Examination of Witnesses (Questions 20-28)
CINDY BARNETT
AND BRUCE
HOULDER QC
23 OCTOBER 2007
Q20 Robert Neill: Indeed, that is
perhaps what we are looking at. The other thing I wanted to pick
up on: you referred to under charging. Is that still a real problem
in the system?
Bruce Houlder: I do not think
I am qualified to give an answer to that. There is a perceived
wisdom, but that is not always the best informed of wisdoms.
Q21 Robert Neill: I understand. It
is a separate issue. I want to move to the SGC proposals on sentencing
for attempted murder, Mr Houlder. I was interested in particular
in the CBA's take on the proposal that the determinate sentence
for attempted murder should be linked to the minimum tariff structure
for the full offence. Is that a good or a bad thing? What are
the ups and the downs of it?
Bruce Houlder: I have taken the
journey through the Sentencing Advisory Panel approach to it through
to the Sentencing Guidelines Council and I have looked at the
case of Ford, which, of course, the Sentencing Advisory
Panel relied on. I can provide the Committee with a copy if they
wish. There are significant quotes from that case in the SAP's
consultation paper. The Sentencing Advisory Panel, of course,
did not follow the guidelines approach to it, and I think the
guidelines approach to it is a very seductive approach; it has
certain logic to it to follow the tariff sentences, but there
are also problems. First of all, it is one they highlight. It
does not cater for a case which, if it had been homicide, would
have been reduced on trial from murder to manslaughter by reason
of provocation or on the grounds of diminished responsibility.
There is no mechanism on sentencing on attempted murder to try
that. A judge could have a Newton hearing, as it is called, I
suppose, technically to decide whether, if it had been a murder
trial, he would have been acquitted of murder, but that is the
danger. It is starting to use the murder tariffs, schedule 21,
guidelines as a starting point for attempted murder.
Q22 Robert Neill: Would not a judge
be able to depart from a 40% kick-off point if he thought, "This
is clearly—
Bruce Houlder: Yes, he would,
and it is, indeed, spelt out, it is fair to say, in the guidelines
that they are allowed to take account of matters relating to provocation
and mental illness of one kind or another. Certainly it is there,
but the paper speaks in terms of the sentence that would have
been passed if he had committed the full offence. The full offence
here is murder. Very often what is happening is not the full offence,
and it never would have become the full offence and, therefore,
one is starting with a bit of a fudge.
Q23 Robert Neill: So it is not explicit
enough to reflect that it would have been manslaughter rather
than murder?
Bruce Houlder: One would have
to come back to that, but it does not seem to me to do guidelines
any favour, if they are to have logical consistency, to have a
situation where the court is first required to make a determination
as to whether the offence might have been one of manslaughter
if carried out to full effect, because that would perhaps require
a trial of the issue, which is to be avoided, particularly where
someone has pleaded guilty to an attempted murder—one does
not want to call victims in, one does not want to have a trial
on the issue—and that is why I am attracted and the CBA
are attracted to the original proposals of the Sentencing Advisory
Panel. The problem lies, as was stated by Mr Justice Gibbs, who
spoke on behalf of the full court, led by Vice-President Lord
Justice Rose. So, the problem does not lie at the lower end of
the sentencing for attempted murder, those situations which we
can all sympathise with and understand where someone may be provoked
to commit a sudden act of violence which they would never again
commit. The problem lies with the serious offences: the contract
killers.
Q24 Robert Neill: There is a clear
intention to kill?
Bruce Houlder: Yes, people who
try to kill public officials, police officers, and so on. There
is a perception, and there is some evidence, that sentencing there
is too low, and that was made clear by the court in Ford,
and the advisory panel set the starting point there at 20 years
if it was not going to be a whole life sentence, which, of course,
for the serious contract killer it can be a whole life sentence,
but 20 years seems to me a higher starting point than has been
applied by the Court of Appeal in many cases. There is statistical
evidence that the Sentencing Guidelines Council has—I do
not know whether the Committee have it—which shows that,
I think in only four cases of the particularly high category,
let me get it right, 28 out of 70 received life imprisonment or
imprisonment for public protection, in relation to determinate
sentences 31 were for 12 years or less and four only were for
over 20 years. Of course that does not take account of what those
four were and what the ones just under that might have been, but
it seems to have been the experience of the Court of Appeal, as
expressed in Ford, which was a case heard in May 2005,
that the sentencing at the top end was the problem, and that quotation
appears in the Sentencing Advisory Panel's paper.
Q25 Robert Neill: That is very helpful.
The other point I wanted to touch on very briefly with both witnesses
was this overlap between the various forms of assault which, I
think, has already been recognised, both in terms of the definition
of the offence and also in sentencing as well, particularly when
section 47, section 20 have the same maximum sentence and the
difficulties that arise there. Is there a need to revisit the
law on this to try and make the definitions better, or would any
attempt to do that make muddy waters even muddier?
Bruce Houlder: My first instinct
is to say: hands off criminal law, it is a very old Act of Parliament
which continues to serve us well, but I think in time it does
need some codification, yes.
Q26 Robert Neill: Have you any thoughts
at this stage, or would you not want to be drawn as to how we
might do it?
Bruce Houlder: I would not want
to be drawn on the specific. What I would not like is a now common
offence of assault, like there is a common offence of fraud. That,
I should think, might be a problem.
Q27 Robert Neill: No, I understand
that.
Cindy Barnett: I think I might
agree wholeheartedly. Please, no more Acts, no more legislation.
Although in principle codification would be wonderful, I do not
think it would be done in the way that everybody would wish. It
would be seen as more tinkering, because it would inevitably be
over a smaller sphere. Although there are obvious difficulties,
in that you may be faced with very serious injury and yet the
charge may not seem appropriate, that is something that you simply
have to put to one side, as has already been said. Whatever you
are faced with, you have a maximum, you have a guideline in relation
to that particular offence and you deal with the seriousness within
those parameters, and I think that actually works quite well.
Q28 Robert Neill: One wonders if
that is a problem that is more apparent to the text-book writer
than to the practitioner perhaps. I do not know.
Cindy Barnett: I think we are
aware of a slight feeling of surprise sometimes over what has
been charged and the variation.
Robert Neill: It comes back to the charge
again. Thank you.
Chairman: Thank you both very much. We
much appreciate that. It will help us in formulating our own thinking.
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