Report stage in the Lords
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Lord Lloyd of BerwickCrossbench- Quote
- moved Amendment No. 53:
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Lord Thomas of GresfordLiberal Democrat- Quote
- My Lords, in the reply to the previous debate the Minister confused me a little when he said that two years is four years. As I understand it, the condition in the Bill is that the notional minimum term is at least two years. That is defined in proposed subsection (3C), which states: “The notional minimum term is the part of the sentence that the court would specify under section 82A(2) of the Sentencing Act (determination of tariff) if it imposed a sentence of imprisonment for public protection but was required to disregard the matter mentioned in section 82A(3)(b) of that Act (crediting periods of remand)”. I do not know where this “two years means four years” comes from. It does not seem to come from that wording, but I must confess that I have not, in the 55 minutes that we were permitted for our dinner tonight, had the opportunity of looking at the sentencing Act to clarify my mind on the matter. No doubt the Minister can do so.
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The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Hunt of Kings Heath)Labour- Quote
- My Lords, I am sorry about the 55 minutes, although, as my noble friend Lord Bassam was so eloquent in responding to the riveting debate on cycling, I think that we did get our hour.
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- Lord Hunt of Kings HeathLabour
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- My Lords, that is a fair point. We shall seek to compensate noble Lords at another stage of our consideration of the Bill. I thought that we had discussed this issue, but we are coming back to it. I understand why the noble and learned Lord, Lord Lloyd, spoke very briefly to it. Two years is the actual custodial time. That would apply to both indeterminate sentences and extended sentences. I hoped that I had made that clear when I responded to the noble and learned Baroness, Lady Butler-Sloss.
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- Lord Thomas of GresfordLiberal Democrat
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- My Lords, it still does not explain the notional minimum term as it is positively defined in subsection (3C) on page 10. What you are disregarding is crediting periods of remand. If the threshold is the equivalent of a sentence of four years, which the Minister said it was, I want to know why.
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- Lord Hunt of Kings HeathLabour
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- My Lords, can the noble Lord explain why he wants to know why? Does he not follow the provision or does he disagree with it?
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- Lord Thomas of GresfordLiberal Democrat
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- My Lords, the Minister said that we have a threshold of two years but that really means four years. So if you want a threshold of four years, you mean eight. I do not follow that. That may be my fault; it probably is.
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- Lord Hunt of Kings HeathLabour
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- My Lords, two years equates to a headline sentence of four years. That is the position. If there is a difficulty with the way in which this is expressed, I am happy to follow it up in writing to the noble Lord, but my understanding is that that is what is intended by this provision. The answer to the noble and learned Lord, Lord Lloyd, is really the one that I gave earlier, which may not have satisfied him. We think that a four-year sentence is about right. It would be unusual to receive a four-year sentence for a trivial offence. We are attempting to strike a balance between ruling out cases that are simply not serious enough to be considered in this light and allowing the courts, as I said, to detain very worrying offenders, even if their immediate offence is not so serious as to deserve an extremely weighty sentence. I know that the noble and learned Lord, Lord Lloyd, went on to describe the potential problems that he saw with persons sentenced under those provisions given the pressures on the Prison Service. I understand that, but the Government have taken, and are taking, steps, as I described earlier, to increase the resources and the priority that are given to the programmes that need to be established to enable these prisoners to satisfy the requirements of the Parole Board. That is in addition to the more general expansion in prison places in line with the Carter recommendations. We think that the figures add up, given the provisions being introduced under the Bill. The answer is twofold. First, we think that a headline sentence of four years is about right. Secondly, given that and the other measures to reduce certain sections of the prison population—as the Bill does in a number of ways—and the increase in the resources and the priority that are given to the appropriate offender management programmes, we will be able to meet our aims.
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- Lord Lloyd of BerwickCrossbench
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- My Lords, I am grateful to the noble Lord, as one always is. But surely the purpose is not just to exclude trivial offences from the ambit of indeterminate sentences, as the noble Lord said. We must go further than that if we are serious about reducing prison overpopulation. Nothing less than a four-year measure will do that, whether it be four years as the tariff or two years as the tariff—I entirely agree that there is confusion about that. I have tried to work out what the two-year measure actually means: whether it is the equivalent of four years less a 50 per cent reduction—as we know, all sentences of a certain kind are reduced by 50 per cent—or whether it means two years literally. We must come back to that. I am afraid that I am not satisfied that merely excluding trivial offenders will make any difference at all to the present problem. I was slightly taken by surprise when the noble Lord, Lord Bach, moved to adjourn. It would have been more sensible if we had taken a decision on this question immediately after the other decision that was taken, but we did not. In those circumstances, I will bring the matter back at Third Reading. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Schedule 5 [Offences specified for the purposes of sections 225(3A) and 227(2A) of the Criminal Justice Act 2003]:
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Lord BachLabour- Quote
- moved Amendment No. 54:
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- Lord BachLabour
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- moved Amendment No. 56:
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- Lord Lloyd of BerwickCrossbench
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- moved Amendment No. 59:
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- Lord BachLabour
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- My Lords, I am delighted that the noble and learned Lord is pleased that we have butchered Section 229 to the effect that he wanted. He argues—as always, with great persuasiveness—that, having butchered it, there is nothing left. Perhaps I may argue that there is something left and that it is important to leave it in the statute. I shall do so as briefly as I can. Without Section 229, the courts would have no statutory framework at all for making an assessment of risk. They would have no specific entitlement not just to look at the circumstances of the trigger offence but also to take account of all such information as was available about the pattern of behaviour of which the offence formed part. That is a matter of particular relevance to a court which has a special responsibility for assessing an offender’s prospective dangerousness and it is a hallmark of public protection sentencing. I hope that the noble and learned Lord will not mind my citing the case of R v Considine, which I am sure he knows extremely well. The reference is Court of Appeal, 2008, Volume 1 of the Weekly Law Reports, page 414. In it, a strong court of five judges had to decide issues surrounding the use of information that was not proven evidence but related to what information a court could use in making its assessment of risk. In that case, the Court of Appeal dismissed an appeal against an IPP given to an offender for making two threats to kill and having a knife in a public place. The question on appeal was whether the assessment of dangerousness for the purposes of Sections 225 to 229 had been based in part on inadmissible material. The court noted that Section 229 specified that the court may take account of any information before it about the offender. It also noted that similar language is used in Section 229(2)(b) and (c), which apply to persons with no previous convictions, and those two paragraphs would remain in Section 229. The court held that, “as a matter of statutory construction, relevant information bearing on the assessment of dangerousness may take the form of material adverse to the offender which is not substantiated or proved by criminal convictions”. We do not agree with the suggestion that Section 229 is unnecessary and that courts would be entitled to look at all such information anyway. The information that a court can take into account is affected by the purpose for which the court is considering it. The Court of Appeal interpreted Section 229 and the special public protection policy function that it serves. It held that the sentencing judge was entitled to take into account information that would have been excluded if he had been considering the punishment element of the sentence to be imposed. When assessing the risk of dangerousness, the court does so not for the sake of punishing the offender but for the purpose of protecting the public by determining whether the offender is dangerous and thus potentially liable to a public protection sentence. We argue that this policy dimension is served by the language that remains in Section 229 and that it should be maintained. I take the point made by the noble and learned Lord about previous convictions. We think that there is an advantage in making it clear to criminal justice agencies and to the general public, if not to learned judges, that previous convictions are, of course, very relevant to the assessment of risk. We believe that makes it transparent and encourages confidence. I rely, in arguing with the noble and learned Lord, on the information parts of Section 229(2); in other words, new subsections (2A) and (2)(aa).
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- Lord Thomas of GresfordLiberal Democrat
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- My Lords, has there been a challenge to the Court of Appeal decision to which he refers, either in the House of Lords or the Court of Human Rights?
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- Lord BachLabour
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- My Lords, I am afraid I do not know the answer to that question. The case was heard on 2 May. I now know the answer and there has been no challenge to the judgment of the court.
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- Lord Lloyd of BerwickCrossbench
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- My Lords, I am grateful to the noble Lord. I shall look at the case to which he has referred. It is important for the House to appreciate that the courts have been passing life sentences for the protection of the public for as long as I can remember. They have never needed any statutory authority to make an assessment of dangerousness. Clearly established in all the textbooks is the fact that a life sentence for the protection of the public can be, and always has been, capable of being passed on three conditions: first, that the offence was one which of itself carried the maximum sentence of life imprisonment; secondly, that the particular offence was itself sufficiently grave to justify a very long sentence; and, thirdly, necessarily, that the court had to be satisfied from the offender’s criminal record, from his past history or from any relevant medical evidence that he was a grave danger to the public. No statutory authority was required for that. That is what the courts have always done. That is why I suggest that Clause 17 now serves no conceivable purpose other than stating what the courts already do, but I shall certainly look at the case that has been referred to.
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- Lord BachLabour
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- My Lords, the noble and learned Lord says that Clause 17 serves no useful purpose. Does he mean Section 229?
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- Lord Lloyd of BerwickCrossbench
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- My Lords, I am so sorry, of course, Section 229. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 19 [Indeterminate sentences: determination of tariffs]:
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- Lord Lloyd of BerwickCrossbench
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- moved Amendment No. 60:
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Baroness Butler-SlossCrossbench- Quote
- My Lords, I strongly support the observations of the noble and learned Lord, Lord Lloyd of Berwick. When I read the clause—I had to read it several times and I still do not really understand it—I heaved two separate sighs of relief: first, that I was not a criminal judge, and secondly, that I had, thank goodness, retired. That is because it is a nightmare, if I may be blunt. There is no need to micromanage the exceptional cases that the noble and learned Lord, Lord Lloyd of Berwick, spoke of and every reason to leave this area to the judiciary. The clause should be got rid of as quickly as possible.
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Lord Mayhew of TwysdenConservative- Quote
- My Lords, it is quite unnecessary for me to add anything to what the noble and learned Lord, Lord Lloyd of Berwick, has said, but I cannot resist it. We learn from the world of education that examinations have become increasingly a matter of ticking boxes, or not allowing answers to be given in free style. This clause is a product of that kind of culture. It requires the judges to tick boxes when reviewing the ingredients for a sentence. Those ingredients are infinitely variable from case to case and do not lend themselves sensibly to the exercise of ticking boxes. When the Minister winds up, which he will do in about 30 seconds so far as I am concerned, I hope he will identify the deficiency in the current practice of the judges that in the minds of the Government make this clause necessary.
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- Lord Thomas of GresfordLiberal Democrat
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- My Lords, I associate myself with those remarks. This is labyrinthine, if I can use another metaphor. It can have the result that happened in Cardiff when a Crown Court judge of great experience—the Recorder of Cardiff, who has since been made a High Court judge—followed previous directions of this nature to the letter and was criticised for his sentence by the Home Secretary and, as I recall, the Prime Minister, who simply did not understand the nature of the legislation that their own Government had passed. One can see that so readily happening here when the noble Lord, Lord Hunt, may be called upon in the Ministry of Justice to criticise a judicial decision when somebody is simply following the maze that he is creating.
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- Lord Hunt of Kings HeathLabour
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- My Lords, I will not do that because it is not the Ministry of Justice’s intention to do so. Whatever criticism may be made of the Government or my department, my right honourable friend the Lord Chancellor has clearly signalled his intention to work hard to establish the right and proper relationship with the judiciary. Thinking back to his appointment last summer, I do not think there has been one instance when he has criticised the judiciary. That signals the intent. I gather from noble Lords that they do not like this clause. I recognise that there is the question of what is in the clause and the more general question about judicial discretion. I shall deal with the clause first and then come on to the important question of the right relationship between Parliament and the judiciary, which has been at the heart of a great many of our discussions tonight and during other stages in the Bill. This clause is designed to give courts wider discretion to set suitably high tariffs for offenders who have received a life sentence for a particularly serious crime. I should emphasise, as other noble Lords have done, that it is intended to apply to exceptional cases only rather than to routine life sentences. It will apply where an offender receives a discretionary life sentence; that is to say, any life sentence other than a life sentence imposed for murder under the provisions of the Criminal Justice Act 2003. It will not apply to sentences of imprisonment for public protection; that is to say, indeterminate sentences. Section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 specifies that when setting tariffs for discretionary life sentences, courts shall take into account the seriousness of the offence, remand time and early release provisions for determinate sentences. There has been concern that that results in a method of calculating the tariff that can undermine public confidence because the courts determine the punishment part or tariff of the life sentence by using the appropriate determinate sentence as a starting point, which is then halved to take account of the fact that an offender with a determinate sentence will be released on parole at the halfway point of the sentence. This exercise in some very serious cases can seem to result in what appear to be disproportionately short tariffs. An example is the case of Sweeney. Sweeney was sentenced to life imprisonment for the offences of kidnap and sexual assault of a child under 13. Following the usual calculation, his tariff amounted to six years. This clause will mean that where a particularly serious crime has been committed by a person over 18, judges will be able to calculate tariffs without taking into account the parole arrangements that apply to standard determinate sentences. Under the current law they must do so, which means that the final tariff is assessed as half of what the full determinate sentence would be. This clause—the Case A—allows the court to apply some reduction less than 50 per cent or to make no reduction at all, as appropriate in the particular circumstances of an individual case. The Case B element of this clause reflects case law and allows a court to apply a smaller reduction to the tariff, though not less than one-third. The exceptional cases to which this is relevant have historically been ones where an offender already serving a determinate sentence is sentenced for another offence to an indeterminate sentence. For technical reasons, the tariff of an indeterminate sentence should not run consecutively to the tariff of a determinate sentence, but, for reasons of justice, it may be important to ensure that the later offence will result in the prisoner serving extra time in custody. Case B is simply to maintain case law; it brings nothing new to sentencing practice. It is Case A that introduces the new discretion for exceptionally serious cases. The Government believe that the clause will meet a gap in the current law where the type of sentence that would normally be imposed on a determinate basis would not be adequate. I fully accept that that refers to cases in exceptional circumstances. I also understand concerns raised by noble Lords that Parliament should not seek to micromanage the performance of the judiciary, in whom we have great confidence or, as the noble and learned Lord, Lord Mayhew, said, go towards a tick-box approach. That is not our intent at all. I agree with the noble and learned Lord, Lord Lloyd, when he says that it is Parliament’s duty to accept the broad parameters under which the courts work by legislation and then for the judiciary to have discretion within that framework, and to have regard to judgments given by superior courts and the guidelines issued by the Sentencing Guidelines Council—which, as noble Lords know, is an independent body chaired by the Lord Chief Justice. I also say to the noble and learned Lord that the Sentencing Commission Working Group published its consultation on establishing a structured sentence framework on 31 March. That arose from the Carter recommendations, which suggested that there was a need, in thinking through criminal justice policy in future, to ensure that all the relevant elements were brought together, so that there was consistency of purpose. I am sure that the noble and learned Lord will want to respond to that consultation. I fully accept that it is one thing for me to stand here and say that I agree with the noble and learned Lord that Parliament should set the broad framework and then we ought to allow the judiciary to get on with the job. He will then point me to legislation that he thinks does not meet the case. Of course there are instances of that. There will be reasons why Parliament seeks to be more precise in certain ways. It is interesting to look at our various debates so far. By my reckoning, noble Lords have argued against greater judicial discretion in about six or seven cases; whereas, in another five cases, noble Lords have argued for greater judicial discretion. In a sense, that is part of the parliamentary process: we tend to pray in aid whatever argument we can discharge to make the case for the point that we believe in. Although in general all noble Lords will sign up to increased judicial discretion, clearly, as legislation goes through, there are areas where they say, “On that matter, we do not think that there should be greater judicial discretion. We want to give a clear indication to the judiciary of what they should be doing”. In our debates on youth justice, many noble Lords have been concerned that there is too much judicial discretion. We can see why Parliament is sometimes tempted to fetter the judiciary. I am not trying to excuse the Government from their responsibility to ensure that there is a proper balance between parliamentary direction and judicial discretion; I am trying to say to the noble and learned Lord that it is often easier said than done. The sentencing framework to which I referred and the consultation that has just been held will, I hope, provide us with a sensible way forward that meets the Government’s needs and those of noble Lords who wish to reinforce the discretion of our excellent judiciary.
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- Lord Lloyd of BerwickCrossbench
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- My Lords, again, I am very grateful to the Minister. I am afraid that even as he read the explanation of the clause, I was not sure that I altogether followed it, but we will all read it again.
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- Lord Hunt of Kings HeathLabour
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- My Lords, I certainly offer to write to all noble Lords with a detailed explanation of the clause if that would help.
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- Lord Lloyd of BerwickCrossbench
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- My Lords, I am sure that the first thing we will want to do is to read in Hansard tomorrow what the Minister said. That may shed some light on it. The mere fact that he has to offer to write to us shows that this is the sort of clause that should not be in legislation. It is intended to cover the appearance of injustice in only one case—the Sweeney case, to which the noble Lord, Lord Thomas of Gresford, referred—where there was no injustice at all because the judge did exactly what Parliament said he must do. It therefore illustrates both aspects of my argument. It is a marvellous example of Parliament interfering where it is not wanted. Parliament is now asked to give judges greater discretion, but the discretion should not have been removed in the first place. It is a very good example of Parliament interfering in such a way as to make the judges’ task even more difficult than it already is. I hope that the clause will be considered for a second time in the Ministry of Justice. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Lord BachLabour
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- My Lords, I am afraid that our position has not changed since we debated this in Committee. Section 282 of the 2003 Act was designed to enable magistrates’ courts, as the noble Lord implied, to give custody plus sentences in respect of these offences. There has never been any intention to increase the sentencing powers of the magistrates’ courts in this way as a freestanding measure. We have, as noble Lords by now will have gathered, no date for the implementation of custody plus. Let me be frank: it is a question of resources as much as anything else. As I explained, the increased custody limit would not actually result in any longer period of actual prison time under a custody plus sentence. Magistrates’ courts would be able to impose 13 weeks for one offence, which is the same as the three months’ prison time that they can currently give. We have never espoused the principle that the magistrates’ courts should be able to hand down more actual prison time. It would mean more time for supervision under the custody plus measures. If Section 282 were to be implemented without the rest of the custody plus legislation—the noble Lord has made it clear that he thinks that there is merit in it in any event—the magistrates’ courts could give 12 months’ actual prison time for one offence. That would be a very substantial increase—a radical change—and an important alteration in our criminal justice institutions and principles. We do not think this is appropriate or necessary. Even at this late hour, perhaps I may pose a question to the noble Lord. What is the maximum total sentence that he is suggesting the magistrate should be able to pass in all, given that there might be consecutive sentences? If the maximum of each one can be 12 months, where does it end without custody plus? The magistrates’ courts are lay courts, which do a wonderful job. They represent the community, but it has never been their role to deal with the most serious and dangerous offenders, who may require long custodial sentences. On a previous occasion, the noble Lord, Lord Kingsland, argued that it is logical for magistrates’ courts to have increased powers in respect of triable either-way offences, as against summary-only offences. We do not agree. The logical position is that magistrates’ courts and the Crown Court have their own areas of expertise, relating to the seriousness of the offending. The point about offences triable either way is that they can span a range of seriousness. At the lower end they are absolutely suitable for magistrates’ courts to deal with and more serious cases are suitable for the Crown Court to deal with. Anyone who has practised in the criminal courts knows that magistrates’ courts can and do send cases to the Crown Court for sentence if they think that the case is sufficiently serious and falls outside their sentencing powers. We do not believe that it can be argued that the proposed amendment is necessary to ensure that offenders receive their just deserts. As I assured noble Lords in Committee, Clause 53 will ensure that the power to direct is available undiminished under Schedule 3 to the 2003 Act when it is implemented. I hope that the noble Lord will consider withdrawing his amendment.
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- Lord Hunt of Kings HeathLabour
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- My Lords, I beg to move that consideration on Report be now adjourned. Moved accordingly, and, on Question, Motion agreed to. House adjourned at 10 pm.
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