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House of Commons
Session 2007 - 08
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General Committee Debates
Criminal Justice and Immigration Bill

Criminal Justice and Immigration Bill

The Committee consisted of the following Members:

Chairmen: Frank Cook , Mr. Edward O'Hara , Sir Nicholas Winterton
Burrowes, Mr. David (Enfield, Southgate) (Con)
Coaker, Mr. Vernon (Parliamentary Under-Secretary of State for the Home Department)
Cohen, Harry (Leyton and Wanstead) (Lab)
Eagle, Maria (Parliamentary Under-Secretary of State for Justice)
Garnier, Mr. Edward (Harborough) (Con)
Hanson, Mr. David (Minister of State, Ministry of Justice)
Heath, Mr. David (Somerton and Frome) (LD)
Hollobone, Mr. Philip (Kettering) (Con)
Howarth, David (Cambridge) (LD)
Hurd, Mr. Nick (Ruislip-Northwood) (Con)
Keeble, Ms Sally (Northampton, North) (Lab)
Khan, Mr. Sadiq (Tooting) (Lab)
Michael, Alun (Cardiff, South and Penarth) (Lab/Co-op)
Sharma, Mr. Virendra (Ealing, Southall) (Lab)
Walker, Mr. Charles (Broxbourne) (Con)
Waltho, Lynda (Stourbridge) (Lab)
Wilson, Phil (Sedgefield) (Lab)
Alan Sandall, Committee Clerk
† attended the Committee

Public Bill Committee

Tuesday 20 November 2007


[Frank Cook in the Chair]

Criminal Justice and Immigration Bill

Further written evidence to be reported to the House

CJ&I 379 David Skinner
CJ&I 381 Miss S F R Davies
CJ&I 382 David Kirkman
CJ&I 383 The Christian Institute
CJ&I 384 David Hanson MP
CJ&I 385 Colin McDougal
CJ&I 386 Alabastyr Glyttr
CJ&I 388 The British Psychological Society
CJ&I 389 The Beaumont Trust
CJ&I 390 Reverend R M B West
CJ&I 391 Press for Change (PFC)
CJ&I 393 Miss S Jefford
CJ&I 394 Dr Beaumont
CJ&I 395 Local Government Association
CJ&I 396 Ministry of Justice
CJ&I 397 The Servite Sisters’ Charitable Trust
CJ&I 398 Information Commissioner

Clause 10

Abolition of suspended sentences for summary offences
10.30 am
Question proposed, That the clause stand part of the Bill.
Mr. David Burrowes (Enfield, Southgate) (Con): Welcome to the Chair, Mr. Cook. I welcome everyone back to the Committee. I have been away from its rigours having an operation on my hand, facing my own particular torture in trying to straighten my finger, so it is nice to be back facing a different sort of torture now. We shall see how we progress.
While I have been on the operating table at my fine local North Middlesex hospital, the Ministers have been drafting several amendments to keep us all busy, but has the Minister of State had the opportunity to look at the Prison Reform Trust leaflet, as I encouraged him to do as part of his recess reading? It goes through the sentencing process in detail and makes particular reference to policy developments. As I said at a previous sitting, we are especially concerned about the interference in sentencing jurisdiction and the discretion that has been circumvented by legislation, which has caused the judges’ concern that their hands were being tied. I drew attention to the florid, pejorative and perhaps unparliamentary comment by one judge, when he said how judges look so—expletive—
“silly in court, when we can’t sentence properly because some civil servant has second-guessed us.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 25 October 2007; c. 257.]
Clause 10 is very much in the realm of s. It restricts the use of suspended sentence orders to indictable and either way offences, and to remove suspended sentence jurisdiction when dealing with summary only offences. When giving evidence, concern was expressed by the Magistrates Association and the Police Federation, which opposed the clause. The Magistrates Association said that it
“can see no logical or good reason for this proposal”.
The Police Federation does not support the abolition of suspended sentences, and says that it supports the
“greater use of community sentences”,
and believes that
“suspended sentences provide magistrates with an additional sentencing incentive which can effectively act as a deterrent.”
It therefore recommends that the proposal to remove the option be reconsidered. I endorse the Police Federation’s view.
The Magistrates Association opposes the clause for two particular reasons. The obvious reason is that when dealing with a suspended sentence, one is dealing with an offence that has passed the custody threshold. As the Committee will be aware from the evidence sessions, the Government’s case is that research has shown that suspended sentence orders have been overused and have led to an increase in the prison population. However, in clause 10 and others, the Government are dealing in the wrong way with the problem of prisons being full to capacity. The Magistrates Association says that the jury is very much still out on the research, and questions whether it is sufficiently robust to show that suspended sentence orders have or will have a significant impact on the prison population. It makes the point that a suspended sentence order is imposed when the custody threshold has been reached.
Indeed, the Sentencing Guidelines Council makes it clear on page 24 of its guidance that a suspended sentence is a sentence of imprisonment, imposed when that threshold has been passed—when an offence is so serious that it merits a custodial sentence. The guidelines go on to give helpful recommendations on what magistrates and judges should do when they are dealing with such offences. They make the point that, in those cases,
“requirements can be imposed during the supervision period and the court can respond to breach by sending the offender to custody. The crucial difference is that the suspended sentence is a prison sentence and is appropriate only for an offence that passes the custody threshold and for which imprisonment is the only option.”
The relevant questions to ask, the guidance states, are
“(a) has the custody threshold been passed?
(b) if so, is it unavoidable that a custodial sentence be imposed?
(c) if so, can that sentence be suspended? (sentencers should be clear that they would have imposed a custodial sentence if the power to suspend had not been available)”.
That is the position we are in. The clause is designed not to allow the power to suspend to be available. That will lead any sentencer to deal with the three questions within the guidance. Has the custody threshold been passed? Yes. Is it unavoidable that a custodial sentence be imposed? Yes. If so, can that sentence be suspended? They would have to answer, because of this clause: no, the sentence cannot be suspended. So, inevitably, to be true to the guidance from the Sentencing Guidelines Council and the statutory provisions, they would have to send the defendant to prison. Therefore, the argument that the clause would lead to a reduction in the prison population is not properly made out.
Mr. Philip Hollobone (Kettering) (Con): I do not have the privilege of being a practising lawyer, as my hon. Friend does, so my thoughts may be a lot more simple on these things, but surely it is screamingly obvious that the Government’s efforts will not achieve what they intend to achieve? The evidence given to the Committee on 16 October by the chief executive of the Magistrates Association could not be clearer. Cindy Barnett and Sally Dickinson themselves made it very clear that the measure will have no effect at all on custodial sentences and will actually ensure that more people go to prison who otherwise would have been kept out of it. At a time when the national prison population has never been higher, is this not simply the most unfortunate and almost crazy way for the Government to proceed?
Mr. Burrowes: I could not put it better than my hon. Friend has. It is crazy. The Government may well think that we would say that, but surely, if the Magistrates Association and the Police Federation are saying that it does not make sense, the Government should listen and reconsider?
The Chairman: Order. I sympathise with the time spent correcting one’s digits, but I think that in that time the hon. Gentleman may have forgotten that I am partially deaf and that I like arguments to be expressed clearly and through the Chair.
Mr. Burrowes: I am grateful to you, Mr. Cook. As a solicitor, I should know that I should address the chairman of the magistrates. I would not want to get on the wrong side of the person judging.
Let us try to be charitable to the Government. Perhaps they will argue that the problem is that too many suspended sentence orders have been made with too rigorous requirements, which have been breached and have led to custodial sentences inevitably being imposed. But I again refer to the Sentencing Guidelines Council publication “New Sentences: Criminal Justice Act 2003”, which says on page 25 that
“Because of the very clear deterrent threat involved in a suspended sentence, the requirements imposed should generally be less onerous than those imposed as part of a community sentence. A court wishing to impose onerous or intensive requirements on an offender should reconsider its decision to suspend sentence and consider whether a community sentence might be more appropriate.”
The first problem with the clause is that when the custody threshold has been reached, a custodial sentence will follow without suspension. The other point made quite properly by the Magistrates Association is that the proposal seems to be one of the first to differentiate
“so radically in sentencing disposals between summary and either-way matters.”
That would lead to an anomaly, one that Cindy Barnett, the chairman of the Magistrates Association, referred to in an evidence-taking session. It occurs when one is dealing with a summary only case and an either way case. I will take the example of a defendant charged with joyriding or aggravated vehicle taking, which could be an either way case. However, this particular defendant ended up smashing his vehicle into another vehicle, resulting in damage worth less than £5,000—£4,999 to be exact. The case therefore had to be determined as a summary only, magistrates only case. The defendant also drove while disqualified and was driving under the influence of excess alcohol, at three times the limit. All of those factors together place him above the custody threshold; the offence is so serious as to merit custody.
At the same court on the same day, another joyrider appears, again charged with aggravated vehicle taking, driving while disqualified and driving under the influence of excess alcohol. That defendant was involved in smashing up his own vehicle and another vehicle, causing damage worth £5,000—£1 more than the other defendant at the same court caused. Under the proposed legislation, the latter case would be dealt with as an either way offence. The two cases would come before the same magistrates court and the magistrate would deal with those two defendants differently, but both cases exceed the custody threshold and a custodial sentence would be inevitable. However, let us suppose that the magistrate was also told that both defendants, for example, suffered from a terminal illness—that there were mitigating circumstances to merit the magistrate deciding to suspend the sentence.
In the case of the defendant who caused damage worth less than £5,000, the court would have its hands tied; it would be unable to suspend the sentence for that defendant. As the defendant was suffering from a terminal illness, a community penalty would not be suitable, so the court would be left with two options: a conditional discharge or a custodial sentence. Given the severity of the case, the court would be hard pushed not to impose a custodial sentence. In the case of the defendant who caused damage that amounted to £1 more in costs, under the proposals the court would have discretion to impose a suspended sentence. What an anomaly. The chairman of the Magistrates Association said of such cases:
“I think that the bench involved would follow the law absolutely in both cases in relation to sentencing, but would be very aware of the anomaly caused by the legislation. As a general rule, as has been said, we would prefer more rather than less discretion.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 16 October 2007; c. 37, Q78.]
The Minister must tell the Committee what evidence there is just justify for creating such an anomaly and disparity.
Continuing to deal with those two examples, the disparity is made worse if the joyriders had gone into a shop and stolen a Mars bar. The defendants would be charged with theft and their cases would be treated as either way offences. The magistrates would then have powers to suspend the sentence because an either way offence is included in the summary only offences. Nevertheless, that would be a convoluted way to sentence. The magistrates would have to rely upon the relatively less serious offence of theft of a Mars bar to put the defendant into the category of cases that can receive suspended sentences. That does not make sense, and the Government have not laid out evidence that they need to reduce the discretion of magistrates courts.
It is worth us spending some time on the clause because it is an example of many clauses that have not been properly thought through. Such clauses are a response to the Government’s concerns about prison overpopulation, but they seek to deal with the problem in the wrong way and in a way that has not properly taken account of or listened to the people in the field—practitioners, magistrates and police—who wish to persuade the Government not to follow a course of action for the sake of over-legislating. I therefore want the Committee to vote against the clause standing part.
10.45 am
Mr. David Heath (Somerton and Frome) (LD): I welcome you to this little Committee of ours, Mr. Cook. The Criminal Justice and Immigration Bill is a delight to return to after our short break.
I hope that we will be able to make quick progress at times today, but we cannot allow clause 10 to pass without serious comment. I will echo some of the concerns expressed by the hon. Member for Enfield, Southgate. Initially, I welcomed the clause. At first sight, it seemed eminently sensible that the Government should wish to encourage the use of community sentencing and discourage the use of suspended custodial sentences in preference to community sentences. I understood where the Government were coming from. However, I do not accept the argument that we should restrict the discretion of the courts in order to meet the shortcomings of the prison estate. That seems to be entirely wrong, and I am concerned by the comments that the Lord Chief Justice expressed only last week on that front. It seems that we are increasingly limiting the discretion of the courts simply because of the Government’s inability to provide the necessary prison places. I have frequently expressed my own views on how we could get around that problem: rather than build more prisons, we should build other secure institutions to remove from prison those people who should not be there. However, that is a debate for another day.
Closer examination of the Government’s argument for the clause reveals that they cannot possibly achieve those objectives. That is why we are asking the Ministers to think again. I do not think that they have looked at their proposals’ consequences for what actually happens in a courtroom setting. I will return to the argument made by the hon. Member for Enfield, Southgate and refer to the advice that is given to magistrates. I would have hoped that the Ministers looked at that advice before embarking on this proposal.
As we know, responsibility for the training of magistrates and full and part-time judges in this country lies with the Judicial Studies Board. The Judicial Studies Board helpfully provides advice to magistrates in the form of the “Adult Court Bench Book”, which sets out in explicit terms how magistrates are to approach the difficult area of sentencing. The “Adult Court Bench Book”, which magistrates are required to have regard for in their decision making, first states how they are to assess the sentencing threshold, a point to which the hon. Gentleman referred. I refer the Minister to page 49—he may not have a copy about his person, so I shall read out the relevant part for his benefit. The heading is: “WHAT LEVEL OF SENTENCING ARE YOU CONSIDERING?” The subheading is: “Which sentencing threshold has been passed?” It then sets out the various levels that the magistrate is required to consider. The lowest sentence available is
“Absolute or conditional discharge—the offence does not merit the imposition of immediate punishment.”
The second tier is
“Fine—the offence merits an immediate punishment, but is not serious enough to warrant the restriction of liberty involved in a community sentence.”
The third tier is
“Community sentence—the offence is serious enough to warrant a restriction of liberty, but not so serious as to justify a custodial sentence.”
It is only at the fourth tier that we get to the point of a custodial sentence, if
“the offence is so serious that neither a fine alone nor a community sentence can be justified.”
Beyond that there is a further tier:
“Committal to the Crown Court for sentence”,
if the offence warrants a sentence that a magistrate would not have the power to impose.
At no point during that initial consideration does the magistrates bench consider whether a suspension of the sentence is or is not appropriate. It merely decides whether the severity of the offence merits a custodial sentence. It is only once that decision has been reached that the magistrate can make a second decision, on whether that custodial sentence could be suspended, served intermittently or shortened commensurate with the gravity of the offence.
It is possible that the Minister intends that alternative advice be given to magistrates on the hierarchy of offences, I do not know. However, in the absence of other clear advice, the consequence of clause 10 as it stands is that a magistrate can take a decision only on whether the gravity of the offence requires a custodial sentence; he or she does not then have the capacity or the discretion to say that that sentence should be suspended. Therefore, the automaticity of a custodial sentence becomes absolute. Far from reducing the number of offenders who are sent to prison, the clause would increase it. That is exactly the point made by the hon. Member for Enfield, Southgate, which I seek to amplify.
I think that the Minister has got the measure wrong—not intentionally; no one intends that to be the consequence, but the consequence will not be what is expected. Given the clear advice from the Magistrates Association, from practitioners and from everybody else who knows about the subject, it would be sensible of the Minister to think again. If the clause will not achieve what we want, perhaps it should be taken away and more work be done on it. In its current state, the clause will not achieve its objectives.
Mr. Burrowes: Does the hon. Gentleman endorse the suggestion made by magistrates that the concern, if there is one, could be met not by removing their discretion, but by encouraging them to have training to apply existing legislation properly?
Mr. Heath: I think that that is right. I always resile, where possible, from reducing the discretion of courts, because only a court hears the circumstances of an individual case. However, if there is a problem with the interpretation of the present rules, and the Minister has a genuine concern—and I am sure that he does—about that, it is a matter of returning to the Judicial Studies Board and recognising that the problem needs to be addressed with the magistrates benches. They need to understand that our intention is to use community sentencing more and suspended sentences less. Perhaps we need a rewriting of the entire hierarchy of consideration of sentencing.
That would be a radical step, but it is not impossible. What is impossible is to reconcile clause 10 with the current advice given to magistrates on sentencing and the outcome that the Minister hopes to achieve. For that reason, I shall join the Conservatives in voting against the clause, unless the Minister can assure us that he will take it away and rewrite it.
The Minister of State, Ministry of Justice (Mr. David Hanson): I welcome you to the Chair, Mr. Cook, for what I understand may be a temporary sojourn today. I hope that you enjoy our deliberations. Could I also welcome my hon. Friend—in this case—the Member for Enfield, Southgate on his return following his injury and operation over the short recess period between the end of the last session and the beginning of this one. I suppose that we are technically a year on from our last consideration of this matter.
Mr. Sadiq Khan (Tooting) (Lab): It certainly feels that way.
Mr. Hanson: My hon. Friend the Member for Tooting has pinched my punchline.
The Parliamentary Under-Secretary of State for Justice (Maria Eagle): Not for the first time.
Mr. Hanson: No, not for the first time. I welcome all hon. Members back to the Committee for what I hope will be a productive and—dare I say it?—speedy sitting.
I fully recognise the points that have been made. Obviously, both the hon. Members for Enfield, Southgate and for Somerton and Frome have prayed in aid evidence that the Committee received before this line-by-line scrutiny stage. There are certainly points within that evidence that are worthy of reflection.
The clause, as hon. Members know, will remove the criminal courts’ power to impose a suspended sentence order for a summary only offence. It will not affect the power to impose immediate custody for those offences and the courts will still be able to impose suspended sentence orders for either way or indictable only offences, and, as was mentioned by the hon. Member for Enfield, Southgate, for a summary offence where it is sentenced together with an either way or indictable only offence.
We have given serious consideration to these matters. It is part of the Government’s drive to examine how we can achieve greater use of community sentences and I accept that that will have some impact upon the prison population. Both the hon. Members who have spoken so far have mentioned the prison population. They will know that, at the moment, there are just over 81,000 people in prison.
Mr. Edward Garnier (Harborough) (Con): Eighty-one thousand five hundred.
Mr. Hanson: Eighty-one thousand five hundred; that was a helpful intervention by the hon. and learned Member for Harborough. The maximum capacity for the prison population is approximately 82,000. I believe that we must examine how we can avoid custody for individuals, particularly where—I will argue this case—whether they go to prison is a marginal decision.
The use of suspended sentence orders has increased dramatically since their introduction in April 2005. Recently, more than 3,500 such orders per month have been given by the courts, of which about 40 per cent. are for summary only offences, which the clause deals with. Although sentencing trends show a small drop in sentencing of immediate custody, that is greatly exceeded by the increase in suspended sentences, which suggests that many of those sentenced to a suspended sentence order would previously have been sentenced to a non-custodial sentence. That is the point that I wish to make. I accept the points that were made earlier about the guidance that is given, but I contend that many of those who are now receiving suspended sentence orders would have received a community sentence before.
May I pray in aid Lord Phillips of Worth Matravers, the Lord Chief Justice? Only last week, on 15 November 2007, in a speech to the Howard League for Penal Reform, he said:
“The seriousness of the offence determines whether it crosses what is known as ‘the custody threshold’, but factors personal to the offender can justify the court in passing a non-custodial sentence even where the custodial threshold is crossed. In practice there is quite a wide border-line area where it is open to the court to choose between sending the offender to prison or dealing with him in some other way. This is particularly true in the case of Magistrates”.
Mr. Garnier: I was there, listening to the Lord Chief Justice as he gave the Cripps lecture, sponsored by the Howard League for Penal Reform and Clifford Chance. It was a very thoughtful speech, ranging across quite a lot of issues relating to criminal justice policy and sentencing.
However, the point that the Minister of State must get to grips with is the one that was revealed during our evidence session, when Ellie Roy was giving evidence and she quoted the 40 per cent. figure. The Minister of State may remember that I asked Ellie Roy about that figure and specifically whether she had done any unpicking of that figure, to analyse why, in 40 per cent. of cases, magistrates were sentencing in the way that she described in our evidence session and the way that the Minister of State now describes. Repetition of the figure does not help us; we need analysis of the basis upon which that 40 per cent. figure is arrived at. I am not yet sure that the right hon. Gentleman has done that analysis.
May I finish by making another point? I appreciate that, as a recorder, I do not try summary offences unless they are sent up on an either way basis from the magistrates court, but I can assure the Minister of State that the power to give a suspended custodial sentence is one of the most valuable weapons at the disposal of a criminal justice system. If he removes it from the magistrates court he would do great damage to the ability of the courts to sentence appropriately. I urge him to think carefully about this aspect of the sentencing regime before he resists the Opposition’s arguments.
11 am
Mr. Hanson: I am, as ever, grateful for the hon. and learned Gentleman’s intervention. It goes to the heart of the potential difference between us. I believe that he and his hon. Friend the Member for Enfield, Southgate wish to see greater use of community sentences and people avoiding custody. My judgment, and that of the Lord Chancellor and his predecessor my noble Friend Lord Falconer, is that this will result not in up-tariffing to custody but in down-tariffing to more community sentences. That is the heart of the disagreement between us on this.
That is a judgment that we have made and it is a judgment that will ultimately be examined by the test of time. But that judgment is one that we have come to. I believe it will result in stronger use of community sentences rather than going to automatic custody for the reasons Lord Phillips laid out in his lecture last week. There is an element of discretion for those sentences which allows a judgment to be made which, based on the exercise of the cases we have looked at to date, will result in down-tariffing to community sentences rather than custody.
Mr. Burrowes: Did not the Lord Chief Justice make the case not for new legislation in this regard, but for properly applying existing guidance and not to remove the discretion of the judiciary and magistrates in any way? So if there is a concern by all to down-tariff, it can be dealt with properly through the guidance to which we have already referred today rather than by removing another power or string from the bow. Finally, is there not a concern that the National Association of Probation Officers estimates that the abolition of the suspended sentence for summary offences may increase the prison population by 1,000?
Mr. Hanson: Again, this is a matter of judgment. This is our judgment and there is a different judgment based on different experiences. I am simply telling the Committee that the judgment of the two Lord Chancellors who have looked at this since May and my judgment as the Minister is that it will result in greater use of community sentences rather than prison places. We expect that if we do not remove the clause the trend will, over the next two years, lead to potentially an extra 400 prison places being used by people who are on suspended sentence orders under the existing legislation.
Mr. Garnier: Four hundred?
Mr. Hanson: Four hundred. I am not sure that that is a useful use of prison resources. I will happily give way to the hon. Gentleman.
Mr. Heath: The Minister must take my assurance and that of others that we agree with him on this. There is an argument for greater use of community sentencing as opposed to suspended sentences. But that is not the consequence of the clause. Would the Minister address the issue of the advice that is given to magistrates and the hierarchy within sentencing procedure? Unless he addresses that he cannot possibly achieve the objective that he and I share.
Mr. Hanson: I am grateful that the hon. Gentleman shares the objective because in the debate on the Queen’s Speech Lord Dholakia, who I understand is deputy leader of the Liberal Democrats in the House of Lords, said:
“I welcome a number of measures in the Bill”—
the Criminal Justice and Immigration Bill.
“Also welcome is the removal of the power to pass suspended sentences for offences which are triable only summarily. This change should help to reduce the negative effect on the prison population of activated suspended sentences passed on offenders who could perfectly well receive a community sentence instead.”—[Official Report, House of Lords, 12 November 2007; Vol. 696, c. 274.]
That was said by the deputy leader of the Liberal Democrats in the House of Lords in a discussion on the Bill, supporting the contention that I proposed today.
Mr. Garnier: Let us not worry about the Liberal Democrats but concern ourselves with the law that we are making. Liberal Democrat and Conservative members of the Committee are at one in being puzzled by the Government’s arguments. Is the Minister of State aware that in the Crown court if someone is given a custodial sentence, conditions can be added to it that are akin to a community punishment. My hon. Friend the Member for Enfield, Southgate will tell me if it applies in magistrates courts, too.
There is nothing to be gained from the Minister’s clause. He can have everything he wants—that is to say, the greater use of community punishments—by leaving things as they are and leaving discretion with the sentencer. Restricting the sentencer’s discretion makes the chances of reoffending because of some Whitehall, Government-imposed system all the more likely. I urge the Minister to think very carefully before we go too far and he damages something that we all want to protect.
Mr. Hanson: Again, I am grateful for the hon. and learned Gentleman’s intervention. There is an honest disagreement between us. I believe that the clause will lead to a greater use of community sentences. The hon. and learned Gentleman and his hon. Friends and, apparently, the hon. Member for Somerton and Frome and his noble Friend take a different view—[Hon. Members: “Irrelevant.”] It is not irrelevant; it is part of the debate. If those who speak on behalf of the Opposition parties in one House say that they support a proposal and those in the other House say that they do not, I must explore the difference in the Opposition’s thoughts.
The clause is an appropriate way forward. It will reduce the number of prison places, potentially by up to 400 over the next two years, and lead to a greater use of community sentences. I am supported in that declaration by Lord Phillips and by the National Association for the Care and Resettlement of Offenders and other bodies.
Mr. Nick Hurd (Ruislip-Northwood) (Con): Unlike most participants in the debate I am not a lawyer. For me and, I suspect, for many of my constituents, the most credible voice in the debate is that of the Magistrates Association, the people on the front line who will have to implement this stuff. Its voice could not have been clearer. The chief executive said:
“A suspended sentence order is a custodial sentence—we cannot get away from that.”—[Official Report, Criminal Justice and Immigration Public Bill Committee, 16 October 2007; c. 43, Q75.]
In direct response to a question from my hon. and learned Friend the Member for Harborough, the chairman of the association said that there is an argument for saying that the number of people being sent to prison will increase as a result of the clause. Why are they wrong?
Mr. Hanson: I listened carefully to what the Magistrates Association said in evidence to the Committee on 16 October, but I have to make a judgment and my judgment is that the clause will affect low level, summary only cases, which can be dealt with by a community sentence rather than by immediate custody through suspended sentence orders, which will happen in due course. That is a judgment between the Magistrates Association and myself, the Lord Chancellor, the previous Lord Chancellor, NACRO and others, including other hon. Members, not just members of my party.
Mr. Hollobone: With respect, the Minister is not addressing the point made by my hon. Friend the Member for Ruislip-Northwood. When my constituents in Kettering ask me which way I voted on suspended sentences, I will have to say that I do not know how I can translate the Minister’s words into a sensible, coherent answer. If an offender is before a magistrate and the offence is such that the magistrate feels that that person should go to prison but now has the right to suspend that sentence and the Minister is saying, “No, the offence is not as serious as the magistrate thinks therefore he should have a community sentence,” how will I justify that to my constituents?
Mr. Hanson: I can tell the hon. Gentleman that we will have to look at giving advice to the Sentencing Guidelines Council and discuss forensically giving advice to magistrates. My wish is to ensure that we have strong community sentences to avoid people going to prison, because I am interested—again, it is a judgment—in preventing reoffending.
In respect of the offences that are considered under the current provisions, some 400 people will potentially go to prison in the next two years who could have been more strongly prevented from reoffending by receiving a community sentence. In such cases, individuals will go to prison for a short period, potentially with all the difficulties that that short sentence brings, despite all the evidence showing that short sentences cause great difficulties in respect of re-employment, housing and a range of other issues. The measure under discussion, as well as having the bonus for the Government of providing additional spare prison places, will be a greater contributory factor in preventing reoffending.
I understand what the magistrates have said. I could debate this matter for many months and moons to come. However, I share the view of Paul Cavadino, the chief executive of NACRO, who said:
“We welcome a number of the Bill’s provisions including the extension of conditional cautions to younger offenders, the reduction of periods served by recalled prisoners and the restriction of suspended sentences. Suspended sentences can have a ‘boomerang’ effect which has the perverse result of increasing the prison population. Courts often misuse suspended sentences by giving them to offenders who would otherwise have received community penalties.”
We will need to consider and discuss matters with the Sentencing Guidelines Council, which will advise magistrates accordingly. I commend the clause as it is drafted to the Committee.
Mr. Hollobone: Surely, alleged misuse of suspended sentencing orders is different from abolishing the right to have such orders overall.
Mr. Hanson: Again, there is a judgment to be made. I return to the figures: 3,500 orders per month have been given by the courts, 40 per cent. of which were for summary only offences. In respect of certain offences, which I can mention if the Committee wishes, the increased number of suspended sentence orders directly correlates with the reduction in community sentence orders given. That means that there is a greater opportunity for people to go to prison, which is not good for the prevention of reoffending in such cases.
Mr. Garnier: There is no meeting of minds on whether it is a good idea to do what clause 10 asks us to do. I hope that the other place considers this matter carefully and robustly.
Under the current regime, people may end up in prison because magistrates are giving the wrong sort of person a suspended sentence that they breach and, therefore, have to serve a custodial sentence, possibly with a new sentence for a second offence to run concurrently. However, that issue relates to training and pre-sentence reports and working out whether a defendant will appropriately be dealt with by a suspended sentence order; it does not undermine the good arguments and experience of those of us who practice in the criminal courts as sentencers, which say that the suspended sentence option is hugely important and vital.
I doubt whether the provision will leave the Minister, as he hopes, with 400 additional prison spaces. The Government’s calculations on prison spaces over the past few years have not been brilliant. I will not prolong the argument—we have reached an impasse—but I urge the Minister and the Ministry of Justice, between now and Report and between the Bill leaving the House of Commons and going to the other place, to think again, otherwise we are just going to pass another bad law.
Mr. Hanson: Again, I am grateful for the way in which the hon. and learned Member for Harborough has approached this matter. I am always happy to consider issues and to monitor progress during the passage of legislation through both Houses of Parliament. However, I return to the key point that the Sentencing Guidelines Council made in its May newsletter, before these proposals were advanced. It states:
“The number of suspended sentences rose steadily between 2004 and 2005; provisional figures for 2006 show a much more rapid increase. The information available to the Council and the Panel appears to indicate that this increase has been accompanied more by a reduction in the number of community orders and fines than in the number of custodial sentences”.
11.15 am
Mr. Garnier: The assertion that the Minister of State makes is no doubt correct. The use of suspended sentences has gone up, and he must ask himself why that is. The fashion in sentencing has changed. The guidelines from the Court of Appeal Criminal Division and the position of the Sentencing Guidelines Council have changed, although I cannot remember whether that happened by 2000.
In the 1990s, it was much more difficult to give a suspended sentence, as the criteria were much stricter. However, they were made more liberal and so the sentences were used more. Now the Government say that that is wrong, particularly on the summary jurisdictions. We are yo-yoing around. I repeat that my experience sitting as a judge for over 10 years is that the suspended sentence is a very useful weapon.
Mr. Hanson: I fear that we have reached an impasse, as the hon. and learned Gentleman suggested. In my judgment, the clause would be a valuable addition in supporting community sentences, reducing levels of custody and preventing reoffending. I am always happy to examine these matters and to look at training issues, but I commend the clause to the Committee.
Mr. Heath: The Minister of State is an extraordinarily difficult person to agree with because the more one tries to agree with him, the more he tries to introduce entirely spurious arguments. We experienced that on the last day of the Committee before Prorogation and we are experiencing it again now. He is trying to play silly political games rather than concentrate on the issues. He adduced the comments of my noble Friend Lord Dholakia. Why on earth did he do that when he could have quoted me?
I addressed this issue on Second Reading, when I welcomed the principle behind clause 10. I said that
“it seems quite wrong that suspended sentences are used in the magistrates courts as a substitute for immediate sentences of a different kind, which was certainly not the Government’s intention.”—[Official Report, 8 October 2007; Vol. 464, c. 88.]
I try to agree with the Government, but they will not accept it. That is an extraordinary position to take, but—and it is a big but—on examining clause 10 in more detail in conjunction with the rules that magistrates are required to follow, it appears that it will have a perverse effect. Instead of addressing that problem, the Minister chose to ignore it. He repeats time and time again what his intention is, rather than what the consequence of the clause will be. That is my problem with him.
I say to the Minister squarely that he needs to address, through the Judicial Studies Board or the Sentencing Guidelines Council, what will happen as a consequence of the clause. If he gets that right he can achieve his intentions and my intentions. If he gets it wrong, it will have the opposite effect. Surely that is not what he wants to happen as a result of this legislation.
Mr. Hanson: I am grateful for the hon. Gentleman’s support, and I am sorry if I raised his temperature. In the course of the discussion, I simply quoted his noble Friend in the Lords in support of the Government proposal. I am happy to have his support too and look forward to it in the vote. I will happily look at some of the issues to do with delivery. I have already indicated that we will discuss advice that could be given by the Sentencing Guidelines Council to clarify the issues for magistrates. The hon. Gentleman should go with his gut instincts on Second Reading and support the Government in Committee.
Mr. Heath: Had the Minister approached the debate in a rather different way, I might have been inclined to accept that advice. Everything that he has said up until this moment has suggested that there is no problem to address, but there is. We have Committees to ask Ministers to look at measures again when their intentions will not be translated into adequate legislation. That is my purpose in this Committee. That does not mean that I have changed my mind or that I have a great disagreement with my noble Friend in the Lords. It does not mean any of those things. It simply means that I am trying to achieve good legislation for our courts. The Minister has something different thing in mind, which is simply getting his Bill through unamended. That is not a sensible way of doing things.
Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 10, Noes 6.
Division No. 1 ]
Coaker, Mr. Vernon
Cohen, Harry
Eagle, Maria
Hanson, rh Mr. David
Keeble, Ms Sally
Khan, Mr. Sadiq
Michael, rh Alun
Sharma, Mr. Virendra
Waltho, Lynda
Wilson, Phil
Burrowes, Mr. David
Garnier, Mr. Edward
Heath, Mr. David
Hollobone, Mr. Philip
Hurd, Mr. Nick
Walker, Mr. Charles
Question accordingly agreed to.
Clause 10 ordered to stand part of the Bill.
The Chairman: I must now offer the Committee a gentle expression of regret. Some time ago I received a request that Members be allowed to remove their upper, outer garments, but I wanted to get the first item out of the way before addressing it. I am happy to continue the practice that apparently was in place before I was brought on as a substitute.
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