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6 May 2008 : Column 584

If we are not careful, we shall be able to describe the Bill as a piece of order, counter-order and disorder. In the light of the Bill, the poor old Criminal Justice Act 2003 will look even more ridiculous and abused than it is already. The Government need to be more confident in the ability of magistrates to use their discretion properly and to deliver the appropriate sentence in relation to the facts of the case, in relation to the offender, in relation to the victim and in relation to the wider needs of the public to see justice done.

Simply getting rid of the power of magistrates to award a suspended sentence in summary-only cases is not the answer; it is the result of a panic decision. Having made a bad decision, the Government do not have the self-confidence to realise that they have made a mistake and to stop. They should not reinforce failure but move on, in their new, post-Thursday listening mode. I know the Minister enjoys everything that I say, although he does not always remember it the following day. Even if the Government do not listen to what I say, I suggest with the greatest diffidence that they listen carefully to what the other place has said. They should have a think about it, rather than box themselves into a corner. At this early stage of the implementation of the 2003 Act, they should permit magistrates to continue to give, in the appropriate cases, suspended sentences of imprisonment for summary-only offences. I make that suggestion candidly, with honesty and openly. I hope that the Minister’s mind is sufficiently open to listen to my helpful suggestion, which I present to him with much respect but little hope—

Maria Eagle: You are spoiling the consensus!

Mr. Garnier: If the Under-Secretary demonstrated her point by leaping to the Dispatch Box and saying, “Goodness me! I wish that I’d thought of that before. If only I had not wasted parliamentary time by trying to get clause 10 in the Bill and keep it there,” we would all be much happier. However, I suspect that whether I have spoiled the consensus or not, the Minister and the Under-Secretary will be nailed to this particularly feeble tree. I rather wish that they were not.

Andrew Miller: I start by referring to the issue on which the hon. and learned Member for Harborough (Mr. Garnier) touched. Let us all be open and honest: I should say that I agree with him. He was absolutely right to say that we need greater resources for the training of magistrates. One of the things I have detected from the regular reports I get from the bench on which my wife has served for many years is the huge variability of the training and the inconsistent messages coming from the trainers. I certainly agree with the hon. and learned Gentleman that one tool at the Government’s disposal is to improve the training of magistrates. It is critical that we create an environment in which the appropriate community sentences, with the proper pre-sentencing reports, can be applied. I am thinking especially of the type of cases about which many of us hear regularly in our constituencies.

Only last week, I saw a photograph of the new Mayor of London watching two young men scrubbing walls as part of a community sentence, although I cannot remember the details. If a magistrates bench determines that such a punishment is appropriate—not to humiliate, but to
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deal with the issue of reparation, which has an influence on young people in respect of how they respond to society’s penalties—then there is merit in that.

I want greater examination of the results of any studies by the House of the changes, to ensure—if the theory is correct—that we see some positive results. The issue is not simply the number of prison places, although I understand why the hon. and learned Gentleman might perceive that to be in the Government’s mind. At the end of the day, our task here is to create an environment that helps in the overall campaign to reduce crime in our society. All the evidence that I have seen suggests that the extended use of community sentences has its place. It is not an appropriate tool to apply universally, but where it is applied, particularly in the case of some young people, it can have the desired effect.

4.30 pm

If I may go off at a slight tangent, the other day I came across a case involving an attempt to apply universally a community penalty by a chief constable through a response to a fixed penalty notice. I have to tell my right hon. Friend the Minister that it happened to be the chief constable in his area, who has a notorious view of some motoring offences. He was dealing with a mature gentleman who was deeply offended by the fact that for going a couple of miles an hour over the speed limit he was being treated in the same way as some young people who had been committing offences that could have had far more serious consequences. In all cases, whoever is issuing the penalty needs carefully to consider the particular circumstances around the case. As my right hon. Friend knows, I have always taken a much tougher line than the Government on drink-driving issues, and I would caution against taking what might be perceived as a more lenient approach. In some areas of the country, there has been a steady move towards winning the battle of hearts and minds over drink-driving, and we need to ensure that we are not perceived to be taking a softer line in that respect.

I have discussed reparation with a number of young people in my constituency from different parts of society, in organised youth groups and in informal environments. We can undoubtedly learn a lot more by engaging with young people about how they respond to community sentences involving a degree of reparation, and I commend that to the Government.

As for the removal of clause 10, I recognise that this debate is being conducted, on all sides, in an honest and open manner that is helpful in this area of law-making, where nobody can claim to have 100 per cent. of the answers. As my right hon. Friend explained, the sentencing statistics show an unexpectedly heavy use of the suspended sentence but no commensurate drop in the use of the immediate custodial sentence, which implies that the courts are regarding the new suspended sentence as a heavy community sentence and therefore as an attractive sentencing option. It should not be seen in those simplistic terms. We should ensure, by improving the training of our magistracy and broadening the range of tools in their armoury, that the downward pressure on crime is continued. I would urge that, with the constraints that my right hon. Friend has described, we seek to move the Bill forward with clause 10 intact.

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David Howarth: This is one of those debates where nearly everyone agrees about the objectives but disagrees about how to get there. As I understand it, the objective is to ensure that magistrates use community sentences to the maximum degree appropriate and that people are not sent to prison as the consequence of breaching a suspended sentence. First, the question is whether the Government are right in their prediction of what would happen were clause 10 to be implemented. Secondly, even if they are right in predicting the direction in which the prison population goes as a result of clause 10, have they chosen the best possible way of achieving that end?

The sentencing guidelines for magistrates courts included in the Judicial Studies Board publication on this matter are very clear. Perhaps I should declare an interest; my wife is a magistrate, so I get to read such books more often than hon. Members may think. Suspending a sentence is done after a decision has been taken to impose a custodial sentence, and the process has to work in that order. If the guidelines are followed, it would not be possible for a court to do what the Minister said that it would eventually do, which is to compare the effects of a custodial sentence and a community one. According to the guidelines, courts should not do that. First, they have to decide whether the offence is so serious that only imprisonment is appropriate. Only after that can they decide whether to suspend the sentence or not.

To the extent that courts are following the guidelines, it follows that clause 10 and the abolition of the right to suspend sentences on summary conviction will have the effect of raising the rate of imprisonment. If a decision has been made to imprison and a suspension of sentence is not available, the sentence will be immediate imprisonment. The Government’s case is that magistrates are not following the guidelines, or that they are changing the threshold at which they decide that people should be imprisoned as a result of the Criminal Justice Act 2003. The Government assert that if the position established by the 2003 Act, which came into force in 2005, is changed back, the situation will reverse. The question is whether that is right, and I am not entirely convinced that it is.

Consistency is an important matter for legal decision makers; they do not like doing inconsistent things. Sentences are influenced not just by the case in question, but by a sense of fairness with regard to the run of cases that have been considered. Magistrates sit for a day a fortnight and they do not consider dozens of cases per week. They look back over a large chunk of time when comparing their current decisions with previous ones. When trying to be fair about in-out decisions, and in maintaining consistency over the previous year, there is a severe risk that removal of the power to suspend prison sentences for summary cases will mean an increase in immediate imprisonment. It will not result in the change in the other direction that the Minister predicted. That is a matter of judgment and no one can be sure about the effects—the Minister is right about that—but I fear that the risk exists.

The Government have issued the Opposition with the challenge, today and in the House of Lords, to explain the figures that the Minister presented. How is it that, on summary conviction in the magistrates court, the introduction of the new suspended sentence
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order has not resulted in a commensurate drop in immediate imprisonment? There are many possible explanations, and not all are excluded by the evidence before us. We are making the decision quickly, on the basis of one year’s figures.

What other possible explanations exist? We have heard one, which is that the seriousness of offences has increased. That is unlikely and not the only possible explanation. Another explanation is that prosecutors are raising the level at which they charge—“up-charging” in the ugly jargon of the profession. That is possible in driving cases—for example, moving up from careless driving to more serious offences. However, we do not know whether that is the case.

Mr. Garnier: What the hon. Gentleman suggests is unlikely to be the case. Prosecutors often reduce the charge to be more sure of a guilty plea rather than go to the expense, time and trouble of a contested trial on a more serious charge.

David Howarth: As the hon. and learned Gentleman says, that happens most of the time, but we do not know whether that effect has been reversed or whether the normal pressure to do what he outlines has been lessened.

It is also possible that general public concern about violent crime has caused a change in sentencing behaviour. Recorded crime is falling—and has been falling for the past 15 years—but violent crime has not reduced commensurately. Indeed, sometimes violent crime increases—certainly anxiety about violent crime is growing.

Let me propose a third explanation, which the Government should consider. The use of the suspended sentence is concentrated on re-sentencing for community orders. What happens when an offender is given a community order, a programme to attend, unpaid work to complete and supervision to undergo but fails to fulfil the conditions? The offender returns to the magistrates court to be re-sentenced. In the past, magistrates have had little choice; they have re-sentenced with a different community order and sometimes a fine, which is difficult, but now they have the option of a suspended sentence.

If that explanation is correct, the problem is concentrated in one area and does not apply across the range in all summary cases. Magistrates may not be concentrating sufficiently closely on the tariff argument in that specific matter. When re-sentencing, a court does not pay as much attention as it does when originally sentencing on the structured approach that the Judicial Studies Board recommends. I would like the Government to consider whether that is the explanation, and if so, to examine whether their approach is right.

My other point follows from something that the hon. Member for Ellesmere Port and Neston (Andrew Miller) said about what is happening in the Crown court and the magistrates courts when sentencing for indictable offences, rather than summary-only offences. The same figures that the Minister cited on summary offences show an ever bigger increase—indeed, an enormous increase—in the use of suspended sentences in magistrates courts for indictable offences from 2005-06. Such cases are not ones for which suspended sentences were previously unavailable. The explanation is not that courts are using a sentence that they could not use before—they could—but there has been an
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enormous increase, of three to four times. There has been an even bigger proportional increase—indeed, a massive increase—in the use of suspended sentences on indictment in the Crown court. In the Crown court, that increase has come at the expense of community orders, whereas in the magistrates courts, it has come at the expense of fines.

4.45 pm

The explanation for what is happening cannot have anything to do with the availability of suspension, so it must be about something else. One possibility is to do with the new form of the suspended sentence order that was introduced under the Criminal Justice Act 2003. The 2003 Act allowed far more flexibility to order something else in addition to a suspended sentence, which was agreed on all sides to be a good thing. The whole panoply of sentencing options that a court has under a community order—the supervision, work, curfews, restrictions and so on—are, under the 2003 Act, also available to a court on a suspended sentence.

The Government might have created too attractive a sentencing option. Courts say to themselves, “This is a good thing that we haven’t been able to do in the past on a suspended sentence”—it used to be a bare suspended sentence, with little additional action. However, under the 2003 Act, the suspended sentence, with all the other things happening, has become more attractive. In addition, a suspended sentence looks like a good way of getting an offender to do what they are supposed to do. Instead of just saying, “You’ve got a community order—you’ve got to turn up for this and that,” there is also the threat of imprisonment hanging over the offender’s head. That makes a suspended sentence more attractive.

That is more likely to be what is happening than simply something to do with summary offences. If that is the case, the remedy cannot just be the abolition of the power on summary offences, nor can it be to remove the power of suspension or all the other attractive options that go with it under the 2003 Act, which would be a retrograde step. The only option that covers all the ground is training and the reiteration of guidance, to ensure that judges are aware of the problem caused if they ignore the structured approach to sentencing that has been agreed by the Judicial Studies Board, under which they should use the suspended sentence order, attractive though it is, only in cases where they have decided to imprison.

There is also a strange psychological problem, in that all the other, community order-type options do not seem to go naturally with a suspended sentence, which is a sentence that says, “Go to jail.” When people are in jail, they do not normally get all the other options. There is a problem with how courts are thinking about suspended sentence orders as a whole.

Another reason why the better option is guidance and training is related to the Government’s policy towards the moving of the tariff. It is possible to say that the tariff has moved in the wrong direction on summary convictions and that we want to move it back—I am not too sure that it will, however—by removing the option. However, by maintaining the current position for magistrates courts sentencing on indictable offences and for Crown courts sentencing on indictment, the Government appear to be saying that it is fine in those circumstances for the change in the tariff to continue in the wrong direction. I
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do not think that can be right. Magistrates courts are being sent two conflicting messages: that in summary cases the tariff has moved the wrong way, but that in indictable cases it has not. That does not make sense. For that reason, and in order to have a coherent approach to the whole problem, which has arisen because of the success of the new suspended sentence order, the only way to deal with the issue is through training and guidance.

Mr. Garnier: Is there not another way of looking at the matter? The hon. Gentleman and I have both mentioned the sensible aspect of the 2003 Act that allowed requirements to be added to the suspended sentence as though it were a community sentence, although it is not. The reason why those on suspended sentences end up going to prison is, as often as not, because they breach or fail to comply with the requirements of the probation aspect of the suspended sentence, not because they commit a further offence. However, that is also a problem with community sentences. We need to see from the Government a real earnest to ensure that those who are subject to requirements will be properly supervised and monitored. That is where the breakdown comes; it is not in the sentencing process, but in the monitoring of requirements.

David Howarth: There are always challenges in that area. One difficulty with the new suspended sentence order is that when a case comes back, when someone has not fulfilled their requirements, they are already seen as being over the threshold for imprisonment. There is then a kind of automatic idea that the next step should be imprisonment rather than a repeat order or other sentence. For all those reasons, the Government might not be right in their prediction of what will happen if clause 10 is reinstated. Even if they are right, to some extent, they are not dealing with the problem in the best possible way. Given the risk that things might go into reverse in the wrong conditions, I prefer the Lords’ approach to the Minister’s.

Mr. Hanson: I am grateful for our short debate, and I must respond to the point that the hon. Member for Cambridge (David Howarth) has just made. I am genuinely disappointed that he takes that view, because his colleague, the hon. Member for Somerton and Frome (Mr. Heath), said on Second Reading:

David Howarth: I thank the Minister for giving way. This is an instance in which the new procedure, in Committee, of having a kind of Select Committee investigation before going into the Bill, has proven valuable, because it was only at that stage, when we listened to the concerns of the Magistrates Association, that we started to wonder whether the measure was wise. This is about judgment and prediction. The difference is not one of values, between the parties, but one of prediction.

Mr. Hanson: I am grateful for the hon. Gentleman’s intervention. I simply felt that a wider audience was needed for the initial comments, from the Front Bench, of the hon. Member for Somerton and Frome.

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Mr. Garnier: They are all listening to us now.

Mr. Hanson: Absolutely.

I remind the House that clause 10 amends section 189 of the 2003 Act so as to abolish the power of the court to suspend a custodial sentence when it is passing a sentence of imprisonment for a summary-only offence. Our contention is that since the introduction of suspended sentence orders, in 2003, the courts have been using the new suspended sentence in substantial numbers of cases in which non-custodial sentences would previously have been given. Once the option of passing such sentences for summary offences has been abolished, the courts will, by and large, revert to giving community penalties.

I accept that the other place will disagree with our view—indeed, it voted to remove the clause from the Bill on Report—but I still believe that the Government are correct in their contention. But, as I have mentioned, it is important that we create an opportunity to test the water on this matter, which is why I have tabled an amendment that will allow Ministers to reflect on what happens and to assess the contention of the Opposition, and of the hon. Member for Cambridge, that the trend in the use of suspended sentence orders will continue. If that happens, we need to have the power to make amendments accordingly.

Mr. Garnier: I can see what the Minister is trying to do, in having one more shot in relation to the lifting of the order, but why will he not accept the logic of his own suggestion and simply listen to the evidence that has gone before? Why will he not allow the suspended sentence on summary-only cases to continue for a while? That practice has only been in place since 2006, which hardly gives it enough time to be properly assessed. I would suggest that, rather than trying his reverse procedure, he should leave things as they are and let us all assess the position in a couple of years’ time.

Mr. Hanson: As I said to the hon. and learned Gentleman in my opening remarks, we have had some time to assess the situation to date. That assessment shows that the immediate custody rate remains stable at 4 per cent., whereas the usage of suspended sentences increased from 0.5 per cent. in 2005 to 1.7 per cent. in 2006—an increase in actual sentences from 7,081 to 23,274. That big rise has coloured the Government’s opinion on the operation of those sentences.

My contention all along has been that the evidence base is there for us to consider and that we need to take action on it. I have said to the hon. and learned Gentleman openly, honestly and candidly that the impact of the Bill not being amended in the way that I am seeking to do today would involve an additional 400 places. I remind him, if I need to do so, that that is the equivalent of a small prison and would involve considerable expenditure and staffing costs, at a time when there are prison pressures that are being considered and examined.

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