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Who are the 100 to 200 people? The Government presumably think that there will be a whole new group of men convicted of murder, rather than manslaughter, by virtue of the sexual infidelity clause. I doubt very
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much whether there are many cases of that sort at all, at least in England. There was one such case in Scotland not so long ago. As far as I can tell from the past 10 or 20 years, that attempted defence usually fails. These days, if sexual infidelity is relevant at all in a murder case, it is relevant in terms of diminished responsibility, rather than provocation, so I do not think that the prisons will be filled with men who previously would not have received a mandatory life sentence by reason of a crime passionnel. In fact, as the hon. and learned Member for Beaconsfield mentioned, the existence of that clause is somewhat puzzling. Why has that form of provocation been picked out for legislative treatment when other forms have not?

The other form of provocation and loss of control that has not been picked out for special mention and been ruled out by the Bill relates to honour killings. I am surprised that the Government seem to have gone that way. Disturbingly, the Bill seems to be almost designed to allow honour killings to count as manslaughter, not murder. The Human Rights Watch definition of honour killing is

Let us take the example of a woman who refused to enter into a forced marriage. The Bill potentially treats such a case as one of losing control by reason of having a sense of being seriously wronged. Admittedly, the word “justifiable” comes into the definition, but the question is: justifiable to whom? The Bill does not say, and in any case the issue seems to be left eventually to the jury. The same point applies to other parts of the definition. In picking out sexual infidelity, but not picking out honour killing, the Bill is doing something quite disturbing. The whole attempt to deal with the law of murder seems to be arbitrary. I urge the Government to recognise that clauses 39 to 43 are a mess and should be withdrawn.

I do not want to take much more time going through the other 28 topics in the Bill, but I should like to make a few brief comments on the rest of the Bill. On suicide websites, I note with alarm that the relevant clauses are not in any way confined to the specific issue of suicide websites but will replace the whole of the present law on encouraging and assisting suicide, by removing any sense that the encouragement or assistance of suicide must be aimed at a specific person or group of people.

No one, especially parents, can condone those irresponsible and dangerous websites that encourage possibly unstable young people to take their own lives, but encouraging suicide, which is what those websites do, and assisting suicide are different things. Encouraging suicide takes place before the person has decided to commit suicide and is entirely reprehensible, whether it is aimed at a specific person or at the world in general. In that sense, what the Government are doing is right, but assisting suicide can, by contrast, occur after the person has autonomously decided to commit suicide.

Many hon. Members think that assisting suicide is also wrong, but if it is wrong, it is a different sort of wrong from encouraging suicide. Other hon. Members
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think that assisting suicide is not necessarily wrong if the right sort of safeguards are in place. That, of course, is the position of my party. Admittedly, some forms of assisting suicide could amount to encouraging suicide in some circumstances, but that is precisely what the debate on safeguards is about. I should like the two issues of encouraging suicide and assisting suicide to be clearly separated, and the Bill simply does not do that.

On anonymous witnesses, I simply note that the Bill does not deal with the central problem that was raised when we discussed the temporary Bill last summer: the provision of independent or special counsel, which would overcome many of the difficulties that that Bill produced.

The provision on the anonymity of witnesses in investigations seems useful, but will it really help? There is a serious problem with witnesses not coming forward in gang-type crimes, but the Government are suggesting that it will be a crime for someone to give the name of someone about whom an order has been made to another person, where an investigation has taken place into gang crime. The question is: who will be the defendant in such a prosecution? The answer, it seems, is that it could only be a police officer, so we are making it a crime for a police officer to give out the name of a potential witness. Let us think about the reality of the situation. Will it really have a big effect on potential witnesses from estates threatened by gang violence if the police can say to them, “Don’t worry, we’ll make an order protecting your identity, and if it is broken, the police will prosecute the police”? That does not seem a very practical idea to increase the confidence of witnesses. Witnesses are certainly threatened; I do not deny the existence of the problem, but the measure seems more symbolic than real.

I urge the House to look at clause 87, which deals with the examination of the accused through intermediaries. It is about the problem of what happens when someone is suffering from a mental illness or other disability and cannot give evidence. There is already provision for ordinary witnesses to be asked questions through intermediaries; that is there to help them. The Bill extends that facility to defendants, but there is a serious question: if a defendant cannot understand the proceedings to the extent that they need that help, why are they on trial? Why are they not unfit to plead? So far, the Government have produced no explanation on that.

The Bill contains a lot of good stuff about video-recording evidence and live links, but I have a question on clause 94, in which the Government propose a subtle amendment to section 138 of the Criminal Justice Act 2003. It looks good, except for the fact that the provision has never been brought into force, although the Government have had six years to do so. Why are they amending something that they could not be bothered bring into force in the first place?

I have a similar question on the bail provisions. I can find no impact assessment on what effect changing the rules on bail for those charged with murder is expected to have. At any one time, about 50 or 60 people accused of murder appear to be on bail. How many of those people do the Government expect to be remanded in custody as a result of the Bill, and what change do the Government expect that to make to a person’s chances of being the victim of murder?


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My final point is on the sentencing council. The Government are to be congratulated on not falling for the most prescriptive models for sentencing guidelines, although they have chosen a fairly restrictive model. They are also to be congratulated on the provision that the Secretary of State mentioned, under which the council should take into account the relative effectiveness of sentences in preventing reoffending. I agree strongly with what the right hon. Member for Cardiff, South and Penarth said about what works; that has to be built into the criminal justice system from top to bottom.

The problem is that the Government seem to be pursuing two entirely different criminal justice policies in the same Bill. The model of the grid that they put forward seems entirely predicated on the seriousness of the offence and the harm caused. When it comes to carrying out the guidelines in practice, as opposed to talking vaguely about them, the guidelines have no room for preventing reoffending. For the success of restorative justice programmes, what matters might well be whether the offence was committed against a specific human victim—the right hon. Member for Cardiff, South and Penarth mentioned this point—who is willing to take part in a process of restorative justice.

For treatment options, such as treatment for drug and alcohol misuse, the personal characteristics of the offender might matter more than the nature of the offence. The sentencing ranges that the Government have chosen are built entirely on the retribution view of sentencing. In practice, that view will completely squeeze out all the things that the right hon. Gentleman and I want to see in those guidelines. That matters, because although the Secretary of State is right that putting the victim at the heart of the criminal justice system is important, it is also important that we consider not only present and past victims, but future ones. The purpose of the criminal justice system must be to ensure, as far as is possible, that there are as few future victims as possible.

I therefore ask the House, for the reasons set out in our amendment, not to pass the Bill today. It contains some good proposals, but also dangerous proposals on data sharing, and proposals on secret inquests that are, though a red rag, undesirable. A lot of the rest of the Bill seems ill-thought-through, rushed and muddled.

Several hon. Members rose

Madam Deputy Speaker (Sylvia Heal): May I make a plea to Members? I estimate that there are approximately three hours left for this debate. May I ask you all to consider carefully the length of your contribution, so that more people can catch my eye? I call Mr. George Howarth.

6.26 pm

Mr. George Howarth (Knowsley, North and Sefton, East) (Lab): Thank you, Madam Deputy Speaker. I shall try to follow your advice as closely as possible; I know that it makes sense. It is a pleasure to follow the hon. Member for Cambridge (David Howarth). Some of his points are sensible, others less so. I shall make just one point on what he said about anonymous witnesses. He must be aware that there are hundreds, or more likely thousands, of violent gangsters and others in this country who do not get brought to justice because
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everybody is far too afraid to act as a witness. He needs to be aware of that fact. As the provisions that my right hon. Friend the Secretary of State is trying to introduce on anonymous witnesses are meant to address that specific problem, the hon. Member for Cambridge should not be so squeamish about the means of dealing with the issue.

David Howarth: My point about anonymous witnesses in investigations was not that there is not a problem; there is a very serious problem. My point was that I do not think that the provisions will work. They will not make things any better.

Mr. George Howarth: The hon. Gentleman has at least gone part of the way with me in recognising the problem, but having recognised it, he must at some stage will the means to resolve it. If he does not think that the proposals are the means, he needs to come up with something that will address that very real problem.

I did not intend to go off on that diversion. I intended to begin by commenting briefly on the Bill’s provisions for reform of the coroner system. I come to this subject from the perspective of having a number of constituents who tragically lost loved ones in the Hillsborough disaster on 15 April 1989. Together with several bereaved constituents, I attended one day of the coroner’s mini-inquests. In total, the proceedings lasted for 90 days. In March 1991 a verdict of accidental death was returned for the 96 people who had died attending a football match.

The individual mini-inquests were held on the revolving door principle, with approximately eight cases being heard a day. That was a horrendous experience for the families involved. The gross insensitivity of focusing on the blood alcohol readings created the wholly false impression that that was a significant contributory factor in the disaster, when it had already been established by the Taylor inquiry that

I mention this not to rake over the coals of the tragedy, but to highlight why the coroner’s procedure caused such distress and offence to the bereaved families. For this reason I welcome the reforms proposed in the Bill, at least in principle. However, I ask Ministers to reflect on my comments on the Hillsborough mini-inquests and see whether the Bill can be improved to ensure that that situation is never allowed to occur again. I hope there will never be another disaster on that scale, but I also hope that if there ever is, the bereaved families will not be put through the wringer as the Hillsborough families were.

I turn to the sentencing provisions in part 4. I had the privilege of serving on the sentencing working group which, following the Carter report, was charged with examining the merits and feasibility of a structured sentencing framework and establishing a sentencing commission. The group, which was expertly chaired by Lord Justice Gage, made a number of recommendations, many of which, I am pleased to say, have found their way into the Bill.

Because sentencing has such an immediate and real effect, it is one of those areas where there should be a clear link between the detail of the policy, the underlying principles and the practical consequences that follow.
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We have a duty to ensure that sentencing policy is fair to the victims of crime, that society as a whole has confidence in our justice system, and that offenders recognise that the sentences that they receive are proportionate to their crimes and are consistently applied. Regrettably, a lack of consistency is a significant contributory factor to the alarming decline in public confidence in the criminal justice system in recent years, and we must recognise that.

We should also recognise that sentencing has a direct impact on offending in three ways. First, the most direct impact, surprisingly, is the most overlooked. It is difficult for most offenders to commit further crimes while they are serving a custodial sentence. As the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) put it when he was Home Secretary, prison does work—in that context, at least.

Secondly, sentences should, wherever possible, include the potential for practical and effective rehabilitation. I use the words “practical” and “effective” advisedly. We must be honest. Not all rehabilitation, and not all community sentences, are effective. We should not believe that in every case they are a panacea. In some cases they are not. Thirdly, sentences act as a deterrent that reduces reoffending and discourages offending in the first place. All three impacts are too often overlooked.

On the practicalities of sentencing, the hon. and learned Member for Beaconsfield (Mr. Grieve) seemed to get himself in a muddle. I say that with regret. When I listen to him in the House, he is usually fluent, tolerant and logical, but in his speech he created a muddle between the idea of balancing correctional resources and the sentences that are passed. He railed, rightly, against early release schemes. I agree with him. There is nothing worse than an early release scheme for undermining the whole sentencing system. By definition, releasing anyone early without good reason undermines the sentence that the court passed on them.

However, the hon. and learned Gentleman ruled out any predictability in the need for correctional resources. He said that it was up to the courts to decide what those should be, but if we do not predict with more accuracy than in the past how many prison places are needed, or how many places are needed on community sentences, the inevitable consequence is that sometimes we will get it wrong. If we under-provide, there is only one way to deal with that—by means of early release schemes. That is what has happened repeatedly in the post-war history of sentencing. At some point, there is no alternative. The hon. and learned Gentleman cannot have it both ways. Either there is predictability in the system so that we have a reasonable idea what correctional facilities are necessary, or there is no predictability, and at some point in the cycle, early release schemes will have to be introduced.

While serving on the sentencing working group, I was surprised and disappointed to discover—this is another point that the hon. and learned Gentleman failed to take into account—how little we know about, and how little we are able to measure, the variations in sentencing. We commissioned a limited survey of our own, which I do not claim was the last word on the subject. It revealed a number of interesting facts, the most notable of which was that almost half the sentences passed by the courts in England fell outside the guideline ranges.


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Courts need to have some flexibility and to exercise some judgment, but do we really think that 50 per cent. of their sentences falling outside the guideline ranges is a good thing? Does any hon. Member want to interrupt me and say, “Surely we should celebrate that”? If nobody is prepared to do that, there must be a general acceptance that it is not a good thing. Whether courts are over-sentencing or under-sentencing, that cannot be right. We need far more information and a clearer picture of what is going on throughout the country. My right hon. Friend the Secretary of State and other Ministers have accepted that we need more data so that we can be clearer about how the sentencing system is working. I welcome the fact that the Bill provides for that.

Four key issues are pertinent to the Bill. The first is the challenge of balancing consistency with judicial flexibility in individual cases. The second is the challenge of ensuring that there are adequate correctional resources available to meet demand without compromising justice in individual cases. The third is the role of the Lord Chief Justice in the new sentencing council, and the fourth is the role of Parliament in setting guidelines.

On the challenge of balancing consistency and flexibility, the group on which I served was extremely clear that there needs to be improved consistency in sentencing, while still allowing for judicial flexibility in individual cases. We recommended, for example, that there should be definitive guidelines for all major high-volume offences, and further narrative guidance on the treatment of previous convictions and aggravating and mitigating factors. To be fair, we were less clear about how to deal with cases where the intended sentence departed from the normal range.

At present, the court is required to have regard to any guidelines relevant to the offender’s case. Discretion to stray from those guidelines can be granted only if the court can give reasons for such a departure. There is an alternative approach, which gives the courts more flexibility and simply requires guidelines to be followed unless the court is satisfied that that would be contrary to the interests of justice. Although the majority of the sentencing working group supported that approach, my own view, as indicated in the report, is that the existing requirements should be retained because they provide more consistency while still allowing flexibility in individual cases.

Clause 103 sets specific requirements on how sentencing guidelines should be laid out by the sentencing council. In my view, the clause contains little, if anything, that is not already covered in at least some of the sentencing guidelines. However, specifying the requirements in the Bill will help to achieve the aim of greater predictability and assist attempts to collect relevant data on actual sentencing practice across the whole country. Having a greater understanding of that practice will help the planning of correctional resources to be more effective, and give us the opportunity to revisit the issue of consistency in sentencing in a more informed way in future.


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