My Lords, I must first apologise for not being present at the beginning of this part of the debate. I cannot see the point of Part 1 of Schedule 16. It really is not necessary. It owes more to the requirement of Government for the perception of the public and the press rather than the reality that a community order is in fact a punishment. I said this at greater length in Committee, so I will not go into it now. A community order is undoubtedly a punishment if it requires somebody to do or not do something, is compellable and the failure or refusal to do it has criminal sanctions. To distinguish between one sort of punishment or another is a really impossible situation. Some punishments will be more severe than others, there is no doubt about that, but the Government are pandering to perception rather than looking at the reality of what the judges and magistrates are doing.
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There is one particular issue: I strongly support the noble and learned Lord, Lord Woolf, on the word “exceptional”. I do not really mind whether the noble Baroness, Lady Hamwee, gets “particular”—I do not mind what the word is—but I must tell the Minister that the effect of “exceptional” will be treated by judges as meaning “exceptional”. That is, I gather, what is wanted. That means that anybody suffering from mental health issues—a very large number of people commit crimes and come through the courts who suffer from mental health issues—will not be treated by the courts as exceptional because they are standard. One only has to look at the prisons and the people coming through the courts to see the number of people with drink, drug or mental health problems who cannot be dealt with under subsection (2B) because what is happening to them is not exceptional. Whatever the Minister may say, he must listen to the fact that the
word “exceptional” will be treated by the judges and the magistrates as “exceptional”. In conclusion, the whole of Part 1 of Schedule 16 is not needed but, if it is to come in, at least take out the word “exceptional”.