I beg to move amendment No. 672, in

clause 132, page 75, line 38, leave out 'may' and insert 'must'.

The clause deals with the passing of a community sentence on an offender who has been remanded in custody. The ordinary rule in a case of custodial sentence imposed after a person has been on remand is that the period on remand must be taken into account in determining the sentence. However, in this case there is a different problem. To what extent should the period spent on remand be taken into account in determining the nature of the community sentence passed? Two contradictory forces are at work: the desire that the community sentence should be effective, and therefore of sufficient duration and severity to deal with the circumstances of the offender, and the concern that if the offender has been on remand for a long time, it will be unfair for him to serve a form of double sentence—several months on remand followed by an onerous community sentence. The clause uses the words that, where there has been a remand in custody,

''the court may have regard to any period for which the offender has been remanded in custody''

in deciding what the community sentence should be. The amendment proposes the substitution of ''must'' for ''may''.

''Must'' imposes a mandatory requirement on the court to consider the period in custody. I hope that that would not fetter the court's discretion too much with regard to the form of community sentence that it imposed. My concern about leaving the word ''may'' is that periods on remand might be disregarded when community sentences follow. If that happens, a sense of unfairness will creep in and people will make comparisons. They will point out that the worst thing that can happen to a defendant is to spend a long time on remand and then get a whacking community sentence on top. There is an issue to be addressed; does the Minister think that the requirement imposed on the court by the word ''must'' would fetter it? I do not think that it would, but it would ensure that the court had to explain properly the relationship between the sentence and the period that the offender might have spent on remand.

My hon. Friend the Member for Southwark, North and Bermondsey and I have subscribed to the amendment. The perennial debate about ''must'' and ''may'' is a staple of Committee work. However, in this case it has a considerable consequence. There is no argument for the court to have discretion in relation to the period on remand; it should not be taken into account. I hope that the Minister will accept that the alternative formulation is the better one.

The clause is drafted as it is because, having weighed up the arguments that the hon.

Member for Beaconsfield (Mr. Grieve) advanced, we came to the view that ''may'' was better than ''must'' for the two reasons that he mentioned. First, there is no readily apparent equivalence between a period on remand and a community sentence. In the case of a custodial sentence, days can be taken into account in calculating the length of a prison sentence; it is a one for one relationship. However, it is not clear how a sentencer can balance a period spent on remand with the nature and construction of a community sentence. It may be slightly clearer in some cases than others, but it may not.

That brings me to the second point, acknowledged by the hon. Gentleman when he posed the question. He asked whether it would fetter the discretion of the courts. In practice, including the word ''must '' would create greater difficulty, because the courts would then say that although they had to do it, they would not be entirely sure how to carry out the first exercise, which is somehow to equate a period spent on remand with the nature of the community sentence to be applied. For those reasons, we think it more sensible to have ''may'', so that we can leave the courts to weigh those considerations when deciding what the appropriate response should be in the circumstances.

I am grateful to the Minister for his response. I hope that what he said will lead to the system working properly in practice, but I still have a slight anxiety about that. I accept that the court might find it difficult, because it is trying to reconcile two very different things—a period in custody and a community sentence—but it is nevertheless an exercise that any sensible judge would have go through, and if he does not, the sentence that he passes could be open to criticism. To that extent, I have a preference for the word ''must'', but my preference is not so great that I would wish to press the matter to a Division. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 132 ordered to stand part of the Bill.