Criminal Justice and Immigration Bill

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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.
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.
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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.
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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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