Amendment proposed [this day]: No. 516, in

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

'Judges shall have discretion in the determination of all sentences. However,'.—[Mr. Allen.]

Question again proposed, That the amendment be made.

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).

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.

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.

I beg to move amendment No.61, in

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

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.'.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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?

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.

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.

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.