenced for an offence ("the current offence");
(b) at the time when he is sentenced for the current offence, he is in custody and is serving a custodial sentence that was passed in respect of another offence ("the previous offence") or he is ordered by the court to be returned to custody to serve any part of such a custodial sentence; and
(c) at the time when he is sentenced, the unexpired period of the custodial sentence passed in respect of the previous offence is 12 months or less.
(2) When this section applies, the court may pass a community sentence on the offender in respect of the current offence if in the circumstances the court is of the opinion that it would have imposed such a sentence had the offender not been in custody and that, notwithstanding the fact that the offender is in custody, it is in the interests of justice for a community sentence to be imposed in respect of the current offence.
(3) When this section applies and the court passes a community sentence in respect of the current offence, the court shall order that the commencement of the community sentence is to be deferred until such time as the offender is released from custody."

The noble Baroness said: Amendment No. 161A takes us to a new subject. The amendment relates to the imposition of community sentences for relatively minor offences on offenders who are at the time of sentencing already in custody for another offence. Noble Lords will be aware that at present if the release date is more than a few weeks away, the court is likely

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to impose a short consecutive custodial sentence for the new offence. That is not necessarily so, but they may do so even if ordinarily it would have imposed a community sentence had the offender not been in custody at the time.

The amendment seeks to probe whether it may be more effective to impose deferred community sentences, including what are currently known as community punishment orders and community rehabilitation orders where the offender is already in custody for another offence at the time of sentencing but has only a few months left to serve.

The offender might be in custody at the time of sentencing because he has committed the new offence while on licence, and has been recalled to prison to serve a few months of his unexpired sentence; or perhaps the Secretary of State has recalled him to prison for another breach of licence conditions before his appearance in court; or where he has been sent to prison for a short term for another offence committed in the period between committing the offence for which he is being sentenced and the sentencing hearing.

At present, this issue appears to be dealt with solely in case law. I am advised that the leading case is that of Fontenau v Director of Public Prosecutions, a decision of the Divisional Court of the Queen's Bench Division, reported in the First Volume of Criminal Appeal Reports (Sentencing) for 2001, at page 48. The noble and learned Lord, Lord Bingham of Cornhill, the then Lord Chief Justice gave the leading judgment. He said that while it is permissible to impose a community sentence on an individual nearing the end of a custodial sentence imposed on a previous occasion, that should only happen where the period remaining before release from custody is,

    "so short as to be in practice minimal".

The amendment raises the question of whether it would be better for Parliament to build on this decision in Fontenau and to enable the courts to defer the operation of a community order until the offender's release from custody for the other offence, where that release is just a few months ahead. For the purposes of the debate on my amendment I have chosen a period of 12 months, although I realise that this may be too long and that a shorter period may be considered more appropriate. It really is simply a probing amendment.

What is suggested in the amendment might be more effective than the court imposing a very short consecutive custodial sentence, perhaps only of a few days, for the new offence simply because the offender is already in custody. I stress that the amendment deals solely with cases where the court would ordinarily have imposed a community sentence for the new offence, but is precluded from doing so because the offender is actually in custody for that other offence. I beg to move.

Baroness Scotland of Asthal: I reassure the noble Baroness that Amendment No. 161A is not necessary. That is the only basis on which I shall not accept it. Its

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effect can already be achieved under the current law. Where an offender is convicted on two or more indictments, whether or not on separate occasions, the court must impose a separate sentence on each count. The sentences imposed may be ordered to run concurrently with each other, or consecutively, or there may be a mixture of both. The court should indicate which sentences are imposed in relation to which counts.

Under the new framework, with all prison sentences being served partly in prison and partly in the community, all offenders will of course have a period spent on licence in the community where resettlement and rehabilitative work can be undertaken. If the court decides to impose a community sentence and orders it to run concurrently with a prison sentence, the offender will still therefore have time under supervision in the community.

There is a body of case law establishing the authority of the court to impose consecutive sentences—the noble Baroness mentioned one leading authority—on different counts on different indictments. It is therefore already possible for the court to order a community sentence to be served consecutively to a custodial sentence currently being served as proposed under the clause. I hope that with that reassurance the noble Baroness will feel comfortable in withdrawing her amendment.

Baroness Anelay of St Johns: I welcome that assurance. I shall obviously check that that is the understanding elsewhere. The noble Baroness said it with such authority that I am sure it must be, but I shall look carefully at it. At this stage, I beg leave to withdraw the amendment and make it clear to the Committee that I shall not move Amendment No. 161B.

Amendment, by leave, withdrawn.

Clause 141 [Passing of community sentence on offender remanded in custody]:

[Amendment No. 161B not moved.]

Clause 141 agreed to.

Clause 142 agreed to.

Clause 143 [Community order for persistent offender previously fined]:

Baroness Anelay of St Johns moved Amendment No. 161C:

    Page 87, line 11, leave out "three" and insert "two"

The noble Baroness said: In moving Amendment No. 161C, I shall speak also to Amendment No. 161D. Clause 143 gives courts the power to order that persistent petty offenders who have been fined on at least three previous occasions should be sentenced to a community sentence even though such a sentence would not otherwise be justified given the seriousness of the latest offence. Again, these are probing amendments. Amendment No. 161C reduces the number of previous occasions from three to two, and Amendment No. 161D from three to one.

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The obvious question I pose as a result of these two contradictory amendments is: why three previous occasions? I beg to move.

Lord Carlisle of Bucklow: I welcome the Bill's emphasis on community service. Perhaps I may ask the Minister a question. Community service has been going through rather a rough time. What is the position at the moment? Have more orders been made? Clearly, it is desirable that the courts should make them, as the Bill makes clear, where appropriate.

Baroness Scotland of Asthal: I do not have the figures with me, but I shall certainly write to the noble Lord. We are trying to create better-targeted community sentences which, frankly, have greater teeth. Therefore, the public will have more confidence that they do the work which we know they can in terms of reform, rehabilitation and reparation.

The noble Baroness asks why three and not two occasions? Defining a persistent petty offender for the purposes of this clause as one who had been sentenced to a fine on two or even one occasion, rather than on three previous occasions, would lead to a much greater number of offenders being caught by the provisions. I suppose it almost goes that once is a mistake, twice is somewhat careless, but three times tends to indicate a pattern. So the figure three was alighted upon as being perhaps an indication that the person has been given an opportunity to make a mistake, an opportunity to consider it again, but the third time he should be unlucky.

Not only would that be the case—I am not being entirely flippant about it because we have to consider what this approach may lead to—but we are very conscious of the concern that it should not lead to a large up-tariffing of sentences. That would also be very costly for the probation service to deal with. It has to concentrate on those offences which are of a more serious nature. We think that the limit of three previous convictions is a better one.

Much of the offending caught by this provision is minor—for example, low-level public order and minor road traffic offending—and of a kind that would only warrant a community sentence where a clear need for such a penalty is identified. Such a need is unlikely to arise unless persistency is clear. We believe that two previous offences would be insufficient to reach the threshold and one would certainly not reach an acceptable level of seriousness. It is really for that reason that we think that this is the most appropriate way forward.

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