They are on my Christmas list.
The proposal of the noble Lord, Lord Ramsbotham, is a nuclear option, which I will address in my remarks. However, I will start by reassuring noble Lords that the Government fully recognise the point that underpins many of these amendments and agree that offenders who receive community orders are a diverse group, with wide-ranging characteristics and individual circumstances.
For example, such offenders are more likely than the general population to have a disability, to come from low-income households or to receive work-related benefits. Many other examples were brought out in detail by the practitioners who responded to our public consultation on these proposals.
It is clearly vital that community orders take into account these diverse needs. We cannot have a one-size-fits-all approach to non-custodial sentences. At the same time, we also need to recognise that community orders cannot focus only on the reoffending needs of the offender. Many who receive community orders have committed not inconsequential offences. The sort of offences for which sentencing guidelines suggest community orders would be appropriate include actual bodily harm, thefts in the hundreds or low thousands of pounds and first-time domestic burglaries.
While is critical to address the causes of such offending, it is legitimate to expect such behaviour to face punishment. It is clear that fines and custodial sentences provide punishment for an offender; but at the moment it is possible for a community order to be based solely on addressing the offending needs of an individual offender. Our argument is that, by including the punishment element, we will win the vital public confidence for the holistic response that is at the heart of our proposals: the rehabilitation of offenders.
Our provisions seek to balance the purpose of punishment with ensuring that the courts retain flexibility to tailor community orders around offenders’ circumstances. To that end, I remind noble Lords that we have already amended our original consultation proposal that courts should be required to include specified elements, such as community payback or a curfew requirement, in every community order. Practitioners were clear that, although some community order requirements such as curfews or unpaid work were more often likely to represent a punishment than others, in the right circumstances—this comment has been made by a number of noble Lords—all the existing 12 community order requirements could potentially be punitive for a particular offender. That is why Part 1 of Schedule 16 gives the courts the flexibility to choose which requirement would be a proportionate and appropriate punishment for an individual offender.
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I also remind noble Lords that the existing community order framework gives courts and probation services significant flexibility to make reasonable adjustments to requirements to fit the circumstances of an offender. For example, the hours of a curfew can be flexed so that they do not adversely impact on an offender’s childcare, employment or education needs. The type of work involved in community payback can be adjusted to suit an offender’s physical or mental health. Similarly, the number of hours of work carried out per week can be built around an offender’s employment or caring responsibilities. Fines can be set at a level that takes into account vital outgoings; for example, so that they do not have a disproportionate impact on an offender’s dependants.
The provisions in Part 1 of Schedule 16 do not alter this existing flexibility. These provisions seek to balance the need to increase public confidence that community
orders are a credible sanction for offending with the importance of courts having discretion to tailor sentences around offenders’ circumstances.
I turn now to the amendments tabled by my noble friends Lady Hamwee and Lady Linklater and the noble and learned Lord, Lord Woolf. I want to be clear that it is the flexibility of the existing community order framework that means that the Government envisage only a narrow range of circumstances in which a court would not consider it just to impose a requirement that meets the purpose of punishment. Courts will be able to consider which of the 12 current community order requirements, or a fine, might be a just and appropriate means of fulfilling this duty.
As I have set out, the courts can tailor any of those requirements to ensure that they do not have a disproportionate impact on offenders. That is why the current provision has a tightly defined threshold of “exceptional circumstances” because nothing in it changes the flexibility that the courts have to ensure that punishment is matched to a particular offender’s circumstances. Substituting “exceptional circumstances” for “particular circumstances”, “special circumstances” or simply “circumstances” would significantly lower the threshold at which courts could decide not to impose a requirement that fulfils the purpose of punishment.
Community sentences need to strike the right balance between punishment, rehabilitation and other purposes of sentencing. These amendments would prevent the provisions from securing that balance, and from providing the public reassurance that will, in turn, secure legitimacy for the use of community sentences to address the causes of offending.
Nothing in the Bill seeks to undermine the judgment and flexibility of the judiciary, but it puts rehabilitation as a key objective. It provides for what I would describe as rehabilitation with teeth. As this approach has had the endorsement of the Prime Minister and the new Lord Chancellor, I would have hoped that was the main gain that we have had and what the House should concentrate on.
I hope that noble Lords will accept the rationale for this provision, the flexibility that it preserves for the courts, and the reasons why in practice there are likely to be few cases where punishment is not an appropriate purpose for a community order. Therefore, I hope that the noble Lord, Lord Ramsbotham, will not press the amendment.
The noble Lord, Lord Rosser, asked about the victim surcharge. It is not a fine and it is not part of the sentence. It will be regarded as a surcharge for victim services. I hope that I have covered this.