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Baroness Scotland of Asthal: We do not think it is a small test, we think it is an appropriate test. I appreciate that noble Lords opposite are saying that they wish to set a very high threshold by saying that the risk should be substantial. If there is a significant risk to the public, we think that that gives rise to the court addressing the risk and determining whether it is appropriate or proper in a particular case for these extended or different provisions to prevail. It does not oblige the court to do so; it just raises the issue that it has to consider.

Baroness Kennedy of The Shaws: May I point out to my noble friend the Minister the irony of a former Home Secretary, who was no pussycat, let me tell you, when it came to law and order, and was known to be tough on crime—I say that respectfully about the noble Lord, Lord Waddington—putting his restraining hand on the shoulder of a Labour Government?

Baroness Scotland of Asthal: I thank my noble friend for pointing that piece of history out to me—it would obviously have escaped me had she not done so.

Lord Alexander of Weedon: If I apologise to the Minister, perhaps I may make a rather more prosaic point than the eloquent one just made. My memory is that in the days when we were allowed to use Latin in court, it was said that anything was significant which was more than de minimis. Does the Minister subscribe to that view?

Baroness Scotland of Asthal: I think we could bandy words on that, too. I think "significant" means important. "Significant" is certainly different from "substantial". I have already said that I accept that by substituting "substantial" for "significant", noble Lords are seeking to raise the threshold to a higher level. I have sought to say that if there is a significant risk of harm, that puts the court on inquiry to exercise its discretion. The decision made by this Government is that that is the appropriate test and it is the appropriate entry into the consideration. There is clearly a difference between what noble Lords opposite would like and what the Government propose.

Lord Thomas of Gresford: With respect to the Minister, she says there is a great difference, but we do not understand where the Government stand. She has

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used the words "the degree of risk". She was invited by the noble Baroness, Lady Anelay, to give on a scale of 1 to 100 what she regarded as significant. What is it—10, 20, 30? What degree of risk, to use the Minister's own words, is she referring to?

Baroness Scotland of Asthal: I have been harried on a number of occasions about trusting the judges. A significant risk is one which is significant. It will be a matter for the judge to determine when considering that risk whether it is present or not.

As I have said for the fourth, if not the fifth, time: there is a difference between "substantial" and "significant". I have accepted that "substantial" is greater than "significant". We think that if there is an important issue—if there is an important risk, a significant risk—that should put the court on inquiry to consider whether this person should properly be described, according to the criteria, as "dangerous". That is the difference between the way in which the Government put it and the way in which other Members of this House have put it.

It is invidious to use a scale from 1 to 10. What if I say "significant" is at 6 and substantial at 9, while other people say "significant" is at 5 and "substantial" at 7? There is no point in bandying words in that way. It is a bit like an elephant—it is difficult to describe but you know one when it is charging at you. I do not think that the courts will have any difficulty in making those definitions.

Lord Carlisle of Bucklow: Would the Minister agree that it is important for the following reason? These are offences for which, in any event, the court can, if it wishes and thinks proper, pass a sentence of life imprisonment. If it finds that there is a significant risk, the Bill goes on to say that it "must" pass a sentence of life imprisonment. Surely, therefore, if you have the difference between the discretion of a judge in deciding whether life imprisonment is right and the requirement that the court "must" impose life imprisonment, the test that should be passed must be a substantial one rather than merely significant.

Baroness Scotland of Asthal: The noble Lord is right to point out the importance of this. If the court is satisfied that there is a significant risk that the individual will go on and commit offences causing serious harm to the public, I hope that noble Lords will agree with me that that is a very important decision for the court to take. It would have to be satisfied on evidence that that risk really was significant. Only if it was so satisfied would the court then deal with that matter.

Noble Lords will know as well as I do how jealously our judges properly look at these issues in order to be just and to be fair. Nothing in these provisions would inhibit the court from so doing. We think that it would be an appropriate course to take. When we consider the interests of the public protection, it is right for an offender who has committed a sexual or violent criminal offence and poses a significant risk to members of the public of serious harm to be deemed by

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the court to be dangerous. We do not wish to place the public in a position of greater risk from potentially dangerous offenders by raising this threshold unnecessarily.

Amendment No. 195C suggests a minor drafting change to the definition of dangerousness for the purposes of passing the new sentence of public protection. The terminology in the test, as currently drafted, is consistent with the drafting throughout of Chapter 12. We believe that "members of the public" is the appropriate phrase to use—it is better and easily understood. We do not think it would cause unnecessary difficulty.

Amendment No. 195D seeks to retain a reference to provisions in the Powers of Criminal Courts (Sentencing) Act 2000 for a life sentence to be passed where a second serious offence has been committed. Amendment No. 195E makes a small drafting change in conjunction with Amendment No. 195D. The life sentence provisions referred to at Section 109 of the Powers of Criminal Courts (Sentencing) Act are repealed by the Bill, but the principles behind them are incorporated into, and extended by, the automatic assumption of dangerousness in Clause 220(3).

Under the new provisions, any offender who has been convicted of a second sexual or violent trigger offence in Schedule 12 will be assumed to be dangerous by the court unless, on the basis of all the evidence before it, the court considers the assumption to be unreasonable. Where an automatic assumption of dangerousness is made, the offender must be sentenced to either the extended sentence or the sentence for public protection. Release from both of these sentences is dependent upon thorough risk assessments, and offenders may be detained for as long as they pose a risk of harm to the public.

Therefore Amendments Nos. 195D and 195E should be rejected because the automatic assumption of dangerousness provisions provide a higher level of public protection than the automatic life sentence provisions, as they apply to a far greater range of sexual and violent offences. Those amendments would also be unhelpful in retaining a reference and preserving the effect of a repealed provision.

Amendments Nos. 195F and 195G would remove the maximum time limits for periods of extended supervision that may be added to the new extended sentences for dangerous offences. The amendments cannot be accepted because they would provide for indeterminate extended supervision periods that could have no practical effect due to the legal principle that no sentence may exceed the maximum penalty of the offence for which it is being imposed. The extended sentence is available, in the case of adults, only for offences carrying a maximum penalty of less than 10 years. Therefore the maximum extended supervision period that may be added must be less than 10 years, illustrating the impracticality of Amendment No. 195F. However, I know that the noble Baroness, Lady Anelay, is simply putting those skittles up to understand how the Government will deal with and dispose of them.

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Similarly, although the extended sentence for dangerous juvenile offenders may be passed for offences carrying higher penalties, the length of the maximum extension period must be specified in order to provide legal clarity. Therefore, I hope that the noble Baroness will understand why it is impossible for us to accept Amendment No. 195G.

Amendments Nos. 196, 195H and 197 would require the courts to take into account additional information about the offender, the pattern of behaviour of which the offence forms a part and the offender's welfare and rehabilitation needs when undertaking the assessment of dangerousness. While the Government are wholly committed to upholding the welfare of children, that must be balanced against the need to protect the public. The objective of the dangerousness assessment is to establish whether the offender poses a significant risk of serious harm to the public. In order to determine whether the risk is present, the court is required to take into account all the information about the nature and circumstances of the offence. It may also take into account additional information about the pattern of behaviour of which the offence forms a part, and the offenders themselves.

Requiring the court to take into account all additional information concerning the pattern of behaviour of which the offence forms a part and the offenders, including their welfare and rehabilitation needs, as is suggested by Amendments Nos. 196, 195H and 197, would detract from the purpose of the dangerousness assessment. The additional information may not be relevant for the purposes of assessing risk, and its inclusion could undermine the relevance of any significant risks posed, thus potentially jeopardising the safety of the public.

We believe that Amendment No. 197 is unnecessary, too, because there is already provision in the Children and Young Persons Act 1933 which requires courts to have regard to the welfare of juveniles when sentencing them. That is there, and nothing that we say here will detract from that.

We have tailored sentences to meet the requirements for juveniles. The court will not be obliged to pass an indeterminate sentence for a serious offence, but will have the option of an extended sentence. That comment relates to the whole piece—it does not compel but requires courts to consider and make assessments and to exercise judicial judgment whether any or all of those terms are met.

4.45 p.m.

Lord Ackner: Will the Minister help me? This is a genuine cri de coeur, because I find that my recollections become daily more atrophied. However, the noble Lord, Lord Carlisle of Bucklow, may be able to help me.

Some 25 years ago, was there not a departmental committee set up by the Home Office and presided over by the noble Lord, Lord Carlisle of Bucklow? I know that I was unofficially asked to go on it, but the Lord Chief Justice in his wisdom put someone else there instead. The committee produced something

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called a "reviewable" sentence, which meant that, when there was a suspicion about the balance of the person and that he might commit further offences, a determinate sentence was passed as was appropriate, but it was made reviewable every two or three years, and the decision was made by a committee.

My recollection is a little clearer as regards an inquiry that took place five, six or seven years ago, under a silk on my circuit called Peter Fallon QC, into a case in which someone who was let out at the end of a determinate sentence killed again. My recollection is that Peter Fallon QC made a recommendation similar to the need for a reviewable sentence of the kind that emanated from the Home Office some 25 years ago but which has been totally neglected. Had that option been considered by the Home Secretary or the Home Office, it might have solved many of the difficulties that have arisen.

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