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Lord Thomas of Gresford: The noble Baroness has been good enough to reply to many of the points that I made, but I would be glad to know whether the Government have made any assessment of the additional pressure that there will be on prison spaces. By how much is the prison population expected to rise? If that assessment has been made, will the noble Baroness say how much this will cost and where the money will come from? If it has not been done, why has it not been done?

Baroness Scotland of Asthal: As I have said on several occasions, the provisions cannot be considered in isolation. They must be set against the other provisions that will relieve some of the pressure on the prisons. In my answer, I mentioned charging with conditions, custody minus—the new enhanced form of suspended sentence, along with other conditions—custody plus and intermediate sentences. All those measures should have a direct effect on what we seek to do.

Contrary to the noble Lord's fear and to what my noble friend Lady Kennedy said about rehabilitation, Members of the Committee will know that the whole thrust of what we have done is to make it clear that every intervention with any individual who comes into contact with the criminal justice system has a meaning. From the moment a person first offends or first appears before the criminal justice service, he or she will have an intervention which will include an opportunity for rehabilitation, restoration and restitution. It is to be hoped that then there will be a situation in which only those who absolutely need to be in prison because of safety and security reasons are there.

All those factors have been taken into account. The Government have made an assessment. We appreciate that additional resources will be needed in relation to probation and that we will have to fashion things differently. I have also made it clear on a number of occasions that we accept the provisions will be staggered over a period of time in order to ensure that they work well. In the Bill, we are seeking to provide the framework which will apply. We will be able therefore to do that which we all aspire to do; namely, to have those who can be rehabilitated rehabilitated, and to have those who need a significant period in custody to come to a realisation of the seriousness of their offences to have an opportunity to do that. Subsequently, if and when offenders are released, they will have a programme that will enable them to make the best use of their release and rehabilitation back

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into the community. It is to be hoped that they will not reoffend and cause further difficulty, pain and anguish to members of the public.

Lord Campbell of Alloway: Is the noble Baroness aware that, in error, she failed to answer the crucial question posed by the noble Lord, Lord Thomas of Gresford, which goes to the heart of the question of the prison population. I do not need to repeat it; I took the point with others. Has there been that assessment? Has there or has there not? That is one question. If there has not, why not? That is the other question. It is crucial to a determination of the matter which concerns so many of us who have spoken today.

Baroness Scotland of Asthal: I apologise to the noble Lord, Lord Campbell of Alloway, if he considers that I have not answered the question. In fact, I have answered the question now on three occasions. We have made assessments. We have taken into account all those matters. We believe that these provisions are deliverable within the context of the assessments that we have made.

Lord Carlisle of Bucklow: The noble Baroness has been very kind in dealing at length in answer to the question that I asked her about the clause. Is she saying that, under Clause 218, if a person is convicted before the magistrates' court of assault occasioning actual bodily harm—which she will know can cover a broad range of offences, however low in the order of assault occasioning bodily harm it is—and if it is thought that there is the possibility of a further offence being committed, the court must make an extended sentence order? Is that the position?

Baroness Scotland of Asthal: The emphasis is not "must" make an extended sentence order. The court has a discretion to consider the level of dangerousness presented by the offender and it must make that assessment. It does not mean that the court must impose an extended sentence on the offender, but it must consider the issue of dangerousness.

Lord Dholakia: I thank the Minister for her reply. As I said earlier, these are probing amendments. Certainly, we shall study in greater detail what she said, consider the implications and perhaps come back on this matter on Report. I thank Members of the Committee who have spoken about the impact of such policies on prisons. This morning a number of Members of the Committee were at the preview of a Channel 4 production on the impact of long and life sentences on people. We are faced with a desperate situation, which must weigh heavily when one looks at the provisions that the Government are making in this clause.

Despite what the Minister said, the situation does not sound very promising. Despite all the positive initiatives that she has spoken about, the prison

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population is still unacceptably high at 72,000 plus. As one very senior prison officer said to me this morning:


    "If only we could control the prison population".

In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 195AB not moved.]

Clause 215 agreed to.

Schedule 12 [Specified offences for purposes of Chapter 5 of Part 12]:

[Amendments Nos. 195AC and 195AD not moved.]

Schedule 12 agreed to.

Clause 216 [Life sentence or imprisonment for public protection for serious offences]:

The Deputy Chairman of Committees (Lord Geddes): Before calling Amendment No. 195B, I should advise the Committee that if it is agreed to I cannot call Amendment No. 195C due to pre-emption.

Baroness Anelay of St Johns moved Amendment No. 195B:


    Page 127, line 7, leave out from "a" to end of line 9 and insert "substantial risk of his committing further specified offences involving a significant risk of serious harm to members of the public"

The noble Baroness said: In moving Amendment No. 195B, I shall speak also to Amendments Nos. 195C to 195H and Amendments Nos. 196 and 197. Amendment No. 195B is also supported by the noble Lords, Lord Dholakia and Lord Thomas of Gresford, Amendment No. 196 is supported by the noble Lord, Lord Dholakia, and Amendment No. 197 is supported by the noble Baroness, Lady Walmsley.

The purpose of the amendments in this group is to develop in detail the arguments of principle which have so clearly been put during debate on the previous group. Perhaps I may remind Members of the Committee that throughout this part of the Bill, I have agreed to an unusually large grouping of amendments in order to assist the Government with their business on the Bill. We have reached yet another highly contentious part of the Bill, as evidenced by our debate. I undertake that where I do not have to speak because all has been said, I shall try to restrain myself, which is why I did so in the previous group of amendments.

Much of the underlying principle has been laid out well. I note that if Members of the Committee continue to feel as strongly on other groups of amendments, in order that we complete Part 12, we will be here at 7 a.m. That is not to curtail discussion. It is merely to give an example—I notice that the Government Chief Whip is on the Front Bench—that there is insufficient time for this part of the Bill on the Floor of the House.

All my amendments relate to Chapter 5, which contains the sentencing framework for dangerous offenders. Amendment No. 195B is identical to an amendment tabled in another place by my honourable friend. It relates to the precise wording of the definition by which the possibilities of a life sentence or the new sentence of imprisonment for public

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protection are to be triggered. Before imposing such a sentence, Clause 216 states that the court must first be of the opinion that,


    "there is a significant risk to members of the public of serious harm",

as a result of the offender committing further specified offences.

The way in which the court is to make that assessment is set out in Clause 220, to which reference was made briefly in the previous debate. In another place, there was some discussion about the wording of the provision and whether it provides a clear and precise enough definition of the threshold. The then Minister, Mr Hilary Benn, stated that there was,


    "not a big difference for the purposes of interpretation".—[Official Report, Commons Standing Committee B, 11/2/03; col. 930.],

between the terms "significant" and "substantial". I beg to disagree. In its helpful briefing, Justice stated:


    ". . . the term 'significant' . . . is not sufficiently precise in view of the grave consequences of a finding. What approximate level of probability, on a scale from 1 to 100 is 'significant'? It would be preferable, and more closely in tune with human rights law, if the term were 'substantial'".

I agree. That also reflects the position taken by some of the other interested organisations which have briefed Members of the Committee. I am sure that the last thing the Home Secretary would wish for is that the courts declared the legislation incompatible under the Human Rights Act 1998. Do the Government believe that the test set out in the Bill is both appropriate and Convention-compliant? What consideration have they given to this matter over the past eight months since it was raised in another place?

Amendment No. 195C relates to the phrase, "members of the public". The threshold for a life sentence or indefinite detention for public protection is crossed if "members of the public" might be exposed to harm from the offender. My amendment suggests a different form of words,


    "any person or class of person".

I have tabled this simply because, when I first read through the Bill, I felt that the phrase "members of the public" is potentially too vague a test.

Let us consider the following situation. A person is convicted of attempting to murder their spouse, with a history of domestic violence against that spouse and a previous spouse, but with no previous relevant convictions. Clause 220(2) would apply and there would be no presumption that such a person posed a risk to the public. Indeed, the court would not be obliged to take into account the history of domestic violence, which is a matter pertinent to Amendment No. 195H. Could the court conclude, when applying the test set out in the Bill, that such a person poses a risk to members of the public? Is that the Government's intention here? As I have said, could they be a risk to the public because the two people to whom they have been violent are both members of the public? How far does the definition go?

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Amendments Nos. 195D and 195E probe the extent to which the Bill will alter the existing arrangements for repeat serious sexual and violent offenders. I am sure that the Minister and her Bill team were not in the least surprised to see this amendment. The previous arrangements were set out by both Houses in the Crime (Sentences) Act 1997 and consolidated into Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000. That is, of course, the "two strikes and you're out" life sentence for a second, serious offence such as manslaughter, rape or armed robbery. That provision is to be repealed by this Bill. I would be grateful if the Minister could clarify the position in relation to offenders who would have received a life sentence under that provision. Will such offenders still receive life sentences or the new sentence of imprisonment for public protection purposes under the provisions set out in this Bill?

As I read it, it would be possible for an offender convicted of two serious armed robberies, to whom a presumption in Clause 220(3) would therefore apply, then to contend that it is unreasonable for the court to consider that offender as posing a risk of serious harm to members of the public generally and therefore he or she should not receive a life sentence or a public protection sentence. What would happen in such a case?

Amendments Nos. 195F and 195G raise similar issues, the first in relation to over 18 year-olds and the second to those aged under 18. Those convicted of what the Bill terms "specified offences" other than "serious offences" will not be eligible to receive life imprisonment or public protection penalties. To that end, Clauses 218 and 219 provide for the imposition of extended licence periods on such offenders where it is necessary for public protection. These offenders could not be convicted of specified offences such as Section 20 wounding, violent disorder or possessing indecent photographs of children.

Subsection (4) of both the relevant clauses specifies that the period of a licence extension is limited to five years for violent offences and eight years for sexual offences. The maximum period for violent offences remains the same as set out in existing legislation and the noble Baroness further explained in her response to my noble friend Lord Carlisle of Bucklow the implications of that; they need not be repeated.

My amendments have been tabled to ask the Government whether these restrictions are necessary. Why not simply allow the courts to impose an extended licence period up to the maximum sentence for the offence, which is what subsection (5) in both clauses provides for, and leave it at that? What are the reasons for imposing further restrictions on the court's powers?

Finally—this is a large group of amendments and we have only one other mega-group of amendments to deal with—Amendments Nos. 195H and 196, by changing "may" to "must", would oblige the courts to take into account patterns of offending behaviour and information about the offender when considering whether those who commit specified offences, but

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have no previous convictions or are aged under 18, cross the dangerousness threshold. The Bill specifies that the circumstances of the offence must be taken into account, but that the court will then have discretion on the other two elements to which I have referred. Are these also not highly relevant, in particular in the case of juvenile offenders? Why do the Government use "may" rather than "must" here?

I should point out that Amendments Nos. 196 and 197 were specifically tabled in response to a request and briefing from the Children's Society. Amendment No. 197 concerns the treatment of juvenile offenders who have been convicted of one of the offences specified for the purposes of Chapter 5. I shall welcome the Government's views on all these matters. We have not been able to hold before today the meeting proposed by the Government on the treatment of children throughout the Bill, so these amendments are essentially probing in nature, although the rest are not necessarily so. With regard to issues surrounding children, however, of course I am not in a position to proceed further today. We must not only hear from the Minister, but also take the opportunity, together with other noble Lords, to meet the Government. I beg to move.

4.15 p.m.

Lord Renton: While supporting the amendments of my noble friend Lady Anelay, so far as they go, I feel bound to point out to noble Lords that Chapter 5, dealing with so-called "dangerous offenders", breaks new ground in our system of justice. Up to the present and for hundreds of years, imprisonment has been imposed for offences already committed. Of course, when an offender has committed one offence, there is always the risk that he will commit another. However, sentences have always been regarded as providing protection to the public in respect of an offence already committed because it is the hopeful assumption that, if the sentence is severe and realistic enough, no further offence will be committed.

In Chapter 5, and especially in Clause 216, we find that imprisonment is to be imposed not only for offences already committed, but also because of the risk of another offence which may never be committed. That could lead to imprisonment for life for a person aged 18 years or over. It may be that I am not imaginative enough, but looking at this as a matter of principle and in the light of the long experience of our courts, it is something that we should be very reluctant to bring about by legislation.

As I said at the beginning of my remarks, to an extent, the amendments proposed by my noble friend bring a little sense and justice into this matter, and for that reason I support them. But I ask noble Lords to consider this matter still further, in particular since in a later clause we find that people who have not yet reached the age of 18 can be dealt with in a somewhat similar manner. We must be careful.


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