 House of Commons |
Session 2007 - 08 Publications on the internet General Committee Debates Criminal Justice and Immigration Bill |
Criminal Justice and Immigration Bill |
The Committee consisted of the following Members:Alan
Sandall, Committee Clerk
†
attended the Committee
Public Bill CommitteeTuesday 20 November 2007(Morning)[Frank Cook in the Chair]Criminal Justice and Immigration BillFurther written evidence to be reported to the HouseCJ&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 387
ACPO
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 10Abolition
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.”
We,
therefore, have guidance already; we do not need additional legislation
to try to circumvent magistrates
or judges. They have the discretion to decide when more rigorous
requirements of supervision are needed than could be dealt with by way
of a community
penalty.
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.
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.
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.
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
]
AYESNOES
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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