I beg to move amendment No. 610, in

clause 134, page 76, line 15, leave out 'three' and insert 'two'.

I return to the fray more determined than ever. My first thought on reading the clause was that it tends to restrict judicial discretion and is entirely unnecessary. I want to tease out from the Minister the exact reasons for the clause and to tell the Committee what is likely to happen in practice.

Let us assume that a defendant is before the court charged with petty theft. He is a first offender. The court may take the view that he deserves a conditional discharge or a fine. If he is in court having appeared once before, he is a second offender, and perhaps the court will take a lenient view. Let us then assume that he appears for the third time, with two previous convictions for theft. It might equally be two previous convictions for common assault or any other slightly run-of-the-mill offence. He could, for that matter, have convictions for four or five previous offences of a similar nature. That does not matter. He is before the court, and the court will have to decide, on the basis of the nature and seriousness of the current offence and the defendant's background, the appropriate sentence to pass on that particular defendant.

The scenario as expressed in clause 134 would involve a defendant who had,

''on three . . . previous occasions . . . been sentenced to a fine without any community order, youth community order or imprisonment''.

The statute, having defined him in that way, states in terms that a community order is the appropriate reaction. Is it necessary to specify three or more occasions? What is the difference between three or more such occasions and one or more—or two? Is it not likely that after the judiciary learn of the defendant's antecedents and are told, ''This is a defendant who has on three previous occasions been fined'', the Crown will straight away remind the judge of section 134—in effect telling the court that that is the provision that must be considered? Why should that happen if the defendant has appeared in court and been fined three or more times, as opposed to twice? Is judicial discretion being restricted? Is not clause 134 a way for the Government to tell the judiciary, ''This is how to sentence someone who has three or more previous convictions with a fine,'' when they should really be telling the judiciary to decide on the basis of the current offence and the defendant's record? The clause is too prescriptive.

I applaud the amendment as a means of teasing from the Minister the Government's thinking, although in its own right it is no more logical than the Government's position. I think that the hon. Member for Woking would accept that. I am concerned about the possibility that we are perhaps putting into statute an automatic escalator towards a community sentence for offences that the court accepts do not in themselves warrant them. It is only the cumulative effect of several smaller misdemeanours that have been assessed and felt to warrant such a sanction. That raises several questions about the discretion of the court because it gives a signal about what might be considered appropriate action by the court. We can also question whether it is right by the principles of sentencing in the first place. The argument is that the court should sentence to deter someone from reoffending. However, there is a wide spectrum of offences to be taken into account. It may not be a repeat offence or even in a similar category; there could be a very wide range of offending behaviour. The courts should not be given a clear signal to ratchet up the process for a crime that of itself would not normally attract a sentence of such severity. I shall be interested to hear whether the Minister believes that he is fettering the discretion of the court. I have a slight suspicion that this is one of those measures that the Government think will sound rather tougher in theory than in practice.

This has been a useful discussion. Much of the offending that would be caught by this provision would be minor: low level public disorder and minor road traffic offending, for example. It would be of a kind that would warrant only a community sentence when it is clear that there is a need for such a penalty. That need is unlikely to arise unless persistency is clear. That is the argument for the threshold of three rather than two. We think, although it is a matter of judgment, that three is a better definition of persistency than two. It would not be automatic, and the court will be given a range of considerations to take into account in reaching a judgment, including subsection (5):

''This section does not limit the extent to which a court may, in accordance with section 127(2), treat any previous convictions of the offender as increasing the seriousness of an offence.''

Reducing three to two would increase the rate of the escalator, which is the point made by the hon. Member for Somerton and Frome. It is a matter of judgment. The Government consider this a sensible provision, as it re-enacts the Powers of Criminal Courts (Sentencing) Act 2000, but amends it in the way that we have just debated.

I am unhappy because it is not good to put into statute something along the lines of ''three or more previous occasions.'' Three is purely subjective; it could be two or one or four or six; you pays your money and you takes your choice. It is clumsy drafting. The hon. Member for Southwark, North and Bermondsey nods; he agrees with us. It is clumsy drafting; it is completely superfluous to the real world. It is yet another clause in the Bill that adds nothing to the administration of good justice. It is useless, although it is not a point of principle that we will go

to the wall for. It will make no sense in the courts; it will cause them more work and give them more to consider. It moves sentencing too far away from the sentencer on the day, who certainly does not want to have a lot of arguments about whether the defendant has appeared twice, three times or four times before. In short, the provision is absolutely useless, and over the years ahead will be seen to be badly drafted and completely irrelevant, although that is not untypical of much that we have to consider. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 690, in

clause 134, page 76, line 15, leave out 'in Great Britain' and insert

'by a court in the United Kingdom'.—[Hilary Benn.]

I beg to move amendment No. 691, in

clause 134, page 76, line 17, leave out from beginning to 'and' in line 18 and insert

'had passed on him a sentence consisting only of a fine'.

With this it will be convenient to discuss Government amendments Nos. 692, 693, 699, 698 and 700.

This follows on from the earlier debate and the agreement given to amendment No. 690. The amendments are intended to ensure that the application of sentencing provisions within part 12 to service courts and service convictions is correct.

It is my turn to parade my ignorance. Can the Minister say whether service disciplinary proceedings normally impose fines rather than suspension or reduction in pay, and whether that is construed as a fine for the purposes of the clause? A doubt is raised in my mind, in that the normal sanction on service personnel might not be for them to pay a fine into a service disciplinary proceeding but simply for them to have that taken from their pay packet. Is that a proper construction?

I do not know the answer to that question, as the hon. Gentleman can probably tell from my raised eyebrows, but I shall find out the answer and communicate it to him.

I have a slight concern about the reference to convictions within the United Kingdom—I do not have a quibble about Northern Ireland's being left out. In the European Community, it is a fundamental principle of community law that there should be the free movement of workers from one member state to another, for example, from the Republic of Ireland into Northern Ireland. If my memory serves me correctly, in the case of R v. Bouchereau a number of years ago, the Marylebone magistrates court rightly took into account the previous convictions that had taken place outside the UK of a French national who had come to England for work. Will the Minister think again about convictions that have been incurred in member states other than the UK?

I undertake gladly to reflect on the point that the hon. Lady has raised, and perhaps

couple that with a response to the hon. Member for Somerton and Frome.

Amendment agreed to.

Amendments made: No. 692, in

clause 134, page 76, line 31, at end insert—

'(3A) In subsection (1)(b), the reference to conviction by a court in the United Kingdom includes a reference to the finding of guilt in service disciplinary proceedings; and in relation to any such finding of guilt the reference to the sentence passed is a reference to the punishment awarded.

(3B) For the purposes of subsection (1)(b), a compensation order does not form part of an offender's sentence.'.

No. 693, in

clause 134, page 76, line 33, leave out from 'has' to end of line 34 and insert

'passed on the offender a sentence not consisting only of a fine'.—[Hilary Benn.]

Question proposed, That the clause, as amended, stand part of the Bill.

This is an appropriate time briefly to flag up the issue of drugs courts, which are the major omission from the Bill. In my constituency, the main offenders to which the clause will apply are drug addicts. It is absurd to fine them, because they steal to fund their addiction. They are responsible for 95 per cent. of the crimes committed in the west of my constituency, where the majority of the population live. According to police estimates, 50 drug addicts go through the custody suite of Worksop police station every week.

Drug addicts are involved in the overwhelming majority of crime, and fining them merely means that they will steal more to feed their addiction. The police recognise that, and are loth to arrest addicts for petty offences, because it is a waste of police time. They know that the same people will go through the criminal justice system at great expense and be fined, only to return to the streets to steal even more and create further misery.

There is, of course, a major dilemma because the local community does not want to be burgled. Shopkeepers are the victims of the overwhelming majority of the really petty and persistent offences. They want the police to be firm in apprehending offenders, but to understand that simply apprehending and fining them will cause additional problems. That dilemma arises not only day in, day out, but hour in, hour out.

I understand the logic behind the reference to those who have been fined on

''three or more previous occasions'',

but I ask the Minister to reflect on the issue before Report. One could argue that the clause will assist us in dealing with more persistent drug-addicted offenders, because they will be more likely to be given a community order early on. However, it may be a barrier to dealing with new petty offenders, and may start the cycle of fining and reoffending.

At some stage, we will need legislation on drugs courts. Such courts would take responsibility for handling this major category of offence away from

other courts and would deal with it separately. That would involve magistrates and others who were trained in and understood the issue.

I hope that the Minister will reflect on whether the wording of the clause and of subsection (1)(b), in particular, might not give us sufficient leeway to hand down an effective sentence to drug-addicted offenders. That may force them to go through an unnecessary loop or two before being offered a community order.

I listened carefully to the hon. Gentleman, who has done very good work on drugs matters. I applaud him for his commitment and for the work that he has done over the years, and we listen with great respect to what he says. He focused on drug-related offences, which are a major omission from the Bill. We all take different approaches to such offences, but we share the knowledge that they are an increasing problem among our young people.

I was particularly struck by the hon. Gentleman's observation that small-time thefts fund drug habits. So many youngsters—indeed, even people in their 20s—who appear in our courts persistently shoplift small items such as electrical goods or razor blades and then sell them. How is it best to deal with such people? The drug treatment and testing order has had a mixed impact on the community. In January, I tabled a parliamentary question asking how many such orders the courts had made, how many had been breached or revoked and how many revocations had resulted in a custodial sentence. The Minister's answer was that, between 1 October 2000 and the end of November 2002, which is approximately two years, 10,070 drug treatment and testing orders were made, of which 4,330 were revoked. That is a lot, although it includes 226 for good progress. One can infer, therefore, that over 4,000 were revoked not for good progress.

Figures on breaches were available only for the period November 2001 to April 2002. During that time, 2,175 breach proceedings were instigated, in some 40 per cent. of which the order was revoked. Information about re-sentencing in respect of revoked orders was not available. I hear mixed reports about the effectiveness of drug treatment and testing orders. Some courts believe that they are helpful. The difficulty is that there seems to be a shortage of teeth when such an order is imposed, in that the defendant is told to submit to regular testing and to return, but courts are not always certain as to whether the order is going well. For example, the defendant returns to court but the drug treatment and testing order has found that, although he or she has not offended again, traces of drugs have occasionally been found in his or her body. The court has to consider whether the defendant is doing well.

Some judges and magistrates regard the drug treatment and testing order as a positive step and others do not think that it is very effective. In considering a sentence, one likes to have the discretion to intervene on a drugs issue at the earliest possible stage if one wants to. As the clause is drafted, someone appearing in court on behalf of a defendant can point to it and argue that because it is only the second time that the defendant has been in court, there should not be a community sentence because the

clause mentions three or more previous occasions. The bench will want the discretion to be able to say that, although it is the first or second offence, the background should be taken into account and a community penalty should be imposed. I foresee difficulties, and to that extent I echo what the hon. Member for Bassetlaw (John Mann) has said. I am uneasy that not only is the drugs issue not addressed—

Let me pose another alternative scenario that could create a problem. It concerns cases in which treatment services are not available or are perceived not to be. That artificial barrier might provide the get-out that allows the health service—as a provider of treatment services—to get off the hook in terms of providing what should be there in the interests both of the individual and of justice and the community.

The hon. Gentleman makes a fair point. There is a great gap between what is right, and should happen, and the ability of the services in a locality to deliver it. Many sentencers would like to pass a particular sentence, but find that because the facilities to allow that sentence to be served are not available in their locality, they have to jump from one type of sentence to another. It is a real problem, and the position across the country is not consistent. We shall debate drugs on other occasions. The hon. Gentleman does the Committee and the House a great service in the way in which he approaches such issues. I am with him on some points about drugs, although probably against him on others. As I have said, we all recognise that it is a tough problem, which is getting worse. If clause 134 is too restrictive, it will create a potential problem for the future, and we must avoid doing that.

The hon. Member for Bassetlaw has raised some serious issues. I should be interested to hear the Minister's reaction to some of the things that he said, particularly about the possibility of introducing drugs courts. My concern, born out of my work with the police service in my role on the police authority, is that drugs are the motor of a wide spectrum of offences—not just the motor behind a few cases of petty theft, but the dynamo behind so much crime. So many offences are related to drug or alcohol addiction that it might be difficult to extricate one from the other without dismantling the legal system to a degree that would cause huge disjunctions in the administration of justice. That is my caveat. We must effectively address issues of addiction, but I suspect that we have to do that in the context of present legal arrangements; otherwise, we shall find that we are simply splitting apart, without adequate outcome, the consideration of a wide spectrum of offences that need to be considered as a whole. I should like to hear the Minister's approach, because we are unclear about the Government's view on this important issue.

This has been a useful debate on the clause, although it has ranged over wider issues. My hon. Friend the Member for Bassetlaw has, once again, drawn our attention to the extent of the problem. I hope that he will find considerable comfort in other parts of the Bill—I see that he is nodding in agreement—in particular, in clause 160 and

the range of flexible sentences that the Bill will make available under the new generic community sentence. The hon. Member for Woking gave a fair reflection of the range of experience, and there has, undoubtedly, been a big step forward. The fact that some people fall out of that net is simply recognition—a point made forcefully by my hon. Friend the Member for Bassetlaw in an earlier debate—of the difficulty of freeing oneself from the imprisonment of a drug habit. People will fall by the wayside and may need to be helped on several occasions. Clearly, it is extremely important that we should try to do that through all the work that we are doing. The hon. Member for Somerton and Frome made an important point, because it seems that, whatever precise mechanism is used, the court must develop knowledge and expertise in handing out sentences that are appropriate to deal with the fundamental problem. In response to the point raised by my hon. Friend the Member for Bassetlaw, that is such an important part of the court's work.

Does the Minister think that the clause could in any way restrict the ability of a sentencer to intervene with a drug treatment and testing order on a first or second minor shoplifting offence?

It will depend on the circumstances and on whether the offence itself warrants a community sentence. We are trying to balance the issue that has been raised about drugs offences. We have not reduced the level to two previous convictions—a kind of up-tariffing of the system. That was the weakness of the hon. Gentleman's amendment, which he acknowledged.

There is a broader—and real—issue about the probation service. If one talks to those who work in probation, they will say that, with community sentences, they are now dealing with a range of offending that would have been dealt with in the past by fines. It is important to reflect on that. If we wish the probation service to make use of the increased resources that we make available, and to put time and effort into the work that will make the greatest difference, in particular to persistent offenders, we shall also need to ensure that it is not overloaded as a result of the process of up-tariffing, which is a result of the decline in fines that we have seen over the past decade.

I appreciate the point that the Minister is making. I am sure that he will appreciate that the theme that strikes us—it only strikes me so forcefully from my professional experience—is the number of times that one encounters an offender who has made earlier appearances in court, the underlying cause of whose offending the court has failed completely to get to grips with. The fining mechanism has simply been a delaying tactic that has made it much worse and more difficult when the time finally comes for someone to try to implement a sentence that gets to grips with his offence. That is our underlying fear when we consider the trigger mechanism in clause 134.

I hear the hon. Gentleman's point. In the end, we are trying to achieve a balance. The honest answer is that we shall have to see how the system works.

Question put and agreed to.

Clause 134, as amended, ordered to stand part of the Bill.