I beg to move amendment No. 594, in

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

'and all the surrounding circumstances'.

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'.

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.

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.

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.

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.

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.''

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.

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.

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?

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.

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.

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.

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.

I beg to move amendment No. 596, in

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

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).

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.

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.

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''?

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.

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.

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.

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

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.

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.

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?

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?

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.

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.

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.

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.

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.

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

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

Amendment, by leave, withdrawn.

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.''.

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

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.

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.

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.

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.

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.