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13 Jan 2003 : Column 442—continued

5.34 pm

Mr. Edward Garnier (Harborough): I agree with earlier remarks that the sooner the criminal law is codified, the sooner we will stop having these debates, because it will be so much easier for the Home Secretary of the day to understand what the law is, without having to leap unadvised, or ill-advisedly, on to the media.

I do not want to spoil the very good speech made by my right hon. Friend the Member for West Dorset (Mr. Letwin), but I urge some caution on him in relation to sentencing guidelines. It seems to me from my experience—I sit as a Crown court recorder, although my practice as a barrister is entirely in the civil sphere—that the flexibility given to the guidelines by having them designed or promulgated by the Court of Appeal is far greater than that which would be achieved by having them set by the House of Commons.

Parliament is usually several years out of date when it comes to discuss any particular criminal justice problem. It may be that we have a difference of language and that my right hon. Friend is not proposing that the House of Commons should play quite the same role as the Court of Appeal, criminal division. Anyhow, I urge a little caution there.

Mr. Bellingham: Does my hon. and learned Friend agree that burglary sentencing was going quite well and that it was unnecessary for the Lord Chief Justice and the Lord Chancellor to intervene?

Mr. Garnier: That involves two different problems. I do not know whether my hon. Friend has read the judgment issued just before Christmas by the Lord Chief Justice in the two cases that have caused the controversy, but it is well worth reading.

Mr. Bellingham: I shall read it.

Mr. Garnier: I am sure that my hon. Friend, as an assiduous studier of these matters, will rush to the Library and do so.

The recent shootings in Birmingham have brought once again to public focus a particular aspect of the criminal justice system—namely, gun crime. It is right

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that we are turning our attention to it once again in the House, although I am not sure, as other speakers have suggested, that the Government's response to those shootings has been thought through coherently.

As my right hon. Friend the Member for West Dorset said, the Government are notorious for their love of a good headline. Indeed, the Prime Minister desperately pleaded with his staff in the last Parliament to find him eye-catching initiatives with which he could be personally associated. Lately, he has had to contend with an eye-catching Lord Chancellor and a Lord Chief Justice—two figures at the very top of the judicial tree who are not quite so adept at anticipating the consequences of interviews with the press as he would like.

The Prime Minister, of course, wants to be seen as leading a Government who are tough on crime and tough on the causes of crime; one of his glibber little phrases that was so pleasing to the eye and the ear when invented and first spoken, but which has returned to haunt him again and again as the public have come to realise that he and his Ministers have done nothing of substance to make this a safer country to live in.

The Government have promised much and delivered little in a vast swathe of public policy areas, but in the sphere of criminal justice that criticism is particularly accurate. Much of their failure has been entirely of their own making. We have a Home Secretary who celebrates his antipathy to judges and lawyers—the very people who work hard to make the criminal justice system work—and we know that he is a reasonably canny operator who never says anything without having first worked out whether it will resonate well with his chosen audience.

That is all, I suppose, the stuff of politics and one should neither be too surprised nor too precious about the approach of the Home Secretary or of the entire Government to public discussion of their failures, but I sometimes think that they would not be in such a muddle if the Government had occasionally thought before putting their spin machine into operation. The desire to fill the available air time or newspaper page has led them to believe that the announcement is the answer and that the soundbite is the substance.

To identify a target is to hit it in the bull's-eye, so we had last week two conflicting messages and a lot of tongue-tied and confused junior Ministers trying to reconcile the irreconcilable. We must have tough new minimum sentences for gun crime, but we must not send burglars to prison.

May I deal briefly with the second of those two issues? All criminal sentencing is based on both the offence and the offender. The first-time defendant is likely to receive a lesser sentence than a defendant on a similar charge who is back for his third or fourth offence. First-time burglars, be they burglars of domestic or business premises, are not sent to prison if at all possible because sentencers realise that jail is not always the answer to the defendant's problems, albeit that prison is likely where the victim would like him to go.

The Lord Chancellor's remarks on the XToday" programme were, frankly, fatuous and an object lesson in that it is better to say nothing if one has nothing

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sensible to say. Repeat, professional burglars must go to prison, because, to put it at its lowest, they are a public nuisance. If there are insufficient prison places, the Government must provide more temporary or permanent ones. They should not go on the radio to tell the public that their concerns about burglary and its consequences for the home owner and his family are exaggerated or misplaced.

As for the five-year minimum sentence for gun criminals, yet again I fear that the Home Secretary said what he thought would go down well in a saloon bar, but failed to recognise what is already happening in the courts. It is hardly surprising that he has had to step back. Had he taken the trouble to find out what the courts are already doing he might not be in the mess in which he now finds himself. The offences and the penalties associated with them are set out in the Firearms Act 1968, the Firearms (Amendment) Act 1994 and the Criminal Justice and Public Order Act 1994. The existing penalties range from non-custodial sentences to life imprisonment and, in appropriate cases, the courts have imposed lengthy prison terms.

However, the number of years' penalty determined by statute does not deter the criminal. By and large, if he thinks about the long-term consequences of his actions at all, he does not believe that he will ever be caught. Announcing new minimum sentences merely makes the politicians think that they are doing something positive, whereas what is needed is a vastly better resourced and increased police force, Customs and Excise service and intelligence service, and far greater co-operation between our drugs and gun-crime teams and those overseas. If #1 million is spent on diverting drug-crop farmers in south America or Asia, that is far more productive than spending the equivalent sum on the criminal justice system here to deal with the gangs, the guns and the dealers.

However, that is not to underestimate the problem that we face. The unlawful possession and use of firearms has long been recognised as a grave source of danger to society. The reasons are obvious—firearms may be used to take life, cause serious injury or further the commission of other serious crimes. Often the victims are those charged with enforcing the law or the protection of persons or property. In conflicts between competing criminal gangs, often related to the supply of drugs, the use and possession of firearms provoke an escalating spiral of violence. When imitation firearms are used, the risk to life and limb is absent, but those weapons are often used to frighten and intimidate victims to reinforce unlawful demands. It is often hard to distinguish them from the real thing—for practical purposes, it is impossible in the circumstances in which they are used. Victims are usually as frightened and intimidated as they would be if genuine firearms had been used, and are often isolated and vulnerable. Sometimes, genuine firearms are disabled and cannot be fired, or cannot be fired for want of ammunition. In those cases, the risk to life and limb is again absent, but the use of the weapon to frighten or intimidate remains, and it may be used in earnest on another occasion.

The appropriate sentence for a firearms offence, as for any other offence, depends on all the facts and circumstances relevant to the offence and the offender. It will, however, usually be appropriate for the sentencing court to ask a series of questions. First, what sort of

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weapon is involved? Genuine firearms are more dangerous than imitation ones; loaded firearms are more dangerous than unloaded ones; unloaded firearms for which ammunition is available are more dangerous than firearms for which no ammunition is available. Possession of a firearm that has no lawful use, such as a sawn-off shotgun, will be viewed even more seriously than possession of a firearm that can be used lawfully. Secondly, what, if any, use has been made of the firearm? The more prolonged, premeditated and violent the use, the more serious the offence is likely to be. Thirdly, with what intention, if any, has the defendant possessed or used the firearm? Clearly, the more serious the intended act, the more serious the offence. Fourthly, what is the defendant's record? The seriousness of any firearms offence is inevitably greater if the offender has an established record of committing firearms offences or violent crimes.

The cases decided in the Court of Appeal are diverse in nature. Any rigid and formulaic approach to sentencing could produce injustice in some cases. Even offences which, on the face of it, appear to be very grave may, on examination, turn out to be less so. Given both the clear public need to discourage the unlawful possession and use of firearms, whether real or imitation, and Parliament's intention, expressed in a continuing increase in maximum penalties, the courts should treat any firearms offence as serious—and they do. It is fair to say that some sentences imposed for such offences in the past have failed to reflect their seriousness and the justifiable public concern that they arouse. Save for minor infringements, which may be properly dealt with summarily, firearms offences almost invariably merit custodial terms, even on a guilty plea and in the case of an offender with no previous record.

When the courts deal with serious offences under the legislation, the custodial term is likely to be of a considerable length. When the four questions that I have posed yield adverse answers for the offender, terms at or approaching the maximum may, in a contested case, be appropriate. We do not need more legislation to deal with gun crime but the sensible application of existing law and clarity of approach from the Government. I urge them not to rush to the newspapers and media studios to sound off the latest half-witted saloon bar idea that comes into their head. They should ask their advisers what the law is and how it is being applied, and if it is being applied sensibly they should leave it alone. We have far too much legislation mucking up the criminal justice system and confusing the courts. The Minister is a man of integrity and common sense, and I urge him to take that lesson back to his masters.

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