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The Earl of Listowel: I look forward to the Minister's response. I have listened to the debate and feel very concerned, as do we all, about the harm caused to young children when they are separated from their mothers. I am no expert in this area and experts have spoken, so I simply look forward to her reply. Perhaps she could also tell us something about the problem of location. I understand that, because of the size of the prison population, it is often difficult to keep prisoners within close reach of family members. Will she assure the House that, in the case of principal carers, every effort is made to ensure that they can be kept within close reach of their families, especially when young children are involved?

Baroness Scotland of Asthal: I hope that I will be able to satisfy everyone. I wholeheartedly agree with the comments of the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord Carlisle of Bucklow, in resisting the amendment. However, I also say to the noble Baroness, Lady Stern, and the noble Lord, Lord Goodhart, that I take on board their comments about the need to consider the position of the carer. I understand the sentiments expressed by the noble Baroness about the consequences that may flow from a mother being removed from young children when an alternative form of sentencing might be appropriate.

I hope that the noble Lord and the noble Earl, Lord Listowel, will be comforted that that is precisely the sort of issue that should be dealt with by the Sentencing Guidelines Council. It can help the judge or sentencer—lay or professional—by inviting them to take into consideration those factors that will most help them to come to a just resolution. Amendment No. 161EA would fall happily within the framework.

On Amendment No. 161EB, I say to the noble Lord, Lord Goodhart, as has already been said by the noble Lord, Lord Carlisle, and the noble Viscount, Lord Colville of Culross, the circumstances of a case can vary so widely that it would be impossible to be prescriptive in the principles. Prescribing principles in such a way would not be helpful. I respectfully suggest that the best course would be to leave matters to guidelines and the good judgment of the sentencer who hears the case.

Lord Goodhart: I am grateful to the Minister for what she said about Amendment No. 161EA. It may be that guidelines are the proper place for such consideration. I am also grateful to her for the recognition that this is an extremely important consideration that would need to be taken into account in all appropriate cases when sentencing.

It is clear that I have no support for Amendment No. 161EB in your Lordships' House. Indeed, I can see the force of the arguments. In that case, the amendment will not trouble this House again. I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

[Amendment No. 161EB not moved.]

Clause 144 agreed to.

Clause 145 [Length of discretionary custodial sentences: general provision]:

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


    Page 88, line 20, leave out "the shortest" and insert "such"

The noble Baroness said: Clause 145 makes provision about the appropriate length of custodial sentences and replaces the current provision in Clause 80 of the Powers of Criminal Courts (Sentencing) Act 2000. The Government have made a slight but, perhaps, important change to the wording.

At present, the statute states that the length of a custodial sentence must be,


    "for such term . . . as in the opinion of the court is commensurate with the seriousness of the offence".

Clause 145 changes the words "for such term" to "for the shortest term". In Committee in another place, the then Under-Secretary of State, Mr Hilary Benn, stated that the alteration in the wording was,


    "a deliberate change".—[Official Report, Commons Standing Committee B, 4/2/03; col. 780.]

What he did not do was to explain what the deliberate change was and how it had been arrived at. This is an opportunity for the Government to put that omission right.

My question is a lesser one: what will be the effect of the change to "the shortest term" on sentences passed for a deterrent effect? By definition, they are longer than those that would ordinarily be passed without the need for deterrence. I beg to move.

Lord Carlisle of Bucklow: When we debated Clause 135, the Minister chose not to answer my question about whether the words,


    "must have regard to the following purposes of sentencing"

were right or whether we should consider them again. I think that it was with particular regard to the combination of Clauses 135 and 145 that Justice suggested that there could be a possible contradiction in the Bill. How can we be sure that a sentence is for,


    "the shortest term . . . that in the opinion of the court is commensurate with the seriousness of the offence",

if, at the same time, the court must have regard to the deterrent effect on others? There is a possible conflict of principles. As Justice said, we should look again at the words "must have regard" in Clause 135(1).

Baroness Scotland of Asthal: I apologise to the noble Lord for not dealing with his point on Clause 135. It is the view of the Government that the phrase "must have regard" is appropriate. The noble Lord suggested the phrase "shall have regard".

Lord Carlisle of Bucklow: I suggested "have in mind" or "bear in mind".

Baroness Scotland of Asthal: The importance of Clause 135 is that the court must take into account and

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"have regard to" the purposes of sentencing in determining the appropriate sentence. That is not in conflict with Clause 145. In having regard to all those purposes, the court can still, in deciding the length of sentence, consider what the shortest term should be, taking those factors into account. They are not in conflict; they are complementary and helpful. A range of possible lengths of sentence may be considered by the court. The clause directs it to consider the shortest term. The Bill invites the court to consider the shortest term, in taking all those factors into consideration.

The noble Baroness is right to say that, in Clauses 144 and 145, we have chosen deliberately to move away from the formulation used in the Powers of Criminal Courts (Sentencing) Act 2000. We have retained the principle that a custodial sentence must be imposed only when the offence is so serious that,


    "neither a fine alone nor a community sentence can be justified for the offence".

We wanted to reinforce the point that a custodial sentence should be used only as a last resort. Similarly, in Clause 145, we have said that the length of the custodial sentence should be for the shortest time,


    "commensurate with the seriousness of the offence".

We would not want to revert to the wording of the Powers of Criminal Courts (Sentencing) Act, as proposed in Amendment No. 161F.

With that, I hope that the noble Baroness will find that she has had a clearer, if not a better, explanation.

Baroness Anelay of St Johns: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 145 agreed to.

Clause 146 [General limit on magistrates' court's power to impose imprisonment]:

Lord Goodhart moved Amendment No. 161FA:


    Page 88, line 27, leave out "12 months" and insert "51 weeks"

The noble Lord said: In moving the amendment, I shall speak also to Amendments Nos. 161FB and 161FC.

Clause 146 has caused a good deal of controversy. It has caused concern in a large number of organisations that have put forward arguments about it. We are not proposing that the increase in the power of sentencing from six months to 12 for a single offence should be removed. We are not proposing that Clause 146 should not stand part of the Bill. However, we are concerned about two things, both of which relate to the custody plus system.

I shall leave Amendment No. 161FA for the moment and go on to Amendments Nos. 161FB and 161FC. We are concerned that the increase in the power of sentencing should not come into effect until the provision for custody plus has also come into force. Once the provisions for custody plus have come into force, they will cover any sentence shorter than exactly 12 months imposed by a magistrates' court. It would be highly undesirable to have an interim period, during which magistrates could, say, impose a sentence of nine months, which would have to be served, as opposed to

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what would happen under the custody plus system. At the end of such a period, magistrates' courts would lose that power, and we think that, during the interval, magistrates' courts, flexing their muscles, would be tempted to impose sentences of imprisonment of longer than six months that would have to be served.

With Amendment No. 161FA, we want to go further. If the Bill becomes law as it stands, it will bring into force the increased sentencing powers and the custody plus powers. The effect of the Bill will be that magistrates' courts will be able to avoid custody plus by sentencing somebody to a sentence of exactly one year.

That is inappropriate and liable to lead to an increased use of the power to sentence to 12 months. Magistrates unwilling to impose custody plus, but who might otherwise have imposed a sentence of six months, might say, "Oh well, we will have to put it up to 12 months because if it is for anything less it cannot be served and will be caught by the custody plus rules". Therefore, magistrates courts' powers should be limited to a sentence of 51 weeks—that is, less than 12 months—so that magistrates cannot escape the custody plus rules by imposing a 12 month sentence; the maximum would be 51 weeks which would not be caught by custody plus. Otherwise, we, and a number of organisations, fear that there will be an increase in the jail population because of magistrates increased use of the 12-month power of sentencing. I beg to move.


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