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Baroness Scotland of Asthal: In relation to the last point of the noble Baroness, of course the Monday definition was very much targeted at the situations with which we were then dealing; namely, how one moves from the description of whether we have one or
I turn to the amendments of the noble Baroness. In many senses this is deja vu because I have the noble Baroness on one side invoking the need to toughen the implementation and enforcement of orders and on the other I have the Liberal Democrat Benches in the form of the noble Lord, Lord Carlile, saying, "No, we have to be far more mild and soft"not soft
Perhaps I may deal with the points of the noble Baroness. As drafted, the court can make the requirements more onerous or indeed revoke the order and re-sentence the offender. If the breach is wilful and persistent, it can also imprison an offender whether or not the original offence was imprisonable.
The amendment would remove the requirement for the breach to be persistent as well as wilful, so it could mean that for one breachthe first breachthere would be an immediate custodial sentence. That is going too far. Once again, we rely on the discretion of the court. The court will need to consider the pattern of offending behaviour.
The example which the noble Baroness gave of the 2001 case would doubtless result from the individual having committed a number of offences. She will know that sometimes, regrettably, individuals come before the court not only with a number of specific charges but a large number of offences taken into consideration. Regrettably, they can stretch not over a short period of days but over a period of years if, once caught, one can identify by DNA or other forensic evidence that the offender has participated in a series of offences over such a period. An offender facing one charge who comes before the court for the first time with no other charges falls into a different category from a person who comes before the court for the first time but, regrettably, with 50 TICs and 17 charges.
So the balance is about right. The powers in the Bill for breach of community sentences are already tougher than those currently available. Currently, the court can take no action upon a breach; it can fine the offender; it can impose a community punishment order; in certain cases, it can impose an attendance centre order; or it can revoke the order and re-sentence the offender. Re-sentencing can include custody if the breach was wilful and persistent, whether or not the original offence was imprisonable.
The Bill requires the court to punish all breaches of a community sentence by making the order more onerous or by revoking the order and re-sentencing. In making the order more onerous, it will be perfectly open to the court to add further conditions. By removing the element of discretion in punishing a breach and the option of imposing a fine, enforcement should be more meaningful and onerous in all cases.
We do not intend to change the current position for dealing with wilful and persistent breaches. We believe that the power to impose a custodial penalty for breach regardless of whether or not the original offence attracted imprisonment is rightly reserved for the most serious cases where the breach is both wilful and persistent. I shall therefore resist these amendments.
I hope that it is of some comfort to know that, similarly, I shall resist the amendments spoken to by the noble Lord, Lord Carlile, for the following reasons. Amendments Nos. 173JA, 173LB, 173MA and 173KA would reduce the court's power to respond to a breach of a community order. Amendments Nos. 173JA and 173LB would remove the court's ability to impose a sentence of imprisonment of 51 weeks or less in cases where there was a wilful or persistent breach of a community order.
The provisions to which these amendments relate are re-enactments of provisions in the Powers of Criminal Courts (Sentencing) Act 2000. As I said, we believe that the power to impose a custodial penalty for breach regardless of whether or not the original offence attracted imprisonment is rightly reserved for the most serious cases where the breach is both wilful and persistent. Removing the ability of the court to impose a short sentence of imprisonment in those circumstances would undermine the credibility of the generic community sentence as a viable alternative to a short custodial sentence and reduce the confidence of sentencers and the public in that sentence.
The noble Lord is right when he says that we must encourage the sensible use of community sentences. We certainly want them to be better targeted and consider them to be powerful tools in the sentencers' armoury. We want them to make use of them, but in order to ensure that, we want them to have teeth; we want sentencers to have confidence in using them, knowing that if the trust that they place in the offender is abused in an unacceptable and inexcusable way, the court can do something about it.
Amendments Nos. 173MA and 173KA would allow the courts to take no action in response to a minor breach of a community order. That would mean that an offender could fail to adhere to their requirements but would face no significant punishment. These amendments would signal to offenders that a minor breach was acceptable. We do not want to create that impression; we believe that every breach should be acted on if the generic community sentence is to gain the confidence of sentencers and the public. For those reasons, although we understand that thrust of what the noble Lord said, we cannot accept the amendments.
Baroness Scotland of Asthal: Schedule 8 provides for the transfer of community orders to Scotland and Northern Ireland. When an order transfers, certain provisions that relate only to England and Wales must be translated so as to apply in Scotland and Northern Ireland. One of these is a reference to the Mental Health (Scotland) Act 1984, which is used in defining what a hospital means for the purposes of mental health treatment. That Act is being superseded by a new Act, the Mental Health (Care and Treatment) Scotland Act 2003, and thus Amendment No. 173AA updates the reference.
Baroness Scotland of Asthal: I pray in aid having been in the House until half past midnight yesterday and back on duty by about eight o'clock this morning. I apologise. I am grateful for the sympathy of the Committee; I think that many Members of the Committee were here with me. I must first deal with Schedule 7.
Schedule 7 deals with the breach, revocation and amendment of community orders. Amendments Nos. 173LA, 173R, 173T and 173W limit the power of the Crown Court in dealing with the breach, revocation and amendment of a community sentence made on appeal, such that its powers do not exceed those available to the magistrates' court that originally made the order. That is consistent with existing legislation on appeals under Section 48 of the Supreme Court Act 1981.
Amendments Nos. 173Q and 173" tidy the drafting. Paragraph 24 should make reference to all the clauses under which an application should not be made to the court while an appeal against the order is pending. A reference to paragraph 13 belongs here, rather than in a separate sub-paragraph to paragraph 13. Amendment No. 173S ensures that the court that deals with applications to amend the residence of an offender on a community order that has a drug treatment requirement with review attached is the court that does the reviews.
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