I beg to move amendment No. 893, in

clause 204, page 114, line 8, leave out 'a specified offence' and insert

'of a serious sexual or violent nature'.

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

No. 894, in

clause 204, page 114, line 8, at end insert—

'( ) it is of a serious sexual or violent nature, and'.

No. 895, in

clause 204, page 114, leave out line 14.

No. 900, in

clause 209, page 117, line 24, leave out 'relevant' and insert 'serious'.

No. 902, in

clause 209, page 117, line 33, leave out subsection (4).

This is the first of the Committee's debates on chapter 5, which deals with dangerous offenders. This is an issue of significant public importance, and people have strong views about the best way to deal with dangerous offenders. I hope that, in the course of debates on amendments to clauses 204 to 216 and to schedule 11, which lists the offences, we will be able to probe the Government's thinking on the subject. We should have an honest debate about sentencing—about what works and what is good and effective both for defendants and for victims.

Amendment No. 893 would remove the phrase ''a specified offence'' that triggers the list of offences in the schedule, and replace it with a generic definition. Amendment No. 894 would do the same later in the clause. Amendment No. 895 would remove the line that states that the ''relevant offence'' has the meaning given in section 209(4). The result would be clearer and simpler definitions. Perhaps the most important change would be made by amendment No. 900, requiring that an offence be serious.

The intention is to debate what sort of offences should trigger the dangerous offender provisions, and to consider what thought has been given to the subject since the relatively recent amendments to the law made by the Powers of Criminal Courts (Sentencing) Act 2000. Section 109 of that Act deals with life sentences for serious second offences, and section 85 deals with sexual and violent offences and licences. It is not long since Parliament last considered the matter, but I shall suggest two or three points that we might wish to take into account when considering the definition.

I am content that serious offences are defined, and that they include violent offences and sexual offences. If those two categories are to be treated differently, however, we must explain why. Serious violent and sexual offences have always been defined as the two types of serious offence, but the pathway is different for the two categories, and we must explore the logic behind that.

The second fundamental question is whether it is appropriate to define serious sexual and violent offences by means of a list of offences, and we shall come to the relevant amendments later. The list is very long and includes offences such as assault, which the lay public would not, in the normal course of things, regard as a serious sexual or violent offence. Other offences, such as abandoning children, female circumcision and assault occasioning actual bodily harm, might be seen as forming an entirely different category, and it might not be thought appropriate for them to trigger the dangerous offence provisions by themselves. They may in part be the product of a disturbed mind, or they may be a relatively minor second offence. My proposition to the Minister is that we include the general definitions of serious violent and serious sexual offences, but leave it to the court to determine the consequences—they should not be triggered in advance by a list. The court can then deal with the range of extended sentence and extended supervision for which the Bill provides.

The third point—we will debate the detail later—is that subsequent clauses provide for the treatment of offenders under 18 to be subject to a similar set of arrangements to that for offenders over 18. However, there are strong grounds for saying that we should not include such automatic consequences. We should always assume that those who commit offences when they are under 18 will have the benefit of a review when they become adults. We should not presume that their adulthood will be shaped by the mistakes, offences, behaviour and characteristics of their youth. We should not condemn those who are convicted of serious offences as youngsters to the same length and inevitability of punishment as adults, who are much more responsible for themselves.

One or two other issues arise from the way in which we define serious offences. There is a real debate to be had about whether it is better to have a definite term of imprisonment, followed by an indefinite term of supervision, which may or may not be in custody, or to have an indefinite sentence at the beginning. I do not come to the issue with any theological view, although certainty is often better than uncertainty from the victim's point of view. In some ways, not knowing when someone will be released is a worse punishment than knowing the punishment. However, it is often impossible to predict someone's condition when the sentence is passed and come to a view about when it will be safe to release them into the community. Having taken advice over recent years, I have formed the view that it is better for such things to be determined by the court, rather than by people working in secret on bodies such as parole boards, no matter how good or well informed they are.

If a case is in the realm of serious violent or sexual offences and the evidential base at the time of sentencing shows that it is impossible to predict when someone will be safe to release into the community, the court has a duty to serve the public interest by ensuring that there not be an automatic release into the community. In such cases it might be better to say, ''We cannot at the moment say when it will be suitable to release this person. This is a very serious matter. They have been and are a risk to the community, and might still be a risk in five or 10 years' time. Therefore we shall judge whether it is appropriate to release them back to the community at that time by bringing the matter back to the court and having the court hear the evidence of those who have been dealing with that person's medical, mental and psychiatric condition.'' That would effectively be to have what now happens at the Parole Board happening at court, so that the public can see that the decision is taken in an open and accountable way.

I do not disparage or undermine the work of the Parole Board—I am about to spend some time, at its invitation, sitting in on the process that it carries out of reviewing cases, to which I am looking forward very much. However, the Parole Board suffers from a disadvantage in that that process is not accountable in a full, public way. We should consider whether the process leading to the decision on whether someone is fit for release, made on the basis of the evidence of their behaviour in prison, of the results of their medical treatment and of their psychiatric and psychological assessments, should take place in open court. How we define which offences trigger the dangerous offenders provision gives rise to such issues. I accept that public protection requires that there be a category of offenders for whom the normal sentencing regime cannot apply. At the time of sentencing there should be additional provision for such offenders, and there should be protection at the end of that sentence. I am not satisfied that that happens at the moment in a way that commands public confidence. However, the legislation should not be over-prescriptive, and huge and uncertain sentences should not be given. Matters should proceed in the normal, accountable way through the courts, whether involving the original judge, or another judge sitting in the same court years later.

Good morning, Mr. Illsley.

The hon. Gentleman gave a helpful introduction to some of the issues raised by this chapter, which is designed to deal with those circumstances that we all experience currently. One of the responsibilities of my post is to write to my colleagues from time to time to notify them of the release of a dangerous offender—I used to receive such letters myself, and I now send them out. Although such offenders have come to the end of their determinate sentence, the consensus is that the risk that they present to the public remains. Therefore we try to construct licence conditions and supervision arrangements in order to maximise the

chances of protecting the public from that continuing dangerousness. As we know from certain cases, however, that does not always work. Victims and those with responsibility for oversight of the system find those cases in which someone who is in essence generally agreed to pose a risk, is released at the end of their sentence and then commits another offence, the most difficult to deal with. People legitimately ask why the system did not protect them from that individual. That is what these provisions are all about. They are based on the essential premise that decisions about release should be based on an assessment of risk—the risk presented to the public—in exactly the same way as a parole board currently assesses risk in relation to mandatory and discretionary life sentences.

The hon. Gentleman asked whether it might not be better to have a system of indefinite terms rather than definite terms followed by indefinite supervision. The Government believe that sentencing for public protection is the right approach because it ensures that individuals will not be released until an assessment of the risk that they present to the public has been made and until it has been decided that that risk is sufficiently reduced. Surely, from a victim's point of view, it is more comforting and reassuring—in so far as one can comfort and reassure victims of sexual or violent crimes—to know that the offender will not be released until they are assessed as no longer presenting a significant risk than to know that the offender will be released after a certain time but that they will then be subject to supervision arrangements, which, in truth, describes the current situation. We try as best we can to ensure that those supervision arrangements cover the dangers, but they do not always work, which is why certain provisions have been included in the Bill.

On the question of who is the best person to assess risk, parole boards have a considerable amount of experience in dealing with the problem. Their record on making difficult judgments and performance in getting them right have been improving and are continuing to improve, and the reconviction rate of those who have been released is now at a record low level. From memory, in the mid-1990s, the reconviction rate was about 7 per cent., whereas the rate is now down to a little more than 3 per cent., although parole boards are releasing a higher proportion of the cases that they consider.

I accept what the Minister says about the figures and, as I made clear, I do not undervalue the job of parole boards. Does he accept, however, that there is one inevitable disadvantage, which is that the process takes place behind closed doors with no apparent public accountability?

Yes, I accept that the process takes place in private. Of course, extensive information is placed before the board—

It is confidential.

Indeed, that is the case. As the hon. Gentleman says, much of the information is confidential because it covers the circumstances of the person in question, as well as their history, possibly going back to their childhood. It would not be possible

to make all that information public, and in the absence of all the information, how could anyone make an assessment?

I recognise the difficulties and acknowledge the point made by the hon. Member for Southwark, North and Bermondsey (Simon Hughes) about transparency and public confidence. Sometimes, the public do not like it either way. Whether the board does or does not grant release, people assume that its decision was or was not fair on the basis of very limited knowledge about the offender's circumstances and history. However, for the reason just given by the hon. Member for Woking (Mr. Malins), it would not be possible to make such decisions in the public arena. On accountability in a wider sense, the board must satisfy the public that the systems work and that it is doing a more effective job—as demonstrated by the figures that I have cited—of balancing the absolute requirement to make an effective assessment of risk against the wish to allow those who have changed and whose risk has been reduced to show that they are capable of living in a different way and getting on with their lives.

I recognise that the amendments are probing. It is better to set out clearly, as the clauses and the schedules do, the offences that can be taken into account for the purposes of considering the application of the Bill. We prefer the clarity offered by the schedule. It will be clear which offences fall under the scheme and which do not. That is important as a matter of principle. I understand the intention of the hon. Member for Southwark, North and Bermondsey, but the difficulty with the wording of the amendment is that it requires us to define ''of a serious sexual or violent nature''.

My second reason for resisting the amendments is that we would not want to raise the threshold for the sentence of public protection to a higher level, as it is our intention that all offenders who have committed a sexual or violent offence carrying a maximum sentence of 10 years or more, and who have been assessed as dangerous, should, in the interests of public protection, receive the new sentence. It is important in debating whether it is important, as the Government believe, to list the offences in schedule 11 or to adopt the alternative approach advanced by the hon. Gentleman, to hold on to what it says in clause 205(1)(b)—the court has, in all cases, to be of the opinion, having regard to what the trigger offences are,

''that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.''

That is the protection. There is a trigger system that is clear about what is covered and the court must apply that test, the precise wording of which we shall debate shortly. The Government believe that the combination of the court's assessment of

''significant risk of serious harm''

and the schedule will give a framework on which we can make the provisions work.

I completely understand that it is not just a list, but a list plus criteria. It is right that there should be criteria. Does the Minister accept that there are two weaknesses in putting lists of offences in legislation? First, they rapidly become out of date and have to be amended and, secondly, they have the potential to be politicised—the political offence of the day, week or year can be added. It is a relatively cheap way of adapting the criminal justice system. If the criteria are always to apply, what is wrong with allowing the courts to determine whether a certain offence should qualify as a serious violent or sexual offence?

The difficulty is that different courts might interpret that in different ways, affecting the trigger. The hon. Gentleman's point about the transparency of the process reinforces the case for clarity, which schedule 11 provides. As we have learned during these debates, there is no guarantee that our successors will not change the offences and add to the list. The system will have to cope with that. All that we can do is to list the offences that we are aware of in order to try to cover all eventualities. There are also some technical deficiencies in the amendment, but I recognise that it was intended to be probing, and I hope that I have given the hon. Gentleman some reassurance.

I am very grateful to the Minister. My amendment was a probing amendment. We must deal with 13 clauses between 9.10 am and 11.25 am, so to assist the Committee I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 683, in

clause 204, page 114, line 12, leave out 'ten' and insert '14'.

I can tell the Minister straight away that this is a probing amendment; unless the Opposition are seriously provoked, it is unlikely that we shall press it to a Division. The Minister is not in the habit of severely provoking us, so I think that this will be more of a probing morning.

I pause, Mr. Illsley, to tweak the Minister's arm a little. Unless I am grievously mistaken, the Government tabled more than 150 amendments to their own Bill on Thursday and Friday of last week. That was not especially helpful to those of us who read slowly. Moreover, I cannot help but feel that Parliaments nowadays tend to pass a law one year and change it the next, which is a pity. The Powers of Criminal Courts (Sentencing) Act 2000 was passed not very long ago, and changes to extended sentences were made two years ago. Now we are changing the law again. This Bill is an example of how we sometimes rush so fast that we find ourselves changing the law too soon.

The purpose of my amendment is to change subsection (2)(b)(ii) to make offences trigger offences under the schedule. We are dealing with dangerous offenders, so there are some important general issues. However, my amendment deals with a specific point. Under the Bill as drafted, an offence becomes a serious offence if it is a specified offence and if it carries a 10-year sentence. There are no fewer than 62 specified

violent offences in schedule 11, and 36 specified sexual offences. I have concerns over whether 10 years is an appropriate level to set because, under clause 205, if one commits a serious offence and the court thinks that

''there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences'',

the sentence becomes an indeterminate or life sentence.

The first principle is that that sentencing provision is draconian. It is tough, and I imagine that it would be used sparingly, and for limited offences. I propose that it would be more appropriate to raise the threshold slightly to make a serious offence one that is specified and that carries a sentence of 14 years rather than 10.

In schedule 11, some offences are caught by the 10-year rule. There are some that would not be caught by the 14-year rule, but some would be. However, many offences in the schedule do not carry a sentence of either 10 or 14 years. I had a look at one or two, and we shall debate them later. Interestingly, although a section 18 arrestable offence—grievous bodily harm with intent—carries a life sentence, the lower form, which is a section 20 offence, carries five years. Section 20 offences can sometimes be very serious. ABH carries a five-year sentence and arson carries life. However, what I found most interesting was the offence of threats to kill: it carries a maximum penalty of 10 years. If the amendment is accepted, a threat to kill would incur a sentence of 14 years, not 10. The offence of threat to kill is often, in my experience, tried summarily and not punished with imprisonment. That is because the common-or-garden offence of threat to kill is regarded as one made in the heat of the moment during a domestic fracas. Someone may say, ''I'll get you for this; you are a dead man'', only to find himself charged with having made a threat to kill. It sounds serious, but in real terms it is usually not.

Is there an argument for my proposition that we should raise the 10 years to 14? The Bar Council thinks so. It has reservations about the clause; it believes that 10 years is too low a maximum. It compares and contrasts the types of offence in the 10-year range with those in the 14-year range or life. Maximum penalties err greatly on the side of the worst-case scenario. The Bar Council believes that 14 years is a less inappropriate figure. We must ask ourselves how often such measures will be used by the courts. The answer is very rarely indeed. The clause envisages the maximum penalty for an offence not being deemed sufficient by the courts. What research have the Government done into how often the maximum sentence for an offence is imposed by the courts? My experience is that that happens only rarely. One can hardly think of any occasion when a maximum sentence has been imposed. When it does happen, once in a blue moon, it makes the headlines. I wonder whether the provisions in the clause will make a material difference to the sentencing practices of the courts, given the strong powers available to them.

It is a narrow amendment, which recognises that we are dealing with a draconian power that will be used sparingly. I hope that the Minister finds merit in my

argument, which is supported by the Bar Council among others, that it might, in a specialised case like this, be more appropriate to have the definition read that an offence is a serious offence if it is a specified offence under schedule 11 and that it therefore carries a 14-year sentence rather than a 10-year one. Debates on whether the schedule will be extended to cover other offences may come later, but for the moment I leave that thought with the Minister. I hope that if the Minister rejects the amendment he will explain why.

May I ask the Minister to give us information on present practice and on the implications of the 10-year maximum in the clause and the 14-year maximum proposed in the amendment? They are well-known alternatives, as both are used by the courts. I ask because everyone presumes that the provision will be triggered only in exceptional cases. I do not have a figure in my mind for how often the maximum sentence is imposed. However, as the hon. Member for Woking said, it must be almost never. It is extremely unusual—leaving aside mandatory life sentences. If the Government intend the provisions to apply only in the most exceptional cases, it is important to consider whether 10 years is the right cut-off point, or whether 14 years, with the inevitable amendments that the hon. Gentleman suggested, would be right.

Have the Government obtained any assessment in relation to the two obvious questions: how many people a year could be expected, from the best predictions, to receive extended sentences; and what would that mean for the Prison Service, translated into people per year? As the people in question would be likely to be in prison for a long time, although there might not be tens of thousands of them, prison places would be affected.

The hon. Member for Woking, in his usual gentle way, chided us for the multiplicity of Government amendments. He will, I think, recognise that the vast bulk of them are consequential drafting amendments. However, I do not accept his argument. I know that it can become difficult to follow matters, but if a Committee's part in the legislative process is listening to arguments about a Bill and engaging in debate—a process that, surprise, surprise, continues in Government—the worst thing that can happen is for Governments to say that they will stick with what they have published, and not budge, because their priority is not to open themselves to the sort of charge made by the hon. Gentleman. It is better to get things right. That may involve reflecting on the process as we go and deciding whether the provisions are right, but in my view that results in better legislation than a refusal to budge an inch from what is published, for fear of being subjected to the gentle criticism that I have just experienced.

Of all the Ministers I have come across, I find it hard to think of one who listened as well as the Minister has in this Committee. He is a tremendously good listener. A problem, however, is that, having listened, he never accepts the argument.

That may have something to do with the quality of the argument—but I do not direct such an unkind criticism at the hon. Gentleman for one second.

Before I deal with the substance of the amendment, I want to answer the question asked by the hon. Member for Southwark, North and Bermondsey about the impact that the provisions will have. It will depend on how the courts, having regard to the trigger offences and the thresholds that we have set, operate the assessment of

''significant risk to members of the public of serious harm''.

That is quite difficult to know. However, we have assumed in our modelling that over time—because it would take time for the effect to develop—there would be an additional 900 in the prison population. That is only modelling, of course, and the honest answer is that it is difficult to assess the effect, because it depends on the courts' interpretation of the provision.

Obviously, it is a gradual process. By what time does the modelling suggest a potential number of 900? Would it be after five years or 10 years?

I will have to check on what assumptions were used in the modelling, and will let the hon. Gentleman know, if that is all right.

In essence, we think that 10 years is a more appropriate period than 14, although I understand the argument advanced by the hon. Member for Woking. If the amendment was made, the sentence of public protection could not be passed for dangerous offenders who committed offences such as threatening to kill—an example given by the hon. Gentleman—indecent assault, maliciously administering poison so as to endanger life, or causing death by dangerous driving, which is a topical subject.

All such offences carry a maximum sentence of 10 years. If we give the court the ability to have regard to those offences and then to apply the test in clause 205(1)(b), we need to maintain the trigger at the 10-year maximum. A 10-year threshold is not disproportionately punitive to those who have committed offences that carry a maximum sentence of 10 years, although I acknowledge what the hon. Gentleman said about the infrequency with which the maximum sentence is applied.

The ultimate safeguard against disproportionate impact remains the judgment of the court, having regard to that threshold. I have twice advanced the argument as to why the Government believe that it the right threshold. It is for the court to make a judgment about the significant risk of serious harm. If a court judged that there would be a significant risk of serious harm to members of the public if an offender was to be given another opportunity to commit further offences, a lay person would ask how the court intended to protect him from that risk.

That brings me back to the question that I asked at the start: whether release should be based not on an assessment of the risk but on the expiry of a determinate period—at which point offenders come

out, even though we know from sad experience that they are just as dangerous as when they went in.

I thank the Minister for his helpful words. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 204 ordered to stand part of the Bill.