Clause
28
Review
of sentence on reference by Attorney
General
Maria
Eagle:
I beg to move amendment No. 79, in clause 28, page
20, line 22, leave out
‘In’.
The
Chairman:
With this it will be convenient to discuss
Government amendments Nos. 80 to
83.
Maria
Eagle:
The purpose of amendments Nos. 79 to 82 is twofold.
First, they make it clear that when the Attorney-General refers an
unduly lenient life or
indeterminate sentence to the Court of Appeal, the so-called double
jeopardy discount is abolished in respect of any aspect of the sentence
that is varied by the Court of Appeal. Therefore, if the Court of
Appeal were to increase not only the tariff but also another aspect of
the sentence, the fact that the person is being sentenced twice would
not be taken into account on either
point.
Perhaps it
would be of assistance if I were to explain briefly the background to
clause 28. It is concerned with appeals against unduly lenient
sentences. Hon. Members may be aware that part 4 of the Criminal
Justice Act 1988 enables the Attorney-General to refer certain cases to
the Court of Appeal if the sentencing in the Crown court appears to
have been unduly lenient. The Court of Appeal can then review the
sentencing in the case and, where appropriate, increase the
sentence.
When the
Court of Appeal decides to increase a sentence in such a case it will,
when calculating the sentence, often allow a discount on so-called
double jeopardy grounds to take account of the offender’s
distress and anxiety at being re-sentenced and having to await the
outcome of the
referral.
There has
already been legislation in the Criminal Justice Act 2003 to prevent
the Court of Appeal from giving such a discount in mandatory life
sentence murder cases. We now propose to extend the prohibition to
apply to other very serious offences for which an unduly lenient
sentence was passed. It seems strange to an ordinary member of the
public that when a sentence is increased because it has been unduly
lenient, the offender should then get a discount in the increased
sentence on the grounds of their distress at being re-sentenced. That
is the point of the clause and the
amendments.
The
prohibition would apply in all cases where the Crown court has imposed
a discretionary life or indeterminate sentence. The clause does not
contain anything new in principle, in the sense that this has already
been done in respect of mandatory life sentences. That discount has
already been abolished, so there is a clear precedent for the
clause.
Under the
clause as drafted, where the Court of Appeal decides to increase the
minimum period ordered by the Crown court to be served under a life or
indeterminate sentence, or, indeed, where it alters the sentence in
another way, no discount may be
given.
The amendments
have a largely technical flavour. They have two purposes: primarily,
they ensure that when the Attorney-General refers an unduly lenient
life or indeterminate sentence to the Court of Appeal, the discount
cannot apply to the Court’s review of any aspect of the
sentence, not just the tariff. In doing so, they also remove a
technical ambiguity in the clause as it appears in the
Bill.
The
clause as currently drafted followed the structure of existing section
36(3A); that is, it focused only on the Court of Appeal’s
variation of the tariff or minimum term. That is because section 36(3A)
currently applies only to mandatory life sentences, so the minimum term
is the only aspect that would be under review by the Court of Appeal.
However, now that the provision is to be extended to include
discretionary life and indeterminate sentences, the Court of Appeal may
in limited circumstances
want to vary another aspect of the sentence. For example, in some cases
covered by the clause, the Court of Appeal might decide to increase an
indeterminate sentence to a discretionary life sentence. The amendments
will ensure that, as was always intended, the discount will not be
available in relation to any aspect—not just the minimum
term—of the sentence reviewed by the
Court. 7.15
pm
Government
Amendment No. 83 applies to provisions for the unduly lenient
sentencing appeals scheme in Northern Ireland, and we will be tabling
further amendments in due course to fully extend provisions in clause
28 to Northern Ireland, as the Northern Ireland Office has asked us to
do. I commend the amendments and the clause to the
Committee.
Mr.
Garnier:
The amendments are perhaps not ones that I would
have tabled, but they are not sufficiently egregious as to require
being voted
against.
In the
context of clause 28, will the Minister agree with me that we should
cease the practice that has grown up over the last few years of the
Attorney-General, or some other Government Minister, inviting a
colleague to table a written parliamentary question calling for a list
to be published of individual judges who have been the subject of
unduly lenient appeals? I hope that the Minister knows that, once or
twice a year, articles appear in several of the tabloids in which
individual judges are picked out and subjected to personal
criticism—often there are photographs of them. She will be able
to imagine the sort of headlines that go with such stories. They are
based on written parliamentary questions from Government members to the
Minister. She knows the procedure—the planted question. They are
designed to cause difficulties, among other things, for those
judges.
Nobody knows
why a judge in any given case passes a particular sentence, apart from
the judge themselves, those listening in court to his or her sentencing
remarks, and the Court of Appeal, which will have listened to the
arguments of the Attorney-General when the case of the unduly lenient
appeal was advanced. If we are to have a system under which
judges’ unduly limited sentences are to be appealed—the
Conservatives introduced that system when they were in
Government—let us leave it at that. However, we should not
resort to the organised public abuse of individual
judges.
Alun
Michael (Cardiff, South and Penarth) (Lab/Co-op): I
understand the point that the hon. and learned Gentleman is making
about not castigating people generally and about the way in which the
tabloid media can trivialise, if you like, what are very important
issues. However, does he not find it shocking that in some two thirds
of the cases that the Attorney-General takes to appeal, the finding of
senior judges—not the media or politicians—has been that
an unduly lenient sentence was passed? We should bear it in mind that
such a finding has to pass the test that not only was the original
sentence unduly lenient, but unreasonably so. Is that not a matter of
genuine public concern?
Mr.
Garnier:
The public concern is dealt with by having the
process that the Conservative Government introduced when it was in
office. That process permits unduly lenient sentences to be appealed
through the office of the
Attorney-General.
Alun
Michael:
It does indeed deal with the mischief of the
particular sentence, but is the hon. and learned Gentleman not shocked
by such a proportion of unduly lenient sentences? That is a criticism
from senior judges, not politicians or the
media.
Mr.
Garnier:
No, I do not find it shocking. What I find
welcoming is that there is a procedure that deals with the issue. Nor
do I find it shocking, for example, that the Court of Appeal quashes
convictions. Its purpose is to provide a proper braking system, or a
sieve, to prevent injustice either to a wrongly convicted or overly
sentenced defendant, or to a victim who sees a defendant given an
unduly lenient sentence. However, we should not engineer a system
whereby planted questions lead to the unnecessary abuse of individuals.
Mr.
Heath:
I should find it shocking if the Court of Appeal
were not prepared to act on a high proportion of the referrals from the
Attorney-General, because that would suggest that the Attorney-General
was bringing forward trivial issues of leniency, rather than executing
his or her proper judgment in the case and putting forward those
referrals for which there genuinely was a case to be
answered.
Mr.
Garnier:
I think that I probably agree with the hon.
Gentleman. All I wanted to say, and I have said it several times, is
that we should not allow planted questions to lead to the unfair abuse
of judges. I say that because I had been sitting in court, and on
adjournment I met judges who had been listed in The Sun or
whatever newspaper it is that carries those lists. If the Committee had
seen the anguish of those people, who felt that their integrity and
judicial conduct was being savaged quite improperly, it would
understand what I am saying. I do not suggest that Ministers
deliberately set out to boil the reputations of individual judges, but
it is a consequence of those planted questions. Of course, as the right
hon. Member for Cardiff, South and Penarth says, there is a public
interest in knowing that the Court of Appeal is increasing sentences
that are unduly lenient, but we do not need to go on from that and pick
out individual judges and pillory them as though they were proper
subjects of personal abuse.
Maria
Eagle:
I am not in a position to put any boundary around
what individual Members might ask in their parliamentary questions, but
as a Minister, I certainly should not seek to have such a question
asked. I hope the Committee heard the Minister of State, Ministry of
Justice say earlier that he did not seek to question the sentencing or
behaviour of individual judges as part of the way in which he does his
job. The Secretary of State feels the same way, so I hope that I can
give the hon. and learned Gentleman the assurance that Ministers in the
Ministry of Justice would not seek to do such a thing. That is not to
say
that individual Members do not have a perfect right to put down any
question to any Department. That is part of parliamentary scrutiny, and
I hope that my answer satisfies the hon. and learned
Gentleman.
Amendment agreed
to.
Amendments
made: No. 80, in clause 28, page 20,
line 22, after ‘sentencing)’ insert ‘is
amended as
follows.’.
No.
81, in
clause 28, page 20, line 24, after
‘to’ insert
‘a case in which
the judge
made’.
No. 82,
in
clause 28, page 20, line 25, leave
out ‘order under that section’ and insert
‘sentence’.
No.
83, in
clause 28, page 20, line 36, at
end add—
‘( ) In subsection
(9) after paragraph (b) insert
‘‘and
(c) the
reference in subsection (3A) to an order specified in subsection (3B)
shall be construed as a reference to an order under Article 5(1) of the
Life Sentences (Northern Ireland) Order 2001.”
’.—[Maria
Eagle.]
Clause
28, as amended, ordered to stand part of the Bill.
Clause 29 ordered to stand
part of the Bill.
Schedule
6
Her
majesty’s commissioner for offender management and
prisons
Mr.
Garnier:
I beg to move amendment No. 161, in
schedule 6, page 158, line 38, leave
out ‘send’ and insert
‘lay’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 162, in
schedule 6, page 158, line 38, leave
out ‘to the Secretary of State’ and insert ‘before
both Houses of
Parliament’.
Amendment
No. 158, in schedule 6, page 159, line 1,
leave out ‘Secretary of State’ and
insert
‘Commissioner’.
Mr.
Garnier:
The amendments all deal with the parliamentary
accountability of the commissioner or, as is currently presented in the
Bill, the absence of such parliamentary accountability. Some of us who
were at the evidence session before the end of the last Session of
Parliament will remember when I asked the commissioner whether he would
prefer his reports to be laid before Parliament rather than given to
the Secretary of State. I asked whether he would prefer to be in a
similar position to an ombudsman or even a judge. Thereby, although he
would be paid for and appointed by either the Crown or Government, the
line of accountability would go directly from him to Parliament, not to
a Minister.
That is
why I have tabled the amendments, which would change the situation so
that the commissioner would lay a copy of his report before both Houses
of Parliament. They would delete the reference to the Secretary of
State in that regard. It is a matter of constitutional accountability.
That would undermine the work of neither the commissioner, nor the
Secretary of State. It would get the Secretary of State’s
fingers off the report so that they could not edit it before it gets to
Parliament.
Under the Bill
as it is currently drafted, a report from the commissioner will get
before Parliament, but not before the Secretary of State has had a look
at it. I think that the Secretary of State has no business interfering
with the terms, wording or conclusion of any report that he may have.
He can answer in Parliament for any remarks that the commissioner might
make, but he should be given no editorial role or power to interfere
between the completion of the commissioner’s report and its
presentation to Parliament.
Mr.
Heath:
My comments are in the form of an inquiry because I
have not had the opportunity to do the research. It seems that there
would be considerable merit in having a common statutory format for the
appointment of those officers of the Crown. That way, we would not have
to discuss the details of the form of appointment and removal from
office because there would be a common form with which the House was
content, until such time as it might choose to have a different form.
Therefore, I ask the Minister whether that position is directly
comparable to other offices that are appointed by the Crown and fill
analogous roles
elsewhere.
Maria
Eagle:
I would like to respond to the amendments that the
hon. and learned Member for Harborough has proposed and hopefully
reassure him that they are not necessary. Their purpose is to give the
commissioner and not the Secretary of State the power to lay reports
directly before Parliament. As he made clear, his intention is to try
to increase the perceived independence of the commissioner and ensure
that the Secretary of State cannot suppress or alter a report. I hope
that he is reassured by what the incumbent said when giving evidence to
the Committee; there has never been any instance in his time when the
Secretary of State has sought to impinge upon his independence or
interfere in any way with any of his reports. I hope that the hon. and
learned Gentleman accepts that that is the case. I hope that, in
resorting to some of his more flowery language, he was not suggesting
for one moment that the current Secretary of State or indeed anyone has
sought to do such a thing or to interfere with or suppress reports of
the current prisons and probation ombudsman in any way. The situation
was made clear in evidence to the
Committee.
7.30
pm
I recognise, of
course, that the laying of reports by the Secretary of State might give
rise to concerns about the commissioner’s independence. We
sought to obtain views from the British and Irish Ombudsman Association
on the best way to deal with the laying of reports and on who should
undertake that task for different Parliaments. The association
recommended that the new commissioner’s reports should be
published by him in his own right, and that the Secretary of State
should then be required to lay them before Parliament. That is what we
have provided for in the
Bill.
The
constitutional arrangements set out in the Bill are therefore broadly
comparable with those for other ombudsmen operating in similar
situations to that of the new commissioner for offender management in
prisons, whose post will exist once the Bill is on the
statute book. There are various differences in detail that reflect the
individual terms of reference of the different types of ombudsman, but
the association certainly recommended that the arrangements were the
correct way of proceeding. An alternative view is that the
Secretary of State is responsible to Parliament for such matters, and
that he therefore ought to lay the report. We sought to make sure that
there could be no question of a Secretary of State changing a report
that he thought might be inconvenient, or delaying the laying of such a
report. The Bill requires laying to take place as
soon as practicable after receipt. The commissioner will be sponsored
by and will report to the Secretary of State for Justice. It therefore
seems right that that Minister should have responsibility for laying
the commissioner’s report, but I can assure the Committee that
there will be no question of interference or delay. I hope that the
enables the hon. and learned Gentleman to withdraw the amendment, but
clearly that decision is a matter for him.
Mr.
Garnier:
I think that the Minister was a little too
defensive at the outset. We are making law for the long term; we are
not concerned with the individual holder of the office of Secretary of
State at the moment. I am sure that the right hon. Member for Blackburn
(Mr. Straw) would never suppress anything, and I have never
suggested otherwise. However, we need proper lines of accountability
and I happen to think that office holders such as the commissioner
should not have to present things as difficult or anxiety-inducing as
reports on the conduct of our prisons and on offender management
directly to the person who is in charge of the political management of
prisons. It would be better for the commissioner to report directly to
Parliament, and then we can cross-examine the Minister on the report,
or debate the report, at an appropriate time. It is a simple question
of accountability.
I
happen to disagree with the Minister, but I shall not press the
amendment to a Division. I am not entirely satisfied with her response,
but I beg leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Schedule 6 agreed
to.
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