I beg to move amendment No. 611, in

clause 135, page 77, line 3, leave out from 'that' to end of line 4 and insert

'only a custodial sentence can be justified'.

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

No. 706, in

clause 135, page 77, line 4, at end insert—

'(2A) In considering the appropriate sentence under subsection (2) above, the court should start with the presumption that the sentence will be a custodial sentence when the offence has been one of violence against the person, interfering with the course of justice, causing death or injury by dangerous driving, or the commission of a sexual offence against or in connection with a minor.'.

No. 646, in

clause 136, page 77, line 19, at end insert—

'(3) For the purpose of this section, in assessing the seriousness of the offence a court shall not take into account general or specific deterrence, or the need to punish the offender for the offence.'.

I wish to speak briefly to amendment No. 611. The clause deals with general restrictions on imposing discretionary custodial sentences. My amendment would alter lines 3 and 4 of page 77.

Why cannot subsection (2) read, ''The court must not 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 only a custodial sentence can be justified''? That is the type of wording that has historically been used.

Mr. Illsley, I do not like the word ''was''; I would prefer the word ''is'' to have been used in the drafting. In statute, ''is'' is used more often than ''was''. Hitherto, the practice for so long has been that a sentencer will say to the defendant, ''This offence is so serious that only a custodial sentence can be justified.''

Reasons, which I shall not go into now, are normally given as to why the offence is so serious. The judge gives a fairly brief homily to the defendant about why he or she is going to prison. The reason is that the offence is so serious that only a custodial sentence can be justified. It seems to me that clause 135 asks us to say that the reason that a person is going to prison is that the offence is so serious that neither a fine alone nor a community sentence can be justified. Why say that? Will it be the case in future that a defendant, on being asked to stand before sentencing, faces a different form of wording from that which he or she has heard in the past, which was, ''This is a very serious offence, and I have had to consider whether a fine alone would be satisfactory. I have had to consider

whether a conditional discharge would be satisfactory. However, I have concluded that neither would be''?

The sentencer goes on, ''I have to turn my mind to the issue of the community sentence. Having considered it very carefully, I have concluded that a community sentence cannot be justified for this offence.'' By that time, the defendant is shouting, ''For goodness' sake, tell me how long I have got; I do not want this diatribe.'' It is all very well for Committee members to frown; it is a fact. People have to spend time in court in order to see what happens. Defendants throughout the country are keen to hear quickly what their sentence is. The longer the civil servants, the Judicial Studies Board and the Lord Chancellor's Department spend earning their livings drafting forms of words, the more useless it all becomes in practice.

Some of the hon. Gentleman's experiences are mine, too. Defendants are just waiting for the magic or not-so magic words: two years, five years suspended or whatever. In the light of his experience, would the hon. Gentleman agree that after conviction, whether by plea or finding of guilt, all the procedural matters should be dealt with before mitigation and other matters begin? All that stuff can be got out of the way at the beginning, rather than in an elongated, protracted, complicated, verbose and confusing way. Things that are nothing to do with the crime or the sentence can be dealt with immediately after the verdict has been passed.

The hon. Gentleman makes a reasonable point. There might be opportunities in that area. However, there comes a time when the defendant must be sentenced. As the hon. Gentleman confirms, most defendants want to hear what they are going to get—[Interruption.] The hon. Member for Nottingham, North (Mr. Allen) might seek to intervene on me. Had he done so, it would have been a useful intervention, as always.

Given the way that things are going, in five years' time some poor district judge or magistrate will have to read a book about why certain things have been considered and rejected. It is a bad trend, and the Minister must understand how bad it is. What is wrong with telling the defendant that the offence is so serious that only a custodial sentence can be justified and then explaining why it is so serious? If there is anything wrong with that, I should like to know. If there is nothing wrong with it, why is it not in the statute? What is better about going through the whole process of considering whether a fine or a community sentence can be justified? What does subsection (2) add to our judicial system?

I shall say a word about the hon. Gentleman's amendment. He knows that I support his general approach. It is proper that we should have guidelines and frameworks, and that the courts have presumptions. The wording that the hon. Gentleman has suggested would make the issue tidier, shorter and clearer. If we are all agreed that custody is the last resort, we should start with the question, ''Can a custodial sentence be justified?'' If, as a last resort, it cannot, the other options should be considered—the sentencer must work up and down the tariff.

Amendment No. 706, tabled by my hon. Friend the Member for Somerton and Frome and myself, is designed not just to put forward our view, but to ask the Minister two questions that have already been touched on. I hope that it will allow us to do so in a non-confrontational manner. First—this came up the other day in relation to burglary—have the Government considered the presumptions in favour of custody, or against it, or for it only in certain circumstances? The call from the hon. Members for Nottingham, North and for Hertsmere (Mr. Clappison) and from the public is for clarity on what punishment fits what crime. Everyone has a view on that question, but mitigating factors may change the presumption; nevertheless, I strongly believe that it would be better, at least in those cases where people might expect to be imprisoned, to start with that presumption. I do not have an absolute or theological view on the matter, but if people use violence on others the presumption should be that they will lose their liberty. Society should not allow people to carry out or threaten violence; people should know that it is unacceptable to cross that line, whether in the street, in the home or anywhere else. That is the first of the examples of where a sentencing presumption would be helpful.

Secondly, we need to send a clear signal that interfering with the course of justice will not be tolerated. It is serious and important that the justice system should not be tampered with, whether by perjury or by the intimidation of jurors. Again, the presumption in such cases should be that those who do it will be put away. They should not expect anything else.

The third example relates to the great public discontent about penalties for driving offences. I expect that all members of the Committee have had constituency experience of the penalties given—there was a case in the north-east only the other day—following driving that results in death or serious injury. I am talking of cases where the driving was clearly likely to have that result. In other words, the result was not accidental; the driving was reckless or careless.

Constituents and friends of mine, Christine and Jim Bradford, lost their 14-year-old only son—he was a healthy, lively, football-playing and energetic boy—after a collision. He was run over by a car, was seriously injured and died some days later after being airlifted to the London hospital by air ambulance. The obvious trauma followed, including many investigative issues, and I tried to assist my friends in their struggle through the process. I already had a great belief in the work done by RoadPeace and by Birgitte Chaudhury and all those who have worked with her over the past 10 years. I have been to their conferences and to their annual memorial service for victims of road collisions, which is now a Europe-wide movement. Safety on the roads is the biggest transport issue because that is where most deaths and injuries occur. We need to send a strong signal to those above the alcohol limit or who have taken drugs who use lethal weapons—namely cars—that driving in that condition puts the life and physical integrity of others at risk. We would do well

to think of reviewing the sentencing and punishment of such offences.

The last example is in relation to offences against children. I note today's welcome briefing by the hon. Member for Spelthorne (Mr. Wilshire) in the Attlee Suite. Following his time with the police service parliamentary scheme, he has invited police who deal with child protection and paedophilia to brief Members for three hours. It is a statement of the given, but offences against children are reprehensible because they interfere with the innocence of undeveloped or not fully developed and growing individuals. It is corrupt, perverted and wrong to behave in a way that risks harming such youngsters. Society says that clearly: it holds offences against children to be particularly unacceptable. In these days of pornography, the internet and so on, there is a world of difference between what adults might think acceptable for themselves—it may or may not be generally acceptable—and that which by definition abuses and exploits children. We need to send clear signals about that. That is the purpose of amendment No. 6, which I hope is perceived as coming from an attempt to struggle with what the sentencing presumption should be.

Amendment No. 646 is a probing amendment of an entirely different sort. I shall explain it, as it might appear slightly misleading, even though it is a proper amendment. The Minister will be familiar with the issue raised. I shall share the briefing that I have been given.

The reason for the proposed new subsection is to test what the law currently is, and what it would remain unamended, given an important recent Court of Appeal case called Cunningham. We want to ensure that we end up with the presumption that a custodial sentence should be

''for the shortest term . . . that in the opinion of the court is commensurate with the seriousness of the offence''.

The difficultly arose because that phrase, which came from section 2(2)(a) of the Criminal Justice Act 1991, was interpreted by the Court of Appeal in the Cunningham case in 1993—the reference is 14 CAR S444—as requiring that the sentence be

''commensurate with the punishment and deterrence which the offence requires'',

rather than with the seriousness of the offence, as Parliament intended with the 1991 legislation. It is therefore widely held that the effect of the 1991 Act on ensuring that sentences were commensurate with the seriousness of the offence was altered by that Court of Appeal decision, because suddenly other things, such as punishment and deterrence, became considerations in the same context. If the law is now meant to say that the 1991 Act has been amended by the Court of Appeal interpretation, we should say that, so that everybody knows that that is the score. If that is not the case, we should make that clear, too.

I end with a note by Professor Ashworth on that point, which says:

''If clause 136(2) is intended to overrule this judicial interpretation''—

which is currently binding on the courts, as I understand the matter—

''it should do so clearly, which the present draft fails to do; if clause 136(2) is not intended to overrule the Cunningham interpretation, then the new phrase about 'the shortest term' is pointless if''

other matters do not apply. The issue requires clarification, so that we know where we stand. My presumption is that the best thing to do would be to talk about the sentence being linked to, and commensurate with, the seriousness of the offence. That is the right way forward.

May I deal first with the issues that the hon. Member for Woking raised? He asked what the provisions add. The clause is not about the wording that must be used in sentences when they are handed down: it is about the thought process of the court in determining the appropriate sentence. I hear what he says about the wording in the Powers of Criminal Courts (Sentencing) Act 2000, but we have deliberately chosen to move away from that formulation in drafting the clause. We retained the principle that a custodial sentence must be imposed only when the offence is ''so serious'', but added the words in subsection (2), to reinforce the point that a custodial sentence should be a last resort. The process would be to consider whether, in the light of all that the court had heard and the nature of the offence, it would be appropriate to impose a fine. Would a community sentence be appropriate? If not, custody would be considered.

Of course, other options are available besides fines and community sentences—for example, discharges. No reference is made to those in subsection (2). I think that I can understand why, but on the face of it that is slightly odd, since on a strict reading the clause would appear to confine the court to the consideration of a fine, a community sentence or, failing that, prison. What about absolute and conditional discharges? [Interruption.] They are clearly less than fines, but the present wording could be interpreted as suggesting that they do not fall to be considered.

That is not the case, as the hon. Gentleman knows. If all the possible options had been listed in subsection (2)—

It would have been rather long.

Yes, and it would also have prompted an even more powerful speech by the hon. Member for Woking criticising the addition of words to the statute. We anticipated the objection that we thought he might raise and we tried to make the point without doing so at excessive length. Similar reasoning applied to the wording of clause 136 about the custodial sentence being the shortest commensurate with the seriousness of the offence. We made a deliberate change to the wording, so we would not want to revert to the drafting of the Powers of Criminal Courts (Sentencing) Act 2000, as the amendment would provide.

I take the point made by the hon. Member for Southwark, North and Bermondsey in relation to

amendment No. 706 about the appropriateness of custody for certain types of offence. However, the clauses are not intended, as I am sure he understands, to direct sentencers to impose custody in particular circumstances. They set a threshold or a set of guiding principles to establish when custody is appropriate, and how long a term is appropriate. The amendment has opened up the debate, and we could debate at length the list of offences for which custody could be used—it is endless. In part, the Sentencing Guidelines Council will tackle precisely those issues. The hon. Gentleman will probably understand why it is not appropriate to try, as he has done, to fetter the council's work.

To make one practical point, the amendment refers to crimes of violence. Does common assault constitute a crime of violence?

It does.

In which case, should anyone who punches someone be sent to prison? The answer, self-evidently, is no. The hon. Member for Southwark, North and Bermondsey would probably accept that his amendment is defective in that respect. However, I understand the issue that he raises about when, in general, custody should be considered appropriate.

I entirely understand the Minister's response. The amendment set out an initial position. Might it be appropriate—I do not mean to tie him to his reply—to suggest that we have a debate later, and that the issue is just the sort that the Sentencing Guidelines Council could properly address, in the interest of greater clarity about what sorts of sentences should be the starting point for particular crimes?

There is no doubt that the principal job of the Sentencing Guidelines Council will be to consider, over time, a range of offences and the appropriate sentences. In the course of that work it will inevitably discuss the appropriateness or inappropriateness of custody. That is a central part of its work and I am at one with the hon. Gentleman in perceiving a case for greater clarity, for everyone's benefit, including sentencers and the public.

Amendment No. 646 would prevent a sentencer from taking into account the punishment of the offender when setting the length of the custodial sentence. That is not appropriate, because we have already agreed clause 126, which sets out general purposes of sentencing, and punishment is one of those purposes. It will certainly almost always be the case that if a sentencer considers a custodial sentence to be appropriate, the need to punish the offender or to protect the public will influence their decision. The clause sets out a principle, so a provision about the purpose of sentencing is not appropriate. To answer a very specific question, it is not our wish to change the interpretation of the law; we have no intention of departing from the Court of Appeal's interpretation of the Cunningham case. That is what the amendment seems to want to do.

I will consider the Minister's words. Even if there is no intention to change the law from the combination of the 1991 Act and the Court of Appeal

decision, there may still be a need for further clarification. However, I will return to that later.

Obviously, the Minister will win any vote that we might force. However, I suggest very gently to him that he has comprehensively not won the argument. Amendment No. 611 is a good amendment. I have heard nothing to persuade me that the law is improved by subsection (2) with its

''neither a fine alone nor a community sentence can be justified for the offence.''

My hon. Friend the Member for Beaconsfield pointed out that a fine and a community sentence are hardly the only disposals available to a court. Can one imagine a sentencer having to say to a defendant, ''I have concluded that this offence is so serious that neither a fine nor a community sentence can be justified for it.''? The defendant will say, ''Hang on a minute, what about an absolute discharge or a conditional discharge? Have you considered that? Has anyone thought of deferring sentence on me?'' ''Oh,'' says the sentencer, ''I am so sorry; please forgive me. I have concluded that—'' and then goes on to recite a dozen disposals that are not deemed appropriate in the case before passing sentence.

If the Minister does not like my amendment, does he like the prospect of a sentencer saying that a matter is so serious that no disposal can be justified for it other than custody? No other disposal covers all these matters. It is a frightful mess. We have won the argument as comprehensively as we would have lost the vote. As we like to save our votes for critical occasions, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 135 ordered to stand part of the Bill.

Clause 136 ordered to stand part of the Bill.