Amendment moved [this day]: No. 614, in

clause 137, page 77, line 40, at end insert—

'(9) A magistrates' court, if satisfied that failure to pay a fine or part thereof is due to wilful refusal or culpable neglect, may pass a custodial sentence of up to 12 months on a fine defaulter.'.—[Mr. Malins.]

The amendment is about fine defaulters. One might imagine that when a

court imposes a fine, there is a realistic prospect of its being recovered from the person on whom is levied. However, the answer to a parliamentary question that I tabled shortly before Christmas gives a much clearer picture. In 2001–02, the magistrates courts in the Greater London area imposed fines of about £77.64 million. I wondered how much of that was recovered. There is a procedure whereby fines can either be written off—that is, the court takes the view in colloquial language that it is a dead loss—or they are remitted, which is another coded way of writing them off: again, the magistrates think that it is a dead loss. Of the £77 million of fines imposed in 2001–02, just over £42 million was written off by one of those methods.

That means that if one is fined before the courts in London, one has, in effect, a 60 per cent. chance of never having to pay the fine. Where are the courts' powers? They have changed a little over the years as a result of over-regulation and of directives to the court in relation to the treatment of fine defaulters. There was a time when it was relatively straightforward. A magistrate, if satisfied that the person was not paying through wilful refusal or culpable neglect, could impose a custodial sentence forthwith—and did. It was usually a short one. Fines are imposed for all sorts of reasons. One of the heavier ones is for having no insurance on a motor car. The fine is often four or five times the value of the car, and can be unrealistic, particularly for those of small means. However, those who sit in London have learned over the years to be very sceptical about defendants' expressions of inability to pay a fine.

We now have a difficult procedure. Let me take the Committee back to meet a former metropolitan stipendiary magistrate of my acquaintance. With a means list—that is to say, fine defaulters—in his court, and 30 people were waiting outside to find out what happens about paying their fines, he called the first one in. After three or four minutes, he said, ''This is stuff and nonsense: seven days—take him down.'' He did the same with the second. By that time, word had got round outside, and he said, ''I shall now adjourn for 20 minutes because a number of people might want to make phone calls.'' And they did. Generally, everybody had paid their fines by 4 o'clock that afternoon. It was a broad-brush approach.

Today's procedures are very different. Now, when somebody is fined, say, £300 for an insurance offence, and does not pay, he is summoned in on a means inquiry. What then happens? The court is obliged to go through a very complex procedure in order to try to enforce the fine. There are various boxes to be ticked, each after a thorough investigation by the court, well before any consideration of a more draconian sentence.

The first question is whether to apply an attachment of earnings order. That is rarely relevant, in that many people come before the court and say that they are out of work. Such people often find their mobile phones ringing in their pockets—giving rise to even more scepticism on the bench. Goodbye to an attachment of earnings order. What about a deduction of benefit, if somebody admits to being on benefit? First, the

maximum that can be deducted is £2.60 a week, and secondly, the procedures involved are so absurd as to beggar belief. The third option is to send in the bailiffs on a distress warrant. That very rarely has any practical use at all. On being given ample warning of a visit by the bailiffs, people ensure that any items of value that they have are nowhere near the property.

How about sending the case to the county court and issuing proceedings for a judgment? That is a problem, too. The magistrates court has to pay the fees of the county court in relation to any summonses. What about a money payments supervision order? If anybody on the Committee has the slightest idea what a money payments supervision order is, I should be grateful to hear about it. In truth, that means that the court shuffles the problem over to the probation service, which then writes a letter to the defendant saying, ''By the way, there's a money payments supervision order. We'd like to supervise your payments to the court. What are your plans?'' Answer came there none.

What about the under 21-year-old? There is the draconian step of issuing an attendance centre order, requiring him or her to attend at an attendance centre for specified hours. The experience of magistrates who have imposed such orders is that, far from being a draconian punishment, they entail the young person merely attending at the centre, playing chess, draughts or computer games for an hour and a half, and then going home without any money having come from him or her.

On the procedure, when there is a list of 30 defaulters in front of one, each one can take 15, 20 or 30 minutes to go through. No wonder the courts are tearing their hair out about the prospects of recovering any money. In the old days—some would say the good old days—the magistrate would properly say, ''I don't believe that you've got no money on you. I'll have you searched. Take him down. Search him.'' That is out of fashion now, because article 6 of the European convention on human rights discourages such an approach. Something that was quite often effective some years ago has gone.

What about the prospect of saying, ''I don't believe a word you're saying. This is due to culpable neglect or wilful refusal. I happen to know that, because you've told me that you smoke 20 cigarettes a day, which is £28 a week,''—unless one is on the Council of Europe, in which case they are much cheaper. The magistrate might continue, ''How much do you drink a day?'' The reply might be, ''I have a couple of pints most nights.'' ''Fine,'' the magistrate might say, ''that's another £28. That's £56 a week. How much of that are you going to put in towards the fine?'' The answer could be, ''Well, it's hard to say. I've got a lot of outgoings. Why should I pay?'' That is happening to the courts.

The position has got worse. Back in 1999, in the inner London magistrates court area—a slightly different area, admittedly—£54 million was imposed by way of fines, and between only £13 million and £14 million was written off or remitted, which is not bad. Even in 2000–01, the position was again not too

bad, although matters get worse year by year. I shall be interested to see the figures for 2002–03, because the rate of unrecovered fines is rising by a number of percentage points a year.

Is one way around this either for the court to benefit from collection or for it to suffer a penalty if it does not collect its fines?

Yes, I take the point, but it would be unfair for the court to suffer a reduction in funding for not being able to recover its own fines when it does not have the weapons. That is my point. The court today does not have the weapons to act efficiently. If 60 per cent. of fines in the last year for which figures are available are uncollected, what will the position be in a couple of years' time? Is the system not utterly in disrepute? That is the background to the amendment. Although not very well drafted, proposed new subsection (9) focuses on the problem.

The Government should first accept that there is a major problem. That must be true if courts are saying goodbye to 60 per cent. of fines. Secondly, do the Government think that the trend towards non-recovery will continue? Thirdly, do they accept my proposition that the laborious methods that must be gone through in the court are utterly censurable? Fourthly, what will they do about that? I can tell the Minister that the current law is that if culpable neglect or wilful refusal is found, a custodial sentence can be imposed. However, to find that that is the case tests the spirit and forbearance of any bench, because of the length of time that it takes and the procedural obstacles that are put in the way. A conclusion that could be reached frightfully quickly can be reached only after immense wastage of time and money.

My hon. Friend is making a powerful point. May I reinforce it by saying that the people in Essex who are responsible for the collection of fines have expressed genuine concern that the system is in danger of falling into disrepute, because many people know how difficult it is to compel them to pay their fines? The people who have to collect them are worried that as that becomes even more widely known, the fines will no longer be a deterrent.

My hon. Friend is right to point out the problems in his own area.

Does the Minister believe that any of the problems that we face in collecting fines are linked in any way with the Human Rights Act principles in relation to a fair trial? To what extent could that jurisprudence expand over the next few years to make the situation even worse? It is still possible—although it takes a genius to arrive at this conclusion—to conclude that culpable neglect and wilful refusal apply in a case, and some fine defaulters are imprisoned. In 2001, 42 were imprisoned with short sentences—42 fine defaulters, covering approximately £42 million. I suggest, given that each was not fined £1 million, that the proportion of fine defaulters imprisoned was minuscule. Many say that we should not imprison fine defaulters; it is a waste of time. I challenge them to come up with a

better idea that will ensure that in future years, when we impose £77 million of fines in court we do not write off such a huge percentage as to make the whole system lacking in repute.

The hon. Gentleman makes an important set of points on an important issue. I should like to add a few brief comments. The first is that I would hold back from supporting the amendment because I am one of those who believe—on a different scale, it is like the war in Iraq—that we should look at all other remedies first before we go down that road.

Although there is a serious problem, it will be sad and unhelpful if we have to have recourse to the heaviest stick of all: imprisonment. There is not a difference of view about that. The hon. Gentleman says that in many cases it does not work. My preference in such cases would be to look first to community penalties. That would ensure that the people did not spend their evenings and weekends drinking, smoking and spending money, flagrantly in breach of their obligation to society through the court order, but neither would we prevent them from earning money. One of the problems of locking people up is that they are then not in a position to earn. An obvious criticism of imprisoning fine defaulters is that it makes it less easy for them to collect the money to pay off the fines and fulfil their obligations to the state, their families and other dependants.

However, the system is in disrepute. The use of fines has reduced, partly because enforcement is seen as a problem. We need to do things that will remedy that. I offer a practical suggestion that might help in part, from experience both before and in my current job. I am always mystified that people can live one life for the purposes of the Inland Revenue and another for the purposes of the Benefits Agency. I have been in many a court in which the explanation of the financial circumstances of the individual is accepted only because there is no one present to challenge it and show that that is not the financial history of that person.

The hon. Gentleman may recollect that earlier I highlighted the difference that sometimes appears between the legal aid application form and the evidence given in court about a person's means.

It is exactly the same issue—it is about linking up. It is like a child's join-the-dots book. We are failing to link the dots to form the picture; the court never sees the whole picture. I know that we may cover these issues on clauses 146 to 149, but I want to ask the Minister two things. First, what do the Government have in the pipeline to increase the use of fines and their collection? Secondly, could the data protection rules not be used to entitle the state or the prosecuting authorities to collect information on the earnings and spending patterns of somebody who has been accused, whether of a serious or an either way offence? The rules prevent the transfer of Revenue data to the social security system and vice versa, but they could be used to cover the legal aid application.

Of course, even that would not give a complete picture. There are many in the Minister's constituency and in mine who work in the ''informal economy''—I think that that is the politically correct term. Many of them seem to do pretty well. One is never quite sure what they are doing, but they appear to survive and be able to pay their rent or mortgage. We cannot provide all the answers, but we should be able to do much better. It is sensible that there are proposals to order statements of offenders' financial circumstances. A criminal record may not be perfect, but it is available and it comes off the system. A financial record should come off the system in the same way, so that if somebody is charged with another offence their record is available in easy-to-read form. It will record what they said their position was last time, what the court found their position to be last time, and all the material documents that were brought before the court. Somebody can then be asked why they had no vehicle in 2001 but have a very nice vehicle in 2003.

I understand the motivation of the hon. Member for Woking (Mr. Malins). He is right to say that we are not succeeding in that area of the law. However, I hope that there are other ways in which we can proceed.

May I make a suggestion? Some months ago, I visited Southend magistrates court. Co-located there is the collection centre for tracing all outstanding fines across the county of Essex. The county has a population of 1.5 million, so it is no small job.

Particularly in Essex.

Steady.

Many of those who do not pay their fines are very streetwise: they understand how the fine system works or does not work. They also understand the pressures that the collection system is under, and they know that the prisons are pretty full. There is still the ultimate deterrent of imprisonment for those who do not pay their fines. However, I believe that it should be removed, because it is used extremely sparingly, and streetwise fine avoiders are well aware of it: they know that the chances of their being imprisoned for non-payment of fines are slim.

What can one do? It has been suggested by practitioners in the area that one could allow credit reference agencies to be informed that an individual has an outstanding fine, so that when that individual applied for credit in future, he could be confident that the agencies would know about his unpaid fine. Practitioners believe that that would act as a practicable deterrent, because such people often have lifestyles that involve constantly buying things, such as mobile phones, stereos or cars, for which they need credit. If people found it difficult to obtain credit because they had not paid a fine, that might have a deterrent effect without sending them to prison. I promised those practitioners that if I ever had the opportunity to put that suggestion to a Minister, I would, so I have kept my word. I do not expect the Minister to give me a definitive reply now, but I stress that the suggestion was made by practitioners, and I do not claim any originality for the idea.

I am intrigued by that idea and support the hon. Gentleman's suggestion. It seems perverse that that principle applies in the civil courts, in the case of an unpaid county court judgment, but not in the criminal courts. There is one proviso, however, that the principle should not apply until an individual has had an opportunity to pay the fine, because an adverse credit reference should not be an automatic response to the imposition of a fine.

That is a perfectly reasonable point, but equally there will be no deterrent value in such a provision if the period allowed for payment is too long. In fairness, people should be given an opportunity to pay, but if they have not paid reasonably promptly—we could debate how long the period should be—they should know that a credit reference agency would be likely to obtain that information from the authorities, making it difficult for them to obtain credit thereafter. Will the Minister consider that, and if he cannot give me a definitive response today, perhaps return to the matter later? The suggestion was made by practitioners, and I believe that it has merit.

This has been an interesting and important debate, although as I think the hon. Member for Woking would acknowledge, his proposal concerning the power to commit to custody needs to be considered alongside current powers. As he may be aware, the length of time for which offenders may be committed to custody for defaulting on payment of a fine is set out in schedule 4 of the Magistrates' Courts Act 1980. For an offender to be committed to prison for 12 months, he or she would have to have defaulted on a very large sum indeed, in excess of £10,000. We would not want to alter those rules by making it possible for magistrates to commit to custody for smaller amounts. I acknowledge the spirit of the proposal, however.

As the hon. Member for Southwark, North and Bermondsey (Simon Hughes) acknowledged, we shall discuss some provisions that would make available information about offenders' means. Of course there is a problem, as everyone recognises, and it has been getting worse for several years. The White Paper ''Justice for All'' estimates that only about 59 per cent. of fines are ever paid. That is a national picture, which is slightly different from the percentage mentioned by the hon. Member for Woking in relation to London.

This Bill is not the appropriate vehicle for dealing with the problem; the Courts Bill is. In that, hon. Members will find a range of proposals that attempt to deal with that serious problem, which has an impact on the willingness of courts to consider fines as a disposal option. We have seen fines decline as a share of the sentencing market over the past decade or so, which is not a good thing, so there are proposals in the Courts Bill to impose stronger obligations on the defendant to disclose his income and expenditure.

These ideas are to be piloted: discount for prompt payment, an increase in the fine for non-prompt payment and the appointment of fines officers to manage collection and enforcement. The hon. Member

for Rayleigh (Mr. Francois) made a very interesting suggestion along the lines that registering the fine with the registry of judgments would make it more difficult for defaulters to obtain credit. I hope that I have understood that correctly. Similarly, one could order the clamping of a vehicle, with the option that it could be sold if the fine were not paid. I took the point of the hon. Member for Woking about bailiffs, but that is not to say that greater use of bailiffs might not be effective in encouraging people to pay their fines.

The debate has been helpful. I undertake to draw to the attention of the Parliamentary Secretary, Lord Chancellor's Department, my hon. Friend the Member for Pontefract and Castleford (Yvette Cooper), who has responsibility in the area, the suggestions that have been made in the course of debating the amendment. I am sure that she will look at them with great interest.

I rather like the sound of discount for prompt payment. It is almost like telling somebody that his fine is £10 now or £50 next week. The Minister has been helpful in saying that he will draw the issues raised in the debate to the attention of his colleague. That is kind of him. Although the amendment was badly drafted, it has prompted a debate on an issue of some importance. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I intend now to call amendment No. 648, because it was grouped this morning with amendment No. 501, which was not moved.

I beg to move amendment No. 648, in

clause 137, page 77, line 40, at end insert—

'(8) This section shall not come into force until the provisions in Chapter 3 of Part 12 of this Act relating to prison sentences of less than 12 months have come into effect.'.

This is the second half of the debate that we had this morning about the relationship between the change in the powers of magistrates, enabling them to give sentences of up to 12 months, and the coming into effect of the new regime for prison sentences of less than 12 months under custody plus.

The original plan was that magistrates would get increased powers to imprison for up to 12 months at the same time as custody plus came into operation. The Halliday report is unusual in that it was written by one man, rather than a committee, so it was not compromised. It is a highly respected report, presenting the views of the former director of criminal justice policy at the Home Office, who clearly thought about the issues over a long time. The Government are changing the plan, so the Minister owes the Committee an explanation of why it cannot be delivered.

It is clear from the evidence that Lord Falconer gave to the Home Affairs Committee that he could not give an assurance that custody plus would be operational before the new sentencing powers come into effect. There was general acceptance in this morning's debate that the likelihood is that if

magistrates' powers are increased to double their current option to imprison, and at the same time they do not have to follow the new regime—three months in prison followed by a variety of non-custodial supervision mechanisms—they will be free to give four to 11-month sentences. The Minister confirmed that that would be an option until the new system came into effect. The hon. Member for Woking and I were clear, on the basis of advice and of the evidence that we had heard, that that would mean a significant rise in the prison population. That cannot be helpful when the Prison Service is having difficulty in coping.

In addition, there appears to be a problem with funding. The Chancellor and Home Office Ministers have made it clear that not all the money needed to bring custody plus into operation is in place. I am conscious of the fact that we have a three-year comprehensive spending review cycle and that we are in the first of those three financial years, although Treasury Ministers can always dive into the contingency fund if they want to. I am also conscious of the fact that the probation service is hugely overstretched and under-resourced, and it is not just the service that says so—that is the experience of those of us who have watched it work. The most acute example that I can give—I have given it before—is that there will sometimes not be a single probation officer available in the biggest court in the land, which is surely a sign of stress. That happened in the great county of Essex, but that is not why there were no probation officers. Other, smaller courts have been similarly affected.

We must have confidence in community sentencing and in the fact that the new regime will not simply increase sentences for those who go to prison. Most importantly, however, we must ensure that we do not have an interim regime with no custody plus—the good new idea, which involves some time inside and then supervision—for an indefinite period. We must avoid compounding the problems created by the bad old idea of prison with nothing after, which everyone has told us has not worked. We must link custody plus to the provisions giving greater power to magistrates. That is why the amendment would ensure that those provisions do not come into force until the custody plus system is in operation.

At some stage during the passage of the Bill, I hope that Ministers will return to the logic of their original position, and if necessary negotiate a package with the Chancellor. I am sure that such a package would be worth having and that it would increase the effectiveness of punishment and reduce the pressures on the prison system. It would certainly not disadvantage the courts or the criminal justice system.

I could not move amendment No. 501 this morning, because of an engagement in Westminster Hall. I introduced a debate on the United Kingdom's declining wild bird population, which I know is a matter of great concern to members of the Committee.

I want to support the hon. Member for Southwark, North and Bermondsey, although perhaps using fewer words. Amendment No. 501 would have limited

magistrates' powers to impose longer custodial sentences to areas where the custody plus regime was in force. I would be grateful if my hon. Friend the Minister could deal with the point now or drop me a line.

Let me respond first to the hon. Member for Southwark, North and Bermondsey, although our small exchange mirrors an earlier one, so I shall be as brief as possible. We are not diverging from the recommendations in the Halliday report but going beyond them, because the report did not cover the relationship between magistrates' sentencing powers and the new sentences. As Lord Falconer confirmed to the Select Committee, no final decisions have been made on when the sentencing reforms will be implemented, and we must reach a judgment about what will be appropriate when.

The increase in magistrates' sentencing powers is, of course, closely tied in with the changes to the allocation of offences between courts, as set out earlier in the Bill. Both measures are intended to encourage magistrates courts to retain more cases, and we clearly want to introduce them at the same time.

The hon. Gentleman referred to the capacity of the probation service, and he is right. However, hon. Members should remember that the service is much better resourced than it was in 1997, and its funding has increased by about 50 per cent. It went through some dark and difficult days in the mid-1990s, and training stopped completely at one point. We should remember where the service came from, because we are now in a very different world. The issue is partly about resources and partly about the speed with which new people can be trained to implement custody plus and the service's other functions. The new resources will help in that respect, and further investment will be made as a result of the 2002 spending review.

An increase in the prison population will not be a natural consequence of the changes. There is no clear evidence that magistrates courts sentence more severely than the Crown court. As I said earlier, that is the comparison that we need to make when assessing the impact of the changes.

The Minister said that the Government had a plan for bringing custody plus into operation. What are the earliest and latest dates by which they will do so?

Have the Government discussed with the Lord Chief Justice and others what guidance will be put in place if magistrates are given their new powers later this year or next year to sentence people—depending on what Parliament decides—for up to 51 weeks or 12 months? Will there be guidelines to make it clear that magistrates should generally not impose higher sentences than they did under the old powers? Will it be clear that the additional powers are intended to deal only with people who would have been passed to the higher court for sentencing under the old powers? In such cases, the courts do not believe that they have the relevant capacity, because a sentence of between six and 12 months is required, and that is what the higher court will decide. If that distinction is not made clear, there will be a danger that magistrates courts simply

forget what the range of sentences was before and see only the wider span. Suddenly, offences that incurred sentences of five or six months will incur sentences of nine, 10 or 11 months.

Are guidelines a prospect? Is the intention that people should not be sent to prison for longer for offences that previously received sentences of six months or less? The only people magistrates courts should contemplate sending to prison for more than six months are those who would have been sent to the Crown court and received sentences there of between six and 12 months. If the Minister could help us with that, it would be much appreciated.

On the first question, the Government are still considering the precise implementation dates for custody plus, and that is the most up-to-date answer that I can give. I have no doubt that the implementation of magistrates' new sentencing powers will be accompanied by guidance.

Clearly, our objective is the one to which the hon. Gentleman referred at the end of his contribution, and the changes are not intended to lead to a great increase in tariffs. We are enabling magistrates to retain and pass sentence in more cases, rather than sending them to the Crown court. I am sure that magistrates will be mindful that the purpose is not to increase the length of sentences but to allow for appropriate sentences. Those will reflect the new range of seriousness that magistrates can consider once their sentencing powers are increased.

The Committee will have heard what the Minister said. We are not persuaded yet, and I am sure that we will return to the matter. I hope that, by the time the Bill is enacted, Parliament will take the view that custody plus and the increased sentencing powers should be linked. However, I appreciate that we will not win the argument or a vote today. I shall return to the matter, but for now I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 137 ordered to stand part of the Bill.

Clause 138 ordered to stand part of the Bill.