My Lords, I have difficulty with these provisions, for very much the same reasons as my noble friend Lord Ramsbotham and the noble Lord, Lord Rosser.
I have put forward amendments myself because I feel that if we are not going to have the clean solution proposed by the noble Lord, Lord Ramsbotham, of just getting rid of these provisions—which would certainly achieve everything I want—we have to try more delicate and specific surgery to produce something that the courts can apply practically. To an extent, the amendment in the name of the noble Lord, Lord Rosser, helps in that regard, so as an alternative I would be prepared to accept that.
To clarify my reasoning, proposed new subsection (2A) of Section 177 of the Criminal Justice Act 2003 reads:
“Where the court makes a community order, the court must … include in the order at least one requirement imposed for the purpose of punishment”.
Whether the requirement is imposed for the purpose of punishment or for some other purpose is presumably to be decided by the judge. Under our law, once a person has been convicted, it is the judge’s task to decide what punishment is appropriate. If he comes to the view that it does involve punishment, I would like the Minister to confirm—if I am correct—that the view of the judge will be respected and it is not suggested by the Government that that is a matter with which a higher court would interfere. On the other hand, if that is not so and the decision as to whether the requirement has been imposed for the purposes of punishment is to be made objectively, I would like the Minister to assist me as to what criteria it is to be judged by. If I were that judge, my ordinary reading would be that as these community sentences are imposed as part of the sentencing process, they are all part of the punishment that the court considers appropriate.
My general contention is that we have to have clarity as to what is to happen. Assuming what I have said is not right, who determines the punishment? Does the defendant who is banned from attending a football match determine it or does the court? I am happy to see that the Minister may well be agreeing with me—at least on that matter—but if it is the court, that must be clearly set out.
6.15 pm
If that is so, what we have to deal with is how to apply “exceptional circumstances”. If the judge thinks it is a punishment, presumably he never gets involved in the question of whether or not there are exceptional circumstances. If he takes the view, which I am suggesting that he could well take, that all community sentences are in fact a punishment because they involve the defendant doing something that he has no choice about, I cannot how see how “exceptional circumstances” fits in. That is part of the explanation for the first amendment that I propose, which is to leave out of the Bill the whole requirement that there should be exceptional circumstances. The schedule would then read:
“Subsection (2A) does not apply where there are circumstances which … relate to the offence or to the offender … would make it unjust in all the circumstances for the court to comply with subsection (2A)(a)”.
If the suggestion is that it is for the judge to determine, the word “exceptional” and the provisions of proposed new subsection (2B) are superfluous.
The other amendment in my name in this group is Amendment 113GB, which would insert:
“Subsection (2A) does not apply where in the opinion of the court compliance with that subsection would reduce the likelihood that the order will prevent reoffending by the offender”.
The purpose of the amendment is to deal with a situation where, if something has to be done that the judge thinks would not be appropriate because of the earlier provisions and which would make it more likely that the offender would reoffend than otherwise, again that means that the subsection does not have the effect of limiting the judge’s discretion.
I should have indicated that I have proposed these amendments with the support of the Prison Reform Trust, of which I am chairman. The Prison Reform Trust strongly supports the position of the Government in seeking to reduce reoffending. Its regret about the language used in the schedule, without the amendments to which I have referred, is that the Government’s good intentions will be defeated by language, if that language were to be read in a way that meant that the judge was required to impose a sentence which he did not consider justice required to be imposed upon an offender.