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Baroness Anelay of St Johns: I shall disappoint the Minister only in relation to her last remark. Sadly, I had to resign as a magistrate when I joined the Front Bench in this House because I was not able to give a proper commitment to sit long enough. Nevertheless,

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I always declare an interest as a former magistrate and have at heart the concerns of magistrates. It is right to identify that.

I am grateful to the noble Baroness for her clarification. I accept her assurances and indicate that I shall not return to these matters on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 173D to 173F not moved.]

Clause 167 agreed to.

Clauses 168 and 169 agreed to.

Clause 170 [Community orders]:

Lord Carlile of Berriew moved Amendment No. 173FA:

    Page 102, line 8, at end insert—

"( ) The court may make repeated use of a community order; and its use for previous offences does not, in itself, preclude it from consideration for the current offence."

The noble Lord said: In moving Amendment No. 173FA I shall speak also to Amendment No. 173FB standing in the name of my noble friends Lady Linklater and Lord Dholakia. I begin by paying tribute to my noble friend Lady Linklater, who is not able to be here today because she is fulfilling a commitment to sit as a magistrate north of the Border. She is the chair of the Esmee Fairbairn Trust, which has done an enormous amount of work in recent years in the field of youth justice. Its reports are well worth reading as important guidance for policy.

Clause 170 sets out what I am sure will become known as the "community menu". Judges and magistrates, when they are imposing a community order of which there is only one, will have the duty to choose from the menu any one or more of 12 requirements. When I was looking at the requirements prior to the debate, I was bound to reflect that some of us are fulfilling some of them: an activity requirement; a programme requirement; a residence requirement; I hope a curfew requirement, as I shall try to be brief; and in some cases—I confess to this during the dinner hour—an alcohol treatment requirement, although not as intended in the clause.

The purpose of these amendments can be put simply. It is to give clarity to an issue that has caused some concern to myself, to my noble friends and to some of the sentencing policy bodies. There is concern, in particular when one considers Schedule 7 alongside Clause 170, that courts may feel that repeated community orders may be the subject of criticism—indeed, that they may not be appropriate. Many people in the Chamber have experience from various viewpoints, in particular of dealing with youngish offenders, especially those aged between 18 and 30. Many of those offenders catapult themselves downwards into increasing crime and then begin to emerge from it. Few of them emerge quickly.

It is our concern that community orders should remain available—in appropriate cases, of course—when the court feels that there is some hope of improvement in the future. Those of us who used to scrub around the Crown Courts dealing with many

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pleas of guilty in minor burglary and assault cases always used to try to get them heard on Friday afternoons. The judges tended to want to get away then and were more inclined to give younger old-lags a chance. But a sound principle was involved. Many of them, given that chance and somewhat surprised by it—their counsel never explained the true reason—took the opportunity for the first time to fulfil the requirements of what might be their third or fourth probation or community service order. In many of those cases, once prosecution appeals came into being the Crown Prosecution Service had the good sense not to appeal against them. We are simply concerned that courts should be able to make repeated community orders in appropriate cases.

In Amendment No. 173FB, we seek to ensure that community orders will be appropriate even when fairly serious offences have been committed if the individualisation of the sentence justifies the conclusion that a community sentence is appropriate. It is the reality of what happens every day of the week in the courts—some of the time, at least, in some cases—and we would not want that to disappear from the system. I beg to move.

Baroness Anelay of St Johns: It may be convenient if I speak to my amendments in this group. They approach a similar issue from a different angle. They are based in Clause 171, which gives the Secretary of State the power to make an order that allows or requires the court to review the progress of an offender who is under the community order about which the noble Lord, Lord Carlile, has spoken.

The Secretary of State can also allow a court to attach or remove a review provision from the community order and regulate the timing of the reviews. My amendments ask the Government several questions. Amendment No. 173G asks: why does the clause not give the court the ability to amend the order at the time of the review? If it is anticipated that this will happen, why does it not say so on the face of the Bill without trying to add extra words? I thank my noble friend Lord Carlisle of Bucklow for that.

The reference in the clause to the power of the court to amend in subsection (1)(b) appears only to be the power to make an amendment removing the provision to review itself. Is that the case?

Amendment No. 173H asks: what is the Government's view of the frequency in which these reviews will take place?

Amendment No. 173J deletes subsection (3). This gives the Secretary of State wide powers in secondary legislation to make rules about the timing and conduct of reviews and about the powers the court will have with regard to review itself. Although my amendment knocks out that subsection, that is not because I am hostile to it. The questions that I wish to ask are: what work has been done since the Bill started its progress through Parliament in another place last December to determine what the rules will look like; who has been consulted during that time; and what are the results of the consultation? I beg to move.

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6.30 p.m.

Lord Renton: I welcome what my noble friend Lady Anelay said and I particularly wish to draw attention to Amendment No. 173J, which seeks to leave out subsection (3). That subsection states:

    "An order under this section may repeal or amend any provision of this Part"—

that is, this part of the Bill. I believe that having fundamental and important matters amended simply by order on a Bill of this kind is wrong in principle, and I am very glad that my noble friend tabled that amendment.

The Lord Bishop of Worcester: I want to raise what seem to me to be rather central issues relating to sentencing in Amendments Nos. 173FA and 173FB. One argument for the use of custody that personally I have found least persuasive is that it should be used as a remedy for the persistent offender—that is, as a last resort. It suggests, "We cannot think what else to do with this person and so we will lock him up". If, in fact, custody is not the appropriate punishment—that is, if the offence is not serious enough to warrant it or if the need for public protection is not great enough—then I consider that to be one of the least plausible justifications.

Those two amendments put before us a notion that I, and all those concerned with prison reform, consider to be extremely important. We need punishments that make custody the last resort, and we need to ensure that those punishments are used. I welcome the fact that the amendments provide the possibility that, first, if a community sentence is awarded repeatedly, that does not necessarily mean that it is a failure and, secondly, the community order needs to be explicable as proportionate precisely because we are up against a culture in which certain organs of the press, in particular, are apt to treat community orders as far too light and as not real punishment—that is, as a soft option. Therefore, I believe it is very important to require a proper explanation to be given that such a punishment is appropriate.

It seems to me that the two amendments, taken together, offer, on the one hand, a creative cutting-through of the tendency to say, "Oh gosh, we can't think what else to do; we'll lock this person up", and, on the other, an opportunity to say in a public way, "This is a serious punishment, it's a heavy punishment and an appropriate one".

Baroness Scotland of Asthal: We absolutely understand the thrust of the right reverend Prelate's comments in relation to dealing with the root cause of the offending behaviour and giving offenders an opportunity to change that behaviour by properly targeted intervention. I believe that is very much the thrust of what the noble Lord, Lord Carlile, said concerning the utility of using community service punishment as a useful tool on more than one occasion. Just because a community service order fails once, that does not necessarily mean that, differently fashioned, it may not succeed on another occasion, particularly when dealing with a young developing person who may be

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more amenable to change. We understand all that. Nothing in the way that the Bill is currently framed would prevent a sentencer, if so minded, coming to that conclusion if the circumstances of the case, the nature of the offending and the offender justified it.

However, I believe that we must clearly bear in mind that we are making community sentences very flexible, as the noble Lord has already indicated. By setting the net very wide in Clause 170, we are trying to give sentencers the kind of breadth that they will need to address the offending behaviour on each occasion that the offender comes before them.

Noble Lords will know that sometimes in the past community sentences were not as sharply focused as perhaps the need of the offence and the offending behaviour exhibited by the defendant demanded. By setting out Clause 170 as we do now, we hope to give sentencers the opportunity to direct how the offender should make proper reparation and how to reduce—we return to some of the principles in Clause 135—the level of offending that that seeks to elucidate. Therefore, we say that that is possible.

However, I believe it is right to say that, having given sentencers that breadth and the ability to utilise their discretion on each and every occasion, if they then do so, if offenders continue to re-offend and if the interventions that have been made in the past have not worked, then there will have to be an assessment of whether the offender now needs to graduate into a different type of sentence. That is why we have made it clear in the provisions that a punishment of imprisonment must be considered only after the sentencer has thought about fines and community penalties. Yesterday we spoke about how we have considered reinforcing that.

Therefore, we do not believe that Amendment No. 173FA is necessary. While the new generic community sentence provides the courts with the flexibility to increase the severity of the community sentence by adding tougher requirements, we believe that progression up the sentencing scale may be inevitable if offenders continue to re-offend.

As the right reverend Prelate said, Amendment No. 173FA could result in persistent offenders receiving sentences that did not take into account their failure to respond to previous sentences. For that reason, we consider the amendment to be unjustifiable. However, we do not disagree with the basic thrust of the right reverend Prelate's comments in that the principle of proportionality needs to be borne in mind so that the sentence passed reflects the seriousness of the offence.

We also do not consider Amendment No. 173FB to be necessary. That is because provisions in Chapter 1 of Part 12 already ensure that, when attaching requirements to the community sentence, the courts must consider them to be suitable for the offender and commensurate with the seriousness of the offence. As we have just debated, under Clause 167 the courts are also required to explain their reasons for passing the sentence. Therefore, that gives an opportunity for the courts to say why, if they are to impose another community sentence, they have taken that course as

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opposed to any other. We suggest that Amendment No. 173FB does not add any substance to the provisions as currently drafted and therefore we would not be minded to accept them.

I turn now to the amendments in the name of the noble Baroness, Lady Anelay—Amendments Nos. 173G, 173H and 173J—which seek to alter an order-making power. That power is to provide for court reviews of community sentences. In the Bill, suspended sentences can be subject to court review, as can the drug rehabilitation element of community sentences following on from DTTOs. An order-making power is provided to extend court review to community sentences as a whole. Court review is a popular option among sentencers, who welcome the opportunity to be involved in the results of their sentencing decisions. We think that it will help to improve the effectiveness of those sentences.

Amendment No. 173G adds to the power of the court during such reviews by adding the power to amend the order as well as to review it. While the motivation for such an amendment is understandable, amendment of the order could amount to a resentencing exercise, which would require a full court hearing, including, for example, the presence of legal counsel for the defence. Court reviews are intended to monitor and to motivate the offender. We do not want to make them over-formal and we do not want to introduce the factor of resentencing that person again and perhaps in a different way.

Amendment No. 173H seeks to make court reviews of community orders regular rather than periodic. "Periodically" is a more flexible term than "regularly". It allows for the court to review an offender more frequently at the beginning of his sentence. An offender's degree of compliance might need to be monitored closely but less frequently as the sentence wears on and the offender proves himself. If one were to monitor regularly, one might say that the offender must be seen every month or every two months, irrespective of how he gets on. If one used the word "periodically", one could say, "Because I am very concerned about compliance I shall see you on a weekly basis for the first six weeks and if you do well I shall see you after another six weeks or two months, and if you do even better I might not see you for a significant period thereafter". That cannot be said to be regular but periodic, although it will be what the defendant needs. That is the difference that we see between "regularly" and "periodically".

The noble Baroness will know that many will say to the sentencer that such a situation should not be allowed because it would not be regular. We want to be absolutely clear that the sentencer can do that which he or she believes will meet the needs of offenders to ensure that the review has meaning and that the offenders comply. We want to help offenders to comply because if they comply we shall have a better chance of rehabilitating them. If we can rehabilitate them successfully they will be less likely to reoffend and so we shall reduce the level of crime. That is the thrust of the matter.

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The Secretary of State's order-making power also allows him to repeal or to amend any provision of Part 12 of the Bill. Amendment No. 173J would omit that power. We believe that it is necessary to ensure that all the sections of the Bill that concern sentencing can be amended such that they accord with a new provision to review community sentences. That is the limit of the intention of such a power. I hope that with that explanation the noble Baroness will feel content. I know the amendment is a probing one and I hope that I have outlined and explained the issues that concerned her.

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