My Lords, I have found this to be an extremely helpful debate, and as the movers have indicated that it is a probing amendment, I will take it away to consider, but in my reply I will make it clear that we do not think the amendment is necessary at this moment.
I understand the points that the noble and learned Lord, Lord Woolf, has quoted, and that my noble friend Lord Dholakia mentioned, that the Bill might encourage judges to go for the best of both worlds by passing a short sentence that will immediately qualify for the 12 months of rehabilitation. I certainly share my noble friend Lord Dholakia’s view that short sentences are too short to rehabilitate, but just long enough to disrupt, the life of the person sent to prison and introduce them, perhaps for the first time, to all the bad influences that can be found in a prison. On the other hand, as the noble Lord, Lord Williamson, rightly recognised, we face media and—to a certain extent—public opinion that sees community sentences as somehow softer than prison sentences. Part of the aim of our reforms is to position community sentencing and the rehabilitation process that goes with it more positively in the eyes of the public, so that they have greater confidence in it.
I was grateful for the words of the noble Lord, Lord Ponsonby of Shulbrede, in his intervention, because there are two things that become one. He put firmly on the record that in his experience, judges will not be
tempted to go down the road that my noble friends fear. I think that he has said before—certainly other magistrates have—that sometimes for a repeat offender or somebody whose circumstances make setting them back into the community even more dangerous to themselves and the community, a short custodial sentence can be of benefit, so the idea of ruling them out entirely is not the way forward.
As my noble friend has explained, Amendment 24B would create a new clause in an attempt to bolster what is often referred to as the “custodial threshold”: that is, the test set out in Section 152(2) of the Criminal Justice Act 2003, to which my noble friend referred, with which all courts must comply when imposing a custodial sentence.
It is perhaps worth noting again what Section 152 says:
“The court must not pass a custodial sentence unless it is of the opinion that the offence, or combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.”
It is an onerous test. It means that a court cannot impose a custodial sentence unless the offence was so serious that a fine or community sentence will not do; in fact, it cannot be justified. It is also worth noting that this test has to be read in conjunction with Section 153 of the 2003 Act. That requires a court when imposing a custodial sentence to ensure that the sentence is for the shortest term commensurate with the seriousness of the offence.
My noble friend’s amendment would add to the existing provisions a requirement, where a court intended to impose a custodial sentence of less than 12 months, that there be “special reasons” which justify the custodial sentence of less than 12 months. We have already heard in debate that magistrates and judges do not believe that they impose custodial sentences other than as a last resort. It is natural to ask what are these special reasons or circumstances that are not covered by the original test. Could the special reasons relate to a history of previous convictions? If so, the current custodial threshold test already applies because, under Section 143 of the 2003 Act, a court must consider relevant and recent convictions as an aggravating factor which makes the offence more serious. It is seriousness that is the key driver in determining the nature of the sentence and meeting the custodial threshold test.
I suggest to my noble friend that the special reasons he may have in mind must already be considered when the court decides on the sentence and whether a custodial sentence is merited under Section 152. So although of course I appreciate what my noble friend is attempting to achieve—that is, a statutory presumption against sentences of less than 12 months—I am not convinced that the amendment would actually do what is intended.
Let me make the point that the Government do not intend or expect that sentencers will change their current behaviour in any significant way in response to the provisions in the Bill. We do not expect to see an increase in the number of short custodial sentences. Offenders who do not meet the custodial threshold should receive community orders or fines. I hope that noble Lords and noble and learned Lords who have
judicial experience will agree that it would be wrong for any judge, and contrary to the provisions of the existing law, if a sentencer decided to “up-tariff” an offender into custody so that they could receive 12 months of supervision.
I should also deal briefly with the second part of the amendment, which would require the court to give an explanation of the special reasons that merited a custodial sentence of less than 12 months. I point out to my noble friend that the current law already requires all courts imposing any sentence of any length to give reasons for the sentence passed. That is contained in Section 174 of the 2003 Act. Invariably, a sentencer will begin their explanation of a custodial sentence by setting out why the offence is so serious that it merits a custodial term. The further provision is, I suggest, unnecessary. I understand the good intentions behind the amendment. No one in this House wants to see short custodial sentences passed for offences that do not justify them, but that is why we have the current threshold test and a right of appeal against sentence.
We need to is provide sentencers with a range of sentences in which they can have confidence. That is why we made the changes to community orders in the Crime and Courts Act 2013. We have to stop offenders reoffending to such a degree that they end up having to be considered for short custodial sentences in the first place. We also have to realise that some offenders will merit short custodial sentences. We need to focus on making those sentences more effective at rehabilitating offenders so that not only are they imposed as a last resort, they should be the last sentence that the offender receives.
I acknowledge the efforts of my noble friend on this amendment, but, although I recognise his intention, I ask him to withdraw it. Given the spirit in which it has been moved, I will discuss the matter further with the Lord Chancellor and others, but I suspect that our position as I have just set out will remain unchanged.