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Mr. Charles Clarke: I am grateful to the hon. and learned Gentleman for his generous remarks. I draw his attention to document CJ2010, which we published a few weeks ago. It attempted to put flesh on the bones of my remarks to the criminal justice organisation group about trying to get the whole of the criminal justice system working together, an aim that I know the hon. and learned Gentleman supports.

Mr. Garnier: I am glad to hear of this document. I hope that, after four years, the Government manage to achieve that objective. However, my example of the sentencing exercise that I went through in the Crown court last autumn demonstrates that a little before the hon. Gentleman made his speech, that was not the case.

I appeared on a television programme in the midlands with my constituency neighbour, the Minister of State, Foreign and Commonwealth Office, the hon. Member for Leicester, East (Mr. Vaz), whose name has recently come to wider public attention. I drew to the hon. Gentleman's attention the fact that the Government had failed to implement the policy in any practical form. I think that he undertook to telephone the Home Office to see what was happening.

The television programme was shown on the last Sunday of November last year. Shortly afterwards, Carlton Television was rung up by the Home Office for a transcript or a video of the programme, so that it could

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find out precisely what I had alleged. I said on the programme more or less what I have told the House this evening with regard to the sentencing dilemma that I faced and the Government's failure to implement their promise. The matter can and should be dealt with.

Another matter that needs to be sorted out is referred to in new clause 3. We have the practice direction of January 1998. We have the remarks of the Attorney-General in the other place on 31 October last year when he said that it would be wrong for sentencers to mention the home detention curfew. I am not quite sure why he said that it was wrong--were I to study all that he said on that occasion, I might understand. However, I gather that that is the import of what he said. In addition, in his written answer to my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) on 22 January, the Minister said that the implication of any sentence was explained in open court to the defendant and the public. If that means that the home detention curfew early release scheme is mentioned in sentencing, that is not the case.

Mr. Heald: We have seen the Minister of State's written answer of 22 January. The view of the Home Office is that the courts are expected to explain the possible effects of the home detention curfew scheme on the offender. That fits in with Labour's manifesto commitment to honest sentencing. Does my hon. and learned Friend think that the Lord Chancellor's Department is obstructing what the Home Office and the Home Secretary want to achieve in terms of honest sentencing? What does he think is happening?

Mr. Garnier: I do not think that anyone is doing anything on purpose. That is the problem. I think that one Department is not talking to another. We have two Ministers from two different Departments sitting on the Front Bench, and they may well have discussed how best to approach the new clauses. However, it would be more helpful to me as a sentencer--let alone as a member of the Conservative parliamentary party--if the Government could provide certainty for sentencers.

Judges come under a lot of criticism from all politicians, largely because there are so few practising lawyers in the House of Commons now. The Minister laughs--all Ministers laugh at lawyers and it is a pity. Indeed, the Lord Chancellor is outright rude to them, as is the Home Secretary, for no great purpose other than to poison the public climate against legal aid lawyers. It is a matter of huge regret.

The problem is that judges and the courts will do what Parliament requires of them when Parliament passes criminal justice legislation. They may have private views about the good sense of some of the implications of the criminal justice legislation that seems to get passed year in, year out. This is not a party political point; I think that the previous Government was responsible for far too much criminal justice legislation, and this Government are in danger of doing the same.

Just as the courts are getting used to the new sentencing framework, along comes a smart new Home Secretary who says, "We must jig it all up again. I must make a name for myself--I have a party conference coming up." We then have to go through the whole process of research and learning all over again. It does not, by and large, improve the state of our criminal justice system,

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but simply causes confusion. The politicians themselves may be becoming confused by their own over-activity in this area of public policy.

Mr. Simon Hughes: I am conscious that we are in danger of having a seminar as much as a debate, but I have two brief points. Does the hon. and learned Gentleman share my view that it would be a good thing to have a much clearer statement of the sentence implications by the judge at the end of the trial if that were possible? Secondly, if I have understood it correctly, the Conservatives call for that to happen, which they will be arguing for at the coming election, is not backed up by a call by them for a longer sentence regime. The Conservatives want "honesty in sentencing", but they are not calling for something that would make sentences longer. They have rejected that for all sorts of reasons that we could argue about elsewhere.

Mr. Garnier: On the hon. Gentleman's first point, I accept what he says as a matter of natural justice and probably also in compliance with the European convention on human rights, now introduced under the Human Rights Act 1998. However, as a matter of general good sense, when a defendant is sentenced, he and the public should know precisely what that sentence means. At the moment, when a judge sentences a defendant to a given period in custody, he then says, in compliance with the January 1998 practice direction, "This will mean that you will serve 50 per cent. of your sentence in custody and the balance will be served on licence." Judges do not say, "And by the way, you will get a bit more off because you may be released early under a home detention curfew scheme."

The philosophy behind new clause 3 is that to make sure that honesty in sentencing means what it says, if the Government want there to be earlier release under a home detention curfew scheme the sentencer should make that clear at the outset. It should be a matter of sentencing, not of administrative order by the Prison Service or whomever at a later stage.

On the hon. Gentleman's second point about sentencing, we want honesty in sentencing, so that when a judge says that a defendant will be sentenced to five years, the sentenced, the public and the victim in particular know that that individual will serve five years, unless other factors which were not contemplated at the time come into play. It does not mean that when a judge sentences a man to five years and he is released after two and a half, we want the five-year sentence doubled to 10 so that he serves five. I hope that my hon. Friend the Member for North-East Hertfordshire agrees that the arrangement ensures that although some of the tariff sentences will be cut in half, they will mean what they say. I hope also that I have explained that point to the hon. Member for Southwark, North and Bermondsey.

6.30 pm

I have made a simple point and I hope that the Government will sort it out. Judges are annoyed only by being told to do one thing on Monday, another thing on Tuesday and then a third thing on Wednesday--let alone being told on Thursday to return to Monday's orders. That is a recipe for order, counter-order and then disorder, and it does nobody any good. I do not want to ruin the

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Minister of State's career by flattering him too much, but I urge him to apply his considerable intelligence and political acumen to this matter, which is easily soluble. It merely requires those in the Departments that are responsible for the criminal justice system to speak to one another, to read one briefing paper rather than half a dozen of them, and occasionally to tell the House what they have decided.

I suspect that the Parliamentary Secretary, Lord Chancellor's Department has not had the experience of sentencing people. Although he is a civil practitioner, he may have appeared in the courts from time to time, perhaps in the early part of his career at the Bar, and I suspect that the story that I have told today might resonate with him.

The Parliamentary Secretary, Lord Chancellor's Department (Mr. David Lock): This has been a good and interesting debate. As the hon. and learned Member for Harborough (Mr. Garnier) said, new clauses 1, 2 and 4 would add prisoners who have committed specific offences, or those who could have attracted long sentences but did not do so, to the class that renders them ineligible for a home detention curfew.

In the Government's view, home detention curfews do not work like that and Parliament did not intend them to do so. The groups of currently disbarred prisoners fall into five categories, whose common thread is risk to the public or the danger of breaching the curfew. The first category are those who have previously breached trust, perhaps because they failed to return from temporary release, were recalled to prison while on licence, or breached previous home detention curfew. Secondly, those subject to immigration enforcement action are excluded. I do not think that I need say any more about that category, on which the House agrees. Thirdly, the provisions exclude those who are required to register with the police as sex offenders on their release. Fourthly, they exclude those whom the court considers pose a serious risk of reoffending with regard to violent offences, and whom it has therefore sentenced to imprisonment with extended supervision. The final category covers offenders whose offending was brought about by mental illness that has prompted the court to make a hospital order or similar provision on the basis of risk to the public.

No class of prisoner is excluded from home detention curfew simply to demonstrate society's disapproval of an offence. To be fair to the hon. Member for Southwark, North and Bermondsey (Mr. Hughes), I point out that he accepted that that is what he was seeking to do by supporting the new clause. The length of a sentence is a matter for the court to decide. Parliament's involvement rightly consists of setting the maximum duration for any offence, but individual sentences are for the court.

The hon. Member for North-East Hertfordshire (Mr. Heald) referred to manslaughter, which can vary in degree enormously. It can be an attack that is just short of murder, a mercy killing, or an assault by a victim of domestic violence who has exceeded self-defence in an attempt to protect herself. The risk to the public would be low in such cases. In some tragic cases--especially mercy killings--such offences are committed by somebody who was previously of entirely blameless character.

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The court would mark such cases with a breach of the law or perhaps a custodial sentence, but would recognise that it would be inappropriate to mark them with an extended sentence. As a matter of principle, it would not be right to remove the possibility of home detention curfews merely because offences that fall into the category of manslaughter, but which were committed in far more serious circumstances, ensure that other people receive far longer sentences. That is why listing exclusions from home detention curfew in accordance with offence is not right in principle. Such exclusions must be made in terms of risk.

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