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Earl Russell: If the Minister has to make that point again, she might find it useful to refer to the amateur archaeologist who reported having discovered two post holes which were in a straight line.

Baroness Anelay of St Johns: These are probing amendments. I am grateful to the Minister for her clarificatory response. Towards the end she referred in

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particular to the sentencing of road traffic offenders. I had that in mind, given the response of her colleague Mr Hilary Benn in another place when he was then Under-Secretary of State, although today we learn that he is in the Cabinet. His response on a similar occasion was to talk about occasions not convictions. I was worried when he referred to three previous occasions being taken into account as a guideline for a persistent offender, that in road traffic offences there may be one conviction on one day which covered several occasions. I was not sure from what he said how the Government were approaching that form of sentencing. Today the Minister has confirmed the issue: it is the conviction not the occasion. She has put right an unintentionally misleading response from her right honourable friend in another place.

My noble friend Lord Carlisle of Bucklow was right to raise the question that he posed on community orders. It goes to the heart of the issue. We are all trying to ensure that prison sentences are used only when absolutely necessary, for the minimum number of occasions. We will certainly look at the matter in detail in future. We are all trying to ensure that community sentences are the only recourse. I reassure my noble friend that we will have the opportunity later to debate in some depth the issue of the government resources that, I hope, are to be made available for all the community sentences imposed as a result of the Bill.

Amendment No. 252C, which relates to Part 14, will be led by my noble friend Lord Bridgeman, who is on the Front Bench at the moment. We thought that it was right to table that amendment at the end of the Bill so that we can take into account everything that has been debated. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 161D not moved.]

On Question, Whether Clause 143 shall stand part of the Bill?

7 p.m.

Lord Goodhart: First, I seek clarification on a point arising out of the previous debate. It relates to the application of Clause 143 to minor traffic offences. Is it possible that Clause 143 could be applied to offences that do not otherwise carry a sentence higher than a fine? As I read it, Clause 143 could not apply unless the offence carried a punishment more serious than a fine, and that you could not simply apply it when there were three successive fines—assuming, of course, that they had all been paid.

We are concerned about Clause 143 in principle. Our concern is shared by the Bar Council and the Howard League for Penal Reform. The Bar Council says that Clause 143 could act as a green light to those who are minded to lock up people for minor offences. It has urged the courts to stop seeing an automatic route through the prisons for the non-payment of fines, whereas this clause provides that route.

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The Howard League is also very concerned about the collapse of the fine as a tool of the criminal justice system, with fines having fallen by a quarter between 1996 and 2000.

We object to Clause 143. We will not necessarily take the matter further, but we wish to make clear at this point our serious concerns.

Baroness Scotland of Asthal: We do not propose to substitute any term of imprisonment for fines. Fixed penalties for offences such as speeding, for instance, are not convictions by a court so they do not count for the purposes of Clause 143. Payment of a fixed penalty discharges any liability. I can see that the noble Lord is puzzled—I am responding to the first comment that he made about fines.

Lord Goodhart: Perhaps I am ignorant of the fact. Although I am aware that there are fixed penalties for parking offences, I understood that the punishment for moving traffic offences such as speeding—when someone is caught on camera speeding—is a fine rather than a fixed penalty. I may be wrong.

Baroness Scotland of Asthal: The situation gets complicated. The non-payment of a fixed penalty notice can result in convictions that in turn may lead to a fine that can be counted for these purposes. An offence can also be prosecuted rather than dealt with by a fixed penalty, and a fine may result. It is through that route that a fine comes about. In all other respects the position remains the same.

Baroness Anelay of St Johns: It might be helpful if we looked at the subject again on Report. In the Anti-social Behaviour Bill, the Government are introducing a significant number of new on-the-spot penalties. I am glad that the noble Lord, Lord Goodhart, raised this aspect that I had not properly considered. I give notice that we will need to consider it before Report stage.

Baroness Scotland of Asthal: It may be helpful if I write to both the noble Baroness and the noble Lord to clarify how we see the issue so as to obviate the need for the noble Baroness to return to the issue.

Baroness Anelay of St Johns: I would welcome that.

Clause 143 agreed to.

Clause 144 [General restrictions on imposing discretionary custodial sentences]:

[Amendment No. 161E not moved.]

Lord Goodhart moved Amendment No. 161EA:


    Page 88, line 7, at end insert—


"( ) In considering whether to pass a custodial sentence under subsection (2), the court must take into account the impact of a custodial sentence on any dependent children for whom the offender is responsible."

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The noble Lord said: The amendment is grouped with Amendment No. 161EB. Amendment No. 161EA would require the court, when passing a custodial sentence under Clause 144(2), to take into account its impact on any dependent children for which the offender is responsible. The amendment was tabled as a result of a briefing by the Royal College of Psychiatrists, which said that there should be an additional provision to that effect. It said that the matter should be included in a pre-sentence report. It further states that underlying the proposal is the principle that the punishment is of the individual offender and should not adversely affect innocent third parties, particularly vulnerable children. The provision would also be of particular relevance to the increasing number of imprisoned women.

It is obvious that a custodial sentence of a mother with young children could have a very serious effect. At its worst, that effect could stay with those concerned for the rest of their lives. The issue ought to be in the Bill. It is a factor that ought to be taken into account, as it is at present, no doubt, by courts considering the possibility of imprisoning mothers with young children.

Amendment No. 161EB provides that,


    "the overriding principle should be to reserve the use of custody for dangerous sexual and violent offenders and seriously persistent repeat offenders".

The amendment was tabled as a result of briefing by the Prison Reform Trust. It points out that the Explanatory Notes on the Bill state under the section headed "Part 12: Sentencing":


    "The provisions will be implemented as part of a strategy which will aim to ensure that custody is reserved for dangerous sexual and violent offenders and seriously persistent repeat offenders, and that the benefits of community supervision are made available for more offenders".

The Prison Reform Trust recommends that an assurance be sought that this strategy should be developed and implemented swiftly and to a timetable. It also believes that the legislation would be strengthened if the principle were included in the Bill. In support of its views, my noble friends and I have tabled Amendment No. 161EB in our name. I beg to move.

Viscount Colville of Culross: I hope that the noble Baroness, Lady Scotland, will not accept either of these amendments. As the noble Lord, Lord Goodhart, said himself, Amendment No. 161EA is something that any court should take into account and give proper consideration to. Mitigating counsel would be in grave dereliction of duty if that point were not made.

On Amendment No. 161EB, there are a number of very serious offences of dishonesty that certainly ought to be visited by a prison sentence on a suitable occasion. I recently had some experience of food safety cases in which the most horrendous behaviour could lead to extremely serious poisoning of anyone who ate the food, and in which a large sum of money was being made by the offender. I do not think that the categories put forward by the noble Lord, Lord Goodhart, in

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Amendment No. 161EB cover the ground. I would have thought that the courts should not be constrained in this way.

Lord Carlisle of Bucklow: The shortest speech that I could make would be to say that I heard what the noble Viscount, Lord Colville of Colross, said and I agree. I welcome the clause to the extent that it makes clear that prison should be used only when the offence is serious and no other form of penalty is justified. I share the views expressed by the noble Viscount. As far as Amendment No. 161EA is concerned, I would have thought that it was obvious that, when one examines all the circumstances, one should take into account the position of the family and matters of that nature. In areas such as those, I was emboldened to say earlier that the Bill was very verbose. It often states matters that are accepted as perfectly sensible and obvious sentencing guidelines that do not need to be included in the Bill.

The second amendment, Amendment No. 161EB, would leave out every form of offence of dishonesty, fraud, major larcenies, people who stole money from elderly ladies and all sorts of other offences. One type of offence, by its very nature, cannot be said to be more heinous than another offence without knowing the facts of each individual case.

That brings me back to what I said earlier. I agree that sentencing is a matter for the judge who sees the people before him, knows the facts and knows the seriousness of the offence. As far as possible, we should leave him the widest discretion within the general framework set out by Parliament.

7.15 p.m.

Baroness Stern: Briefly, I support Amendment No. 161EA despite the wise words of the noble Viscount, Lord Colville, and the noble Lord, Lord Carlisle of Bucklow. I agree that, in a different environment, it would be right for these matters to be left to the discretion of the judge or magistrate. However, when almost every circumstance is being set out in legislation, it is an omission that we are not drawing the attention of sentencers to the effects of imprisonment on the carers of children. Men are sometimes the sole carers, but they are usually women, so the effect of a prison sentence on women is much greater.

The harm caused by the imposition of a custodial sentence on women with young families can be enormous. The crime-creating effects of such a sentence can be great and can quickly cancel out any crime reduction that might be achieved by the prison sentence. The break-up of the family can lead in the long term to serious social disruption. In most of the cases for which women come before the court, a demanding community order would be a completely adequate response. Although in principle it would be desirable for the courts to be trusted in these matters, since most other matters are being set down, the fact

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that this is not makes it likely that sentencers will not believe that we felt the matter to be as important as I believe it to be. I support the amendment.


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