Criminal Justice Bill

Public Bill Committee, 30 January 2003.

Standing Committee B

Clause 126 - Purposes of sentencing

Graham Allen (Labour, Nottingham North)

I beg to move amendment No. 516, in

clause 126, page 73, line 15, at beginning insert

'Judges shall have discretion in the determination of all sentences. However,'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments:

No. 531, in

clause 126, page 73, line 15, leave out from beginning to 'the' in line 16 and insert

'In determining what sentence to pass on an offender, the court must consider all of'.

No. 640, in

clause 126, page 73, line 15, after 'offender', insert

'who is aged 18 or over'.

No. 600, in

clause 126, page 73, line 15, after 'must', insert 'in particular'.

No. 63, in

clause 126, page 73, line 22, at end insert—

'(f) in the case of an offender under 18 years of age, his welfare.'.

No. 641, in

clause 126, page 73, line 22, at end insert—

'(1A) Any court or youth offender panel dealing with a child who is aged under 18 at the time of conviction in respect of an offence must, in addition to having regard to section 37 of the Crime and Disorder Act 1998, have regard to the welfare of the child as a primary consideration.'.

No. 492, in

clause 126, page 73, line 24, leave out subsection (a).

Graham Allen (Labour, Nottingham North)

We are now coming to some extremely important and, I hope, consensual matters.

One aspect of the criminal justice system that needs a great deal of work is sentencing. The view that sentencing is ripe for change is probably common ground not only among members of the Committee but among parliamentarians as a whole, the judiciary and the Executive. I hope that some of the changes proposed will command widespread support—that is, not merely cross-party support in the Committee, but from the Minister. I do not intend to make the issue partisan or to divide the Committee, and I hope that hon. Members will go along with that approach. Equally, I hope that the Minister will be able to take away some of the suggestions on which there is consensus in the Committee and have a serious look at them.

David Kidney (Labour, Stafford)

Will my hon. Friend accept congratulations from the whole Committee on his Back Bencher of the year award?

Graham Allen (Labour, Nottingham North)

It is very kind of my hon. Friend to embarrass me this early. If you will turn a blind eye, Mr. Cran, perhaps instead of the very nice Hildon water that we have been drinking, a little later we shall have something else to celebrate that achievement.

There is, I hope, a broad-based view that change is necessary, although the Committee should not attempt to tie the Minister's or the judiciary's hands by being too specific. I hope that the process will be one of negotiation. We all accept that sentencing as a concept has recently come into some disrepute. That has not been by malice, but the comments of the Lord Chief Justice and the Home Secretary have added to the need for reform. Before Christmas, the Lord Chief Justice issued guidance on the back of an Appeal Court decision that, if read carefully, as I have done, can barely be argued with. However, the fact that it was not grounded in some common sense or was perhaps not presented with political acumen—why should the Lord Chief Justice possess that skill in addition to his many other skills?—led to sentencing coming into some disrepute from that quarter. That was perhaps totally unjustified, but that was how the matter was portrayed in the media.

In addition, the awful events in Birmingham, with the death of two young women in a shooting incident, led the Home Secretary to react as we all probably would have done in his position, and call for a mandatory five-year sentence for the possession of guns. I believe that we should all try to remove such reactions from the sentencing process and sentencing decisions. The amendments on the agenda today, which colleagues from all parts of the Committee have supported, attempt to set down a careful, protracted and considered, tested and well grounded basis on which to issue both sentences and sentencing guidelines. I hope that the legislature, the judiciary and the Executive can all agree on that concept.

The amendments enjoy the support of members of all parties in the Committee. I think that there is also some sympathy from the Government on this. I feel that what we need to do in this Committee—if I may be so bold—is to do our little bit to try to restore confidence in the criminal justice system, and specifically in the sentencing system. We all have our anecdotes; as constituency Members of Parliament, we have all heard people tell us, ''They are out of touch. Sentencing does not mean what it says. They just get a rap across the knuckles. They are let out after half their sentence.'' We are familiar with all the old stereotypes and prejudices that all our constituents regale us with. We have today, and possibly on the next day that the Committee sits, a chance to put that situation right, and it is incumbent on all of us—Government, legislature and judiciary—to seize that chance and get that right.

What we are looking at in this clause is a prelude to some of the later structural and organisational changes that are required in sentencing. In particular, amendment No. 516, which leads the group, is about judicial discretion. It may seem odd to start on that

aspect, but that was the order in which the amendments had to be placed within the group, so I shall deal with that first.

Whatever we wish to do to broaden and strengthen a sentencing council and deepen the roots of sentencing in the community, we must above all ensure that judicial independence in this country is not only maintained but strengthened. The Minister may correct me, but I do not believe that we have had a clear statement of judicial independence in law in the way that is proposed in amendment No. 516, which states clearly, for the first time ever:

''Judges shall have discretion in the determination of all sentences.''

That is how it is now, and that is how it should be, and it is right, before we talk about reform, that we reassure the judiciary that that is clear and is on the face of the Bill; if they are content with that, they may feel less worried about some of the changes that are proposed later in the Bill.

I thank the Minister and the Secretary of State for enabling the Committee to proceed in this way. Rather than being formulaic and ritualistic in this Committee, the Home Secretary made it very clear on the Floor of the House that he was

''very happy for Opposition Members in Committee''—

presumably he means those in opposition to the view, as it then was, of the Executive, in which I would include myself and many of my colleagues on the Labour Benches, who are attempting to be constructive on this clause—

''to table amendments to strengthen the role of the Sentencing Guidelines Council vis-à-vis Parliament. Let us debate it''.

I congratulate the Home Secretary on that. He also said:

''I am very sympathetic to the idea of the Select Committee taking a powerful role in this area, and I think that we are moving towards a consensus.''—[Official Report, 13 January 2003; Vol. 397, c. 425, 427.]

I very much agree.

If I may speak out of school, Mr. Cran, you and I had a private conservation before the Committee began about how constructive and positive our proceedings have been. I have experience as a Government Whip, and as a Back Bencher before that, and this has been one of the most positive Committees on which I have ever sat. The level of expertise shown by all parties, the commitment of the Front-Bench spokesmen from the Opposition parties to make constructive and positive proposals, and the Minister's openness in his responses are something that I have never experienced to this extent in 16 years in the House. We should take the chance to be constructive that that happy coincidence of factors gives us.

For the first time ever, it will be extremely useful to include in the Bill a specific statement that the judiciary should have discretion in final sentencing. My hon. Friend the Member for Bradford, West (Mr. Singh) looks puzzled, so I shall try to explain one point before he intervenes. That discretion should

always be within publicly understood guidelines and the statutory framework set by the House. At present, those guidelines rest exclusively—and sometimes controversially—with the Lord Chief Justice. This initial reassurance attempts to pave the way for a broader consensus, which later amendments cover.

Marsha Singh (Labour, Bradford West)

I am puzzled. Does not the amendment preclude any mandatory sentencing at all? That is how it appears to me. If judges are to have the final discretion in any sentencing, that will exclude mandatory sentencing. That is not right. Parliament has a right to respond to public disquiet about sentencing for rape or other offences by setting mandatory sentences for those convicted. I think that the amendment would preclude that.

Graham Allen (Labour, Nottingham North)

I am very grateful that my hon. Friend raised that extremely serious point, with which I agree. Like him, I am not a lawyer, so it is important to be clear about who does what if we are to create a wholly new, clear definition for the public and ourselves. I am not inhibiting Parliament's ability to pass statute law. What I am saying is that we shall all be much stronger if sentencing guidelines, or those specific sentences for specific offences, have gone through an extensive consultation period involving the judiciary, Ministers and ourselves. We do not want to end up in a bidding war over whether, for example, a burglar should get a one or two-year mandatory sentence. We do not wish to hear, ''I bid three,'' and ''Do I hear five over there?'' People go into reactive mode, which will create bad law and bad sentencing.

If my hon. Friend allows me—

David Cameron (Conservative, Witney)

Will the hon. Gentleman give way?

Graham Allen (Labour, Nottingham North)

Yes, but later.

If my hon. Friend studies amendments Nos. 151 and 153, I guarantee that he will find the assurances that he and I both seek.

David Kidney (Labour, Stafford)

Does my hon. Friend agree that subsection (2)(b) is the answer to the question whether those sentencing principles do not apply in the case of a sentence that is fixed by law?

Graham Allen (Labour, Nottingham North)

Yes, and that is how it has always been. My hon. Friend the Member for Bradford, West will draw reassurance from the fact that this is probably the first time that we have attempted to set out clear guidelines under a sentencing council. I may not have satisfied him, but I intended to do so, as I am sure the Minister did. We are not trying to pull a stroke on anyone, and the Bill should include whatever additional assurances the judiciary and the legislature require.

Dominic Grieve (Conservative, Beaconsfield)

In a sense, my intervention has been made unnecessary by that of the hon. Member for Stafford (Mr. Kidney). The amendment says that ''Judges shall have discretion'', but their decisions must clearly be subject to the ceiling sentences, or minimums, set by Parliament. I assure the hon. Member for Bradford, West that the phrase cannot interfere with those.

Graham Allen (Labour, Nottingham North)

I thank the hon. Gentleman for a typically helpful intervention. He has probably made the point that the hon. Member for Witney (Mr. Cameron) wanted to make just now when he tried to catch my eye. I need not give way to him now, although I will be glad to do so in future.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The hon. Gentleman is right to say that we will agree on certain issues as we try to establish the principles. However, he will be aware that some of us take the opposite view from the hon. Member for Bradford, West on this issue. The law as phrased does not preclude what the hon. Gentleman suggests. Some of us take the view that Parliament should fix the maximum sentence for every crime, but it should not be mandatory—not even for murder. The courts should always have discretion, because no two offences are ever the same.

Graham Allen (Labour, Nottingham North)

I am tempted to have a little gentle fun at the hon. Gentleman's expense and to suggest that if I had made such a proposal, he would have proposed exactly the opposite. I know that he will take that in good part. That aside, I am pleased to say that there is 90 per cent. consensus on most of the sentencing proposals before us today.

The reason why we need to broaden the judiciary's sounding board in the sentencing council—while having the reassurance that a judge will make the decision in the individual case on the basis of the mitigating or aggravating circumstances—is that the determination of the guidelines is not a wholly judicial matter, and other voices must be heard. For example, sentencing guidance also relates to broader policy issues, and the prison population is the most obvious. Another is the public perception of crime, and we have a role to play in passing on public views. My hon. Friend the Member for Bradford, West witnessed the most appalling incident in his constituency, and his role in passing on people's views and their anger, and in looking for a constructive way forward, was evident in his intervention during yesterday's Prime Minister's Question Time. He made his view about what should happen very clear. Another public policy issue is the balance between the containment of serious offenders and the rehabilitation of offenders whom it might be possible to rehabilitate.

Such issues extend well beyond the judiciary. They raise policy matters of great concern to the Government, the legislature and those who sit on the other side of the partition in Committees—the public. They, too, want to understand and recapture their criminal justice system, in which they have lost considerable faith in recent years. Our job is an onerous one indeed.

Later, I will come to the composition of the sentencing council. In principle, however, it should contain leading members of the judiciary and be chaired by the Lord Chief Justice. It should also be a wider sounding board, with members of the Executive and the legislature able to feed in their views at the appropriate time.

The proposal in the Bill has, in effect, been bypassed. I mean no disrespect to those involved in

drafting the Bill, which was drawn up way before the Lord Chief Justice's pronouncement at Christmas, way before the sad events in Birmingham that led to the call for a mandatory five-year sentence for the illegal possession of firearms. The drafting carries no blame, but it belongs to a past age, not to the one in which we shall have to live.

If, once all these things have been agreed, we have an inclusive sentencing council, with the judiciary paramount, a judge hearing a case will have to take into account mitigation and aggravating factors. The sentencing council could be broadened to be very inclusive. For example, it could comprise a serving police officer, perhaps somebody nominated by the Police Federation, somebody from the Association of Chief Police Officers—that would be for the Committee and then the Government to decide—a serving probation officer, a prison governor who has experience of what picking up the responsibility for sentencing means, and a representative of victims' organisations, so that their views can be fed in.

Above all, however, unless the sentencing council proceeds by consultation and consensus, the Government, MPs and judges will continually be involved in wholly unnecessary controversy, disagreement and conflict, leading to further confusion among members of the public about what sentencing really means. A lengthy consultation process, with an advisory board researching—academically, if necessary—polling if necessary and coming to conclusions that are fed to the sentencing council, will allow all of us to agree a rational way forward, after which we can issue guidance. A protracted process of steady, careful reflection, rather than our battering each other in the media with individual cases, will produce a highly effective sentencing structure that will command the confidence of people in the United Kingdom.

If what we achieve through our proceedings is public confidence in and understanding of the sentencing process, we shall have done an incredibly valuable job.

David Kidney (Labour, Stafford)

Does my hon. Friend intend to refer to amendment No. 63, through which he aims to add the extra statutory purpose for sentencing of having regard to the welfare of an offender under the age of 18? I welcome the proposal if his intention is to reinforce the message of the Children Act 1989 that the welfare of a child is always the court's first concern.

Graham Allen (Labour, Nottingham North)

My hon. Friend, as usual, puts these things far more eloquently than I could. I had not intended to do speak in detail to amendments Nos. 63 and 492, not because they are unimportant but, out of respect to the Chair, to try to save the Committee a little time by broadly introducing some of the later amendments as well. I am sure that the Minister will respect the fact that that does not mean that I do not wish him to refer to them.

David Cameron (Conservative, Witney)

Some of us are still studying the hon. Gentleman's amendments, of which there are many. Can he give us some guidance as to the role that he sees for the House of Commons in scrutinising the

sentencing council, as he would amend it, and in setting out what the normal sentences should be for a range of crimes? What strikes me about the Lord Chief Justice's judgment on burglary is that many of his points could better be discussed rationally and sensibly in Parliament.

Graham Allen (Labour, Nottingham North)

The hon. Gentleman has made a pertinent point. I said what I said about the Committee without intending one word of it as flattery, but the issue will test the Committee's abilities. We all want Parliament to be involved in some way, but how to achieve that in practice is quite a difficult matter.

I have had discussions with the hon. Gentleman's colleagues. The Committee must avoid making things worse. If we were merely to decide that Parliament's view is what will be decided on the Floor of the House, the position could be made worse. That is because dealing with the matter crudely there, with a three-line Whip from all parties, would preclude the sensible debate that is possible in Committee about what should happen. I look to the expertise of hon. Members on both sides to find approaches to the problem.

There are some ingenious ways forward. The hon. Member for Beaconsfield (Mr. Grieve) has tabled some amendments that reach towards an answer and the hon. Member for Southwark, North and Bermondsey (Simon Hughes) has also discussed some possibilities with me. Labour Members want to contribute. The Select Committee on Home Affairs may provide a way of holding a sensible, careful discussion. However, I should be loth for the matter to be dealt with on the Floor of the House, with hon. Members being pushed through the Lobbies, because what the Floor giveth it can take away—often without rational debate.

Ian Lucas (Labour, Wrexham)

Does my hon. Friend agree that we must at all costs avoid the politicisation of sentencing? I think that we are gently moving in the right direction, and hope that the process that we are engaged in today will amount to further steps in the right direction—that of removing the politics from sentencing policy. That would be in the best interests of the community at large and of politicians, too.

Graham Allen (Labour, Nottingham North)

We could have an informed debate about the meaning of politicisation. Some of us believe that the matters in question are for ever political. However, the way in which different views are reconciled—not merely whether there is a majority—is the test of a democracy. The Committee needs to be very careful about how we reconcile the different views in the House of Commons, and about the mechanism by which we produce our view. We need to give the Minister every assistance in that regard. Equally, the reconciliation of the Executive, the legislature and the judiciary is highly important.

What I have described is itself a political process, but I know what my hon. Friend means by politicisation. Often it involves the media cranking up a reaction or an unconsidered view in relation to

many aspects of the structure of sentencing. We need to proceed with care, but provided we avoid approaches that amount to a crude ''Hands up in favour'' on the Floor of the House—and given the creation of a new Committee to deal with legal affairs, a well-respected Home Affairs Committee and the good will of the House and the Government—I believe we can find an appropriate structure and a way forward. Then the apposite point made by the hon. Member for Witney about how Parliament would be involved would be answered.

Dominic Grieve (Conservative, Beaconsfield)

I want to pick up on the point that was made by the hon. Member for Wrexham (Ian Lucas). The hon. Gentleman may agree that one of the problems with the current system is that although, in theory, it should be devoid of political pressure, the impression that is often given is that it operates as a series of subtle nudges and winks between the judiciary and the Executive. A lack of transparency brings the system into disrepute. That consideration and the need to retain the judicial aspect of the discretion in formulation needs to be balanced with a system that enables the public to blame someone directly—or at least to address someone directly—if they do not like the guidelines that are in use.

Graham Allen (Labour, Nottingham North)

At the end of the day, we shall all have to take some responsibility for sentencing. That is as it should be. The House, the judiciary and the Government should shoulder that responsibility. At present, there is pass-the-parcel sentencing. We are told, ''It wasn't me, guv, it was the Lord Chief Justice,'' or, ''It wasn't me, it was the Home Secretary,'' or even, ''It was those MPs reacting to what was in The Sun the other day''. We have to grow up. One way of achieving that is by having a structure in which we can all voice our concerns. If we do it carefully through the deliberately protracted process that I propose in later amendments, I believe that we can shoulder that responsibility. Committee members will then be able to face their constituents, and those of us who are lawyers will be able to face their colleagues in the legal profession and say, ''We understand what it means; we have worked it out. Let me explain that it has been done openly, honestly and over a period of time, so we have all bought into what the appropriate sentencing levels should be.''

David Heath (Liberal Democrat, Somerton and Frome)

Does the hon. Gentleman agree that the essential nexus, the essential dialogue, must be between the judiciary and the legislature? The Executive are the weakest link: their role is to bring forward matters for the legislature to determine and for the judiciary to execute. It is the Executive who are often driven by the headlines and by the political context to interfere in a process that strictly speaking is nothing to do with them.

If I wished to open a new area of argument, I would ask the hon. Gentleman whether the role of the Lord Chancellor fatally compromises anything that we may wish to set up.

Graham Allen (Labour, Nottingham North)

I would have to spend a fair number of weeks attempting to devise a consensus that would attract the support not only of my hon. Friends but of hon. Members throughout the House—and, just as important, to allow the Minister the leeway, once we

have made our position clear, to consult the judiciary and his departmental colleagues. Even though the hon. Gentleman tempts me, I shall not rank in order of blame who is responsible for where we are now. However, we all know who is responsible for where we need to go, and I hope that our debate is a good foundation and sends the clearest message to the judiciary that it is not the intention of the Government or of the legislature to undermine the judiciary. Our intention is to strengthen its ability to help us and the police to combat crime.

Sylvia Hermon (UUP, North Down)

Section 1 of the Justice (Northern Ireland) Act 2002 states that

''the continued independence of the judiciary''

shall be upheld. We find it helpful that that is stated in the legislation.

Graham Allen (Labour, Nottingham North)

That is an extremely helpful precedent, and I am sure that the Minister has noted it. I repeat that I do not wish to hold the Minister to the words in the amendment that

''Judges shall have discretion in the determination of all sentences.''

No doubt he and his officials and parliamentary counsel can come up with a better form of words. Perhaps the hon. Lady in helpfully giving us the precedent of Northern Ireland legislation has given him a lead and a clue on that.

I shall not press amendment No. 516 to a Division, but I hope that the Committee will be able to participate in a wide-ranging debate. I trust that the Minister, having heard our voices, will come back with something more appropriate.

Finally, Mr. Cran, I thank you for allowing me to range fairly widely; I hope that it will have saved time in later debates.

Humfrey Malins (Conservative, Woking)

I begin by thanking the hon. Member for Nottingham, North (Mr. Allen) for what I thought was a serious, reasoned and constructive speech. We all have cause to be grateful to him not only for what he said but for the way in which he said it.

The amendment, which says that

''Judges shall have discretion in the determination of all sentences''

is a good way to get the debate under way. That reminds me of the truest of principles, that there is no correct sentence for a particular crime. So much depends on what the judge who is passing the sentence sees and hears on the day when he or she is going to pass sentence. It is irritating for us to see, as we do quite often, newspaper headlines, especially in the tabloids, such as, ''Judge passes soft sentence''. Facts are selectively quoted that imply to the reader that a most grievous crime has taken place. The mitigating factors are not included, a lenient sentence is passed and there is uproar. The situation is most irritating.

Oddly enough, judges generally pass harsher sentences than the public think. There has been quite detailed research that asked members of the public, ''Here's a set of facts—what sentence would you

pass?'' In more cases than not, the sentence was harsher than the public imagined it would be. There are mixed signals and confusion. People's tempers are sometimes raised unnecessarily. Any judge would say that one can have an accurate understanding of sentencing only when one is in court, when one can see the whites of the defendant's eyes, and when one is hearing the defendant, seeing the defendant and seeing the remorse. That is why the amendment, giving a judge the discretion to determine all sentences, is a good way to get the debate under way.

I also echo strongly what the hon. Gentleman said—I hope that I paraphrase him correctly—about how the role of the House and Members is not to be insignificant as regards sentencing. The other side of that coin is that it is not right in such serious matters to have parties whipped to vote a particular way. I say that on the basis of the fact that there is terrific sense on both sides of the Committee. Government Members in the Committee have great experience of the courts and the legal system, as do Opposition Members. Some of our best discussions would take place in, for example, a Select Committee, or, if they were in the Chamber, on an informed and non-partisan basis. I have some good points to make, as do Government Members, and there are compromises to be reached on all those matters.

I should like to speak briefly to amendment No. 600. I do not remember—I shall be corrected if I am wrong—whether the purposes of sentencing have been detailed in statute before. I ask myself whether the clause and subsection (1) in particular will make any difference to the real world. Will the clause do any harm or will it do any good? What effect will it have on the judiciary, which has to pass sentences and inevitably takes into account all the factors that are mentioned therein?

Is the clause well phrased? There is an argument that it is not terribly well phrased. Professor Ashworth, a well-known academic, has described paragraphs (a) to (d) of subsection (1) as a laundry list of often competing purposes. There is no order of priority in relation to those paragraphs—indeed, there are possible conflicts between them. Some of those paragraphs could be divided further into sub-paragraphs.

For example, subsection (1)(b) refers to

''the reduction of crime (including its reduction by deterrence and its reduction by the reform and rehabilitation of offenders)''.

Reform and rehabilitation, and deterrence are two different purposes contained within one little subsection. Deterrence is not therein defined, but it, too, covers two separate aspects of sentencing and two different purposes: the deterrence of the offender by a draconian sentence, and that of the community, because that sentence will deter other people. All those factors are within judicial minds when sentences are passed by the courts. Inserting the words ''in particular'' would make the subsection refer to four purposes, not two prescriptive ones, because I am not clear from the clause whether other purposes of sentencing either exist or should be taken into account by the judge.

Paul Stinchcombe (Labour, Wellingborough)

The hon. Gentleman is making valuable points. With his judicial experience, can he think of any additional purposes that he would have included in the clause? If he cannot, what is the point of inserting the words ''in particular''?

Humfrey Malins (Conservative, Woking)

I thought long and hard about the different purposes of sentencing. Those four are reasonable, in that we all recognise them. However, I wondered whether we could or should subdivide them. Where is the reference to deterrence of the community as opposed to that of the individual? What is the priority between reforming an individual and deterring him? A judge will look at a defendant and will instinctively, as a result of experience, have a purpose in mind. However, should the court have to have an order of priority set out in statute? Where does the deterrence of the individual fit in, in terms of its strength of purpose, by comparison with the reform of the individual? That balancing act goes straight back to the amendments.

David Heath (Liberal Democrat, Somerton and Frome)

Does the hon. Gentleman consider that there should be some reference to proportionality? Following my own argument, if we are to have a clause that sets these matters out—I am not sure that it is necessary—there is an argument for proportionality to be part of the sentencing process. I hope that we shall not end up with a clause that puts a judge in a straitjacket or results in the prosecution, or anybody else, telling him that, in sentencing, he must take certain factors into account—there are no others in statute—and that he must use a certain order of priority in one type of case, and another in another. That would be difficult, because that is the sort of discretion that a judge instinctively exercises. I return to the question, is the clause in its present form worth having?

The real question for the Minister is: is the clause intended in any way to alter existing practice? If not, why have it? If it is, exactly what changes are proposed? If that situation changes, other changes follow. Hence my words ''in particular''.

Paul Stinchcombe (Labour, Wellingborough)

There would only be a point in inserting the words ''in particular'' into the clause if there were additional purposes, not set out in the clause, that should be taken into account in exercising judicial discretion as to sentencing. The hon. Gentleman is a judge. What factors has he in mind that are not included in clause 126 but that a judge might take into account in sentencing a defendant?

Humfrey Malins (Conservative, Woking)

That leads us to another debate. An important factor in sentencing is the prevalence of an offence in a particular community.

David Cameron (Conservative, Witney)

I have listened carefully to my hon. Friend's argument and to the intervention of the hon. Member for Wellingborough (Mr. Stinchcombe). One thing that is missing from the clause is the concept of prevention of crime. Is it not the case that judges occasionally think of giving the public a break from the offending behaviour of some prolific criminals? Is that something that one might like to add to the clause?

Humfrey Malins (Conservative, Woking)

Yes. We are opening up the argument. Perhaps we might hear other suggestions. The clause refers to reduction in crime, but not to its prevention, nor to the prevalence of crime in a particular area. I am not troubled by their absence, because I know that the courts take all such points on board. However, I am mildly troubled by the narrowness of the clause and the ability or otherwise of the judge to take other factors into account.

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend has touched on a point that we try to deal with in another amendment—the making of reparation to persons affected might not be construed as affecting the community as a whole. If that is the case, then the use of the words ''in particular'' would remove the need to put in the community, which is the point of our other amendment, but would still provide the safeguard that the judge could take that into account.

Humfrey Malins (Conservative, Woking)

I do not want to stray into subsequent amendments—

James Cran (Conservative, Beverley and Holderness)

Please do not.

Humfrey Malins (Conservative, Woking)

Indeed, Mr. Cran, you rightly remind me not to, but I am tempted to stray into part of the next group to widen the purposes, because there is no mention of reparation to the community at large as opposed to individuals; that is a big factor in punishment.

David Kidney (Labour, Stafford)

I should like to suggest a modern precedent that might be relevant. In the Financial Services and Markets Act 2000, there are four statutory purposes of financial regulation. That has done a marvellous job in focusing the attention of the regulator without diminishing its range of powers.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman might be making a good point, but I know so little about financial services that it is barely worth making it to me. I take it on board and cross my fingers when I say that it is a good point.

David Kidney (Labour, Stafford)

The hon. Gentleman can definitely help with this point: the clause requires any court to have regard to these statutory purposes. Would he expect the new Sentencing Guidelines Council to have regard to them?

Humfrey Malins (Conservative, Woking)

Yes, I suppose that I would. I have an instinctive dislike of putting too much in writing, because it is then regurgitated. We shall come later to the old business of offences so serious that only a certain sentence can be justified. We have heard it all before. That would bring me to another debate about tearing up statutes. I have said enough to illustrate my general support for much of what the hon. Member for Nottingham, North said, and to illustrate that the first part of the clause—which is laudable in many ways—should not be so tight that it removes the judge's general discretion to take into account what he thinks is appropriate in relation to a particular matter.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

First, I join the hon. Member for Stafford in congratulating the hon. Member for Nottingham, North on the award that he received this week. It is well deserved. I thought that we should have no escape from him because, like many others, I woke up this morning and there he was on my radio,

proposing ways forward for the nation. That was welcome; I happen to agree with his view about reform of the other place.

Secondly, I observe explicitly a point that has been made implicitly. We are meeting for the first time after the House of Commons voted to set up a new Select Committee to monitor the work of the Lord Chancellor's Department. That was a momentous decision, which was taken after much protracted negotiation. It is an anomaly that such a hugely central Department has not benefited from the same parliamentary input and scrutiny as others. I greatly welcome the Select Committee and wish it well. In a way, it is probably more important than all the others because the Minister responsible for criminal justice is not a Minister in the House of Commons and not open to direct scrutiny by its elected representatives.

My colleagues and I have long argued—this is not a personal point aimed at any individual holder of the office—that we shall not give the public the best service until we change the Government structure in this respect. It must be given a name that the public understand, and the most obvious suggestion would be the Ministry of Justice, which is the name used in most other European countries, and in other countries, too. The Secretary of State responsible for justice should not only be a member of the Cabinet but be accountable and answerable to the House of Commons, like all his or her colleagues.

It is therefore an anomaly for the Lord Chancellor to have three separate functions, and that arrangement no longer works in terms of the division of responsibilities between the Executive, the legislature and the judiciary. He is not only a political appointment as a Minister of Justice, but the most senior judge in the country and the Speaker of the House of Lords. With the best will in the world, it is not possible for someone to carry out all those functions in a way that gives us confidence.

We must move on as part of the reform of the two Houses of Parliament. I hope that we shall do so soon and that we do not end our work until we have reformed the present arrangements. We now have a Select Committee, but we must also ensure that we have a Ministry of Justice that brings together work in this area, and that the person in charge is accountable to the House of Commons.

Graham Allen (Labour, Nottingham North)

I welcome that somewhat premature speech of endorsement for new clause 4, which is about the creation of a Ministry of Justice, and to which we shall come in due course. Let me, however, complete my rather heavy opening remarks—they were necessary from my point of view—on a slightly lighter note. The hon. Gentleman will remember that Norman St. John-Stevas, who is now in the other place, felt that he had to move quickly to get Select Committees through the first Cabinet meeting of Mrs. Thatcher's new Government. He asked his colleagues—

James Cran (Conservative, Beverley and Holderness)

Order. Mr. Allen, I have been very generous, but we must get back to the point of the exercise.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I shall move on, although two things immediately come to mind in relation to Lord St. John of Fawsley's proposals to introduce Select Committees—

James Cran (Conservative, Beverley and Holderness)

Order. [Interruption.] Mr. Hughes, when I am standing, you are sitting. I insist that we get back to the Bill. I have been very generous until now, but we must get back to the point of the amendments.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Fair enough, Mr. Cran. I was being tempted, but perhaps we can return to the issue later.

My second overall point is that I share the general view—although I would slightly redefine it—of the roles of the three parts of the constitution. It is, indeed, for the Executive to propose, for Parliament to dispose of or come to a conclusion about proposals and for the judiciary to implement them. However, I have always taken the view—it is different from that of the hon. Member for Bradford, West—that the judiciary need complete discretion. I apologise if I have mentioned this before, but the most obvious, most acute example is that there is still a life sentence for murder on the statute book. However, cases can be very different. One person can plan a vicious, horrible and unjustified murder for years, while another may kill someone after 20 years of provocation, having been driven to do so by the mental and emotional cruelty that they have experienced in their domestic circumstances. Those cases are entirely different, which is why there should be discretion when sentencing someone and not just when deciding how much of that sentence they ultimately serve.

Hilary Benn (Labour, Leeds Central)

I appreciate the hon. Gentleman's point about life sentences, but does he not accept that there is very wide discretion about what ''life'' means when setting the tariff and that the recent judgment means that it will now be done wholly independently by the judiciary and not handled by Ministers?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Minister is right in both respects, and Liberal Democrat Members have argued for a long time that the view of the European Court should become practice in this country: there should be no ministerial tariff setting. There is wide discretion in determining the length of sentence. That is not so applicable in policies such as ''three strikes and you're out'', which are mandatory. I can think of many examples of why that is bad sentencing practice and bad law. The best example is of someone who commits two burglaries after which there is a very long gap before they commit the third. In that time, they might have got a job, married and taken on responsibilities. A long time after their last burglary, they might technically commit the most minor of burglaries, one that was not aggravated, on premises that were not domestic and that were empty. It would be quite wrong to punish that person for crimes that they committed in the past and for which they had already been punished and to fail to take into account what they had done in the period between the second and the third burglaries.

Marsha Singh (Labour, Bradford West)

Is not the problem with life sentences, and with other sentences, that the public do not

understand what the sentence means? Their cry, perhaps for vengeance, is not requited when a person is given four years and is released in two; or a person who is sentenced to life is released in six. It is not so much the sentence that causes the problem but how the sentence is served. That is why the public are unsatisfied. If we are to maintain discretionary sentences for serious offences—I think that we should have discretionary and mandatory sentences—is there not a role for the jury in determining sentences? Will the public have confidence—

James Cran (Conservative, Beverley and Holderness)

Mr. Singh, we are now approaching a speech.

Marsha Singh (Labour, Bradford West)

I am sorry.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I agree that one of the problems is that the public do not have confidence in the system because they hear one sentence and see another. I commend John Halliday for his report and I commend the Government for seeking to rectify that flaw. I give my unqualified support to the proposal that in future, after this legislation, the court will set the sentence. It must be clear that when a sentence of, for example, five years is being handed down, it is explained to the defendant, to everyone in the court and to the public and press that to get the best and most effective sentence some of it must be served inside and the rest served outside with conditions and controls attached. The great weakness of our sentencing system is that it is often when people leave prison that things go wrong. We must have effective management outside; otherwise, the sentencing system does not work. It should be made clear to the public that in future most custodial sentences—I am simplifying a bit—will be partly inside and partly on supervision and control outside and that if people misbehave they will be sent back to prison.

When I was being brought up in a village in south Wales, I remember the anger when people learned that a man who had murdered his wife or partner was to be released after serving four or five years, because he had been sentenced to life, or 10 years.

Juries should not pass sentences. I am a huge defender of the jury system, but juries should decide on the facts. Judges should pass sentences, because to do so requires the wisdom of experience, and training, of a sort that is not needed to establish the facts. The facts are for the jury to decide because their experience and training is in life.

Judges must compare one person with the next. I hope that I can persuade the hon. Member for Bradford, West to accept that sentencing would be very inconsistent because different juries would take different views. Judges in the same courts take a more consistent view and must distinguish between a case one week and one the next. Moreover, judges collectively take a relatively consistent view. I think that the hon. Gentleman, on reflection, will realise that there is huge benefit in leaving sentencing to the trained and fact-finding in the higher courts to those who do not have that training.

David Cameron (Conservative, Witney)

Is not the hon. Gentleman being slightly naive in thinking that the public will be reassured when so much of the sentence will be spent outside prison? Surely people want to know that the sentence served will be the sentence given, less time off for good behaviour, as I have set out in my proposed new clause 10, which Liberal Members will support.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Another trailer. The Conservatives are getting the entire menu out this morning, Mr. Cran. The only thing that they will not tell us is what the prices are. That is for the Minister to answer later.

I speak as someone who is another close contender for recognition as an eminent MP in this week's awards ceremony when I say that the hon. Member for Bradford, West comes up with good ideas and does good work on the Select Committee. I understand his point, but we must get away from the public thinking that sentences mean custody. The Halliday report and everything else are about effective sentencing. The big debate out there is how we can make community sentences and non-custodial alternatives effective. That is a real challenge. If I was in the Minister's place, almost my most important task would be to ensure that the non-custodial sentences were perceived to be, at the end of my time in office, as effective as custody is perceived to be, and to ensure that both were more effective than they often are.

Graham Allen (Labour, Nottingham North)

My hon. Friend the Member for Bradford, West, and the hon. Members for Witney and for Southwark, North and Bermondsey are saying pretty much the same thing. They say that there must be honesty and clarity in sentencing. If those are present, the public will understand, and it will be easier for all of us to explain difficult judgments to our constituents. It is not possible to explain to an ordinary constituent how sentencing works because it is so bewildering and confusing. We shall do everyone a service if we bring honesty and clarity to the process.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I absolutely agree with that. There is a danger that the debate will become very wide, so I shall move on to the other amendments in the group. I shall make one more general comment, but then I want to hold back, not least because amendment No. 704 was tabled by my hon. Friend the Member for Somerton and Frome (Mr. Heath) and me. I am very keen to have a clause stand part debate, because that is the principle.

In this group, my hon. Friend the Member for Somerton and Frome and I have signed up to amendment No. 516, which the hon. Member for Nottingham, North moved. We have also signed up to amendment No. 492. Amendments Nos. 531, 640 and 641 stand in our names. I have spoken in support of amendment No. 516. I am grateful to the hon. Member for North Down (Lady Hermon) for giving us another example. We must learn from that. I am sure that we will be happy to try to achieve the best formulation, whatever it might be.

Amendment No. 531, too, is probing. It raises two issues; I shall deal with one now and leave the other, bigger issue for later. Subsection (1) states:

''Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing''.

The amendment seeks to ensure that, whatever we agree should be the purposes of sentencing—we shall debate later how many there should be and how they should be defined—the court should ''consider'' those purposes, not simply ''have regard to'' them. The purposes should be in the list for a reason. On reflection, I realise that the phrasing of the amendment is not particularly felicitous, and I should like to redraft it. I wanted to ensure that whatever we thought should be in the list should be considered and weighed, and not just noted and passed over.

Amendments Nos. 640 and 641 touch on a matter raised by the hon. Member for Stafford. They allow us to deal with the matter of additional purposes of sentencing in relation to people under the age of 18. It is a wide-ranging debate, but I shall put it as briefly as I can. Amendment No. 640 seeks to restrict the list to over–18s, the age of adulthood. There are those, not only in my party, who would argue that it should be 16, but legally full adulthood comes at the age of 18. The suggestion is that some principles should apply to 18-year-olds and older but that additional considerations are needed for those under 18. There is broad agreement for that. The Government have accepted it, as does the Youth Justice Board—I welcome its creation.

I hope that the principle of amendment No. 641 will find general support, although the wording may need to be discussed. It states:

''Any court or youth offender panel dealing with a child who is aged under 18''—

that is a child or young person—

''at the time of conviction in respect of an offence must, in addition to having regard to section 37 of the Crime and Disorder Act 1998, have regard to the welfare of the child as a primary consideration.''

The Crime and Disorder Act is the current framework for the youth justice system, which was welcomed throughout the House. Section 37 of that Act sets out the main purpose of the youth justice system as being the prevention of reoffending.

The Act, however, does not make any principled statement about the purposes of sentencing offenders under the age of 18. I shall list the various reasons for doing so. It is our domestic view and the strongly held view of all the organisations with an interest in the matter—including National Children's Homes, the National Children's Bureau, Barnardo's, The Children's Society, the National Association for the Care and Resettlement of Offenders and the National Association for Youth Justice—that we should separate the principles for dealing with under–18s from those dealing with over–18s.

I learned from criminologists the reality that people have a higher propensity to reoffend between the ages of 18 and the mid-20s, and that after that age, for all sorts of social reasons, patterns are set and the earlier offending propensity can be broken. It is certainly the case, however, when dealing with the child or young person, that we need an additional motive to prevent reoffending that would not apply to full adults.

There are two other reasons for hoping that the Committee will be positive about separating the purposes of sentencing for under–18s. First, we have international obligations. The United Nations convention on the rights of the child and the United Nations Committee on the Rights of the Child set good international standards. Secondly, in November 2001, the High Court granted a judicial review in a case brought by the Howard League in relation to the applicability of the Children Act 89 to Prison Service establishments. It seems that all the movement is to accept that those under 18 should be treated differently.

Paul Stinchcombe (Labour, Wellingborough)

Does the hon. Gentleman consider his argument that youngsters should be treated differently for those purposes to be strengthened by the fact that 90 per cent. of those now in young offenders institutions present themselves to the authorities with either mental health problems or substance abuse problems in the year before they are sentenced?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That does strengthen my argument. I am aware of the characteristics of people who end up in such institutions. The adult offender population has similar characteristics. One can almost make a checklist that includes—not always, of course, but in the majority of cases—a background of deprivation, illiteracy, innumeracy, and so on. The other day we were debating gun crime. The police in London on Operation Trident do profiles of the people who are most likely to be involved. The vast majority conform to a sequential series of common characteristics.

Marsha Singh (Labour, Bradford West)

I am very dubious about the whole proposition. There is a difference between a child and a young person. Some young people are the greatest troublemakers in my constituency. We are eroding the powers of parents to discipline such people at the same time as we are eroding the power of the state to discipline them. I cannot see the difference between a 17-year-old criminal and a 30-year-old criminal who have committed the same offence. We are in danger of being soft on such people. I see you looking at me, Mr. Cran, and I shall sit down.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The hon. Gentleman made his point perfectly adequately within the allotted time. I understand his point and why his view has been strengthened, given the constituency experiences that he has had. With respect, I think that he is wrong, and I urge him to talk to the Youth Justice Board and others if he has not done so already. Academics and those with professional experience, including the police, and the prison and probation services, come to a different view in all respects bar one. Of course there is not a clinical moment: 17-year-olds do not become different animals when they turn 18. There are 13 and 14-year-olds who are highly developed physically, emotionally, intellectually and in every other way. There are also late-developing 17, 18 and 19-year-olds. All that we can ever do is decide on a cut-off point.

The Liberal Democrats have always argued that the best dividing line is 16. I was nervous about that for a long time. I got into some trouble with colleagues, because I argued that adulthood should start at 17.

The 17th year is the first year after one can leave school, as one has to be at school until one is 16. However, my party's considered view—I have accepted it and been persuaded by it—is that, because one can leave school, go to work, pay taxes, join the forces, get married and so on at 16, that should be the divide. If that were the law, my amendment would say ''16''. There is a strong argument for having a set of policy proposals for those under 16, even if those people can cause just as much hurt, hatred and horror as adults can. They are not as emotionally developed. That is why, for example, I took the view, which was difficult to do publicly, that the youngsters who were guilty of the horrible killing of James Bulger in that shopping centre in the north-west all those years ago should have their cases reviewed at 18, as all youngsters should. It cannot be assumed that a very disturbed 10 or 11-year-old will not become a much reformed 18-year-old. I believe in forgiveness and in people's ability to be changed. I believe that young people's sins should not be carried through their adulthood, and that that is the attitude that we should take.

That opinion may be thought to be the view of a liberal and a Christian—and of those of other faiths with similar views about the possibility of people putting the past behind them. However, I also appeal to the views of a group of people who are much more authoritative than I am. I ask the Minister to study the joint report of Her Majesty's chief inspectors, entitled ''Safeguarding Children'', which was published in October last year. It found that the welfare needs of young people who committed offences were not being adequately addressed by the services responsible for their welfare, including the youth offending teams. I am not saying that I am right, only that the evidence that I have seen and heard about suggests that we need to accept different considerations, and that those may deal more effectively with the sorts of unacceptable behaviour that happened on the streets of Bradford and elsewhere, and that I have seen on the streets of Bermondsey.

The great merit of some of the Government's reforms, to which I pay credit, is that the Youth Justice Board programmes, which intervene with summer schemes, holiday schemes and out-of-school schemes, have shown huge—really phenomenal—success rates from targeting 14-year-olds who otherwise might enter the realms of criminality. It is possible to take them away from that and divert them. We need to try hard to adopt a more positive attitude. Of course wrong must be punished. I do not argue that parents should not take more responsibility; they should, but they find it difficult and they do not. Nor do I argue that society should not take responsibility. However, the punishment of sending kids away and locking them up—I have visited many of the places in question—does not normally, in my experience, produce better behaved kids. Often, at the end of their time behind bars, the kids are more likely to misbehave because they have met older, more seasoned criminals.

James Clappison (Conservative, Hertsmere)

I agree with much of what the hon. Gentleman says, but I am disappointed with his response to the hon. Member for Bradford, West. Among all the worthy and esteemed bodies that he has said we should listen to, I have not yet heard him mention victims. Does he agree that we should also listen to the views of victims such as those that I spoke to on Friday, who told me of what they had suffered from an out-of-control group of youngsters? Could he also speak to youngsters who are victims? The case that I have just mentioned included well-behaved youngsters who were racially abused by a pack of out-of-control juvenile delinquents.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Of course victims matter. I hope that the hon. Gentleman will do me the credit of realising that during my whole time in the House—not just while I have been in my present job—I have argued for putting victims' interests high up the agenda. I believe—although my party did not accept the view—that after a guilty verdict or plea in a trial, the victim should be able to appear before the judge to say what effect the crime had had on them. That is how far I took my view of the matter, although my colleagues backed off from it and were nervous about it. Initiatives that allow people to be challenged by their victims—pilot schemes are still under way and there is a big one in the Thames Valley area—are effective. Victims' views are important, as the Government understand. Witnesses and victims are honoured and respected, and made much more central to what happens.

Sylvia Hermon (UUP, North Down)

In Northern Ireland we have great difficulty with young people on housing estates. The Justice (Northern Ireland) Act 2002 introduced accredited restorative justice schemes in which culprits apologise to victims, and reparation, such as digging gardens over, is made. It works extremely well. We have such a scheme in my constituency and we should bear it in mind as an alternative to be included in the Bill.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

As always, the hon. Lady is well informed and her contribution is on the button. Such schemes are increasingly used and increasingly successful. In south London we have the ''Karrot'' scheme, which is about incentives and rewards for good behaviour. We are also introducing ever more opportunities for young people to do things for the community that they have abused. Unless one teaches respect for people and place, one is not winning the battle during the formative years of young people for whom the gang can become all.

The hon. Members for Nottingham, North and for Woking (Mr. Malins) started the debate, and my hon. Friend the Member for Somerton and Frome made an important intervention. Colleagues will remember the case for change set out by John Halliday in his very good report, which answers the question posed by the hon. Member for Woking. We already have a set of principles relating to criminal law. The Criminal Justice Act 1991 sets out five principles: severity of the sentence should reflect primarily the seriousness of the offence—the just deserts principle; previous

convictions and failure to respond to previous sentences should attract a more severe penalty; the court can combine the offence and one or more offences associated with it in considering whether custody or community penalty is justified; custody should be reserved for the most serious offences; and community offences should play a full role in sentencing. It does not exactly parallel what we have been saying, and I support the new formulation, whereby one sets the principles of sentencing.

The Halliday report—I commend chapters 1 and 2, which I reread yesterday—sets out the limitations of the present framework. It shows that we have a muddled approach to persistent offenders, and makes clear the inadequacy of short prison sentences, the weakness of longer ones and the lack of confidence in community sentences. It covers all the things that colleagues are concerned about. The headings alone list muddled and weak enforcement systems; unnecessary rigidity; the muddled legacy; inconsistency; and lack of transparency—the point made by the hon. Member for Nottingham, North. The next section, which is on new opportunities, covers what works, youth justice reforms and improved outcomes. It then specifically sets out the things that we have identified as needing to be in the list: public confidence; deterrence; reform and rehabilitation; reparation; and incapacitation—that means making it impossible for people to commit offences by locking them up.

Halliday concludes in chapter 1 that there should be a new framework—we should do more to support crime reduction and reparation while meeting the needs of punishment. Interestingly, he also says that the Home Office should consider the scope for further research into ways of increasing current knowledge about sentencing. I remember seeing on its website some 18 months ago a quiz about the criminal justice system. It showed that the public are often unintentionally misinformed and think that sentences are lighter than they really are. One of the questions was ''What is the average sentence for rape?'' The public answers were much lower than the sentence that had been passed by the courts. I am happy to say—because we were asked by the press to do it without having a chance to check the answers—that I scored well on it, as did the right hon. Member for Maidstone and The Weald (Miss Widdecombe).

Most crucially—my hon. Friend the Member for Somerton and Frome was right in this—Halliday's big proposition is that the key issue should be proportionate sentencing. He outlines some principles in chapter 2. I suspect that there will be a great deal of debate on the list of purposes in the House of Lords, as many people will be interested in getting it right, including the hon. Member for Woking, who has thought about it often in a judicial capacity.

When we come to the purposes of sentencing, we might do two things, both of which my hon. Friend referred to. First, we could have proportionality as the central purpose—that the punishment must fit the crime—and secondly, we could help the courts by establishing a hierarchy of consideration. Unless we do

that, we will merely have a shopping list, which is what Professor Ashworth argued. If we are asked to take into account four—or six, according to Professor Ashworth—purposes without being given guidance on which of them takes priority, we will end up in difficulty. The hon. Member for Woking pointed out that the four paragraphs of subsection (1) contain a difficulty in that (b) is elaborated on and arguably becomes a three-in-one proposition, as it says:

''(including its reduction by deterrence and its reduction by the reform and rehabilitation of offenders)''

The Home Secretary called on us to get this right. If we can reach an agreed set of principles, I will sign up to them, but they are not yet right. We ought to separate young criminals from the older ones and we ought to make proportionality the central principle—but it is not mentioned in the clause.

Paul Stinchcombe (Labour, Wellingborough)

Is it not important to distinguish between those considerations that we must take into account when sentencing and the purposes for which we sentence? Clause 126 is the first to set out the purposes of sentencing, whereas the considerations in the 1991 Act, and proportionality, are completely different. They are considerations that we must take into account when looking at the sentence itself.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is a perfectly good argument, but there is a strong link between this clause and its purposes and determining the seriousness of the offence and how one responds to it. I understand the hon. Gentleman's point and I sign up to it. I want us to do what the Halliday report recommended, which was to ensure that we have a statutory framework and sentencing guidelines, which will come from another source, after proper consultation. The courts will then be seen to have what he, the hon. Member for Bradford, West and I all want: applied principles and set priorities. He may be right that we must get the purposes right and then list the priorities. I hope that that shows we are not being theological about this—like the hon. Member for Nottingham, North, we will not put our amendments to the vote. However, by the time this finishes in the Commons, we want to have got this clause right, and to that extent there is no party politics from us.

Dominic Grieve (Conservative, Beaconsfield)

This is proving to be an interesting and wide-ranging debate on the principles of the purposes of sentencing. I am conscious of a remark made earlier about people offering their menu, but there is a great deal of beef to be consumed and digested in this part of the Bill. At the moment, we are on the Twiglets. My hon. Friend the Member for Woking pointed out, with a certain iconoclasm, but correctly, that although the clause is the subject of interesting debate, deleting it would make very little difference. I do not wish to get bogged down in excessive consideration of it, but I accept that there is justification for having a purposes clause. If one is to carry out a major reform of sentencing law, a statement that can correctly identify the key issues that must be considered to provide a parliamentary framework for sentencing is well worth while. The only concern that I have—it was highlighted in our amendments in this group, and in those of our amendments that are included in the next

group—is whether we are in danger of being too prescriptive.

I fully accept the point made by the hon. Member for Wellingborough, who asked whether we could think of anything that had been left out, but history tends to show that something has often been left out. That is a good reason for amendment No. 600, which would insert the words ''in particular'' and ensure that judicial discretion was not fettered—the very thing that the hon. Member for Nottingham, North wants to ensure through amendment No. 516. I throw that in for the Minister's consideration, and I would be interested to hear his views.

Inserting the words ''in particular'' would remove all my anxieties, which are manifested also in amendments in the subsequent group that deal with the question of whether ''persons'' are ''the community'' and whether that definition is sufficiently wide. There are two ways to approach that interesting argument, but we should be a little careful in setting out the framework not to leave the judiciary handicapped or fettered. That may be excessive caution on my part, but it would be silly to do something that later caused unintended difficulties. That is the purpose of the amendment.

I wholly support amendment No. 516, because it restates the principle of judicial discretion. It also provided the hon. Member for Nottingham, North with the opportunity to make some wide-ranging remarks about the purpose of other amendments, and the relationship between the judiciary, Parliament and the Executive.

The hon. Gentleman knows that when I first read his amendments, and although I fully support his intention—he will recollect my intervention on the absence of transparency in sentencing, and the way in which sentencing guidelines are fixed being a particular public anxiety—I may have read them with too much of a lawyer's mind. I was anxious that the judiciary have understandably proved reluctant to share the exercise of their discretion, even when setting guidelines, with those who are not part of their fraternity. It is easy to say that that is caused by a desire for exclusivity. It is more understandable if one considers their concern not to be seen to be in a minority against others who want something else, and to be seen to have fettered their views as a result of outside pressures and influence.

We shall have to return to that question when we come to consider amendments to clause 151. I will certainly be interested to hear from the Minister—I point it out now so that we can cover it properly when the time comes—what the Lord Chief Justice's response to the hon. Gentleman's proposals was. I assume that if the Government are going to show some favour to those ideas, they must already have engaged in consultation, and I would be interested to hear what it is. If the judiciary are comfortable with what is being proposed by the hon. Gentleman, I will be greatly reassured, because I am anxious to avoid a conflict.

That said, the thrust of what the hon. Gentleman is trying to achieve is something that I entirely share. That is why I decided that I could properly subscribe to the amendment. I am fascinated and happy to note the widespread support that it appears to command, and I hope that the Minister will be able to respond to it in a positive fashion. Moreover, as the hon. Gentleman pointed out, I tabled further amendments to emphasise the parliamentary role. I am mindful of the fact that it is not practical for Parliament to formulate sentencing guidelines. Indeed, a point that has been made about the relationship between the Executive and Parliament means that any real attempts at parliamentary formulation of guidelines will turn out to be Executive formulation of guidelines. There is an inevitability about that, about which it is easy to express regret. However, in most legislatures, it is difficult for the legislature to formulate independently of the Executive, especially as our Executive relies on the majority of the legislature in Parliament.

My feeling is that the more sensible approach is to try to ensure that Parliament has a role in endorsing guidelines. That means that if the public start to dislike the guidelines as they exist, they can look to Parliament to start to express concern, because Parliament is seized of the matter by having previously provided the endorsement. We can also envisage a role for the Select Committee, and the House should provide for the guidelines to be endorsed by affirmative resolution.

Such a formula could apply even if the form of the guidelines council that the hon. Member for Nottingham, North envisaged was not possible and it had to be altered in some way. I see no reason why that element could not remain.

With that in mind, I embark on this chapter on sentencing. I hope that we can achieve consensus. The amendment should command widespread support. If we are providing a statement of the purposes, it would be wise to include a reiteration of the role of the judiciary. That would reassure judges, as well as the public, that we are not about to usurp the judiciary's role.

As for the other matters, I look forward to the Minister's comments. We must not get too bogged down in the clause, or we shall not give proper consideration to subsequent clauses, which require a great deal of detailed scrutiny.

David Cameron (Conservative, Witney)

I want to speak to amendments Nos. 516 and 601. I wholly support the sentiment that

''Judges shall have discretion in the determination of all sentences.''

It is absolutely correct that no two cases can be the same. I say to anyone who may oppose the more general point that the hon. Member for Nottingham, North makes about the sentencing council that we do not have full judicial independence and discretion at present. That is an obvious point, but one worth making. Judges and magistrates are not simply allowed to look at any case, consider the maximum sentence for the offence and use their discretion. There

are huge amounts of guidance and many ways in which they are constrained. One way in which that constraint makes itself known is when people appeal sentences at the Court of Appeal.

In my constituency, the husband of Mrs. Smith of Long Hanborough was tragically killed in a road accident. The person driving the car had no licence and was uninsured, as was his passenger, and the court initially imposed a sentence of three years and nine months. That was cut on appeal to just two years, and under early release they were released after nine months. They were released straight after the Court of Appeal judgment. Mrs. Smith feels cheated. The purpose of making that point is to say that judges do not have total discretion, because the Court of Appeal in that case quickly overturned the Crown court's decision.

There are two logical positions that one can have on judicial discretion. One can either believe that Parliament should set the maximum sentences, or occasionally minimum sentences, and judges and magistrates should have total freedom within that, because only they are fully aware of the facts of the case, or one can hold that there should be sentencing guidelines that are accountable to somebody. At the moment we have the worst of all worlds. We do not have full judicial discretion. The Court of Appeal issues an awful lot of sentencing guidelines and practice, without proper scrutiny.

I advise non-specialist members of the Committee like me to read the judgment of the Lord Chief Justice in the burglary cases, Regina v. McInerney and Regina v. Keating, and see the level of detail that he goes into. He defines a standard burglary, and says that that involves theft of electrical goods, such as a television or a video, or theft of personal goods, such as jewellery. He goes on to detail aggravating and mitigating features. It is fascinating to read, but I totally disagree with it. I think that it is soft and pathetic, and that burglars should be given much greater sentences, although that is just my view. However, Parliament could quite easily have an input on the matter. A sentencing council such as that which the hon. Member for Nottingham, North described could do a fairer and more reasonable job than the Lord Chief Justice. I do not see why on earth Parliament should not have some role. We in the Committee should settle the key questions of how the guidelines will be set, who will oversee the process and how accountability can be ensured.

On the purposes of sentencing, and amendment No. 601, a couple of points are missing that the Minister can perhaps touch on, such as the prevention of crime. The clause refers to ''the reduction of crime''. For prolific offenders, however, the court should take into account giving the public a break from their offending behaviour.

Paul Stinchcombe (Labour, Wellingborough)

I wonder whether that is not covered by subsection (1)(c), which refers to

''the protection of the public''.

David Cameron (Conservative, Witney)

I think that one could spell that out in a bit more detail, and that it should be about preventing crimes. I worked at the Home Office and I

remember some research that showed that the typical burglar carried out more than 20 burglaries a year. The Minister looks a bit doubtful—perhaps he will have to dig out the research. In a case such as burglary, I think that preventive detention could cut the crime rate.

Subsection (1)(a) refers to ''the punishment of offenders'', although it does not mention retribution. I do not mean that in the sense of wreaking revenge, but we should remember that in a free society we give up our right to take action when someone wrongs us, and vest that right in the state. That is what the criminal justice system does. If one's car is stolen and one knows who did it, one cannot go round the corner, get the car back off them and smack them over the head, because we live in a civilised society. One vests that right in the state, and the state must do the job properly. I suppose that the Minister could say, ''Well, that's wrapped up in the concept of the punishment of offenders,'' but I would be happier if something was said about the importance of public's having confidence in the criminal justice system.

The Bill says that the sentencing council must bear such matters in mind. However, when a court passes a sentence it should bear in mind not only the deterrent effect on the offender and others who might offend, the protection of the public, and the other things detailed in the clause, but public confidence in the criminal justice system. When a wrong is done and the individual cannot take action, they want to know that the state has carried out that function on their behalf properly. That is not said in the clause.

James Clappison (Conservative, Hertsmere)

I support the amendment. My name is not in the list of its sponsors, but I certainly support it. I must apologise, because I did not have the opportunity to hear the opening remarks of the hon. Member for Nottingham, North. I was delayed at King's Cross because the tube station was closed because of alleged overcrowding. I am not sure what the exact problem was—it may have been a dress rehearsal for 17 February. None the less, I very much agree with the spirit of the amendment, which is a useful restatement of judicial discretion. I am very much in favour of giving judges discretion, because they hear the facts and must tailor sentences accordingly.

We should remember that judicial discretion is often exercised in the context of the guidelines issued by the Court of Appeal. Sentences passed by magistrates or judges—particularly Crown court judges—may be subject to an appeal to the Court of Appeal to see whether they fit in with the guidelines. In the first instance, however, it is important that we trust judges to hear the facts of the case and to tailor the sentence accordingly in the context of the guidelines.

There are sometimes important social reasons for tying the hands of judges and magistrates by fixing a minimum sentence, but that should be done sparingly. A good social case could be made particularly in relation to offences such as driving with excess alcohol, which carries a minimum disqualification of 12 months. There is an important social reason for that sentence, and it has been a success. Otherwise, however, I would be reluctant to tie the hands of

judges or magistrates. If we do, we run the risk of anomalies and injustices. The judge may hear all the facts of a case, and his decision may go either way. He may want to pass a custodial sentence but be unable to do so because of the guidelines. Equally, he may have to pass such a sentence even though he thinks it more severe than the needs of justice would require. We want to avoid judges throwing their hands in the air, saying, ''I've heard all the facts of the case, but Parliament requires me to do this.'' We must avoid tying their hands, but I am all for Parliament having an input through the parliamentary process and via the sentencing council and the guidelines. That is very important.

My hon. Friend the Member for Witney touched on the important issue of maintaining public confidence, which arose from comments about transparency in sentencing. One way to engender public confidence in the sentencing process is to have sentences that the public can trust and believe in, and for them to know what the sentence actually is.

I agree with much of what the hon. Member for Southwark, North and Bermondsey said, but he was in danger of facing in different directions at the same time on the question of honesty in sentencing. I agree that there is a strong case for more effective community sentences, and we usefully devote our time to ensuring that they are as effective as possible. However, if there is to be a mixture of, say, custodial and community sentences, let us have the courage to tell the public and not to dress it up as if it were simply a custodial sentence. Let us tell them the length of time that someone will serve in prison, what will happen under the community part of the sentence, why it was passed and what it is hoped to achieve.

I listened carefully to the hon. Gentleman, and I thought that he was facing in different directions at the same time, but I will happily give way to him if he wants to correct that impression.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I may not have put the case as well as I should have done. I accept what the hon. Gentleman says, but the question is what happens at the moment of sentence. Is someone told, ''You have a five-year sentence. Half will be spent in prison and the other half will be spent outside under these conditions''? That is the presumption at the moment. On the other hand, are they told, ''You will have two periods of punishment—one inside and one outside''? If we came to the view that it would be better to describe things differently, I would be happy to support that, but I do not think that there is a difference between us.

James Clappison (Conservative, Hertsmere)

I would like the maximum amount of honesty at the point of sentencing so that the public and the court can be told what the sentence will be. We must leave no one in any doubt, and at all costs avoid the public being told that someone will go to prison for a certain length of time, only for him to come out after a much shorter time. Let us be accurate about what is happening.

Let me give the hon. Gentleman an example of what might have happened in the past. Someone might have received a sentence of six months' imprisonment under the regime that applied at one time. With the provisions for early release and early release through tagging combined, prisoners who were sentenced to six months were eligible to come out after six weeks and in many cases did so. It must have come as a surprise to the victim of an assault, for example, who had heard that his assailant had been sentenced to six months' imprisonment, to see him in the supermarket or the pub six weeks later.

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend makes a good point. Only yesterday, I was at Wandsworth prison to discuss a safe ground campaign, which is about educating prisoners and helping them in their family relationships. The point was made to me that the programme is frequently halted when an offender is released on tag, even though he might be only halfway through it.

James Clappison (Conservative, Hertsmere)

My hon. Friend makes another important point about the sort of problem that can arise. That, too, will destroy the confidence of the public when they know that the two regimes have not been combined effectively.

Humfrey Malins (Conservative, Woking)

My hon. Friend has hit on an extremely important point about the public knowing what is happening. I should like to reinforce it by telling him that if the maximum sentence passable by a magistrate is six months, no one spends more than six weeks inside—subject to certain conditions.

James Clappison (Conservative, Hertsmere)

My hon. Friend, who has more up-to-date and authoritative knowledge of sentencing than I do, confirms what I suspected. That was the case at one point and it sounds as though it still is. I conclude by inviting the Minister to deal with the issue. I understand that when a person is sentenced to six months, no one is told at the point of sentencing that they might come out on a tag after a shorter period, or that they will be released after six weeks. Can the Minister tell us whether a person who is sentenced to six months today will be eligible for release after six weeks on a combination of early release and tagging? Can he also tell us in how many cases that happens? From what my hon. Friend the Member for Woking says, it sounds as though it is common, if not invariably the case. Finally, regarding openness, can the Minister tell us what is said? Is any warning given to the public at the point of sentencing about what is likely to happen, or are they just told that the person has been sentenced to six months in prison?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

There is not much between any of us. The one other consideration to which I hope that the hon. Gentleman will sign up is that we have to allow good behaviour in prison to count for something. Defendants should be told that they are to be imprisoned for a year but that, if they behave properly, they might be out after nine months. The public should know that at the time of sentence as well.

James Clappison (Conservative, Hertsmere)

That is also important. I do not disagree with the hon. Gentleman. However, it does not apply in this case, because people are released after six weeks without having earned it. They might serve longer if they are particularly badly behaved, but there is no question of anyone earning it; it seems to come up with the rations.

I agree with many of the points that have been made about community sentences. I am strongly in favour of them as an alternative to custody; they rehabilitate people and give them a chance. However, we need to be open and tell the public what is happening. I hope that, through the amendments, we shall contribute to opening up the sentencing process and giving the public the information that they need in order to have confidence in the criminal justice system.

Hilary Benn (Labour, Leeds Central)

May I begin, like other hon. Members, by congratulating my hon. Friend the Member for Nottingham, North on his award, and on his speech? It set off what has been an outstanding debate, and showed us why he won the award. I join him in acknowledging the amount of expertise in every part of the Committee. There is not a morning when I do not come in and see lawyers to the left of me, lawyers to right of me. However, it is not just expertise that matters, but the experience that all hon. Members bring to our debates. A number of contributions have contained passion as well as insight. It is the way in which hon. Members of all parties apply their experience to the issues that makes it such a pleasure to be a member of the Committee.

This morning, that experience has been applied to debating the purposes of sentencing, and discussing the complex interrelationship between the society that experiences crime and the system that tries to deal with it. Opinions could be characterised as ranging from ''lock 'em up and throw away the key'' to the strong belief in redemption and rehabilitation. The debate makes the case for clause 126, and the principle that the purposes of sentencing should be set out in legislation. The contributions of my hon. Friends have drawn out an important distinction between the principles of sentencing, which are already covered—the hon. Member for Southwark, North and Bermondsey read out those in the 1991 Act—and the purposes of sentencing, which we are debating, and which are to have statutory expression for the first time.

David Kidney (Labour, Stafford)

The amendment refers to judges' discretion and the clause refers to any court having regard to the purposes. However, I cannot see any reference to the Sentencing Guidelines Council having to have any regard to the purposes; I should have thought that it would do.

Hilary Benn (Labour, Leeds Central)

The fact that they will be in statute will send a clear message. It is hard to conceive that the Sentencing Guidelines Council could do its job if it did not have regard to the purposes of sentencing that Parliament will have laid down in clause 126, if it is agreed. It covers four areas. The first is punishment, which is about calling people to account. I think that that covers the point made by the hon. Member for Witney. The second is the reduction of crime, which does include its prevention. It is couched in very

concentrated wording. I understand that other hon. Members would prefer it to be broken down into more categories, but I shall argue that it covers all the purposes of sentencing that one can conceive of and addresses the matter of deterrence. The hon. Member for Woking was right when he contrasted deterrence as it relates to the individual, and the general message of deterrence that a particular sentence might seek to convey, and the important issue of rehabilitation of offenders. That picks up the point made by the hon. Member for Southwark, North and Bermondsey about redemption and the capacity of people to change, in which we must all believe. The third is the protection of the public, and the fourth, the making of reparation by offenders.

Not to anticipate the debate, although it might assist its progress, I am happy to confirm that ''to persons affected'' does include both the individual who might be affected and the wider community. The clause is drafted with precisely that intention. We owe a debt of gratitude also to the hon. Member for Southwark, North and Bermondsey for reminding us where all of this comes from: the excellent report drawn up by John Halliday and his colleagues. I can tell those hon. Members who have not had a chance to look at it that it is well worth reading. It was the subject of extensive consultation. So, where does all this come from? A very thorough process.

A number of questions were raised about the purposes themselves. The hon. Member for Woking asked whether the clause was trying to change practice. It is trying to give the purposes of sentencing statutory expression for the first time. There is no order of priority. Four purposes are laid down in subsection (1) and it is, of course, for the court to apportion weight to each of the purposes in a particular case. As I said, the list covers all the purposes that any of us could think of. That point was ably made, as ever, by my hon. Friend the Member for Wellingborough. Despite the contributions that we have heard, no one has been able to suggest a purpose that is missing, but I am about to give way.

Dominic Grieve (Conservative, Beaconsfield)

I detected, from a nod by the hon. Member for Wellingborough, that the question under subsection (1)(d), concerning reparation to the wider community as well as

''to persons affected by their offences'',

may be an example of something that has not been spelled out but could do with being spelled out. If so, the Minister may agree that we have not covered all the categories in paragraphs (a) to (d).

Hilary Benn (Labour, Leeds Central)

I hear the argument about the wider community, but paragraph (d), with its reference to persons affected, was clearly drafted with that in mind.

Paul Stinchcombe (Labour, Wellingborough)

Can the Minister think of any situation in which the wider community could be affected by crime without any individual being affected at all?

Hilary Benn (Labour, Leeds Central)

My hon. Friend makes an extremely good point.

Dominic Grieve (Conservative, Beaconsfield)

If I go and vandalise a public statue in a public square, the community, and not individuals,

will be affected. I simply highlight that. I do not want to get involved in an exercise in semantics. However, the argument reinforces the point that when one has laid down a series of prescriptive rules, there is a danger, although I accept that it is slight, that one will suddenly start to think of examples that fall outside those rules.

Hilary Benn (Labour, Leeds Central)

The court will have regard, as it must, to the purposes set out in the clause, the various principles governing sentencing, which are laid down in later clauses, and, as the hon. Member for Woking rightly pointed out, other circumstances. I therefore find it hard to see how the court, with all its powers and the discretion that it has, could fail to reach an appropriate sentence, although the hon. Gentleman acknowledged that there was a slight danger of that.

Humfrey Malins (Conservative, Woking)

I am listening carefully to the Minister. May I assume that the answer to my basic question—whether the clause is intended to alter existing practice at all—is no?

Hilary Benn (Labour, Leeds Central)

In the end, the court will decide, for the reasons that I have just given in answer to the hon. Member for Beaconsfield. However, the clause clearly states the purposes of sentencing and tells the court that it must have regard to them in making decisions. Looking down the list of the purposes of sentencing—the hon. Member for Woking will have more experience of sentencing than anyone else in the Room—we find that they are indeed the considerations to which courts will have regard in taking decisions. However, the Government are firmly of the view that it is right and proper, and in the interests of clarity and understanding, which have been a feature of this debate, that the Bill should explicitly state what the purposes of sentencing are, so that they can be seen by the wider public.

David Heath (Liberal Democrat, Somerton and Frome)

In answer to the hon. Member for Wellingborough, it would be hard to adduce the particular persons affected by the theft of an osprey's egg.

To return to the point about proportionality, is there not a further purpose of sentencing—that of closure in the interests of justice? Has that not been the purpose of sentencing since biblical times—an eye for an eye and a tooth for a tooth? There must be an end to the sequence of events of which the crime was part. Sentencing provides that closure, and the hon. Member for Witney pointed out that the public must have given that right to the state and must see it through to the end.

Hilary Benn (Labour, Leeds Central)

I accept that point entirely, and that is clearly the purpose of subsection (1)(a). The court's passing sentence provides closure, and it will also take into account the purposes set out in the other paragraphs of subsection (1). The hon. Gentleman gave the example of the theft of an osprey's egg; that is an offence because it is in the wider interest of the community that rare bird life thrives.

David Heath (Liberal Democrat, Somerton and Frome)

Yes, but it does not affect persons.

Hilary Benn (Labour, Leeds Central)

I am not sure that I accept that. Persons—the community—have an interest in the survival of wildlife that we consider important; and we should call people to account for what they have done. One can think of some quite imaginative forms of reparation that someone who has offended in such circumstances could undertake. They could work to promote the interests of wildlife, for example.

Paul Stinchcombe (Labour, Wellingborough)

The Minister has given an interesting answer, but would a better answer to the osprey question not be that one would be sentencing a person under subsection (1)(a) to punish him or under (1)(b) to reduce crime? It is difficult to believe, however, that one could repair the damage done to the osprey by sentencing.

Hilary Benn (Labour, Leeds Central)

I am always grateful to my hon. Friend for providing better answers than I because of his knowledge and expertise. His attention to the detail of the clause is an object lesson to us all. To reflect on the less than good answer that I gave, to ask someone to work in a bird sanctuary would be an extremely appropriate form of reparation, and that is what the clause provides for.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Let me take the Minister away from the specific to the general.

Hilary Benn (Labour, Leeds Central)

I shall be very grateful to the hon. Gentleman for it.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am glad to be of help. If we agreed that it would be good to have purposes set out, which is the Minister's case, would he not accept that we should have the principles set out in the same legislation? We do not have that at present, but I would accept the Minister giving a list of purposes. The principles are set out nowhere in the Bill, although Halliday argues strongly that they should appear there.

Hilary Benn (Labour, Leeds Central)

The difference between the purposes and the principles is that the principles can be found in many other pieces of statute. Inasmuch as the hon. Gentleman is making a plea for codification, I hear what he says. The Bill, as we are discovering through these pleasant exchanges, is already long enough. The hon. Gentleman will have noticed, however, that principles are covered in the clauses that we are about to debate, in particular clauses 127 to 136. The hon. Member for Witney raised the issue of providing the public with a break from persistent offenders. Clause 127 does precisely that by placing a requirement on the court to take into account the persistence of offending when reaching a view about an appropriate sentence. I accept his argument entirely, and that is exactly the purpose of clause 127.

The hon. Member for Woking was absolutely right about the gap in the public's perception of sentencing. That was brought home to me by the BBC's crime day. I saw the sentencing exercise in the programme. In it a group of people was ranged around the room—judges, ex-offenders, police officers, the public and victims. From memory, with the exception of one case and given that it was not a representative exercise, it showed clearly that the judiciary were not out of step with the public on what was appropriate.

The hon. Gentleman has more experience of the matter, but it reinforces what my hon. Friend the Member for Nottingham, North said—that it is in everyone's interests that we should understand better how the system works. One theme that has run throughout our discussions on the Bill is that greater clarity and more common sense in the operation of the law—the Committee will know that I am particularly wedded to that term, because it explains the Government's thinking behind a number of changes—will help to build the confidence in the criminal justice system that we all definitely want.

The hon. Member for Hertsmere (Mr. Clappison) asked a specific question about six-month sentences; he wanted to know whether a person could be released after six weeks. For a six-month sentence, release will be automatic at three months. Home detention curfew is given at the discretion of the governor, and it is indeed the case that a person could get early release on home detention curfew after six weeks. However, that does not apply to all offenders. For instance, sex offenders, those who were previously involved in dealing drugs and previously violent offenders can be and are excluded by the discretion of the governor. That is how the system works, but I understand the point of the hon. Gentleman's question.

James Clappison (Conservative, Hertsmere)

The Minister mentioned sex offenders; I think that they were originally eligible for early release through home detention curfew, but the Government changed their mind on that as a result of the fuss made about it by Opposition parties. The second part of my question is whether the court is told at the time of sentencing that that is apt to happen.

Hilary Benn (Labour, Leeds Central)

No; and I have received confirmation of that by way of a nod from the hon. Member for Woking. The hon. Member for Hertsmere raised an extremely important point; he also drew out the other subject that we have been debating, which is what constitutes a sentence. Effective community penalties and supervision run like a thread through the Halliday report and the clauses that we are about to debate, and it is important in relation to custody plus.

The great thing about custody plus is that it provides supervision for short-sentence prisoners who currently go to prison for a short time, but who, when they come out, miss the follow-up—the work of the probation service, continuing access to drug treatment, offending behaviour programmes and so on. We know from experience and from the statistics that those things have an effect and that they help reduce reoffending. It is important that we understand that a sentence can be a combination of those things, provided that they meet the purposes of sentencing.

It is important that we can demonstrate that those things make a difference, either separately or in combination, and that they help achieve the purposes of sentencing, particularly in reducing reoffending. If we can do that, we have a better chance of winning the argument with the public. If we can demonstrate that an effective community sentence, including some of the rigorous approaches that are currently being developed, protects the public by reducing crime as well as by making reparation, the public will be more willing to agree. If it helps to stop others becoming a victim at the hands of a particular offender, it makes sense to do it.

Humfrey Malins (Conservative, Woking)

The Minister's answer to my hon. Friend the Member for Hertsmere was indeed right, save to say that on a six-month sentence, the defendant is told publicly that he will serve half of that sentence and be released on licence if he behaves properly. However, early release is never directed by the court.

Hilary Benn (Labour, Leeds Central)

Judges do have discretion in determining sentence. I understand the aim of the amendment, and I am happy to confirm for the record that judicial independence, including judicial discretion in sentencing, and subject to the framework of law laid down by Parliament, is indeed the bedrock on which our legal system is based.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee B

Clause 126 - Purposes of sentencing

Eric Illsley (Labour, Barnsley Central)

I remind the Committee that with this we are discussing the following amendments:

No. 531, in

clause 126, page 73, line 15, leave out from beginning to 'the' in line 16 and insert

'In determining what sentence to pass on an offender, the court must consider all of'.

No. 640, in

clause 126, page 73, line 15, after 'offender', insert

'who is aged 18 or over'.

No. 600, in

clause 126, page 73, line 15, after 'must', insert 'in particular'.

No. 63, in

clause 126, page 73, line 22, at end insert—

'(f) in the case of an offender under 18 years of age, his welfare.'.

No. 641, in

clause 126, page 73, line 22, at end insert—

'(1A) Any court or youth offender panel dealing with a child who is aged under 18 at the time of conviction in respect of an offence must, in addition to having regard to section 37 of the Crime and Disorder Act 1998, have regard to the welfare of the child as a primary consideration.'.

No. 492, in

clause 126, page 73, line 24, leave out subsection (a).

Hilary Benn (Labour, Leeds Central)

Good afternoon, Mr. Illsley.

I am happy to confirm that judicial independence, including judicial discretion in sentencing, albeit subject to the law as laid down by Parliament, is a bedrock of our legal system. My hon. Friend the Member for Nottingham, North (Mr. Allen) recognised that when he said that that is how it is now. I entirely agree with the sentiments behind his amendment, as do other members of the Committee, and concur that it reflects the current position as understood by the Government, the Committee and members of the judiciary.

I am grateful to my hon. Friend for saying that he does not propose to press his amendment to a vote. The wording, if included, might raise eyebrows among

members of the judiciary, who do not doubt that they have discretion on sentencing. In other quarters, it might have the opposite and unintended effect of raising doubts about other parts of appropriate legislation. Having said that, we may well return to this issue when we discuss the work of the Sentencing Guidelines Council. As my hon. Friend said, many issues relating to the operation of the council will have an impact on the relationship between Parliament, the Executive and the judiciary. His extremely helpful amendment has flagged up this issue, to which I am sure we will return.

The hon. Member for Southwark, North and Bermondsey (Simon Hughes), who is not here now, raised the question of the welfare of offenders under 18. Of course, we recognise that that is an important consideration in the sentencing of juveniles. However, the clause currently applies only to adults, and neither amendment No. 63 nor amendment No. 492, which would remove the age restrictions, would be appropriate. Amendment No. 641, which is similar to amendment No. 63, also falls into that category.

The amendments are unnecessary. We intend the clause to apply only to young people over 18, for two reasons. First, the Government are working on a Green Paper on the needs of children, which we hope to publish later in the spring. Following the outcome of that consultation, we aim to propose legislation to bring together the purposes of juvenile sentencing in a way that is similar to what we are seeking to do for adults. Secondly, I reassure the hon. Gentleman and my hon. Friend that the Children and Young Persons Act 1933 requires courts to have regard to the welfare of juveniles when sentencing, and there are also the provisions of the Crime and Disorder Act 1998.

Finally, the hon. Member for Hertsmere (Mr. Clappison) expressed a concern about clarity of explanation about what a sentence means. Clause 157, which we will debate later, addresses that point.

Graham Allen (Labour, Nottingham North)

With the hon. Member for Southwark, North and Bermondsey out of the Committee, there is a great temptation for me to hurry up. It is a temptation to which I will succumb. Given the Minister's kind words and open mind in agreeing to look at the matter afresh, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Graham Allen (Labour, Nottingham North)

I beg to move amendment No.61, in

clause 126, page 73, line 18, leave out from 'crime' to end of line 19.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments:

No. 603, in

clause 126, page 73, line 21, after 'of', insert 'financial'.

No. 601, in

clause 126, page 73, line 21, after 'to', insert 'the community and'.

No. 532, in

clause 126, page 73, line 21, after 'persons', insert 'and communities'.

No. 62, in

clause 126, page 73, line 22, at end insert—

'(e) the reform and rehabilitation of offenders'.

No. 602, in

clause 126, page 73, line 22, at end insert—

'(e) public confidence, and the prevalence of the offence in question in the locality'.

No. 667, in

clause 126, page 73, line 22, at end insert—

'(e) to assist with the treatment, reintegration and rehabilitation of offenders.'.

Graham Allen (Labour, Nottingham North)

I welcome you to the Chair, Mr. Illsley.

Clause 126 refers to purposes of sentencing, and subsection 1(b) refers to one of those purposes being the reduction of crime, which is something we all support. It becomes unnecessarily complicated when it refers to its reduction by deterrence, and the reform and rehabilitation of offenders. Both those ideas are important. I would argue—and I ask the Minister to consider this—that in view of some of the amendments to come from all points of the Committee, rehabilitation should stand alone as a criterion under which a discussion of sentencing should take place.

The question is a philosophical one that could take up another full sitting—I hope that it does not. People referred earlier to their own values concerning crime and punishment, which may come from a Christian, liberal, socialist or Conservative point of view. Many ideologies refer to rehabilitation making people better. Given the crisis in our prison system, I feel that what we are currently doing is not working. One of my themes later will be to draw a distinction in the Prison Service between containment of offenders who must be put away for public safety reasons and rehabilitation. Rehabilitation of offenders, where practicable, is the best crime prevention measure there is. We should seize that opportunity.

I have views about all criminal law. As a green Member of Parliament, within about two weeks of arriving in this place, an horrendous case of sexual abuse was brought to my attention. I was heavily involved in sorting out the problems associated with that multi-generational case. Some of the children involved had received appalling treatment. We all feel anger about any criminal act that comes to our attention, and I felt anger about those wasted lives. I came to an understanding that some people are heroic in their ability to resist the treatment meted out to them as children, but sadly some cannot overcome it, and in turn become abusers and perpetrators. It is important to intervene early and ensure some form of rehabilitation of such individuals before they can become abusers. That had a profound effect on me as a young Member of Parliament. If we can stop crime being committed, it will relieve the courts, and the many citizens who suffer from the activities of criminals. Given the current crisis in criminal justice and our prisons, rehabilitation is extremely important.

I shall return to those points later, but for now I shall not press the amendment to a vote. I am sure that the Minister will express sympathy with the concept of rehabilitation. I know from my correspondence with him how much he cares about this part of his ministerial responsibility, so I ask only that he

considers re-examining the drafting to see whether he can send the signal to the community at large and those in the criminal justice system that rehabilitation has as much priority as any of the other items mentioned in the list. If he looks at that with an open mind, we may be able to build on Report or in another place a serious foundation in the criteria for the purposes of sentencing that includes rehabilitation exclusively.

Humfrey Malins (Conservative, Woking)

I will speak to amendments Nos. 603, 601 and 602.

We are still discussing the important clause on the purposes of sentencing. Amendment No. 603 is a probing amendment designed to draw from the Minister confirmation about subsection (1)(d) on

''the making of reparation by offenders to persons affected by their offences.''

The amendment would require financial reparation. I think that clause 126 envisages convicted defendants having as one purpose of punishment not only the need to perform community work or be involved in restorative justice that we heard about earlier—a face-to-face discussion and apology—but the issue of financial compensation. However, that is not spelled out, and I would like confirmation that all those matters are encompassed by the word ''reparation''.

I should say in passing that currently if a court does not award compensation in a case, it has to say on the register why it has not. There is an increasing tendency to award compensation, particularly in the assault cases that regularly come before the courts. Many courts find the process of inquiry into the defendant's means before making a compensation order difficult and lengthy, and it is all too easy for magistrates and district judges to say, as they sometimes do if the defendant is on benefits, that they will make no compensation order because the position is too complicated or the matter would be better handled in a civil court or by the Criminal Injuries Compensation Authority. By saying that, judges often mean, ''I've got a busy list and I must move on to the next case.'' It would be helpful for the Government to draft new measures to make it simpler for a magistrate or district judge quickly to get the court's hands on a defendant's assets—for example, a car—to ensure a payment from the defendant to the victim.

I applaud work that has been done on restorative justice. I have not recently come across a case in which a community punishment order—what used to be the community service order—involved working for the loser. Some losers like that; some do not. It is an area that needs examining and perhaps strengthening, and the Minister will probably confirm that all reparations, including financial, are envisaged in the clause.

My amendment No. 601 refers to ''the community'' and would ensure that offenders make reparations to the community as well as to those directly affected by their offences. A defendant is often told, when he is sent to prison, ''You have committed a series of offences. Now you are going to pay your debt to society.'' That is a standard sentencing phrase. Of course, defendants do, in a sense, have a real debt to

pay to society at large, and the community at large, for their offence. It is not a big point, but I wonder whether a reference to the community and society, with respect to the purpose of punishment, should be included somewhere in the clause.

Amendment No. 602 would insert a new paragraph (e) into subsection (1), detailing a further purpose of sentencing to which the court should have regard. It would have to take into account the restoration of public confidence and the prevalence of the offence in the locality in question. My hon. Friend the Member for Witney (Mr. Cameron) mentioned earlier how vital it is that public confidence in the criminal justice system should be preserved and maintained. He is right, and perhaps the amendment could help in that process.

It is very important that courts should take into account the issue of the prevalence of a crime in a community. Judges and magistrates often pass much harder sentences than would otherwise have been the case because they want to ''stamp out'' a particular offence in their community. For example, in the King's Cross area of London a tremendous number of minor drug offences are committed, of which a harsh view is taken. Indeed, different courts around London have different sentencing practices, depending on the prevalence of a particular offence there.

In Covent Garden there is a lot of pickpocketing. Mobile phone theft is particularly prevalent in some areas of London. Another issue is cleaning up the streets. The offence of being a common prostitute—something that I regard as pretty trivial, which clogs up the courts unnecessarily and produces absurd problems for sentencers—is nevertheless prevalent in some parts of London, and causes offence. It is a rarity in parts of the countryside, for obvious reasons. Magistrates would be amazed by a prostitute touting for hire in West street, Dorking, but it is par for the course, on the other hand, on the Commercial road.

Courts need the flexibility to be able to say, ''We are going for this offence, because it is very hot in our area, and we want to drive it out.'' Perhaps, therefore, there is an argument for including in the purposes of sentencing—in addition to the restoration and maintenance of public confidence in the system—the provision of the necessary flexibility to deal with the prevalence of an offence in any area, which results in the need for the relevant courts to stamp it out and to sentence accordingly.

David Kidney (Labour, Stafford)

The hon. Gentleman will remember that this morning I raised a question about statutory sentencing purposes to which judges, but not the Sentencing Guidelines Council, will have regard. Is he aware that one of the matters to which the Sentencing Guidelines Council will have regard is the promotion of public confidence? I am still unsure about the relationship between the two matters.

Humfrey Malins (Conservative, Woking)

I take the hon. Gentleman's point, but in a sense he is returning to the issue that we discussed this morning on a different group of amendments: should a list of the purposes of sentencing in the clause

be longer or shorter, and has everything been included?

The last example of a prevalent offence is retail crime—theft from shops—which is dramatically increasing in many parts of the country.

I hope that I have given the Minister food for thought. My amendments are intended to be no more than probing amendments.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I will speak mainly about amendments Nos. 532 and 667. The first has been touched on. We had a debate this morning about whether we should have purposes or principles or both. If we are seeking to have a definition of purposes, a couple of the examples given this morning—vandalism to a statue, the theft of an osprey egg—offer good illustrations that the case for having restoration to communities is well made: people would frequently understand that something was being done for the community or the neighbourhood, such as putting money back into the kitty.

Amendment No. 603 proposes that reparation should be financial. There is a case for that, but we now accept that there are wider ways of offering reparation than merely the financial way. There is a debate to be had about that. Many of us believe that because the fine system has been inadequately followed up it is now inadequately used. We often do not use financial penalties when we should—that applies to financial reparation, among other things. However, there are things that are not financial, such as the community activity that has been mentioned, and I support that as a way forward.

The hon. Member for Nottingham, North properly sought to have part 2 of the debate that we had this morning about the definition. It was suggested that if we are to have a purposes list, the first four purposes of sentencing should be punishment, reduction of crime, protection of the public and making of reparation, and that reform and rehabilitation of offenders and public confidence should be added at the end. I prefer the wider list to the shorter one: it is clearer to move that long grouping of things under paragraph (b), and to break that up as we discussed earlier.

Amendment No. 667 is a variation on the same theme. It offers an alternative way to assist with the treatment, reintegration and rehabilitation of offenders. I wish to refer again to the work of Mr. Halliday, because there are a couple of interesting points to be made about why the Government did not accept his recommendations in an area where they would have done better to do so. In the section on the case for change, Halliday refers to the fact that the law was amended in 1991 in legislation setting out sentencing principles—and, therefore, sometimes sentencing frameworks, although on the whole I prefer principles. Mr. Halliday and others sometimes talk about the goals for sentencing, and now we have moved on to purposes, but we should try to keep the concepts clear.

I do not pretend to be an expert about this; I am merely retailing the common view that emerges from everything that I have read, which is that the 1991

legislation did not achieve its objective. It intended to set out a framework that would produce more alternatives to imprisonment as sentencing outcomes. However, chapter 1.34 of the ''case for change'' section of the Halliday report states:

''The Criminal Justice Act 1991 was interpreted by the courts in ways that had not been predicted or expected. In fact, the 'just deserts' approach failed to take root, because deterrence was soon reinstated as an aim of sentencing. This was compounded by the Act's failure to deal satisfactorily with the relevance of previous convictions.''

Chapter 1.36 states:

''An attempt in the early 1990s to construct a new framework for sentencing failed, rapidly, to achieve its purpose. Substantial further erosion has taken place since, yet no new vision has been put in place of the original. The result is a muddle, which is not good for consistency, public understanding, or a sense of common purpose amongst the various agencies involved in sentencing. Practitioners complain bitterly about the consequent complexities and inconsistencies, which they feel are a drag on efficiency as well as effectiveness. It is only because of their ingenuity and application that the results are not worse.''

If anyone asked how sentencing was supposed to work, they would be pointed in the direction of a massive volume of statutes, most of which amend each other, and to an equally large volume of case law that is conveniently set out in the three-volume encyclopaedia edited by Dr. David Thomas. In addition, the inquirer would be directed to the magistrates court sentencing guidelines. Nevertheless, the framework is still relatively inaccessible.

If we are trying to get purposes, principles and guidelines sorted, I would make a plea for that to be done in one piece of legislation that refers to how guidelines will be used. The hon. Member for Nottingham, North and the Liberal Democrats believe that the list should be amended. We should, however, be clear about whether we are setting out goals, purposes or principles, or—as I suggested and think is right—whether we could have all of those. If we talk about sentencing principles in respect of subsequent clauses, or about practice or framework—call it what one will, although I believe that the word ''principles'' is better—we should say that that is what we are doing and we should set them up clearly, so that we know where we are going.

Stephen Hesford (Labour, Wirral West)

Does the hon. Gentleman not accept that deterrence is a proper part of the framework?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is one of the proper purposes of sentencing. In their judgments and in sentencing, judges—including district judges—will often say things like, ''We are going to give you a particularly high penalty because we are determined to try to stop other people doing this and to stamp it out.'' Further to that, I refer the hon. Gentleman to the case made by the hon. Member for Woking (Mr. Malins). Deterrence is perfectly proper when it is used in the hope that the message gets out to the community that gun crime, prostitution, or whatever is not attractive an proposition in that part of the world. Deterrence may not solve the problem nationally—in fact, the problem may move somewhere else—but it is perfectly proper.

The current list refers to punishment, reduction of crime, protection of the public and the making of reparation, all of which are proper purposes. Amendment No. 602 would add public confidence and the prevalence of the offence, and amendment No. 667 would add treatment, reintegration and rehabilitation. Those are all perfectly proper purposes for sentencing.

We must consider carefully the rest of Mr. Halliday's analysis and his conclusion. He discussed whether the guidelines having been changed had resulted in different behaviour. I will not read out the report in detail, because people can read it for themselves, and I refer hon. Members back to the document, as the Minister did earlier. Mr. Halliday sets out clearly the evidence that he collected, which shows that frameworks do not necessarily produce the outcomes for which people would wish.

I shall cite two examples from Professor Ashworth's advice on behalf of Justice, in which he puts his case clearly. He says:

''In the White Paper and on second reading much praise was lavished on the Halliday report for preparing the ground for these major sentencing reforms. The government has failed to explain why it diverged from Halliday's proposal that the primary rationale for sentencing should be proportionality to the seriousness of the crime, which is a modified version of that stated in the current law (but never applied faithfully by the courts).''

Thus, Halliday argued for the 1991 Act to be clarified and for that to be applied in the courts.

Professor Ashworth then says:

''This Government has often trumpeted the importance of evidence-led penal policies, but the evidence for the effectiveness''—

this relates to the question asked by the hon. Member for Wirral, West (Stephen Hesford)—

''of general deterrent sentencing was examined by a team from Cambridge University at the instigation of the Home Office, and it found insufficient evidence that increases in the severity of sentences (as distinct from the risk of detection) had a significant effect on law-breaking.''

That research—not mine—showed that increasing risk of being caught was more important than increasing severity of sentences.

Stephen Hesford (Labour, Wirral West)

That is why I raised the question a few moments ago. I am unsure where this line of argument goes. With respect, the hon. Gentleman seems to be arguing against deterrence.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I argued that the purpose of deterrence was fine, but making it into a principle is no good if it does not work. I argued this morning that we should separate the two ideas. It is perfectly proper to view the purpose of sentencing as deterring crime, but going through the mechanism of working out what sentence to pass with deterrence in mind may not be effective. Guidance about priorities is necessary and I refer the hon. Gentleman to the work done in response to the Bill, which appears to back that up.

The Halliday report noted various findings and pointed to the weakness of the evidence in favour of the incapacitative effect of sentencing. Halliday proposed that neither deterrence nor incapacitation should be relied on as a justification for sentencing. [Interruption.] If the hon. Gentleman will bear with me, before we put certain components in or out of the list,

we must be clear about their purpose and sure that they will work. If we are going to apply principles of sentencing, we must analyse the evidence that they will work in practice. Deterrence may be a good purpose, but not necessarily a good sentencing principle, because it may not work well in practice.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman raises an interesting issue, but his stand goes too far. We have ample evidence that some offences, most obviously drink driving, have been reduced substantially by deterrent sentences. Conversely, the sentences heaped up over the years for drug importation appear to have had no deterrent effect whatever. I understand his point, but he is taking too absolutist a stance: deterrence can work in certain cases, so attempting to eliminate it would be a mistake.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I understand the hon. Gentleman's intervention, but I am not adopting an absolutist viewpoint. I said that it is reasonable to retain deterrence as one of the purposes of sentencing, but I referred to Halliday's evidence suggesting that deterrence is much less effective than many people believe. It is the same as locking people up, which keeps them out of the frame, but many prisoners reoffend and return to jail.

The right message can have some effect, as certain cases show. The argument about mobile phone theft and burglary is important: the message has an indirect, if not a direct, effect. In framing a set of principles, I ask only that we put proportionality—that the punishment should be appropriate to the crime—at the head of the list. Punishment can be increased to send out a message, but I conclude that deterrence is more a principle than an effective proposal.

I hope that by the end of the debate—here or in another place—it is accepted that the concepts should be separated, that the advice of Halliday, Ashworth and others should be followed, and that the provisions should be in one statute rather than spread over various statutes from 1991 to 2003, requiring cross-reference to obtain the requisite advice.

Paul Stinchcombe (Labour, Wellingborough)

Is not proportionality inherent in clause 127, whereby the court must determine the seriousness of the offence?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Proportionality is there, and I have said before that clauses 126 and 127 are linked. I have been guided by people who have done more comparative studies of other countries and jurisdictions than me. It would be clearest for the public, to whom the hon. Member for Hertsmere referred, the courts and defendants if people knew the purposes and principles—we have not done this before and I accept that it is good idea—as well as the priority order in which we would ask the courts to apply them, in which case proportionality would be top of the priority list.

Proportionality is included indirectly and is not in lights because it is referred to as the first of the characteristics. Later on, there is another characteristic, which is that one's offence will be

reduced if one pleads guilty. A further characteristic is that if one's offence is racial or religious, it is likely to be aggravated. There is an argument for putting all that under the generic headline, ''Proportionality''. The hon. Member for Nottingham, North pleaded for us to come to the issue having read and listened to the arguments. We must try to get into law what we intend to be law. We must say what we mean to say and listen to each other to arrive at something clear that gives the courts the best guidance. If we are not clear when we finish legislating, we cannot expect the courts to act in accordance with our wishes.

Dominic Grieve (Conservative, Beaconsfield)

I want to make two points arising from what my hon. Friend the Member for Woking said.

First, I want to address the definition of the making of reparation by offenders to persons affected by their offences. It would be helpful if the Minister confirmed that he reads that as financial and other reparations to the general community. The amendment is probing, but it covers an important point. A layman reading the phrase on its own would think that it referred to a reparation to the individual who had been directly disadvantaged by the offence, whereas—this point was well made in an earlier debate—there are circumstances in which a crime is perpetrated against the general interests of the community but not against the interests of a particular individual. We want to be reassured that that matter is properly covered.

The second important issue referred to by my hon. Friend raises a number of other significant points. The amendment refers to

''public confidence, and the prevalence of the offence in question in the locality''.

We shall consider the sentencing provisions, and one point for the Sentencing Guidelines Council—the hon. Member for Stafford (Mr. Kidney) has alluded to it—is the need to promote consistency in sentencing.

My hon. Friend the Member for Woking made the very good point that most people would think it inconsistent for a judge or lay member of the bench in Newcastle to impose fines for theft while the same crimes led to people being imprisoned in London. Such things are often commented on in the newspapers to suggest inconsistencies in sentencing. My hon. Friend is right, because justice must respond to the needs of a locality. It is perfectly legitimate for there to be differential sentencing practices in different places if they reflect the priorities of judges in those places in trying to deal with particular crimes.

As the clause stands—I should be interested to hear the Minister's views on this—it may cause difficulty. The wording of clause 153 might suggest that general rules in relation to deterrence and reduction were considered nationwide, rather than on a basis relating to a locality. In short, have we made enough allowances in drafting to encourage sentencing inconsistencies if those are justified by deterrent needs where the crime arises? That is an important issue and we must ensure that we do what we intend.

There are some who argue that such differential sentencing is wrong. I can understand that point of view, but it does not meet the needs of different areas. The awful truth of sentencing practice is that it can

sometimes be summarised in three stages: when a new offence appears on the scene, it is treated lightly; when it becomes prevalent, it is treated harshly; and when it becomes terribly widespread, it reverts to being treated lightly, as people have given up on it having any deterrent impact whatever. Different places might be at different stages in that process at any given moment. That is the human reality of the justice system. As drafted, the provisions might allow for those variations, but I detect a desire to achieve consistency in sentencing. That shines through Halliday as well.

Inconsistent sentencing that cannot be justified is plainly wrong, but there are occasions on which inconsistency can plainly be justified. I want to ensure that the drafting allows for that and that we do not end up with those of my profession saying to the judge, ''You can't do that, because although it may be within the guideline tariff, here are other sentences that are being passed in the next town 15 miles down the road that are different.'' Those points will be made to the Court of Appeal, and we should be alive to the possibility of that becoming a problem. I look to a response from the Minister on that.

Hilary Benn (Labour, Leeds Central)

May I deal first with the point that my hon. Friend the Member for Nottingham, North made in moving the amendment on dealing with possible offenders before they commit an offence? One might call that preventative rehabilitation, to coin a phrase. I agree with him entirely. That wish, which the Government subscribe to and which my hon. Friend, I hope, finds reflected in many of our policies, is outwith the purposes of the clause, which deals with purposes of sentencing when somebody has committed an offence. I take my hon. Friend's point, but it falls outside the scope of the clause.

Graham Allen (Labour, Nottingham North)

I would hate my hon. Friend the Minister to run away with the idea that that is the entirety of my point. Rehabilitation, rather than what one might call ''habilitation'', occurs with people who have offended at least once.

Hilary Benn (Labour, Leeds Central)

I accept that point entirely, and I was about to come to the substance of the amendments, which propose the separation of reform and rehabilitation. I tell my hon. Friend that I am not persuaded, simply because the sentiments of what he argued for are clearly set out in a concentrated and spare form in the clause. I understand the argument of those who would like to separate the purposes and have a longer list, but to all intents and purposes the outcome would be exactly the same.

Paul Stinchcombe (Labour, Wellingborough)

I wonder whether the Minister's answer to my hon. Friend the Member for Nottingham, North is sufficient. Reforming and rehabilitating offenders is surely a separate purpose of sentencing policy, not only because one is thereby reducing crime, but because one is reforming the man.

Hilary Benn (Labour, Leeds Central)

I hear the argument, but the purpose of rehabilitation is to ensure that the person does not do it again, and ensuring that a person does not reoffend serves to reduce crime. There may be a

presentational argument about the precise wording, but the most important thing is that the sentiments, which all members of the Committee share, are clearly set out in clause 126. The reduction of crime is the wider aim achieved through sentences that contain requirements to reform and rehabilitate offenders. Sentences can also deter those who have been sentenced from reoffending and make those who may be considering crime think twice. Both deterring and rehabilitating offenders lead to a reduction in reoffending and therefore to a reduction in crime.

Graham Allen (Labour, Nottingham North)

I have already given away my weapon of mass destruction to the Minister by agreeing not press the amendment to a vote, but, to speed the Committee's progress, I did not make at length the argument that my hon. Friend the Member for Wellingborough referred to. The moral, ethical and political dimensions of rehabilitation are extremely important and distinct from the provisions in clause 126(1)(b). That may be a subject in which their lordships are more expert than even we on the Committee. I hope that the Minister allows that door to be opened so that we can express in the Bill our real sentiments, which, having corresponded with him and with many other Ministers, I know he shares. I hope that we do not close the door on a proposition that makes it clear that we are—I will not use the phrase ''tough on crime and tough on the causes of crime''—anxious to prevent offenders from reoffending wherever possible.

Hilary Benn (Labour, Leeds Central)

I am sure that their lordships will have heard my hon. Friend's point. It is not my wont to close doors, and any door that I seek to close will, I am sure, be wedged wide open by their lordships, if they are so inclined.

On amendments Nos. 532 and 601, let me offer the assurance—this is a drafting matter—that Members are looking for that ''persons'' in subsection (1)(d) covers the individual victim and the wider community. I also assure the Committee that ''reparation'' in the same provision covers financial and other forms of reparation, which both have a part to play.

Sylvia Hermon (UUP, North Down)

May I add a note of caution by referring to the experience in another jurisdiction? In the past few weeks in the Republic of Ireland, a prominent public figure was found guilty of downloading child pornography from the internet. Instead of receiving a custodial sentence, that person was ordered by the court to make substantial reparation by means of a donation to a children's charity of his choosing. There was outrage that a prominent person with access to significant funds could buy himself out of a custodial sentence.

Hilary Benn (Labour, Leeds Central)

I am grateful to the hon. Lady, although I am not aware of the case to which she refers. Courts must consider many issues when deciding on an appropriate sentence, and there are circumstances in which reparation is appropriate. I agree that reparation should not be confined to those with the means to make financial reparation, which is precisely why the wording is intended to cover other forms. In an earlier debate, I think that the Committee

agreed on the appropriate reparation in the case of the osprey eggs.

Finally, an important point was raised on amendment No. 602, to which the hon. Members for Woking and for Beaconsfield (Mr. Grieve) spoke. I agree that sentencing and the framework in which it operates must merit public confidence, but let us be honest about the fact that the relationship between the two is complex. That is partly for the reasons given by the hon. Member for Woking, who referred to the low level of public understanding of sentencing and the fact that people often believe sentences to be more lenient than they are. We must do more to improve public understanding, and we are at one on that.

However, involving public confidence or the prevalence of offending in a locality with specific purposes of the Bill could lead to inconsistent sentencing in different parts of the country. I hope that the hon. Member for Beaconsfield is reassured when I say that nothing in it would prevent well-justified local variation. The hon. Member for Woking has experience of these matters and gave good examples of the prevalence of offences in local areas. He made a good point, but we must be careful to get the balance right.

The clause does not refer to public confidence in relation to the purposes of sentencing in individual cases. As has been noted, however, there is a reference to public confidence, and responsibility in that respect will fall on the Sentencing Guidelines Council. One envisages that it will produce a range of guidelines and that other circumstances and considerations could be taken into account. That might allow a well-justified local variation to be considered when the guidelines are applied.

Paul Stinchcombe (Labour, Wellingborough)

I shall speak briefly in support of amendment No. 62, which would establish the reform and rehabilitation of offenders as a separate purpose of sentencing, as a member of the Prison Reform Trust board of trustees.

I support the amendment for the simple reason that we have a golden opportunity expressly to say that it should be a separate and distinct purpose of sentencing to reform ruined lives and rehabilitate the ruined persons who are our criminals. I want us to do that not just because it would reduce crime, although that is a laudable objective in itself, but because it is a distinct political and moral objective of mine to intervene in the lives of people who have perpetrated crime and to try to reform them. In that way, victims would be freed from the effects of other people's criminal propensities, and criminals would be able to go on to lead decent lives, free from the addiction and dysfunction that led them into crime in the first place. If the clause gives us the chance to say that that is a separate and distinct objective that is laudable in its own right, we should so do.

Graham Allen (Labour, Nottingham North)

I would have liked to press amendments Nos. 61 and 62 to a vote, but one cannot always do what one likes. None the less, I hope that the Minister has heard the debate. He certainly responded fully. The subject is dear to the hearts of many Members from all parties. For professional reasons, that is true

not least of the hon. Member for Woking. I am sure that he would rather not see a lot of these characters coming back before him when he sits on the bench. The issue needs to be looked at again, but, to facilitate the Committee's proceedings, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I beg to move amendment No. 704, in

clause 126, page 73, line 22, at end insert—

'(1A) Any court dealing with an offender in respect of his offence must also have regard to the presumption that where there is a reasonable alternative, taking into account the factors outlined in subsection (1), a custodial sentence should only be imposed as a last resort.'.

The amendment would insert a new subsection at the end of clause 126. In effect, it meets head on the question of when people should be sent to custody and follows logically and relevantly from the point made in the previous debate by the hon. Member for Wellingborough (Mr. Stinchcombe), which I did not endorse again as I had made it before.

I hope that the Minister buys the argument, which was made by the hon. Members for Wellingborough and for Nottingham, North and by me, on putting rehabilitation on a different footing. A piece of evidence on that matter is that we do not generally serve people well by sending them to prison or into custody if there is an alternative. I am conscious that that will come up again and that clause 135 is headed:

''General restrictions on imposing discretionary custodial sentences''.

On some occasions, there is a fixed penalty, and so no choice. We have discussed that. For the time being, fixed penalties and fixed custodial periods will remain, but my amendment would apply where there is a discretion.

Clause 135 will require a court not to

''pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.''

That requires the court to examine custody when it has ruled out justification for a fine or community sentence. I am trying to include somewhere in our sentencing law in England and Wales the presumption that, where there is a reasonable alternative, custodial sentences should be imposed only as a last resort.

I want to do that not only because some people, such as me, want to keep people out of prison as far as possible, but because there is unhappy evidence that although we intended the 1991 legislation to reduce the numbers going to prison, it has had the reverse consequence.

Stephen Hesford (Labour, Wirral West)

Will the hon. Gentleman accept the following two points? First, if his proposed sub-paragraph were inserted, there would be a presumption in all cases that a reasonable alternative to custody must be taken into account and that a custodial sentence should be imposed only as a last resort. That would be positively harmful to public confidence in the system and, for many people, an affront to a sense of justice. That is why there is a

presumption in favour of custody in cases of serious crime. That should remain.

Secondly, the hon. Gentleman is arguing against himself. One must bear in mind clauses 127 and 136, which take his point into account.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I shall deal with the latter point first. I have referred to clause 135, which goes with clause 136. Earlier, I referred to the way in which we establish how serious an offence is, but that will be debated under clause 127, on which we have not yet had a detailed debate.

I should say now that I am not proposing to press amendment No 704 to a vote. I want a peg on which to hang the debate. I have two views that are, I hope consistent. One is in the amendment, and it is that we should look for a reasonable alternative to custody. I do not pretend that the amendment is perfectly phrased, but it includes the words

''where there is a reasonable alternative, taking into account the factors outlined in subsection (1)'',

so punishment, reduction of crime, protection of the public and the other matters that we debated earlier would have to be taken into account. The court might conclude that, taking those things into account, a non-custodial alternative is not reasonable.

May I tell the hon. Gentleman my other view on the matter? Depending on how the debate goes, I may wish to look for cross-party support for a proposal based on this idea on Report. I take a strong view, which becomes stronger as the years go by, that there is all the difference in the world between violent offences against people and property offences; offences against people are always more serious. Therefore, in a case of violence against a person, the presumption should be that the perpetrator will receive a custodial sentence, whereas in the case of a property offence, the presumption should be that he will not receive such a sentence. That is the starting point.

There are three exceptions to the presumption that there is a non-custodial alternative: first, when there is interference with the course of justice, which is so serious that a person guilty of it should expect to go to prison for it; secondly, when it is an offence connected with children, especially child pornography, when society's disapprobation is so strong that the person should expect to go away for that, too; thirdly, bad, careless or reckless driving that causes injury or death. That crime is under-recognised in the criminal justice system. It would be helpful to have principles that presume custody or do not. Thus the presumption of custody would apply to a person who went out carrying a knife or a gun because it would be presumed that it was carried with a violent intent.

Stephen Hesford (Labour, Wirral West)

But that is my point. The new clause does not make that clear and precludes that approach. That is it because it includes all offences.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

It is the first step down that road. The hon. Gentleman rightly pushes me to elaborate on it, and I have done so. We must always consider the

reasonable alternative, but for violence the presumption would be that there was not a reasonable alternative.

David Cameron (Conservative, Witney)

I am grateful to the hon. Gentleman for giving way. Sometimes, finding out what is Liberal Democrat policy can be rather like hunting the snark. However, in this instance we have had a treat. Does not the hon. Gentleman understand that people see burglary as crime against the person, not just against the property, especially if the victim is in the house when it is burgled? It is deeply invasive. Is the hon. Gentleman really saying that in every case involving someone with very many previous convictions and an inclination to burgle, the assumption must be against custody? That is mad.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I shall answer that question directly. There is a difference, and I will happily send the hon. Gentleman our statement on these issues so that he does not have to wait until consideration in Committee to know our policy. We discussed the matter at length, as I am sure the hon. Gentleman's party has done, and divided the subject into burglary of commercial property and property where no one is present, and aggravated burglary, when someone is present and is threatened or there is a risk of their being threatened, which would mean that it is violence against the person. In domestic burglary, when people are in the property, the presumption would favour custody. I agree with the hon. Gentleman; there is a difference between domestic burglary and the burglary of a garage or commercial premises, perhaps at night when no one is there. However, it is different when there are cumulative offences. There is a difference between a starting point and a consequence.

There are two reasons why alternatives to custody should be where we start, if that is a reasonable option. First, the 1991 Act clearly led us in the wrong direction. The White Paper that preceded it—it was the parallel to the Halliday report and the White Paper preceding the Bill—said that imprisonment was socially damaging. It said:

''The Act takes forward this policy by introducing further provision to ensure that sentences of imprisonment are used primarily for those who have committed the most serious offences, especially violent or sexual crimes.''

The paper anticipated a reduction in the proportion of short-sentence, non-violent prisoners as a result. What followed the 1991 Act was an extraordinary increase in the use of prison and of the number of community penalties for people who previously had fines and suspended sentences. In magistrates courts, the proportion of cases resulting in a sentence of immediate imprisonment rose from 6 per cent. in 1993 to 14 per cent. in 2000. In the Crown court the figures rose from 49 per cent. in 1993 to 63 per cent. in 2000. Given that the prison population has risen in the same period, from 42,000 in 1993 to 73,000 today, the 1991 Act did not achieve its aims.

Two lessons can be drawn from that experience: first, the 1991 Act could have been drafted more tightly to restrain the general rise in custody rates and the length of sentences; secondly, whatever is set out in the principles does not affect the outcome if the messages to the courts mean that there is a punitive

response in respect of sentences. That is why the proportionality argument and the argument against custody are so strong.

The number of people sentenced for shoplifting—stealing from shops or stores—under the Theft Acts has risen considerably in the past five years. Government figures show that between 1996 and 2000, the number of men sentenced to immediate custody for shoplifting increased from 4,334 to 11,678 in 2000; the number of women sentenced to immediate custody increased from 907 to 2,348 in 2000. It is extraordinary that we send more than 13,500 people to prison for shoplifting when five years ago we sent less than half that number. I cannot believe that things in society have changed so much in that time that it justifies that response. If it had happened in one year, there would have been a national outcry about the change; it would have been regarded as bizarre, extraordinary and so on. That it is spread over slightly longer reduces the sense of disbelief at what is happening.

Unless we are clear that we should not send people to prison if there is a reasonable alternative, we will sleepwalk into more and more expensive, ineffective and unwarranted dependence on custody. The chief inspector of probation has recently reported that the reason the Probation Service is struggling so much to cope with its work load is due to it being silted up with lots of low-level custodial sentences and low-risk offenders who should have been dealt with by other means, especially by fines. In respect of unintentional outcomes, the right hon. Member for West Dorset (Mr. Letwin) often says that because of the way we deal with their criminality we allow young people to get on the conveyor belt to crime. The danger is that for many people it will be an escalator to prison unless we are very careful about putting down the non-custodial alternative as a presumption.

There is no more severe sentence in the criminal justice system than to send someone to prison. There is no greater punishment, just longer spent in prison. If we go down that road, more people will be in prison for longer and the evidence is that that does not reduce the chance of reoffending, rehabilitation or the reduction of crime. The only time these people are not committing a crime is when they are inside. When they come out, they are highly likely to reoffend; we know what the reoffending rates are. I hope that there will be some affirmation of the desirability of avoiding prison wherever possible, which should be built into the system of sentencing.

Humfrey Malins (Conservative, Woking)

I must tell the hon. Gentleman that it is built into the system anyway. That is practice. The law is clear: a custodial sentence cannot be imposed unless the offence is so serious that only such a sentence can be justified. The hon. Gentleman is going down the wrong road. Courts strive heavily not to use custody, even now.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is true, but the present principles under which courts work are set out in the 1991 Act, which clearly have not worked because the numbers of those in prison have more than doubled. The numbers in certain categories have more than doubled. There was more crime until halfway through

the period between 1991 and the present, but in the past five years there has been less crime. Crime has decreased significantly—not in every category—so it is not logical that the number of people going to prison goes up and up.

I support the Government when they argue that crime is decreasing according to the statistics based on the British crime survey. I say to the hon. Member for Woking that I am only arguing that the matter should be debated at this point in the Bill because it is where we set out our stall—our principles, the guidelines, the goals and the objectives.

David Cameron (Conservative, Witney)

When my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) became Home Secretary, he made a statement that encouraged the courts to think that if they thought that custody was the best option, they should go for it. From 1994 to 1995, the prison population rose, especially for crimes such as burglary—a premeditated crime—and the crime rate started to fall for the first time in 20 years. Does the hon. Member for Southwark, North and Bermondsey think that there is no connection between that increase in the use of custody and the fall in the crime rate?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

No, I do not think that there is no connection. There may well be a connection, but the hon. Gentleman will accept that the ''prison works'' philosophy and policy of the right hon. and learned Member for Folkestone and Hythe would have to be measured over a longer period to ascertain how effective it was. It is unarguably the case that according to all the figures, crime increased after that decrease before there were any significant changes to that policy under a new Home Secretary. According to the British crime survey, crime has decreased for the bulk of the past few years, with the exception of certain categories. There is a link, but it is not necessarily a direct one, and we should be careful when looking at short-term trends.

I hope that we can establish what the hon. Member for Woking describes as the practice and principle of the courts and put it in lights to establish the purpose of the clause. That starting proposition—one of two as the hon. Member for Nottingham, North pointed out—is the right way to proceed, and it should be put forward to determine whether the Government are willing to sign up to a redefinition because the 1991 definition has not worked.

Hilary Benn (Labour, Leeds Central)

The hon. Member for Southwark, North and Bermondsey raised some important points. He anticipated my answer early on when he drew attention to clauses 135 and 136, which set out precisely the argument he advanced: consideration should be given in deciding on the appropriate sentence. Those clauses make clear that custody should be the last resort when the offence is of sufficient seriousness to merit it, and when the options of a fine or community sentence have been discounted. First, I resist the amendment on the ground that we have already covered that point. Secondly, it does not fit with the general purposes of sentencing, which we have discussed at considerable length while considering the clause. It is more appropriate to

other parts of the Bill, and it arises in clauses 135 and 136.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

We shall return to the matter and I beg to ask leave to withdraw the amendment.

The Chairman, being of the opinion that the principle of the clause and any matters arising therefrom had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 126 ordered to stand part of the Bill.

Clause 127 - Determining the seriousness of an offence

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 594, in

clause 127, page 73, line 37, after 'offence', insert

'and all the surrounding circumstances'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments:

No. 533, in

clause 127, page 73, line 37, leave out

', or risk of harm,'.

No. 595, in

clause 127, page 73, line 38, at end insert

'and the effect on the victim'.

Humfrey Malins (Conservative, Woking)

We are discussing the determination of the seriousness of an offence. I do not like the wording of subsection (1); it would be more appropriate if it stated:

''In considering the seriousness of any offence, the court must consider''

the circumstances of the offence and the offender and such other matters as it thinks fit. That is a much better phrase; it is completely nebulous.

The problem, which amendment No. 594 addresses, is that the clause may be too prescriptive in what the courts may consider in reaching a conclusion about the seriousness of an offence. I want to tease from the Minister exactly what is covered by subsection (1). As drafted, it requires the court to ''consider the offender's culpability'', which presumably means the blameworthiness of the defendant, and

''the harm, or risk of harm, which the offence caused or was intended to cause.''

Will the court be able to consider other factors and should it not consider other factors?

I wonder what sentence you, Mr. Illsley, and the Committee would impose in the following two examples. An old lady goes to a building society, withdraws her life savings of £3,000 and puts the money in her purse, which contains her late husband's wedding ring and her engagement ring. At a café, she puts the purse on the table, goes to get a cup of coffee and on her return finds that the purse containing

£3,000 and £2,000-worth of jewels has been stolen with no violence. Let us consider that in comparison with someone who is the treasurer of a social club of a big insurance company where 500 people pay £1 a month into a kitty for a social event at the end of the year, when there is £5,000 in the kitty. During the year, the treasurer, who is in a position of extreme trust, steals money from the account each month.

Both the treasurer and the man who stole the purse may come before the courts charged with theft. When sentencing either or both of them, the courts would have to consider the seriousness of each offence and might be drawn to subsection (1). In considering the seriousness of the offence, they would take account of the offender's culpability in committing the offence. If that is the blameworthiness of the defendants, there is nothing to choose between the two. Both might not have been in need and both might have been middle aged and of sound mind. Both would be equally to blame for nasty offences.

What about

''the harm, or risk of harm, which the offence caused or was intended to cause''?

There would be no difficulty in concluding that the harm caused to the old lady was much more grievous than that caused to the members of the insurance company—each of whom had lost a maximum of £10, which would not have troubled them for more than 15 minutes. The old lady who lost all would be grievously troubled for the rest of her life. If that is common ground, let us sentence them.

The guideline cases would suggest that if the man who stole from the insurance company were treasurer of the social club, he would deserve a custodial sentence. According to Barrick and other cases, betraying a position of trust is a grievous outside factor when it comes to sentencing. According to case law, people who abuse a position of trust go to prison and that is it. What about the man who stole the purse? There might a groundswell of opinion that such a person should go to prison. Perhaps he should, or perhaps that seems odd.

My point is that we should consider the wording of subsection (1)—the court has to consider whether an offence is serious. Never mind what the clause says later about cautions and spent convictions, or whether the person is in Honolulu or Honiton; that is another story and we shall consider it later. We are discussing the seriousness of the offence. The judge has to ask himself about the offenders' culpability. He might consider that they are both to blame, and he must consider the harm that the offence caused. It caused very little to the insurance company, but what do guideline cases say?

I am troubled by the narrowness of the clause. Are all the surrounding circumstances encompassed in the two phrases about culpability and harm? Does harm mean physical harm or mental or other harm? In the case of burglary, should one not consider whether it is a daytime or night-time offence? Irrespective of the culpability of the defendant and the harm caused, a burglary at night is more serious than one during the day. Nobody can challenge that. A burglary in a

remote area might be more troublesome, even though it has caused no more harm to anybody and there is no more culpability on the defendant's part, because it might send a stronger signal of gravity and aggravating factors. One would take into account the age and mental state of the defendant; any breach of trust; the poor man carrying out a theft as opposed to the rich one; theft as a result of need for drugs or through greed. The purpose of the amendment is to permit the court to consider all the circumstances so that it can take into account any factor that it likes in deciding the seriousness of an offence.

If the court is not to be permitted to take into account anything that it wants, there is a problem. If the Minister believes that taking into account culpability and harm is the same as saying that the court can take everything into account, let him say so. If he does not believe that, we should have some examples of what the court cannot take into account. That would be a question of the discretion of the judge.

Amendment No. 595 relates to the effect on the victim. The Minister might say that within the phrase

''the harm, or risk of harm, which the offence caused''

lies also the position of the victim. That might be a satisfactory answer, except that we live in a world where victims are taken into account when sentencing to such an extent that there is a victim impact statement in most bundles of papers. The judge can immediately see what the victim says and take it into account. Likewise, a great deal is now done to help victims at court.

Stephen Hesford (Labour, Wirral West)

Is not the hon. Gentleman really arguing for a definition of culpability? The courts should be grown-up enough to work that out for themselves.

Humfrey Malins (Conservative, Woking)

That is my point. Why should a word such as ''culpability'' be used in the clause if the courts are grown-up enough to work out the position for themselves? Why not leave the courts no clause at all, because there are already far too many clauses in the Bill? If it is necessary to include a banal clause such as this that means nothing, but that satisfies those who drafted it, why not permit the court to take into account any circumstances it thinks fit, with particular reference to the circumstances of the offender and the offence?

I am saying—laboriously, and I shall soon sit down—that I do not like a limit being placed on what the court can take into account. If the clause means that the court can take anything into account, then it would be nice to hear that that is the case—and the clause should say so more clearly. However, if the clause means that the court cannot do so, I should like to know which of the aspects that I have mentioned cannot be taken into account.

Hilary Benn (Labour, Leeds Central)

The clause concerns the court's ability to determine the seriousness of an offence. The two examples given by the hon. Gentleman were helpful because they illustrated the different harm that can be suffered by victims in different circumstances. The circumstances of the offence are important in considering aggravating or mitigating factors. I hope

that I shall be able to offer the hon. Gentleman the reassurance that he seeks. Nothing in the clause prevents the court from taking into account the other considerations to which he alluded.

Subsection (1) says that the court must consider

''the offender's culpability in committing the offence and the harm, or risk of harm, which the offence caused or was intended to cause.''

The sentencing principles set out in the clause are to guide the sentencer in reaching a decision on the seriousness of the offence. They require the court, when considering the seriousness of the offence, to consider the

''harm, or risk of harm, which the offence caused or was intended to cause.''

That relates to the second point raised by the hon. Gentleman. The victim is, of course, of primary importance. I hope that that reassures him that amendment No. 595 is not required.

Finally, the risk of harm that an offence may cause is a relevant consideration when determining the seriousness of an offence. An offence such as wounding with intent to cause grievous bodily harm is an example of where the risk of harm to the victim is potentially very great, even though the degree of harm caused may not have been that great. Clearly, that would be a relevant consideration in determining the seriousness of the sentence.

Paul Stinchcombe (Labour, Wellingborough)

I agree entirely that the risk of harm must be included in the case of arson, for example, which is inherently dangerous. I wonder, however, whether the language used is right. The clause does not read well. With respect to the risk of harm, the appropriate wording should be

''which the offence caused, or might foreseeably have caused''

rather than ''intended to cause.''

Hilary Benn (Labour, Leeds Central)

I have learned in Committee that, on matters of grammar, it pays to give very close attention to the points that have been raised. I shall reflect on my hon. Friend's point.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

It logically follows that if the subsection includes the phrase

''harm, or risk of harm'',

it should refer to the possibility of an offence being caused rather than the intention. There would be inconsistency without the change suggested by the hon. Member for Wellingborough.

Humfrey Malins (Conservative, Woking)

I am a bit disappointed by the Minister's reply, though not by its tone. Perhaps I can repeat my point and ask a question—I hope that he will be prepared to answer it. Let us say that a judge was sentencing, with reference to subsection (1), the two persons whom I have described to him as defendants. In the breach of trust case, virtually no harm was done to anyone, whereas in the other case tremendous harm was done to the lady concerned. By what criteria or method should the judge reach the conclusion that the breach of trust cases, which have been set out in common law for many years, should be followed?

Hilary Benn (Labour, Leeds Central)

I do not see why the wording of clause 127 presents a difficulty. There will clearly be an interrelationship between the clause and the current guidelines, as well as the new guidelines that may emerge from the work of the Sentencing Guidelines Council. However, I said in my response—I am sorry if it was not sufficient to satisfy the hon. Gentleman—that the court and judge could of course take into account other factors. That is clearly what courts do, for example with regard to mitigating or aggravating circumstances.

Humfrey Malins (Conservative, Woking)

Perhaps I have misread the matter completely, in which case I am sorry. It must be stated somewhere that the court will take account of all sorts of factors, as the Minister has said.

Dominic Grieve (Conservative, Beaconsfield)

I agree with my hon. Friend; matters are not satisfactory. I can only assume that the Minister is saying that it is implicit in the prescriptive use of the word ''must'' in subsection (1) that other matters may be taken into account as well.

Humfrey Malins (Conservative, Woking)

In that case, I do not see why the clause should not state that the court can, in considering the seriousness of the offence, make up its mind about whatever it wants, whenever it wants to and provided that it wants to—and that if it does not want to, it need not. That would be a tremendously good clause. Although I am not happy, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 596, in

clause 127, page 73, line 40, after 'convictions', insert 'or cautions'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following:

Amendment No. 597, in

clause 127, page 73, line 40, leave out 'must' and insert 'may'.

Amendment No. 644, in

clause 127, page 73, line 40, leave out 'must' and insert

'may, subject to subsection (2A),'.

Amendment No. 534, in

clause 127, page 74, line 1, leave out 'each previous conviction' and insert 'evidence of previous convictions'.

Amendment No. 598, in

clause 127, page 74, line 1, after 'conviction', insert 'except spent convictions'.

Amendment No. 643, in

clause 127, page 74, line 1, after 'conviction', insert

'for an offence committed by the offender when over the age of 18'.

Amendment No. 645, in

clause 127, page 74, line 6, at end insert—

'(2A) In considering the effect of previous convictions on the seriousness of the offence the court must have regard to the principle that the severity of the sentence must be proportionate to the seriousness of the current offence.'.

Amendment No. 599, in

clause 127, page 74, line 12, leave out subsections (5) and (6).

Amendment No. 535, in

clause 127, page 74, line 12, leave out subsection (5).

Amendment No. 536, in

clause 127, page 74, line 16, leave out subsection (6).

Humfrey Malins (Conservative, Woking)

Again, these are probing amendments. I do not want to detain the Minister for too long. Amendment No. 596 deals with the issue of the court taking into account previous convictions. Clearly, it is proper that the court should do that. It would be wrong if we ever reached the state of affairs—which we did, many years ago—in which previous convictions were not taken into account. What a mess that was. Previous convictions should be taken into account.

The amendment would insert the words ''or cautions'' after ''convictions''. I do not know whether it should be accepted, but the Minister should know that whenever a defendant's antecedents are put before the court, they include cautions. Indeed, being cautioned—and I note the changes being made in the cautioning law—is effectively an admission of an offence, so that the person concerned has a bad character. If someone has a string of past cautions, should they be taken into account when the offence is considered?

Perhaps I may jump to amendment No. 598, for no other reason than that I have forgotten what the other one was. It would insert the words ''except spent convictions'' into the provision about treating a conviction as an aggravating factor. It probes the question whether a spent conviction should also be taken into account. I recently quoted from the directions on a person's good character that a judge currently gives to a jury. It is clear from case law that a judge can rule that a defendant should be treated as a man of good character, even though strictly speaking he is not because, for example, he has spent convictions. In such a case, the judge must give the full direction on good character to the jury. Will the Minister say whether spent convictions are part of the previous convictions that must be taken into account under subsection (2)? There is, of course, a saving grace for the court. That is a gentle probe on spent convictions and on cautions generally.

Amendment No. 597 would change ''must'' to ''may'' on the grounds that it may be tidier and give the judge slightly more discretion. Amendment No. 599 would leave out subsections (5) and (6). I hope that the Minister will confirm that we will discuss foreign convictions in due course. Will he say what he means by subsections (5) and (6)? There is obviously more to the matter than I can understand. Subsection (5) says that a probation order that was made more than 10 years ago and would otherwise not be a conviction is now to be treated as a conviction. I am not sure what that means.

Most courts consider people's records, some of which go back 20 or 30 years. Subsection (6) says that a conviction with an absolute discharge, which otherwise would not be a conviction, is to be treated as a conviction. This is so complicated, and I do not understand what it means. I would be grateful to any member of the Committee who could tell me what it means and why. I am pleased to see that several Government Back Benchers appear to share my uncertainty.

I hope that my amendments act as a peg for a thoroughly enjoyable and fruitful argument.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I shall start where the hon. Gentleman left off. Amendments Nos. 535 and 536 in my name and that of my hon. Friend the Member for Somerton and Frome (Mr. Heath) would have the same effect as the hon. Gentleman's amendment No. 599. The provision makes a conviction of something that had not been a conviction under previous legislation. We need to know which offences, including those that had led to an absolute or conditional discharge, will suddenly become live after they had been killed off, and why.

This is an instance in which the helpful suggestion made by the hon. and learned Member for Redcar (Vera Baird), who is not in her place, does not work. The explanatory notes say nothing about the offences. In fact, they die at subsection (3); there is no comment on subsections (4), (5) and (6). That suggests that they are of minor importance or that the person who was writing the explanatory notes thought, ''I am not sure that I have time to work that out now.'' That is my first point. It is a minor one, but merits an explanation.

I will make my second point now so that I do not have to make it in the clause stand part debate. It relates to subsection (4), which makes relevant previous convictions in England, Scotland and Wales, but not those in Northern Ireland. That is illogical and inexplicable and I would be grateful to know why relevant offences in Northern Ireland suddenly do not apply, when if one happens to wait until one gets off the ferry in Scotland before committing them, they would apply.

There are two further issues raised by the amendments. Amendment No. 644 is effectively a pair with amendment No. 645. It is intended to ensure that the principle of proportionality is kept. The Minister successfully resisted accepting the proportionality argument in the previous debate. I can live with that, provided that he accepts that it should come in somewhere, and I am willing to accept that it would be better at this point. If we are to include the principle of just deserts or the punishment fitting the crime, let us include it here, as a Labour Back Bencher suggested this morning, because this is where the seriousness of the offence is dealt with.

Proportionality is important because there is a danger—one that has been spotted by others more eminent than me—that two things will happen if previous convictions are taken into account. According to the clause, when considering the seriousness of offences and previous convictions together,

''the court must treat each previous conviction as an aggravating factor if . . . the court considers that it can reasonably be so treated''.

The danger is that somebody will be punished a second time because they have been convicted for a previous offence. The first offence might not just be taken as an indication that someone has been through the courts before and has not been successfully ''treated'' by the punishment; it might also be an aggravating factor that makes it likely that the offence will be considered bigger.

More importantly, there might be a disproportionate outcome. I will provide three examples that I have been given of why the clause is badly and dangerously drafted. First, let us consider comments made by Judge Peter Jones in an article at the end of last year about the unaltered provision. In considering the Halliday provisions, he gave the example of a young man who has more than 50 convictions, mostly for theft from shops, and who pleads guilty to five more shop thefts of shampoo, deodorant and the like—stolen for resale to fund a drug habit. Does subsection (2), without our amendments, mean that that man should receive a more severe sentence every time, even though the actual offences are relatively low on the scale of seriousness established in subsection (1)? Do previous offences count for the purposes of ratcheting? The logical conclusion is yes, but, for proper sentencing, the answer should be no. A smaller, much later offence should not trigger a response that would be appropriate to a more severe recent offence.

The second question is whether the provision would prevent a court from imposing a community sentence, such as a drug treatment and testing order, in such a case. If the obligation is to regard recent and relevant convictions always as aggravating, does that prevent a court from trying to interrupt a cycle? Even if an offender has been to prison before, a new sort of community programme could become available or events could have occurred in an offender's life that mean that he is much more likely to respond positively.

David Cameron (Conservative, Witney)

I am trying to follow the hon. Gentleman's argument. Is he saying that if someone who has 50 previous convictions for a range of offences steals some shampoo, those previous convictions should not count at all when he is sentenced? Would it not be entirely reasonable for the law to say, ''When sentencing for the theft of shampoo, previous convictions should be taken into account as evidence of recidivism and therefore a lesser sentence should be given to someone who has nicked shampoo for the first time''?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I was with the hon. Gentleman until halfway through his intervention, but I did not agree with his conclusion. It is perfectly reasonable for a court to take into account all previous convictions and consider their frequency, the gaps between them and their seriousness, in order to judge what the sentence should be. It is not reasonable that the fact of previous convictions should automatically count as an aggravating factor; that is, that the last offence is sentenced more severely, irrespective of its relatively lesser nature. There must be flexibility.

Dominic Grieve (Conservative, Beaconsfield)

I understand the point that the hon. Gentleman makes, but I am not at all persuaded that that will be the impact of the Bill. Previous offences might be an aggravating feature of a further offence, but the Bill as drafted does not prevent exceptions for those circumstances in which no connection can be seen between a minor offence and previous more serious offences. However, that factor will still have to

be taken into account, which is different from being acted on.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

There is considerable debate between commentators and others about the proper interpretation of the clause. One interpretation says that previous offences should be taken into account, as has always been done, and that they should be weighed in sentencing, along with the person's other circumstances. That is fine. However, it is dangerous if previous offences automatically trigger a harsher sentence irrespective of the change of circumstances.

Stephen Hesford (Labour, Wirral West)

What else can paragraphs (a) and (b) mean?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

They refer to two matters: the nature and relevance to the present offence, and the time. They qualify the bold assertion that previous convictions automatically count as aggravating, and I agree that they are a balance. However, the previous offences might none the less not be discounted as aggravating the seriousness of the current offence. I would much prefer to go back to the old, more general principle that all the circumstances of the offence are taken into account.

The next proposition, made in amendment No. 534, is that rather than having to weigh in the scales each previous conviction, the courts should receive the evidence of the previous criminal convictions as a whole and form a judgment on its relevance in the light of the present circumstances. The key question is about proportionality. If the clause is not so amended, the direct question for the Minister is whether it will be possible in every case for the court to give a sentence that is proportionate to the most recent offence, taking into account previous offences, but not regarding them as changing the obligations to have a proportionate response to the latest offence in the series.

Hilary Benn (Labour, Leeds Central)

The amendments would make a variety of changes to what should be defined as a previous conviction. We do not want to widen the clause so that cautions as well as previous convictions count as aggravating factors, for two reasons. First, if an offender has been cautioned in the past, but not convicted and sentenced, it could be argued that it would be unfair for the caution to act as an aggravating factor in future sentencing decisions. Secondly, on a practical level, if cautions were included, it could lead to a significant and unnecessary increase in the severity of sentences.

Humfrey Malins (Conservative, Woking)

The benefit of the doubt is to be given one way in cautions in the circumstances that we are discussing. How does that square with cautions being relevant to the definition of bad character being presented to the jury?

Hilary Benn (Labour, Leeds Central)

In the second circumstances, the history of cautions assists the jury. That is the Government's argument, and we have had that debate. I respect the hon. Gentleman's different view, but in those circumstances, we think that it assists the jury in relevant and appropriate circumstances, which we have debated at enormous length, in reaching a

view on whether someone committed a particular offence. That is the fundamental difference.

We do not want to exclude spent convictions. I realise that the relevant amendment was gently probing, as the hon. Member for Woking described it, and he acknowledged that subsection (2)(b) already provides for the court to have regard to the time that has lapsed since the conviction. As he also acknowledged, there will be circumstances in which it is not relevant, but depending on the nature of the offence for which the conviction is spent, it may be relevant. Therefore, it is appropriate for that provision to be retained.

It would also be unhelpful to replace the reference to ''previous convictions'' with one to ''evidence of previous convictions'', because the court needs to have a clear list of antecedents. Furthermore, I am not entirely sure what such ''evidence of previous convictions'' would consist of in the circumstances.

The clause is about moving away from the current position in which the court is required simply to ''take into account'' any previous convictions, to a position in which recent and relevant previous convictions must be treated as aggravating factors. I know that not every Committee member accepts that, but we do not want to water down that fundamental change by accepting the amendments. Persistent offenders need to know that they will be dealt with progressively more severely each time that they offend. That will not mean wildly disproportionate sentences, because the sentences will operate within the principle, which is established later in the Bill, that the severity of the resulting sentence should reflect the seriousness of the current offence. That should answer the question asked by the hon. Member for Southwark, North and Bermondsey. The clause simply modifies the proportionality principle so that previous relevant offences can act as an aggravating factor.

The clause will apply to all offenders, just as the clauses providing for the restrictions on imposing community and custodial sentences, which follow it, apply to both juveniles and adults. That replicates the provisions in the Powers of Criminal Courts (Sentencing) Act 2000, and it would be difficult to have separate principles for establishing sentence severity for juveniles and adults. We reject amendment No. 364 for that reason.

If the court thinks that an offence is too old or irrelevant, it can choose under subsection (2) to discount it. A probation order made before 1992, which would otherwise not be treated as a conviction, could well be relevant to a defendant's criminal history, and a court should have the power to include it in its consideration. Similarly, conditional and absolute discharges are both sentencing disposals and, for the purposes of the clause, should form part of the consideration. It may help to hon. Members to learn that subsections (5) and (6) are re-enactments of existing laws, and in so far as those who carefully weighed the wording in the previous laws agreed to them, who am I to judge on the sense that they made of it when they took that decision?

Humfrey Malins (Conservative, Woking)

The Minister may be teasing me and hoping that I fall into a little trap—it may have been a previous Conservative Government who enacted those provisions. An absolute discharge is the equivalent of the court imposing no punishment, because it was absurd that the defendant should have been taken to court. However, an absolute discharge can be dragged up X years later and taken into account, whereas a caution given two, three or four years ago cannot. The absolute discharge is so minor.

Hilary Benn (Labour, Leeds Central)

The hon. Gentleman will understand better than most the difference between a caution and an absolute discharge. The point that I was seeking to make—I did not intend to tease the hon. Gentleman—is that the Bill would enact and continue an existing provision in order to ensure clarity.

Humfrey Malins (Conservative, Woking)

Well, there we are. I understand what the Minister said, which is a good start. I understand why he said it, which is even better. I do not entirely accept his argument, but I did not expect to. I think, however, that I am slightly more satisfied with his response than I was earlier.

Sylvia Hermon (UUP, North Down)

Before the hon. Gentleman commits himself too much to being satisfied with the Minister's response, may I ask whether he shares my concern that subsection (4) refers only to previous convictions by courts in Great Britain? Although I would like to pretend that no one in North Down has previous convictions, I cannot understand why convictions by courts in Great Britain should be taken into account, but not those by courts in Northern Ireland.

Humfrey Malins (Conservative, Woking)

I happen to know that the Minister has something to say on the matter. Before finally making up my mind whether to withdraw the amendment, it might be opportune to give him a chance to comment on the hon. Lady's intervention.

Hilary Benn (Labour, Leeds Central)

The point is dealt with in amendment No. 688, which we are shortly to debate.

Humfrey Malins (Conservative, Woking)

Indeed, it is. There is no point in wasting time. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Hilary Benn (Labour, Leeds Central)

I beg to move amendment No. 688, in

clause 127, page 74, line 10, leave out subsection (4) and insert—

'(4) Any reference in subsection (2) to a previous conviction is to be read as a reference to—

(a) a previous conviction by a court in the United Kingdom, or

(b) a previous finding of guilt in service disciplinary proceedings.''.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss Government amendments Nos. 689 and 690.

Hilary Benn (Labour, Leeds Central)

The amendments are designed to ensure that relevant previous convictions from a service court or any other court in the United Kingdom—the answer to the point raised by the hon. Lady—may be taken into account for the purposes of determining the seriousness of the offence. Amendment No. 688 provides for previous convictions from a court in the UK or from service disciplinary proceedings to be taken into account. Amendment No. 689 provides that nothing in the

clause should prohibit the court from taking into account any previous convictions by a court outside the UK—a point raised in an earlier debate—for the purpose of determining the seriousness of the offence. Amendment No. 690 provides for previous relevant convictions from any other court in the UK to be taken into account when determining the seriousness of the offence. It will therefore include Northern Ireland.

Dominic Grieve (Conservative, Beaconsfield)

I greatly welcome the amendments. They are plainly desirable, especially amendment No. 689, because it is common practice to refer to convictions in other jurisdictions, provided that the court thinks that such convictions are likely to have been reliable, and that will depend on its view of the foreign country's jurisdiction and system of justice.

Sylvia Hermon (UUP, North Down)

I endorse the hon. Gentleman's remarks and I apologise to the Minister that I did not have the separate amendment sheet that makes specific reference to the UK, including Northern Ireland.

Humfrey Malins (Conservative, Woking)

What made the Minister change his mind between December 2002 when the Bill was introduced referring to ''courts in Great Britain'' and the latest amendment with ''courts worldwide''? Something must have happened to persuade him.

Hilary Benn (Labour, Leeds Central)

Our policy is one of continuous product improvement.

Amendment agreed to.

Amendment made: No. 689, in

clause 127, page 74, line 19, at end insert—''(7) Subsections (2) and (4) do not prevent the court from treating a previous conviction by a court outside the United Kingdom as an aggravating factor in any case where the court considers it appropriate to do so.''.—[Hilary Benn.]

Clause 127, as amended, ordered to stand part of the Bill.

Clause 128 - Reduction in sentences for guilty pleas

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 604, in

clause 128, page 74, line 25, after ''guilty'', insert

''or made a full admission to the police''.

There is provision in this part of the Bill for reduction in sentences for guilty pleas. It is a well-established procedure that has been further refined in the Powers of Criminal Courts (Sentencing) Act 2000. There is, however, an issue that we should discuss. Under the clause, the earliest indication of an intention to plead guilty, and I assume that it must also work under 2000 Act, as it is worded in the same way, would be at the first appearance in the magistrates court. A person may vigorously deny an offence when interviewed by the police—indeed, he may tell a cock and bull story—but he may change his mind at the magistrates court and say that he intends to plead guilty at the first opportunity. Under the clause, he would receive the maximum discount for such a plea. However, his denial of the offence when interviewed by the police may have cost the investigating and prosecuting authority a great deal of time, trouble and

expense before his first appearance at the magistrates court.

My experience is that that happens frequently in health and safety at work cases. At first, there is huge denial before finally at prosecution stage someone will declare an intention to plead guilty at the earliest opportunity. Should we not differentiate between the person or corporation denying the offence when interviewed but pleading guilty at the earliest opportunity at court, and those admitting guilt at interview and giving the earliest possible indication of an intention to plead guilty when the case gets to court? I should have thought from a public policy point of view that it might be worth while favouring the person who does the latter rather than the former.

Paul Stinchcombe (Labour, Wellingborough)

I wonder why the hon. Gentleman does not think that the matter is already covered by subsection (1)(a), which tells us to take into account the stage of the proceedings at which the offender indicated his intention to plead guilty.

Dominic Grieve (Conservative, Beaconsfield)

That may be the case, but my reading of the clause does not suggest that it is. The proceedings are after charge, not before. Quite a lot of expense and time may have been spent before charge investigating the offence because of the denial of guilt. It is a minor point, but from a public policy angle, we should be giving every incentive to people to co-operate, admit guilt and enter a plea of guilty at the earliest opportunity. If that means differentiating by a further category those who do not co-operate, but give such an indication when brought to court, it might be worth doing.

Hilary Benn (Labour, Leeds Central)

I am still trying to reflect on the hon. Gentleman's point. Since subsection (1)(a) refers to the stage in the proceedings, I am not clear on the implication of his amendment. The issue that he raises is difficult, but I entirely understand the sentiment behind it.

Dominic Grieve (Conservative, Beaconsfield)

I wanted to acknowledge that, as worded, the amendment does present a difficulty, because it would not achieve the desired result. I shall not go into details, but I think that the Minister understands what I am trying to get at.

Hilary Benn (Labour, Leeds Central)

I am glad that the hon. Gentleman thinks that I have understood what he is trying to get at. If one were to add the provision, the first question that arises is whether there would be consideration of a greater discount if an admission was made to the police, as opposed to entering a plea of guilty when the case comes to court. If that is the intention, it raises an issue about those deciding to plead guilty after having the benefit of legal advice. That stage may not come until after they have had a conversation with the police. One would have to be slightly careful that one did not end up with a perverse incentive. I am concerned about his proposal for that reason. I also wonder whether the fine gradations in question would be worth the effort.

Humfrey Malins (Conservative, Woking)

I see the problem. I do not think that the amendment is perfectly worded. My hon. Friend seeks to give greater credit to someone—a street

robber, for example—who says, ''Okay, I did it,'' immediately after the police pick him up. Someone who immediately confesses involvement ought to get some extra credit from the judge later in the proceedings, as opposed to someone who does not plead until he gets to court. I appreciate the difficulty with the wording, though.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Let me add two thoughts in support of the general proposition. First, people effectively face such circumstances in the world of motoring offences, with fixed penalty notices and so on. One gets 14 days, within which, if one pays, one is able to pay at a reduced rate. If one contests the penalty, one risks the higher rate, and further penalties.

There is also an issue prompted by the point that concerns the summary, and non-summary, offence time limits. At the moment, one cannot charge someone for an offence that can be tried only in a magistrates court, unless they are charged within six months. I shall give as an example the case of a constituent who came to me claiming that his employer was in breach of health and safety legislation in a car scrapyard and did not have insurance covering employer's liability. It is an offence not to have employer's liability insurance, but it is a summary offence that can be prosecuted only in a magistrates court, so if the investigations are not completed in time, it cannot be prosecuted at all.

This provision seems to be about ensuring that we give people incentives to accept their guilt in time and do not impose artificial barriers if investigations take longer, and that such a period should run from the time when the charge is put. I ask the Minister to consider the related, but separate, issue of the time limits for charging offences that are triable summarily only. Sometimes, injustice is clearly done in court in matters of significant public policy.

Graham Allen (Labour, Nottingham North)

Is it possible for a smart-aleck lawyer—I know that such people are a small minority—to see how a case goes in terms of charges being dropped and other offences being tried and then, at an appropriate point, to get his client to plead guilty, with the result that, effectively, he gets off because the sentence for the guilty plea is such that it is below the threshold for him to be committed to a young offenders institution or prison? Will the Minister take into account the repercussions in terms of the public perception of the credibility of the criminal justice system when an offender can plead in that way? I am thinking of somebody who is 17 years old and has committed 115 offences that have gone to court.

The rest of the debate is in Hansard.