| Previous Section | Index | Home Page |
Mr. Deputy Speaker (Mr. Michael Morris): With this, it will be convenient to discuss the following: New clause 4--Sentencing guidelines--
'.--(1) In disposing of any criminal appeal, the Court of Appeal may, without prejudice to any other power in that regard, pronounce an opinion on the sentence or other disposal which is appropriate in any similar case.
(2) Without prejudice to any rule of law, a court in passing sentence shall have regard to any relevant guidance issued under such subsection (1) above.'.
New clause 5--Unduly lenient sentences (No. 1)--
'Section 35 of the Criminal Justice Act 1988 shall be amended by substituting for subsection (3) the following subsection--
"(3) This Part of this Act applies to any case in which sentence is passed by the Crown Court.".'.
Mr. Straw: The new clauses seek to impose a duty on the Court of Appeal to lay down sentencing guidelines in respect of all the main offences in the criminal calendar, and to extend the power of the prosecution, through the Attorney-General, to appeal against a much wider range of sentences than is currently the case.
- Gloucester to 65 per cent. in Luton. The same applies to level 1 courts, where the range is from 42 per cent. in Bristol to 64 per cent. in Caernarfon, and a higher proportion at the Old Bailey, but I do not regard that as an equivalent court for the purpose of these comparisons.
There is an even wider range in magistrates courts. On average, 13 per cent. of defendants who appear before magistrates courts receive a sentence of immediate custody, but the range is huge. I refer to indictable offences triable summarily; I am not speaking of motoring offences. At one end of the range, at Staffordshire, Moorlands magistrates court, one in six defendants are given a sentence of immediate custody. At the other end, at Maidenhead magistrates court, one in 66 defendants receive a sentence of immediate custody. Try as I might, I can find no explanation for those differences.
7.15 pm
Mr. Michael Stephen (Shoreham): I am sure that, like most of us, the hon. Gentleman believes in local justice and believes that magistrates are local people dispensing justice in their locality. How far does he believe that there should be discretion for local Benches to treat more seriously particular offences that might be prevalent in their area, and therefore to depart from national guidelines?
Mr. Straw: The hon. Gentleman makes an important point. The same point was made, improbably, by the Secretary of State in an interview in "Constabulary Magazine", in favour of unfettered discretion by local Benches in magistrates courts. None of us could accept complete uniformity in sentencing. It would be odd if every court's sentencing practice was around the average. My concern is that the range is far too wide, and that the differences in practice appear to be informed not by any explicit local policy, but rather by custom and practice.
I shall give a specific example. Blackburn and Oldham are two similar industrial towns in the old county of Lancashire. They have similar social structures and similar rates of crime. A defendant at the magistrates court in Oldham has a one in 10 chance of receiving a sentence of immediate custody. A defendant at the magistrates court in Blackburn has a one in 20 chance of receiving such a sentence.
I do not know which sentencing policy has a greater impact on crime levels in those two towns. With regard to my own constituency, however, I know that because of major problems in the amount of feedback and guidance that magistrates courts are given, the policy of the court in Blackburn--and, I suspect, also in Oldham--is not really a policy, but the way in which the court has behaved traditionally, without any rational scrutiny of that behaviour.
Of course, I accept--this is one of the reasons why we want changes in the way in which the Crown Prosecution Service operates--that if there is a particular problem in an area, the Bench and prosecutors are right to take it seriously and, for example, to issue exemplary sentences as a deterrent against further wrongdoing.
The figures that I have given are for comparisons between courts. Another set of figures reveals inconsistency of a different kind. The public currently expect the court's attitude to offending to equate to their own experience at home, at school or in the workplace.
13 Jan 1997 : Column 77
Apart from the short-lived aberration of the Criminal Justice Act 1991, such an idea of progression in sentencing, taking account of previous offending behaviour, has long been enshrined as a principle of sentencing in the British courts. In any court on any day, one will hear defence counsel arguing in mitigation for a last chance for a defendant to avoid a custodial sentence. Equally often, in imposing a non-custodial sentence, the Bench will issue a dire warning that further offending will lead to a prison sentence.
However, the idea of proper progression, which I believe is accepted across the House, is not consistently translated into sentencing practice. My paper, like the White Paper, gave examples of what on average may happen to defendants on a first, second or third conviction. The picture painted by those figures can be described only as bizarre and as one that is unlikely to enhance public confidence in the sentencing system.
Let me give some examples that I quoted in my paper. I asked the Minister of State, Home Office, the right hon. Member for Penrith and The Border (Mr. Maclean), for figures of the proportion of defendants aged 21 or more who had received convictions for domestic burglary and, separately, for drug dealing, and who received sentences of immediate custody, and what the length of the average sentence was. It is true that for domestic burglary and drug dealing, an increasing proportion of defendants received a custodial sentence at the second and third offence, but it is odd that for domestic burglary, the sentence stayed level at 15 months, whereas for drug dealing in class A drugs, the sentence went down from 32 months at the first conviction to 30 months at the third conviction. Those figures do not enhance confidence in our sentencing system.
Mr. Howard:
Does the hon. Gentleman agree that both the examples that he has cited will be dealt with by the minimum mandatory sentencing provisions in the Bill? Will he specifically deny that he has given any private assurances to senior members of the judiciary that, if elected, Labour would not implement the Bill's mandatory sentencing proposals?
Mr. Straw:
I shall deal with the right hon. and learned Gentleman's first point in a moment. The issue of a drug dealer or domestic burglar who is convicted for a third time is dealt with elsewhere in the Bill. However, such provisions--whatever their merits--are not an alternative to effective guidelines from the Court of Appeal. The proposals affect sentences at a third conviction in only two specific areas of offence within the criminal calendar.
As to the Home Secretary's second question, I have not given any such undertakings--either in private or in public. He will have to wait for my speech on Third Reading--we want to see the Bill's final form--to hear our definitive decisions about its proposals. I am glad that the Home Secretary has accepted, by implication, that the Labour party will form a Government after the election.
13 Jan 1997 : Column 78
As hon. Members know, I was not a member of the Standing Committee that examined the Bill, but I have read the Hansard record of debates. I was almost as impressed by the contribution of the hon. and learned Member for Burton in Committee as by the brilliant interventions of my colleagues. The hon. and learned Gentleman supported our amendments and poured vitriol on the ill-thought-through provisions in the Bill so often that I think he must be halfway to defecting to new Labour. He brought to his observations his experience not only as a distinguished parliamentarian but as a recorder of the Crown court. We know that the court in which he sits has a reputation for much softer sentences than the court of the hon. and learned Member for Montgomery. On at least three occasions, the hon. and learned Gentleman commented that the Bill's provisions
The achievement of that aim has actively exercised the House for at least a decade. In its 1986 White Paper on criminal justice, the Government proposed giving statutory form to the Judicial Studies Board's function of publishing the Court of Appeal's sentencing guidelines in a more coherent and accessible form. However, they dropped that idea in favour of a limited right of appeal against unduly lenient sentences by the Attorney-General.
Despite Ministers' complacency about sentencing practice at the time, the Court of Appeal could--and we believe should--have been more proactive in its development of sentencing guidance. Sentencers have available much excellent work from the Judicial Studies Board, Thomas's "Current Sentencing Practice", and a few guideline judgments from the Court of Appeal--notably on rape. However, Professor Ashworth was correct to criticise the Court of Appeal in 1992 for the
As I said, the alternative proposed by the Government in their 1986 White Paper was for the Attorney-General to have a limited right of appeal to the Court of Appeal. That provision became law in the Criminal Justice Act 1988. In most other jurisdictions--including common law jurisdictions--the prosecution has long had a much more active role in sentencing. The notion has always raised profound anxiety in many quarters. I suspect that we have been held back in many ways by our history. Indeed, many ingrained assumptions of English common lawyers about rules of evidence and sentencing date back to the last century, when many property offences were capital crimes, and when the defendant was not allowed to give
13 Jan 1997 : Column 80
Anxiety about the possibility of injustice and of political influence in appeals led my right hon. Friend the Member for Sparkbrook to oppose the right of the Attorney-General to make an appeal under the 1988 Act. Significantly, in the same debate he expressed qualified support for a much more comprehensive scheme, whereby the prosecution could suggest sentences to the court. In the event, the anxieties of many about the development were not borne out and we supported measures to strengthen the arrangements in the Criminal Justice and Public Order Act 1994.
"would have been unnecessary if the court had laid down guidelines about minimum sentences".--[Official Report, Standing Committee A, 14 November 1996; c. 49.]
He added:
"it would have been far better if, many years ago, judges had got to grips with their powers and set out guidelines to introduce the type of sentence that we are having to lay down in statute".--[Official Report, Standing Committee A, 19 November 1996; c. 104.]
I refer to the question that the Home Secretary asked a moment ago. We shall discuss separately the Bill's so-called minimum sentence provisions, but they will cover only a limited number of cases and criminal offenders--those affected by clause 1, convicted for a second time of a listed offence that already carries life as a maximum sentence; and those affected by clauses 2 and 3, convicted for a third time of offences of domestic burglary or trafficking in class A drugs. The vast range of offences and offenders will be unaffected. Therefore, the need for better machinery to secure consistency and progression will remain.
The Conservative party's campaign guide went much further and said that our proposals would have denied the courts
It added that our position--which was in favour of more consistency--illustrated Labour's
"the discretion they need if they are to deal adequately with the wide variety of criminal acts that come before them".
"traditional mistrust of the judiciary and provides Labour with an institution to shackle them to a rigid penal system."
I am glad that the Home Secretary can see the joke. I hope that when he responds to the debate, he will apologise for the position that he took in 1991. The truth is that, if our proposals for proper machinery on sentencing guidance had been accepted--they were widely supported at the time--we would not now need some of the provisions in the Bill.
"manifest abdication of its role in giving guidance for the lower courts."
He said that that
"suggests that the ideal partnership between legislature and judiciary, implicit in the White Paper of 1990, is likely to be realised slowly, if at all".
He added for good measure that most of the Court of Appeal's decisions on domestic burglary were
"a veritable wasteland in terms of guidance".
Little has happened in the intervening period. Mr. Ralph Henham, senior lecturer in law at Nottingham Trent university, in a 1995 paper on sentencing policy for the Howard Journal of Criminal Justice, commented on
"the apparent failure of the Court of Appeal to consistently advert to other sentencing decisions in the course of developing sentencing principles, thus hindering the process by creating problems of interpretation. In addition, there is a tendency for the Court of Appeal to concentrate on the immediate case without questioning the general principles behind cases of that type or their inter-relationship with other types of cases thus creating a lack of coherence and direction in the development of sentencing principles."
That is strong criticism and I am sorry that the Court of Appeal has not taken it on board properly.
| Next Section
| Index | Home Page |