Clause
11
Restriction
on imposing community
sentences
Mr.
Hanson:
I beg to move amendment No. 20, in
clause 11, page 8, line 24, leave
out second ‘community’ and insert
‘rehabilitation’.
The
Chairman:
With this it will be convenient to discuss
Government amendment No.
57.
Mr.
Hanson:
Before speaking to the Government amendments, may
I tell Committee members that, in the spirit of co-operation, during
the course of our proceedings I will reflect on other amendments and
consider them further? I hope that that reassures the hon. Member for
Somerton and Frome and the official Opposition that I am willing to
look at the issues that they raised. Indeed, that may become clear
during our discussions later today.
Government amendment No. 20
corrects a minor drafting error in clause 11, which makes reference to
the old-style youth community orders rather than the new youth
rehabilitation order. The effect of the amendment is simple and will
make it clearer to sentencers that the court is not required to make a
youth rehabilitation order, even when it is open to the court to do
so.
Mr.
Burrowes:
I do not take issue with the technical
amendment, but perhaps I could take the opportunity to make a comment
in more of a stand part mode. The Magistrates Association’s is
concerned that clause 11 is repetitious and unnecessary. That theme
developed in our debate on clause 10. Clause 11 makes the point that
sentencers do not need to impose a community sentence when the
community threshold has been reached, but magistrates and the judiciary
are already aware of that, day in, day out, in the courts. If they
wanted a reminder, they could look at the “Adult Court Bench
Book”, or they could refer to the Sentencing Guidelines Council,
which
states:
“Sentencers
must consider all of the disposals available at the time of
sentence...before reaching the provisional decision to make a
community sentence, so that, even where the threshold for a community
sentence has been passed, a financial penalty or discharge may still be
an appropriate penalty. Where an offender has a low risk of
re-offending, particular care needs to be taken in the light of
evidence that indicates that there are circumstances where
inappropriate intervention will increase the risk of re-offending
rather than decrease it.”
In addition, the point is made that
enforcement of financial penalties make them a more viable sentence in
a wider range of cases. Guidance and discretion are already available
for the magistrates not to impose a community sentence, even if the
threshold is reached, when there are particular mitigating
circumstances, so why is it necessary for the Government to seek to
spell matters out in additional
legislation?
Mr.
Hanson:
I am happy, if you give your consent,
Mr. Cook, to speak to address the points that have been
raised, or I can cover them in the clause stand part
debate.
The
Chairman:
Discussing a stand part issue now means that we
will not discuss it later. I am aware of the fact that we are
discussing Government amendment No. 20, but stand part is
included.
Mr.
Hanson:
I am grateful, Mr. Cook, for that
clarification. I do not wish to widen the debate too much beyond
Government amendment Nos. 20 and 57, which I hope are accepted as
simple matters.
Once
again, this is a matter of judgment. I accept that there is an element
of common practice, as the hon. Member for Enfield, Southgate
mentioned. We are keen to examine how we can put new energy into the
issuing of fines, which we want to use as an alternative to some forms
of community sentence. The purpose of clause 11 is to revitalise the
fine, making it central to the process of redirecting probation
resources where they are most needed, in particular using those
resources to deal with more serious offenders. Many offenders can be
adequately punished by a fine; in fact, for some offenders a fine is
more of a punishment than a community sentence or another
sentence.
The payment
of fines now is significantly higher than it was before. Performance in
the collection of fines has improved—it is more than 90 per
cent—so sentencers can be confident that a fine is an effective
punishment. It will be collected, and, in certain circumstances, it
will be more effective than other types of punishment. We must face the
reality that resources are scarce. I want probation resources to be
used effectively, and if we can encourage the greater use of fines,
that will help us to achieve our twin objectives. It will reduce the
demands on probation resources and, at the same time, the
magistrate’s ability to impose a fine will result in a more
effective punishment for many individuals.
I accept that the greater use of
fines is already evident. We are restating the principle, encouraging
it and trying to give greater drive to it in clause 11. I commend
clause 11 and Government amendments Nos. 20 and 57 to the
Committee.
Amendment
agreed
to.
Clause 11,
as amended, ordered to stand part of the
Bill.
Clause
12
Indeterminate
sentences: determination of
tariffs
Mr.
Heath:
I beg to move amendment No. 137, in
clause 12, page 8, line 34, after
‘below,’, insert
‘if
the offender is over the age of 18
years,’.
Clause
12 deals with changes in the procedures for indeterminate sentences and
for determining the tariff. My amendment was suggested by the Standing
Committee for Youth Justice to limit changes to the determination of
tariff to individuals over 18. That
would mean, of course, that people below that age would be subject to
the current arrangements. This issue is part of the larger question of
whether we deal with all offenders, whatever their age, in the same
way. It has been a long-standing principle in our legal system that we
treat children differently from adults, and indeed we are party to
various international obligations to treat children and young people
differently from adults. There is, however, a particular
problem with indeterminate sentences. Children and young people are
different from adults. First, there are developmental changes—
children grow up while in custody and may be very different people
within a relatively short period of time. Secondly, a young
person’s perception of their future will differ from that of
somebody who has been in and out of the prison system, is of more
mature years and can take a more phlegmatic view of
things.
11.30
am
There is a long
established legal principle, set out in R v. Storey 1984, that
when a child is given a sentence of long-term detention they should
serve a period of time that enables them to
see
“light at the end of
the tunnel: the sentencer should take care to select a duration on
which the offender can fix his eye with a view to emerging in the
foreseeable future.”
There
is a requirement, too, under article 37(b) of the United Nations
convention on the rights of the child, which states:
“No child shall be
deprived of his or her liberty unlawfully or arbitrarily. The arrest,
detention or imprisonment of a child shall be in conformity with the
law and shall be used only as a measure of last resort and for the
shortest appropriate period of
time”.
It is that last
phrase which is the operative
term.
I shall not press
the amendment to a Division, as it is simply intended to probe the
Minister’s views on the matter, but tariffs for indeterminate
sentences imposed on a child should be no longer than what would be
served under a determinate custodial penalty for the same offence.
Given what I said about children’s development and the process
of maturity, there may be a strong case for reviewing the threat that
the young person poses to society at an earlier stage. There is no risk
involved, if risk assessments are done properly and the Parole Board
does its work when the young person is eligible for release, in
reducing the sentence available to a limited period, because at that
point there is an assessment of whether the young person represents a
threat to society. If they do, they will not be released. That seems
entirely right.
My
argument is very simple. We recognise that the judicial system should
treat young people differently from adults. There is an argument for a
clear and determinate length of sentence for young people that should
be commensurate with the offence, rather than an indeterminate sentence
of the sort envisaged under the clause. I should be grateful for the
Minister’s
comments.
Mr.
Garnier:
Not so very long ago, I was going through the
front door of Oakhill secure training centre in Milton Keynes as the
Minister was coming out, accompanied by his colleague the Minister for
Children, Young People and Families. They had gone
to look at the provision of custodial services for 15, 16 and
17-year-olds in that establishment, which is run by a private company.
There were a number of people in the centre with indeterminate
sentences. They had committed very serious crimes—some had been
found guilty of murder.
The way in which we deal with
youngsters who commit very serious crimes is not something that we can
simply brush under the carpet and put out of mind. It is extremely
important that the way in which we sentence people who are, at law,
minors should have a number of aims in view. I suspect that we need to
have those aims in view when we are sentencing adults as well.
Punishment and public reassurance are clearly vital. The possibility of
redemption as a young person matures is greater than it might be for an
old lag of my age. The amendment provides an opportunity to ask the
Government what their policy is with regard to the imprisonment of
children, including those who have committed very serious
crimes.
On my short
visit to Oakhill STC, I found that its regime was humane and much
improved from what it was perhaps two years ago, when it went through a
period of difficulty. I do not know what the experience of the Minister
and his colleagues was. I should have mentioned that the hon. Member
for Milton Keynes, South-West (Dr. Starkey) was also there, as that
establishment is in her constituency. I had a brief conversation with
her before she left to attend to her other tasks.
We must be careful that we do
not lump children or under-18s in with the rest of the criminal
population. When children are detained during Her Majesty’s
pleasure—I think that that is the frequently used
expression—we should keep an eye out for education and
rehabilitation, so that when that those children have served sufficient
time for their punishment, they can be returned to society without the
threat of being attacked or set upon by vigilantes, and without the
concern that many of us have that they will reoffend if they have not
been properly educated, reformed and rehabilitated. We should be able
to stand up and say that when a young criminal is released, he or she
will be a positive addition to society, not a drag on it or a further
cause of problems. I suspect that the Minister, having been to Oakhill
and, no doubt, other STCs, will largely agree with what I am saying. I
congratulate the hon. Member for Somerton and Frome on raising the
issue, albeit a difficult one to grasp.
Mr.
Hanson:
I shall try to answer this short debate
positively. I have some sympathy with the amendment tabled by the hon.
Member for Somerton and Frome, and I hope that that shows that it is
not all confrontation and disagreement among Committee members, and
that there are occasions when we can reflect in a productive way on
amendments that are tabled.
I recognise that there is
precedent for a measure of the type suggested by the hon. Gentleman.
Indeed, the murder tariff was debated in the context of the Bill that
became the Criminal Justice Act 2003, and after consideration during
the passage of that Bill, the Government reduced the starting point for
juveniles convicted of murder. I have said that I have some sympathy
with the amendment, but I ask the hon.
Gentleman not to press it to a Division—I think that he has
indicated that he will not. I ask him to withdraw the amendment and I
will examine the issues in detail before we return to the matter
following the end of the Committee’s consideration of this
Bill. I have little,
if any, disagreement with the comments made by the
hon. and learned Member for Harborough. Unfortunately, I did not see
him when we exited Oakhill STC very rapidly. My right hon. Friend the
Minister for Children, Young People and Families and I had to dash for
a train so that we could return to London urgently for a further
meeting. Had that not been the case, I would have happily had the hon.
and learned Gentleman accompany me at Oakhill to look at the work going
on there.
The hon. and
learned Gentleman makes a valid point. I am not proud of the fact that
when I woke up this morning, nearly 4,000 young people were in custody
in secure training centres and other establishments. That is a failure
of the system. We need to do several things, not least ensuring that
when those individuals leave our care they are better individuals than
when they came in. That means that we need to look at
education—literacy and numeracy—at the difficulties in
dealing with drug and alcohol problems, and at interventions outside
establishments, with families and others. We must look at training and
at skill levels and development, and we must consider housing and
employment when individuals leave custody.
I know that the four Opposition
Front Benchers and I have a common cause. The hon. and learned Member
for Harborough and the hon. Member for Enfield, Southgate take a
positive view on this. I know that the hon. Member for
Ruislip-Northwood is interested in the Blue Sky project in his
constituency, which promotes positive investment in individuals, and I
know that the hon. Member for Somerton and Frome shares that
aspiration. There is work to be done, and I hope that we can reach some
form of cross-party consensus on what should be done to make secure
training centres efficient and effective. It is not just a matter of
detention and punishment, although it does involve that. It is also
about rehabilitation, preventing reoffending, and ensuring that people
leave those centres in a more positive way.
I say to the
hon. and learned Member for Harborough that there is work to be done at
Oakhill to raise standards still further, and the reason for our visit
was to look at how we can do that. We all have that objective. In
giving sympathy and consideration to the amendment, I hope that both in
Committee and elsewhere we can look at how to make the operation of
STCs more effective.
Finally, the reason why the
Minister for Children, Young People and Families and myself were there
was because since the new Prime Minister, my right hon. Friend the
Member for Kirkcaldy and Cowdenbeath (Mr. Brown), took
office, he ensured that the Youth Justice Board was not the sole
responsibility of the Ministry of Justice, but that of the Department
for Children, Schools and Families, too. The purpose of that is to
better integrate work in education and training, and
outside-establishment interventions, and to ensure that we do exactly
what the hon. and learned Member for Harborough says: make the
experience more positive for those going through the system. Hopefully,
in doing so, we can reduce the awful
reoffending rate for those coming out of an STC, which is at about 75
per cent. That is not satisfactory to anybody. I hope that the hon.
Member for Somerton and Frome will withdraw his amendment and that my
comments have helped to restore balance to the debate and to the
Committee’s
temper.
Mr.
Heath:
That is more like it. That is the way a Committee
is supposed to work. I am grateful to the hon. and learned Member for
Harborough for his support, and to the Minister for his
response.
The Minister
says that he is not proud of the number of young people who are
incarcerated in this country. I would go further: we should all be
heartily ashamed of the fact that we imprison more of our young people
than any other comparable country. That is a scar on the
nation’s conscience. If we can address that—I take what
the Minister said about the matter entirely at face value—we
will be doing something hugely worth while for society.
I am grateful to the Minister
for agreeing to look again at the amendment. As I said, it was not my
intention to divide the Committee irrespective of what he
said—unless he really provoked me. The key point is that
children and young people are different. There should not be an
automaticity by which the approach to adults applies to younger people
in the same way. Whenever we do anything within the judicial and penal
system, we must look carefully at whether that is appropriate to the
needs of young offenders, and whether it will encourage them not to
reoffend, but to grow, mature and become responsible members of
society. That should be our clear intention. I beg to ask leave to
withdraw the amendment.
Amendment, by leave,
withdrawn.
Question
proposed, That the clause stand part of the
Bill.
The
Chairman:
With this it will be convenient to discuss the
following: New clause 4— Indeterminate sentences:
determination of
tariffs
—
‘(1)
Section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 (c.
6) (determination of tariffs in cases where the sentence is not fixed
by law) is amended as
follows.
(2) For subsections
(2) to (4A)
substitute—
“(1A)
The court shall have a complete discretion to set the minimum period to
be served in custody by an offender subject to a discretionary life
sentence for public
protection.
(1B) In setting
that period the court must take into
account—
(a) the
seriousness of the offence,
(b)
the danger to the public represented by the
offender,
(c) the impact of the
offence on the victim, his family and the local community where the
offence took place,
(d) the
offender’s previous criminal
record,
(e) the need for
rehabilitation of the offender,
and
(f) any other factor the
court considers
relevant.”.’.
11.45
am
Mr.
Garnier:
The previous debate touches upon the one that we
are about to have, albeit that we are now dealing with the mechanics by
which a court will consider the minimum tariff that a person sentenced
to an indeterminate life sentence should be given.
I ask the Committee first to
open up the amendment paper at new clause 4 on page 397 and compare it
with the wording of clause 12, which is gobbledegook. It is possible to
understand what clause 12 intends to
achieve, but it takes some little while to do so and not all of us have
that some little while, particularly when we are busy dealing with
someone in court. I push forward a plea for simplicity in English
before we make such
decisions. The hon. and
learned Member for Medway (Mr. Marshall-Andrews) made a
similar point during the Queen’s Speech debate, and I agreed
with him. Clause 12 is not quite impenetrable, but it is getting close.
We therefore thought that it would be better to invite the Government
to adopt new clause 4. It is instructive to compare the two measures.
The new clause states
that
“Section
82A of the Powers of Criminal Courts (Sentencing) Act 2000...is
amended as follows.”
So
far, so
good.
Subsection (2)
states:
“For
subsections (2) to (4A)
substitute—
‘(1A)
The court shall have a complete discretion to set the minimum period to
be served in custody by an offender subject to a discretionary life
sentence for public
protection.’”
As a
matter of philosophy and sentencing practice, it is preferable for a
court to have discretion. The adjective “complete” is
perhaps unnecessary, but I submit that, giving the court discretion in
relation to the appropriate sentence for the case, the defendant and
the circumstances bit, is
vital.
Several offences
nowadays carry with them a life sentence. Some are discretionary life
sentences, in that it is possible to give a determinate sentence with a
limit. The same crime can be the subject of an indeterminate or life
sentence. Clearly, an offence such as murder has a sentence prescribed
by law, and that is life. However, the amount of time to be served by
the defendant is not always the natural life of the defendant. The
court has therefore to go through the exercise of working out the
minimum that the defendant should serve before he is considered for
release on licence by the Parole
Board.
Clause 12(2)
states:
“In
subsection (3) (determination of the appropriate part of the sentence)
at the end
insert—
‘In
Case A or Case B below, this subsection has effect subject to, and in
accordance with, subsection (3C)
below.’”
We
understand what that means in English, but subsection (3)
states:
“After
subsection (3)
insert—
‘(3A)
Case A is where the court is of the opinion that the seriousness of the
offence, or the combination of the offence and one or more other
offences associated with
it,—
(a) is
exceptional (but not such that the court proposes to make an order
under subsection (4)
below)’”—
I
interpose to suggest that the Government seem to be saying that the
offences are exceptional, but not exceptionally exceptional. The
subsection
continues:
“(b)
would not be adequately reflected by the period which the court would
otherwise specify under subsection (2)
above.”
So we go back
upstairs and look at subsection (2). Having done that, let us now move
on to new subsection (3B), which
states:
“Case B
is where the court is of the opinion that the period which it would
otherwise specify under subsection (2) above would have little or no
effect on time spent in custody, taking into account all the
circumstances of the particular offender.”
I hope that you are still with
me, Mr. Cook. I will now whizz on to new subsection (3C),
which
states:
“In Case
A or Case B above, in deciding the effect which the comparison required
by subsection (3)(c) above is to have on reducing the period which the
court determines for the purposes of subsection (3)(a) (and before
giving effect to subsection (3)(b) above), the court may, instead of
reducing that period by
one-half,—
(a)
in Case A above, reduce it by such lesser amount (including nil) as the
court may consider appropriate according to the seriousness of the
offence, or
(b) in Case B above,
reduce it by such lesser amount (but not by less than one-third) as the
court may consider appropriate in the
circumstances.
Then subsection
(4) states:
“In
subsection (4A) (no order to be made under subsection (4) in the case
of certain sentences) after “No order under subsection (4) above
may be made” insert “, and Case A above does not
apply,”.
There
we are. What a fuss I am making about nothing. That is clear as mud,
and any sentencer who is faced with this sort of serious crime
requiring the application of an indeterminate sentence, has only to
look at that and go through the rubric and it is easy for him to decide
what to do.
With some
diffidence, I will address new clause 4 and see if it meets the problem
that the Government think exists. It
states:
“(1A)
The court shall have a complete discretion to set the minimum period to
be served as custody by an offender subject to a discretionary life
sentence for public
protection.”
Let me start
by saying that if you want to change the wording, Mr. Cook,
go ahead. All that I ask for is clarity. The following refers to the
minimum period to be served in
custody:
“(1B)
In setting that period the court must take into
account—
(a) the
seriousness of the
offence,
(b) the danger
to the public represented by the
offender,
(c) the
impact of events on the victim, his family and the local community
where the offence took
place,
(d) the
offender’s previous criminal
record,
(e) the need
for rehabilitation of the offender,
and
(f) any other
factor that the court considers
relevant.”
I accept that
that is a bit of a sweep up. I agree that I wrote that and, therefore,
I think that it is marvellous in every particular, but I also suggest
that you, Mr. Cook, probably found it a little easier to
understand than clause 12. On that basis, I suggest that we substitute
new clause 4 for clause 12 as appropriate, and I invite the Government
to persuade me
otherwise.
Mr.
Heath:
I recall that the Leader of the House had an idea a
year or so ago, whereby legislation would be translated into simple
English. I do not know what happened to that idea; it was done for one
Bill and has now disappeared. My concern in that case was that we ended
up with two different versions of the same Bill, which simply gave work
for lawyers to determine which wording they felt that they could hang a
case on more effectively; so I was not particularly enamoured of that
approach. But clarity in legislation is desirable and
the
hon. and learned Member for Harborough is absolutely
right to draw attention to clause 12 as being the antithesis of clarity
in drafting. It does not suggest that it is fit for purpose. I am
rather impressed by the new clause; it is rather good. I understand it
and it seems to cover all the requirements. I will be interested to see
where the Minister feels that it is deficient, but my view essentially
is clause 12, bad; new clause 4,
good.
Mr.
Hanson:
I do not know how this is recorded in
Hansard, but I put my hands up and say that the clause is
difficult to comprehend. I accept that it is not in a form of English
that is in common parlance in my constituency or, indeed, in the
constituencies of other members of the Committee. However, it serves a
purpose and with the help of parliamentary counsel it is how we have
expressed the intention of the clause.
In simple terms, the provision
is as follows: it will ensure that courts have the discretion to set
appropriately high tariffs for particularly serious crimes, which will
not include the crime of murder, but will include crimes for which an
offender could receive a life sentence. It will not include sentences
currently given under imprisonment for public protection known as
indeterminate sentences but there will be certain types of crime that
are allocated a life sentence which are not murder and not
IPP.
The effect of
clause 12 will mean that in particularly serious cases the judges will
not have to take into account the parole arrangements that apply to
ordinary sentences when they calculate tariffs. As the hon. and learned
Gentleman will know, the law at present obliges them to do so with the
result that the final figure is half what a notional equivalent
determinate sentence would be. If necessary, the court should be able
to disregard the requirements completely or apply some reduction that
is less than 50 per cent. as appropriate.
The current law requires working
out a notional equivalent sentence and then reducing it, as would be
the case with a determinate sentence which in some serious cases can
result in what will appear to be, and are, disproportionately short
sentences. They will continue to give rise to public discontent about
particular sentences by the judiciary unless we examine and support the
clause.
Hon. Members
may recall the recently highlighted case of Sweeney, to which we
referred in our consultation paper, “Making Sentencing
Clearer”. Sweeney was sentenced to life imprisonment for the
horrendous offences of kidnap and sexual assault of a child under the
age of 13. There were serious aggravating factors in that case.
Following the calculation on Sweeney’s conviction the tariff
amounted to a mere six years for aggravated kidnap and sexual assault
of a child under the age of 13. The case had an element of notoriety,
certainly in my part of the world in Wales, when it was tried at
Cardiff Crown court.
Clause 12 leaves intact the
current arrangements for setting tariffs but gives the courts more
flexibility to deal with the exceptional serious cases when needed,
which I think is the objective of the hon. and learned
Gentleman’s new clause. Had the clause been in place when the
Sweeney case was heard, the judge would have had discretion to examine
it and to raise the tariff
accordingly above what would apply in a normal case based on his
determination of the aggravating factors in the
case. I accept that the
examination of clause 12 is a minefield and I greatly enjoyed the hon.
and learned Gentleman’s gentle poking of parliamentary draftsmen
and the Government in relation to it. The purpose of the clause is to
give effect to the underlying principle, which I have outlined, and it
should be supported for that reason.
The hon. and learned Gentleman
has put much time and effort into his new clause but
it would leave a number of gaps which, on reflection, he would not wish
to occur and which would be opposed by members on both sides of the
Committee. The new clause has the distinct disadvantage that it is not
clear what its results would be. It asks the courts to consider
seriousness but it does not specifically ask them to consider early
release arrangements nor specifically permit them to disregard that
part of the calculation. More importantly, the proposal might be read
by courts as meaning that they were entitled to double all current
tariffs. I would not wish to see the vast majority of tariffs doubled.
We are looking at particular serious and difficult cases. If the new
clause were accepted it would have tremendous resource implications as
well as raising issues of the appropriateness of the new sentences. It
seems to apply to sentences for public protection as well, which are
not currently included in clause
12.
12
noon
I accept that
the new clause, as drafted by the hon. and learned Gentleman, may
appear to be simpler and clearer for sentencers, but there are severe
gaps in it. For example, it removes the role of the Parole Board
altogether from the procedures that are currently
accepted.
Mr.
Hanson:
My assessment and examination, having taken
advice, is that it does. I believe that the hon. and learned Gentleman
shares our objective in clause 12, which is to give judicial discretion
and to raise the tariff in cases where the seriousness of the case is
examined by the judge and an increased tariff is deemed necessary, as
in the case of Sweeney. It allows the judiciary to exercise that
discretion accordingly and, whatever the minefield of clause 12, I
assure the hon. and learned Gentleman that it achieves that
objective.
Mr.
Heath:
Will the Minister put on record the fact that two
outrages were associated with the Sweeney case? One was a consequence
of the rules that applied and the way in which the judge was required
to apply them to the sentence. Secondly, there was the bullying of the
judge in print and in the media by people who should know better,
including someone who put in place the rules that the judge was
required to follow—the previous Home Secretary, the right hon.
Member for Airdrie and Shotts (John
Reid).
Mr.
Hanson:
In the space of 30 minutes, we have had a bit of
politicking from me and we have now had a bit of politicking from the
hon. Gentleman. One of the reasons why we introduced the clause is the
natural
frustration felt by my right hon. Friend the Member for Airdrie and
Shotts (John Reid) when the Sweeney announcement and judgment was
given. There is a question about whether Ministers and others should
criticise the judiciary’s operations. I do not do so, but I
understand people’s frustration. The rules that pertained
blatantly led to a lower tariff and sentence from the judge on that day
at Cardiff Crown court than any civilised person would expect for the
horrendous crimes that were committed. My right hon. Friend expressed
his frustrations in his inimitable way. I am trying now, with the
support of the Lord Chancellor, to legislate for changes to allow
judicial discretion to ensure that the appropriate sentence is given
for the seriousness of the crime.
Alun
Michael (Cardiff, South and Penarth) (Lab/Co-op):
Frustration was expressed not just about the judicial aspects of the
sentence. Intense anger and frustration was felt by people in my
constituency who were directly affected by the events that led to the
arrest and subsequent imprisonment of the individual concerned. We
should remember that it is not just a question of protecting the
proprieties of what goes on in court, but of making sure that common
sense is applied by the courts when making decisions, and that that
common sense is seen to apply. That was not the case on that
occasion.
Mr.
Hanson:
I am grateful to my right hon. Friend. He will
know better than other Committee members the impact of the Sweeney case
on the community in Cardiff and the reverberations generally. I accept
the gentle chiding of the hon. and learned Member for Harborough. The
interpretation of clause 12 does take some effort, but its objective is
clear. I have checked with parliamentary counsel that it legislates for
its objective, which is to allow judicial discretion on serious cases,
such as those that I described to the Committee. I commend clause 12 to
the Committee, and urge the hon. and learned Gentleman not to press new
clause
4.
Mr.
Garnier:
When I argued in favour of new clause 4 and made
criticisms of clause 12, I did so to the Minister, not parliamentary
counsel. The Minister is elected to the House, and is appointed by the
Prime Minister to speak for the Government. There is a great big
Chinese wall between me and parliamentary counsel. I do not see him or
her and, therefore, nothing that I have said is intended in any way as
a rebuke or criticism of that
person.
Mr.
Hanson:
Nor was it taken as
such.
Mr.
Garnier:
I am glad that the Minster is taking it on the
chin, because he is the person who speaks for the Government.
We all remember the events that
followed the Sweeney case, which perhaps as a greater resonance for the
right hon. Member for Cardiff, South and Penarth than for others,
because the crime, even though it did
not take place in his constituency, affected his constituents and
because the trial took place in the Cardiff Crown court. What really annoyed me about the
ministerial reaction to the sentencing remarks in the Sweeney case was
the fact that the recorder of Cardiff was criticised for doing no more
than what the Government required the judge to do. I have looked at the
sentencing remarks—I deliberately downloaded them to ensure that
I understood what he did. He applied faithfully and to the letter the
rubric that the Government required him to apply as a result of their
own sentencing legislation. Therefore, it was more than
annoying—it was disgraceful—that the then Home Secretary
made criticisms, swiftly followed by the Solicitor-General on an
edition of “Any Questions” immediately after the sentence
was given. It was outrageous that those two Ministers should make
personal criticisms of the recorder of Cardiff, who, as I said, was
doing no more than what this Government said he should do.
The Minister of State talked
about discretion, but the recorder of Cardiff had no discretion and had
to do exactly what an Act of Parliament stated. I fully appreciate that
clause 12 is designed to prevent such problems from arising again, but
that problem was made by the Government, not by the courts and
certainly not by the recorder of Cardiff. It cannot be repeated too
often that the recorder of Cardiff did precisely what he was required
to do by the law, as passed by Parliament and initiated by the
Government.
The
Minister said that new clause 4 does not mention anything about early
release. However, it deals with the minimum tariff that the court must
set when sentencing someone to a discretionary life sentence. He said
that new clause 4 would double the tariff, but it would do nothing of
the sort. It would give the sentencing court the discretion to give an
appropriate sentence in light of the facts and circumstances of the
case. He claimed that the new clause would take the Parole Board out of
the equation, but it would do nothing of the sort because the tariff is
the minimum that a person serves, just as the six years handed down by
the recorder of Cardiff in the Sweeney case was the minimum that the
offender had to serve before he could apply to the Parole Board to be
released on license. I have a suspicion, without prejudicing in any way
the future decisions of the Parole Board in the Sweeney case, that it
will be a very long time beyond the six years before Mr.
Sweeney sees the outside of a prison wall.
The Minister kindly said that I
must have spent a long time drafting new clause 4, but I can assure him
that, having looked at clause 12, it took me about 10 minutes to do so.
Perhaps I should have spent 15, 30 or 60 minutes drafting it, but it
does not require that amount of time to work out what is wrong with the
clause and why new clause 4 would be a marginal
improvement.
Mr.
Hanson:
I hope that the hon. and learned Gentleman will
take this in the spirit in which it is meant. By removing subsection
(2) of section 82A, his new clause would have the knock-on effect of
removing the application of the early release provisions in
section 28 of the Crime (Sentences) Act 1997. That
section confers an important role on the Parole Board in recommending
early release. While that is not set out in the new clause as clearly
as I have tried to describe it, the consequences would be different
from those which the hon. and learned Gentleman wishes to
achieve.
Mr.
Garnier:
I am not sure that that is the Minister’s
best point. I do not want to detain the Committee for too long. New
clause 4(1) simply repeats his own clause. If my proposal affects the
earlier legislation as he suggests, perhaps his does so as well. Let us
not fuss too much about that. It is always said that Opposition new
clauses and amendments are defective in their drafting. To use the
expression that the Minister used a moment ago, I put my hands up. Of
course, my drafting is not perfect, but so what? The clause is bad
beyond description, although I understand what he is trying to
do.
I make a simple
plea for the legislation, particularly in the field of criminal
justice, that Ministers present to Parliament and to the public and
which will eventually be used by judges. Sentencing is the most
difficult thing that a judge has to do. There are arguments about the
inadmissibility of evidence and whether a particular line of
questioning is relevant, but very often they sort themselves out.
Sentencing is the most difficult thing that judges and magistrates have
to do. It cannot just be read from a template or book that the tariff
is four, 10 or six years. It is incredibly difficult. Anything that is
designed to make the job of sentencing more difficult is to be
deprecated and, I suggest,
removed.
Having said
that, if the Minister would be good enough to look at new clause 4 and
compare it with the clause with his expert and eminent parliamentary
counsel, perhaps he can come up with something a little more
user-friendly—to use some new Labour jargon—and we would
all be happy, as we might get some sentences that do not excite the
right hon. Member for Airdrie and Shotts or the Solicitor-General. I am
ever hopeful that the Government will listen to something of what I
have said, and on that basis I will not seek to press new clause
4.
Question put and
agreed
to.
Clause
12
ordered to stand part of the
Bill.
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