House of Commons Hansard Debates for 20 Feb 1991

Mr. Sheerman : Very briefly, because I recognise the lateness of the hour, we understand and accept amendment No. 7 but we oppose Nos. 8 and 9. We are

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very concerned that the amendments extend the power to impose longer terms of imprisonment for violent and sexual offenders to magistrates courts. This is a worrying extension of powers which could lead to greater inconsistency in decisions between magistrates courts.

It is hard to see how it could possibly protect the public from death or serious personal injury. Any serious triable either-way offence will be sent to the Crown court. Where the offence is not that serious, surely this power is not required. Magistrates courts can sentence to a maximum of six months for one offence or 12 months for more than one offence, and if they would have sentenced someone to four months but decide on six months as a result of this clause one cannot envisage that it would protect the public very much from death or serious personal injury ; it would, however, lead to greater discrepancies between magistrates courts for the same offence. That is our worry. We are not going to push this to a vote or anything silly like that, but we think that it is important to flag it up at this time of the evening.

Amendment agreed to.

Amendment made : No. 6, in page 2, line 29, leave out those proceedings' and insert

the proceedings in which he is sentenced for the other offence'.-- [Mr. John Patten.]

Clause 2

Length of custodial sentences

Amendments made : No. 7, in page 2, leave out lines 33 to 35 and insert

which is triable either way or only summarily'.

No. 8, in page 2, line 41, leave out

passed by the Crown Court'.-- [Mr. John Patten.]

Madam Deputy Speaker : We now come to amendment No. 87.

Mr. John Patten : On a point of order, Madam Deputy Speaker. It is probably entirely my fault, but was Government amendment No. 9 called?

Madam Deputy Speaker : Government amendment No. 9 comes next. In between we have an Opposition amendment, No. 87, to deal with.

Mr. Randall : I beg to move amendment No. 87, in page 2, line 42, after offence', insert

where the offender has been previously convicted of one or more such offences'.

This amendment would restrict the provisions for courts to give violent or sexual offenders and those with previous records of violent or sexual offences longer sentences than the offence deserves. Clause 2(2)(b) empowers courts to give violent or sexual offenders sentences longer than the offence deserves if they consider it necessary to protect the public from serious harm by the offender.

This provision is not aimed at offenders who commit the most serious offences. Those offences which are triable only on indictment are excluded from clause 2 and would continue to be governed by the present sentencing criteria. Those offenders would, therefore, continue to receive lengthy sentences in line with Court of Appeal guidance which has produced swingeing increases in lengths of sentence for violent and sexual offences since the mid-1980s.

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According to the White Paper "Crime, Justice and Protecting the Public" of February 1990, this provision is aimed at offenders convicted of less serious offences, but where the court realises that they are at serious risk of causing actual bodily harm which would merit a 12-month sentence. Under the proposed legislation the Crown court could give a longer sentence up to a maximum of five years if it considered it necessary to protect the public from serious harm by the offender.

In public statements before the Bill was published, the Minister justified the proposal on the ground that it was needed for persistently violent sexual offenders whose previous pattern of offending led the court to believe that they were a serious risk to the public. However, there is no reference to "persistence" in the clause.

In the absence of a history of previous offences, there can be no grounds for concluding that the first-time offender who is before the court for a minor offence against the person must be in prison for longer than the offence deserves to protect the public from serious harm.

When the amendment was discussed in Committee on 6 December, the Minister referred to it as an "excellent" amendment, and agreed to reflect on it. By tabling the amendment again, we have given him the opportunity to inform the House of the results of his reflection.

Mr. John Patten : It was an excellent, extremely well-drafted amendment. I have reflected on it, and the Opposition are still wrong and I am right, for the following reasons. The hon. Member for Kingston upon Hull, West (Mr. Randall) was right in saying that the policy that sentences longer than can be justified by the seriousness of the offence should be available for persistent, violent and sexual offenders was set out in the White Paper. This is the group of offenders most likely to be a risk to the public and about which the House has the greatest concern.

It is also likely that the offenders for whom the courts judge a longer sentence to be appropriate are likely to have previous convictions, most of the time of a nature similar to the offence for which they have been convicted, and would therefore satisfy the test set in the Opposition's excellently drafted amendment. I do not disssent from what it is trying to achieve. However, we need to consider carefully whether we can rely on offenders from whom the public needs to be protected always having previous convictions of a similar nature. This may be exceptional to rare, but there may be offenders whom the courts judge, from their pattern of behaviour, to be dangerous but who have never been convicted before. In some cases, they may have been convicted when younger, but were only cautioned, although a series of cautions would show the way in which they were developing.

The protection of the public from dangerous offenders is so important that it would not be right to let the courts' ability to afford the public this protection to hang on whether the offender had previous convictions. In Committee, we were often told that nothing should be ruled out when writing legislation because we have to provide for the exceptional, strange or peculiar case. That is what we are doing in resisting the amendment.

Mr. Randall : That is a disappointing reply to what we thought was a radical and forward-looking amendment. However, I beg to ask leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

Amendment made : No. 9, in page 3, line 1 leave out Crown'.-- [Mr. John Patten.]

Clause 3

Procedural requirements for custodial sentences

Mr. Randall : I beg to move amendment No. 68, in page 3, line 21 insert--

(d) take into account any reparation made by the offender.'. In recent legislation, attention has rightly been given to holding offenders accountable by requiring them to make reparations for their offences through compensation orders and community service orders. The Criminal Justice Act 1982 also allows courts to take account of reparations made during deferment of sentence. The amendment would extend the principle to give offenders an opportunity and an incentive to make reparation even before the case comes to court. We believe that this could be done in the framework of a reparation projection. Those projects have been shown, in Home Office research, to be widely welcomed by victims who have taken part in them. A similar amendment debated in Committee was not accepted by the Government on the ground that its terms were already covered by clause 3. It is submitted, however, that the argument is based on a misconception of the nature of reparation. When the Bill refers to the offender's attitude to the offence and to his physical and mental condition, those are traditional criteria related to mitigation of sentence or to the choice of a rehabilitative sentence. Reparation, however is a different concept because it is based not solely on measures imposed on the offender but on the impact on the victim. Some reparation projects go further and provide for mediation between victim and offender, provided that both are willing. That can be beneficial to victims and offenders. The amendment is intended to draw the attention of courts to the distinction and to encourage them to take account of any efforts by an offender to make amends to the victim. It would also allow the reparation to be done much sooner.

Mr. John Patten : It is common ground between us that if an offender has made or is willing to make reparation for his offence, for example, by returning stolen property or making good criminal damage, he should get credit for that. It is our intention that that should be capable of being taken into account under clause 3(1)(b). The issue was raised earlier by my hon. Friend the Member for Croydon, North-West (Mr. Malins) in relation to mitigating and aggravating factors. The court should regard it as a factor in mitigation if the offender has made reparation or is willing to make it.

I think that the point is already covered, but I have listened to what the hon. Member for Kingston upon Hull, West has said, and between now and when the Bill is dealt with in another place I will consider further whether it yet provides adequately for mitigation generally. An important point is involved ; I do not dissent from that. I shall certainly bear in mind in doing so what the hon. Gentleman has said.

My consideration will also cover the point about credit for time spent in custody abroad when awaiting extradition which exercises the right hon. and learned

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Member for Warley, West (Mr. Archer). The matter was discussed by him and by my right hon. Friend the Minister of State on new clause 12.

I hope that, having heard those kindly words, the hon. Member for Kingston upon Hull, West will withdraw the amendment immediately.

Mr. Randall : Again I am terribly disappointed, although that was the most positive reply that we have had from the Minister in Committee or on Report. I am sure that their Lordships will note the words of the Minister and I hope that there will be a string of superb amendments based on the one that we have constructed, so that this provision may be included in the legislation. With that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10

Orders combining probation and community service

Mr. Randall : I beg to move amendment No. 70, in page 8, line 48, at end insert--

(2A) A court shall not make a combination Order unless it would have imposed a custodial sentence if it had not made such an Order.'.

The amendment would require courts to use the new combined probation and community service order only when they would otherwise have imposed a custodial sentence. The aim of the new combination order is to provide the courts with a new, intensive and demanding penalty which would be a credible alternative to custody for many offenders who are currently in prison. However, there is no guidance to that effect in the Bill.

In the absence of such guidance, there is every possibility that the courts will use the new order for many offenders who would currently receive probation orders, community service orders or other existing community penalties. That has happened in the past with other new non-custodial penalties. For example, the community service order introduced by the Criminal Justice Act 1972 was intended primarily as a alternative to custody, yet Home Office research a few years after its introduction found that only 45 to 50 per cent. of such orders were being passed on offenders who would otherwise have gone to prison. That was established by Home Office research study No. 39, entitled "Community Service Assessed in 1976" and printed in 1977.

The greatest risk lies in the fact that the more requirements are imposed on offenders, the greater the chance that the offender will break one of the conditions, will be returned to court for that breach and will be imprisoned. If the combination order were widely used, rather than the existing non-custodial penalities, it could lead to the imprisonment for breach of many offenders who would not otherwise have been at risk of custody. We feel that the Bill should stipulate that courts use the combination order only when they would otherwise have passed a custodial sentence.

12.30 am

When the amendment was debated in Committee on 13 December, the Minister said :

"The one thing that my right hon. Friend the Home Secretary and I do not wish to see on the face of the Bill is the outmoded concept of a sentence as an alternative to a prison sentence. We want offenders--men and women, boys and

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girls--to be sentenced to the correct punishment and for them to get their just deserts".--[ Official Report, Standing Committee A , 13 December 1990 ; c. 250.]

There is, however, no contradiction between the amendment and the idea that the severity of the sentence should reflect the offender's just deserts. The combination order will be the more intensive community penalty available to the courts. We feel that reserving it for more serious cases that would currently receive a custodial sentence would reinforce the idea that the most intensive penalties should be for the offences that deserve them.

Mr. John Patten : I understand the concern expressed by the hon. Member for Kingston upon Hull, West (Mr. Randall) that the combination order should not be used indiscriminately and, in particular, should not be used when an ordinary probation or community service order would be adequate. However, the yardstick for any community sentence, including a combination order, is set out very clearly in clause 5(2) : under subsection (2)(b), the restrictions on liberty in an order are to be

"commensurate with the seriousness of the offence".

Such a restriction on liberty is likely to be among the greatest of all community penalties, which is why it is appropriate for the more serious offences to be punished in that way. I cannot advise the House to accept the amendment.

Mr. Randall : It is with great disappointment that I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11

Curfew orders

Mr. Sheerman : I beg to move amendment No. 88, in page 9, line 10, leave out sixteen' and insert eighteen'.

At this time of night, an hon. Member hopes that someone will immediately sentence him to bed! The Whip has been talking to me very sternly, and I shall speak very briefly ; I have only four pages of notes.

The amendment gives me the opportunity to raise our real concern about, and fundamental opposition to, the proposals for curfews enforced by electronic monitoring, especially when they are applied to young people. In this, the Opposition have the support of the Penal Affairs Consortium and many organisations involved with the criminal justice system.

We consider the curfew order a negative system : it neither involves the offender in socially useful activity nor engages professionals to encourage him away from a criminal path. We believe that alternatives to custody should be interactive, giving people a positive activity to change their lives.

Since 1982, the courts have had power to impose night restriction orders on juveniles as a condition of supervision orders, but very little use has been made of that power. In 1988, in the whole of England and Wales, fewer than 10 such requirements were imposed as conditions of supervision orders. During the same period, the courts made enormous use of constructive community measures, such as community service and supervised activity programmes for young offenders.

Hon. Members who were on the Standing Committee know my arguments reasonably well. We dislike this whole group of proposals. In Committee, we opposed them root and branch, and we have continued to do so on Report.

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We shall be very surprised if the Government, in response to our case, say anything that will make us anything other than very disappointed, but at this time of the night we shall not push the matter to a vote.

Mr. John Patten : The hon. Member for Huddersfield (Mr. Sheerman), by saying that the Opposition will not push this matter to a vote, has already got his retaliation--or his lack of retaliation--in. However, I want to say one or two things about this matter. The suggestion that people of 16 or 17 cannot accept responsibility for their behaviour is nonsense. People of that age--especially young men--who cause mayhem should be treated as adults. On the other hand, I should like to see a wimpish 18- year-old who is not grown-up treated as a child. We must develop a much more sophisticated means of dealing with young offenders, so that their maturity may be judged as objectively as possible. I happen to believe that, by making available to the courts a range of penalties which are tough and demanding, and which take account of different patterns of offending, we shall help to minimise the use of custody. I have no doubt at all that curfew orders in respect of people of 16 or 17 will make a very valuable contribution to the sentencing arrangements.

On this matter, there is a very wide difference between the hon. Member for Huddersfield and myself. At this stage, I cannot say anything to persuade him. He has said that he will not press the amendment to a vote. I happen to be in a position to tell him that, should the matter be pursued in another place, mighty battalions, led by my noble Friend Lord Waddington, will be able to repeat the punishment.

Mr. Sheerman : Following the Minister's concluding remark, the Whip is urging me to press the matter to a vote.

I am very disappointed that the Minister has not responded to the case made by the Home Office research and planning unit's evaluation of the recent electronic monitoring experiments at three magistrates courts. All the research has shown that electronic monitoring has been a disaster and is not cost-effective. Indeed, it is enormously expensive, and the reports on it suggest that it would be very difficult to make it a cost-effective alternative.

On practical grounds, moral grounds and grounds of pragmatism, this is the wrong kind of measure. We believe that it will be a Home Office white elephant. Magistrates will not use it, and probation officers will have difficulty with it. We believe that benign neglect will result in its death.

In view of the lateness of the hour, however, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn .

Clause 16

Fixing of certain fines by reference to units

Mr. Randall : I beg to move amendment No. 89, in page 13, line 9, after "above)", insert

"unless the court is satisfied that this would be unreasonable having regard to the circumstances of the offender".

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This amendment would allow courts operating the unit fine system to calculate an offender's weekly disposable income at less than £4 where to calculate it at £4 would be unreasonable.

The means-related unit fine system, which this clause extends nationally, has been widely welcomed as an important and valuable reform. At the four courts where unit fine experiments have been conducted--Basingstoke, Bradford, Swansea and Teesside--the system has markedly improved the rate of payment of fines and has reduced the fines imposed on poor offenders to a much more realistic level, and at three of the four courts it has produced falls of between 24 per cent. and 27 per cent. in the numbers of people imprisoned for fine default. The fourth court, Basingstoke, rarely imprisoned offenders for fine defaults even before the experiment.

Under the unit fine system, the size of the fine is determined by multiplying a number of units representing the seriousness of the offence by the weekly disposable income of the offender. Clause 16 stipulates that the disposable income of the offender must not be assessed at below £4 per week. The reason for that is easy to discern : it is intended to avoid setting fines at such low levels that they might appear derisory. The four courts involved in the experiment all set themselves minimum levels for that reason. Three of the four courts set a minimum amount of £3 per week, and Bradford set a minimum of £5. However, those amounts were not legally binding and the courts did not invariably keep to them. They were simply general rules that each court laid down for itself, from which it could depart when it saw fit. In practice, the courts often did so when faced with poverty-stricken offenders.

The Home Office evaluation of the experiments--reported in Home Office research and planning unit paper 50 entitled "Unit Fines : Experiments in Four Courts in 1990"--found that, although Bradford had a nominal weekly minimum of £5, in practice 34 per cent. of fines were set at £3 or less, with 11 per cent. being set at £1 or £2 per week. At Swansea, 41 per cent. of fines were set at £3 per week or less, with 13 per cent. being set at £1 or £2 per week. At Teesside, the area of highest unemployment, nearly half--47 per cent.--of the fines were set at £3 per week or less, with 39 per cent. set at £1 or £2 per week. At the fourth court, Basingstoke, which is a better-off area, there were few fines below £3 per week, although even those magistrates fined the occasional offender £1 or £2 per week. We believe that the amendment would bring the statutory framework for unit fines in clause 16 into line with the practice of the successful pilot areas. To enact a rigid £4 a week minimum would reduce the benefit of an otherwise admirable measure to inject greater credibility and fairness into the system for imposing fines.

Mr. John Patten : I cannot accept this amendment. Giving the courts the discretion to set a value lower than £4 a week runs the risk of setting up a system such that the monetary value of the fine would become derisory. As I have said many times, the victim cannot and must not be forgotten. Whenever I am tempted to forget the victim, the ghost of my hon. Friend the Member for Hayes and Harlington (Mr. Dicks) looms up behind me to remind me of the importance of victims and of proper punishment.

I am not prepared to promote a system that could lead to the setting of such small fines that the victim is left feeling that the criminal justice system has no regard for

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the pain that he or she has felt or for the loss of property that he or she has suffered. The hon. Member for Kingston upon Hull, West (Mr. Randall) did not, on this occasion, get his capitulation in first by saying that he would not pursue the amendment to a Division, but I hope that he will not.

Mr. Randall : I am disappointed with the Minister's comments, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20

Default in other cases

Amendments made : No. 10, in page 15, line 21, leave out from Act' to and' in line 22.

No. 11, in page 15, line 37, at end insert the following subsection--

Clause 21

Recovery of fines etc. by deductions from income support.-- Amendment proposed : No. 96, in page 16, line 12 at end insert-- (a) provision that, before making an application, the court shall have first obtained the agreement of the offender to the application, unless default has been made in payment ;'.-- [Mr. Sheerman.] Mr. Deputy Speaker (Mr. Harold Walker) : With this, it will be convenient to consider Government amendment No. 12.

12.45 am

Mr. John Patten : I am unable to accept amendment No. 96. Labour Members' attempts to test the perfect management of the Bill will not succeed.

The amendment would limit deductions from benefit to pay fines to cases where the defendent had consented or

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where default in payment had occurred. It would not be sensible to include such restrictions in the Bill. We intend the deduction arrangements to apply only after default, and after a means inquiry has been held. We shall keep the arrangements under careful review to see whether the point at which deductions are made should be brought forward.

I commend amendment No. 12, which honours the undertaking that I gave the hon. Member for Cardiff, South and Penarth (Mr. Michael) to table an amendment to clause 21 on Report.

Mr. Sheerman : We are grateful for the few concessions that we get from the Minister. I made a note to thank the Government profusely for amendment No. 12. Following the eloquent speech in Committee by my hon. Friend the Member for Cardiff, South and Penarth (Mr. Michael), the Minister promised to reconsider clause 21. The amendment is a good concession, and in that spirit I beg to ask leave to withdraw amendment No. 96.

Amendment, by leave, withdrawn.

Amendment made : No. 12, in page 16, line 14 at end insert-- (aa) provision allowing or requiring adjudication as regards an application, and provision as to appeals and reviews ;'.-- [Mr. John Patten.]

Clause 23

Reduced penalties for certain offences under Theft Act 1968

Mrs. Rumbold : I beg to move amendment No. 13, in page 17, line 48 at end insert--

(3) In section 10(2) of the Badgers Act (enforcement, penalties etc.), for the words preceding the proviso there shall be substituted the following--

"(2) Any person guilty of an offence under this Act shall be liable on summary conviction--

(a) in the case of an offence under section 1 or 2, to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding six months or to both ;

(b) in the case of an offence under section 3 or 4, to a fine not exceeding that level ; and

and in the proviso for the words "paragraph (b)" there shall be substituted the words "paragraph (a) or (b)".'.

It gives me pleasure to move the amendment, which fulfils an undertaking given to the right hon. and learned Member for Warley, West (Mr. Archer), which was supported by all members of the Committee. It enables courts to impose a maximum custodial sentence of six months' imprisonment on anyone convicted under sections 1 and 2 of the Badgers Act 1973 of taking, injuring or killing a badger and of certain other offences of cruelty.

Hon. Members agree that this is the right way to proceed on this serious matter, to which I referred last Friday in a debate on badger setts.

Mr. Archer : The Minister's words will bring much pleasure to all hon. Members and to the League Against Cruel Sports, the Royal Society for the Prevention of Cruelty to Animals and the animal lobby. I am sure that they will greatly augment the pleasure of many badgers. I am most grateful.

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Mr. Simon Hughes : I welcome the amendment. I hope that it presages the passing of the Badgers Bill, which will give greater protection to badgers and which will soon be considered in Committee.

Mr. Sheerman : We warmly congratulate the Government on introducing the amendment, for which we did not have to push too hard in Committee.

I wonder what on earth the animal lobby, as described by my right hon. and learned Friend the Member for Warley, West (Mr. Archer), looks like at this time of the morning. There is all-party consensus in favour of badgers ; I am glad that they are not running a candidate at the next election.

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