My Lords, I add my voice in agreement with much of what has already been said. What my noble friend Lady Hamwee did in drawing our minds back to the Criminal Justice Act 2003 in particular was very helpful for the purposes of sentencing. The noble and learned Lord, Lord Woolf, speaks words of wisdom and we should pay serious heed to him. He pointed out that the overarching requirement of a sentence should be decided by the judge on what is appropriate. Ultimately, I suppose that it follows that it should prevent reoffending and if the punitive element fails to meet that test it is worthless. As was made clear when we debated this in Committee, every community order is a form of punishment so the punitive element that the Government seek is de facto present. Anything additional intended to be somehow more punitive for its own sake is unnecessary, except possibly as a political gesture, and it will fail the test of reducing reoffending anyway. As the noble and learned Baroness, Lady Butler-Sloss, said in Committee, it is also “profoundly unattractive” as an idea. I liked that term very much.
The Minister has got it wrong if he believes that this is what the British public want to see happen. Indeed, there is ample evidence to show from polling that what the British public want from sentences, particularly expressed by those who have been victims of crime, is that it does not happen again. Retribution or vengeance is not sought. The Government maintain that the caveat of “exceptional circumstances”, when a specifically punitive order can be dispensed with, is tightly defined. Yet we have just spent the last 20 minutes realising that nobody can define what it is sought—the definition cannot be pinned down. This was emphasised by the noble and learned Lord who found in the past that use of “exceptional” caused nothing but confusion—he said so eloquently. For the large number of offenders for whom there is an additional punitive requirement, this may be inappropriate and even increase the likelihood of breach and so on.
The reality of a purely punitive requirement on its own principally represents the Government’s gesture of what Chris Grayling said was putting punishment back into sentencing. That is what it comes down to. It interferes with the freedom of sentencers to set an appropriate sentence based on the facts. That is a serious deficiency. We undermine judicial discretion at our peril. It also fails to safeguard those defendants with particular support needs, whether those are mental health, health needs, learning difficulties, drug addiction et cetera, to name but a few. Of course, the fact is that it is precisely this range of such support needs that represents the norm in the prison population. They are not exceptional at all—exactly what the noble and learned Baroness, Lady Butler-Sloss, just said.
To impose a punitive requirement when the offender has these difficulties without also addressing the problems constructively would clearly be unjust. I could go on further but I will finish by saying that there was very
important and interesting work done for the Government by Helen Bewley. She concluded that in fact punishment probably means a curfew, a fine or unpaid work. Her work demonstrates that punitive requirements on their own have no impact at all on the likelihood of reoffending but simply reduce the number of reoffences committed. The most effective outcome was from a combination of supervision with another requirement, with a punitive element added on. If the Government themselves acknowledge the risk that undermines the very rationale for such punitive orders, particularly if used on their own, how on earth can their use in every community order possibly be justified? Indeed, the likelihood instead is more offending, breaches and a generally less safe society—the very antithesis of what is intended.