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Mr. Garnier:
The Secretary of State is right in his analysis of the effect of some short sentences and the effect of longer sentences, but we also need to bear in mind something that might be missed if one takes what he said at face value. Those who get longer sentences tend not to be the chaotic characters who get short sentences; rather, they tend to be armed robbers or professional criminals. They are therefore altogether better able to look after themselves in prison and outside it, subject to being caught, whereas short-term repeat offenders are, by and large, chaotic characters who commit crimes to fuel a drug habit. By their very nature, they are less susceptible to the injunctions of the criminal
justice system. The Secretary of State’s facts were correct, but the inferences that we draw from them need to be carefully studied.
David Howarth: That is an important point. In cases of domestic murder, for example, the chances of reoffending are usually very low, which will skew the statistics that the Secretary of State used.
We know that for the type of offender that the Secretary of State was talking about—those with chaotic lives who sometimes find that they are sent to prison because the courts lose patience and cannot think of anything else to do with them—drug and alcohol treatment programmes are more effective, although not always effective, when delivered in the community than they are when delivered in prison. The reasons are obvious. Alcohol treatment, for example, is clearly the best way of dealing with violent offenders, even though some would say that all violent offenders must always be sent to prison. Alcohol and drug treatment programmes are far cheaper when delivered in the community than they are when delivered in prison. We could run more of them, and therefore prevent more crime, if we allocated our resources properly.
We know that what works best for those whom we have to put in prison—the Justice Secretary is right: there are some people whom we have to put in prison—in reducing reoffending are training, education and work programmes. In fact, it turns out that those programmes are cheaper and more effective in prison than they are outside it, for various reasons. That tells us the direction in which prison policy should go, not just the direction in which sentencing should go.
All I am saying is that we need a dynamic system in which whatever we know from the results of research is built into the process of drawing up the sentencing guidelines. That is all that amendment 20 aims to achieve.
One issue in this debate is costs and the extent to which they should be a relevant consideration in criminal justice policy. Let me make it plain that I have absolutely no objection to considering the relative costs of sentences in deciding what should be in the guidelines. It seems obvious that if two sentences are equally effective in reducing reoffending, we should use the cheaper one, because we can do more of it and prevent more crime in the long term. However, I hope that the Government will make it clear that that is the not the same as making sentences in individual cases respond solely to cost, because not only individual cases would be affected. In fact, given the disparate nature of sentencing, doing that would probably not be cost-effective, either.
It is also important to distinguish between the total resources available to the criminal justice system and the relative costs of different sentences. Sentencing guidelines should take into account relative costs, but that does not mean that they should take into account the total resources available to the system. That is the Government’s business. It is for the Government to ensure that the resources are available to make sentencing in the criminal justice system work. As I understand it, that is the spirit of amendment 44, which has been tabled by Government Back Benchers.
Mr. Garnier: Amendment 44 is mine.
David Howarth: I am sorry. There are a number of amendments to a similar effect.
Overall, there has always been a tension between the courts on the one side, asserting their independence to pass sentences that they think are just, and the Government on the other side, trying to have a criminal justice policy. The methods that we have used so far to try to bring the two together have inherent problems of their own. Sentencing guidelines cause the problem, which I am sure the hon. and learned Member for Harborough (Mr. Garnier) will highlight, of reducing the discretion available to judges. Judges will plainly resent that. On the other hand, if we have only unguided judicial discretion, people in the Secretary of State’s position will have to make resource provision for a vast number of sentences that are never used. That would massively increase the cost in the system and mean that resources were not being put to their best use for reducing crime.
There might be an even better way forward than the Bill, which is for the evidence that I suggest should be built into the sentencing guidelines process to be built into the Department’s policy-making process, too. If the Sentencing Council and the Department were working from the same evidence about what worked and if they had the same goal of putting what works to reduce reoffending at the heart of the system, the co-ordination of what sentencers do with what the Government do would be more automatic than it is in a system in which one side tries to tell the other what to do.
However, perhaps that is a counsel of perfection. I concede that the Bill is, on the whole, a step forward, but I ask the Government to reconsider in detail how what works to reduce reoffending can be built into the system.
Alun Michael: I want the Sentencing Council to be a success and I want it to be effective, and I know that my right hon. Friend the Lord Chancellor wants that, too. My concern is that the Bill as drafted does not offer any certainty that the Sentencing Council will be effective. There is no certainty that it will address in sentencing guidelines the need to reduce reoffending or to change the attitudes of courts by ensuring that that is at the front of their minds.
I am not so concerned about the courts’ ability to deal with the very serious cases of murder or with criminal gangs and so forth—those matters can be left for judges to decide—but I do not think that judges have demonstrated an ability to understand the need to intervene on prolific low-level offenders or the need to nip offenders in the bud. There is considerable amount of evidence, in work funded by the Esmée Fairbairn Foundation, that taking judges out to see the work of community sentences can be very effective in improving the standard of sentencing.
In the Public Bill Committee I offered three propositions and I very much hope that my right hon. Friend the Secretary of State will take them seriously. If he does not accept the two amendments proposed by the hon. Member for Cambridge (David Howarth), I hope that he will think further and perhaps introduce amending provisions in the other place.
The first of my three propositions is that people should be appointed to the Sentencing Council on the basis of their capacity to evaluate evidence on the
effectiveness of sentences. I suggested amendments in Committee to put that directly into the Bill. At the moment, the council looks too much like a comfortable judges’ club. The question of effectiveness that the hon. Member for Cambridge underlined in moving the amendments is absolutely critical to whether the Sentencing Council is going to be a valuable addition or not.
Secondly, I believe that the Sentencing Council should be given a clear purpose, which is absent from the Bill. We discussed that in a very good debate in Committee and I hope that my right hon. Friend will take it on board and set out what the Sentencing Council is for in a new clause in the other place.
My final point is the need to clarify clause 103, which specifies five principles to which the council must have regard. The reference to
“their relative effectiveness in preventing re-offending”
appears only in the second half of the fourth of those items. That would be made more explicit if we lifted it up the agenda by accepting amendments 20 and 21. If my right hon. Friend will not accept those propositions today, I urge him to make it absolutely clear in the Bill that this place expects the Sentencing Council to add value to the work of the courts and to attach great priority to advising the courts on what works in reducing reoffending.
Mr. Garnier: I want briefly, if I may, to discuss some of the amendments tabled by the Government and by the Liberal Democrats, but also to concentrate on my own amendments 43 and 44, which, to my mind at least, describe the difference between us and the Government in a fairly effective way. Amendment 43 deals with whether the sentencer should “follow” or “have regard to”—or as my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) would prefer, “take account of”—the directions of the Sentencing Council.
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): There is no difference.
Mr. Garnier: As my right hon. and learned Friend says truthfully and entirely sensibly, there is absolutely no difference between what lies behind his amendments and mine. Amendment 44 deals with the resource implications of resource assessments and how they should affect the discretion of sentencers—a point brought out by the hon. Member for Cambridge (David Howarth).
Let me deal briefly with the other amendments and then come back to my own. Just before doing so, however, I declare an interest in that as a recorder, I will have to be guided by the Sentencing Council, just as I am already guided by the Sentencing Guidelines Council at the moment. I have some understanding in a practical sense of the effect of these types of arrangements— [Interruption.] It looks like the hon. Member for Cambridge is laughing at one of his own jokes.
7.15 pm
I do not think that there is much difference between us about the importance of the need to reduce reoffending. Both in Committee and this evening, we have all suggested that reduction of reoffending is a highly important aim of the criminal justice system, and it has to be a priority.
In our paper published last March—it was written by my hon. Friend the Member for Arundel and South Downs (Nick Herbert) and me and was entitled “Prisons with a Purpose”—we outlined our plans for the reform of the prison system and of the non-custodial sentencing system. At the heart of our paper was a section dealing with what we called “the rehabilitation revolution”. We wanted to see far greater emphasis placed in the prison and non-custodial sentencing system on the rehabilitation of offenders—so that they do not reoffend. This is now largely uncontroversial— [Interruption.] The Minister of State, Ministry of Justice, the right hon. Member for Delyn (Mr. Hanson), says that it was before; it is just a question of getting on and doing it. He and his hon. Friends have had 10 years to do their best; we look forward to having an opportunity, if the electorate so decides.
I gave evidence to the investigation called by the Centre for Social Justice, which is chaired by my right hon. Friend the Member for Chingford and Woodford Green (Mr. Duncan Smith), who asked Jonathan Aitken to produce a report on the current state of our prisons and what needs to be done to improve them. That report was published, Mr. Deputy Speaker, as you may know, earlier this week or over the weekend. I am happy to say that a good deal of what is in the document coincides with or is drawn from my own evidence to the investigation and from our document “Prisons with a Purpose”.
The document produced by the Centre for Social Justice is a very big document, but it is worth reading. I am sure that both the Secretary of State and the Ministers of State have it on their reading list. [Interruption.] I am grateful to the Secretary of State. Irrespective of our party differences, there is a mine of information in it. Some of the conclusions arrived at will not surprise Ministers, but I hope that some of them perhaps will. The Conservative party’s attitude to the criminal justice system has, if I may say so, taken—
Mr. Bellingham: A turn for the better.
Mr. Garnier: That is the expression used by my hon. Friend, and I would say that the truth that was always there has simply been revealed—but perhaps this is a distinction without a difference.
On judicial discretion, I am not asking for a judicial free-for-all. I have a proper understanding, I hope, of the sentencing exercise. I said it before in Committee and I will say it again now: sentencing is probably the most difficult thing that a judge has to do in the criminal justice system. Yes, judges—and magistrates, such as the right hon. Member for Cardiff, South and Penarth (Alun Michael)—have to consider issues of fact and of law, but I would suggest that the sentencing is the most difficult and complicated aspect of the work of the criminal courts. Yes, guidance from the Court of Appeal criminal division and from the Sentencing Guidelines Council, or the Sentencing Council, and indeed from Parliament is always helpful—indeed, more than helpful; it is very useful.
We accept that judges have to sentence within a range of sentences laid down by statute or by the guidance of the higher courts and by the Sentencing Guidelines Council. Where I think we—that is to say, the Government and the Conservative party—differ is on the tightness of
the link between the sentencing guidelines and the independence of the judge or the magistrate to apply the sentence that is just in the case before him.
The right hon. Member for Cardiff, South and Penarth said today and in Committee that he was not so much worried by the sentencing of serious criminals who get the longer sentences; he was more concerned about the way in which low-level persistent offenders are dealt with. I think that he is right to have that worry, because unless we stop such people reoffending, they constitute a continual public nuisance. They are an expense, and they cause untold misery to the householders, owners of businesses, shopkeepers and so forth who are predominantly the victims of acquisitive crime committed with the aim of feeding a drug habit.
It seems to me—and I do not think that this is a novel opinion—that drug addicts commit crimes rather than criminals’ becoming drug addicts, although my view is changing somewhat following the report on Wellingborough prison which was published this morning. Unfortunately, the findings in that report are not peculiar to Wellingborough. What Dame Anne Owers, the chief inspector of prisons, discovered about the incidence of drug taking, drug dealing and drug use in prisons is not restricted to that particular prison. There is not a single prison in England and Wales that does not have a drug problem to a greater or lesser extent.
Let us all agree that we want to reduce the incidence of reoffending. Let us all agree that Parliament has a perfect right, and indeed a duty, to set out the ranges of sentences for particular offences. Let us all agree that the Court of Appeal criminal division has a role to play, and that magistrates and judges should be given sufficient independence and discretion to enable them to do justice in the cases before them.
Although I understand what amendments 20 and 21 are about, I suggest that it is already covered by clause 103(11), and in particular by paragraph (d), which deals with
“the cost of different sentences and their relative effectiveness in preventing re-offending”.
Although I listened with interest to what the hon. Member for Cambridge had to say, I am not sure that his concerns need to be translated into the Bill. However, Government amendments 143, 144, 146 and 148 move us into more interesting territory. Of itself, amendment 143 does not strike me as objectionable. It seems to say, while using slightly different words, what is currently said in subsections (1) to (4) of clause 104, which the Government intend to delete. Amendment 146, of itself, is not objectionable; on the face of it, the provisions that would replace clause 104(8) appear to be common sense. Amendment 148 simply refers to the offence range rather than the category of case, and is not of itself objectionable. Government amendments 149 and 150 follow on from the earlier amendments, and they, too, are not of themselves objectionable.
Nevertheless, I ask the Government to accept that without amendment 44—tabled by, among others, my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) and me—there is at least the possibility of an improper connection between money and justice. The amendment states
“Whilst the courts may have regard to the availability of correctional resources”
“for the avoidance of doubt the courts must not pass a sentence that is wholly determined by resource assessments which are expressly intended for the guidance of the Secretary of State in planning for and providing such custodial or community sentences as he advises Parliament, and it”
“considers, necessary in the light of such assessments.”
When deciding what should be the maximum sentence for robbery, burglary, murder, rape or any other criminal offence, Parliament will need to understand that increasing the maximum sentence or providing a minimum sentence will cost a certain amount of money, and will require additional prison places, probation officers or other facilities to deal with the offenders concerned. Having understood that, however, and having decided on the basis of that information and advice what the appropriate maximum sentence, minimum sentence or range of sentences should be, Parliament should not descend into the courtroom, either directly or via the Sentencing Council, to tell judges precisely what to do. I believe that without amendment 44 or a similar provision, we shall be in danger of moving Parliament and the Executive into the courtroom in an improper constitutional fashion.
Amendment 43 is also connected with my fear that we are in danger of intruding in the courtroom in a way that I find wholly objectionable. It deals with what I call the “follow” or “have regard to” argument. As the law stands, sentencers are obliged to “have regard to” guidance from the Sentencing Guidelines Council, but are not obliged to follow it slavishly. That works well. While I accept that sentencers, be they magistrates or Crown court judges, must explain their reasons for acting outside a particular guideline in a particular case, I do not think that anyone has been surprised by, or unjustly dealt with by, judges having regard to or taking account of the guidance as opposed to following it. The Government, however, require judges and magistrates to follow the sentence advice in the guidelines—indeed, almost to cut and paste it into their sentences.
As I have said before, only the judge or magistrate has the facts of the case before him—the facts relating to the victim, and the facts or the local knowledge in relation to the effect of the crime on the local community; that is particularly true of magistrates—along with some understanding of the antecedents and the earlier life of the defendant or defendants before him or her. That, I suggest, renders the judge or magistrate best placed to deal with the sentence.
Mr. Hogg: Are not the local circumstances one of the most important considerations for a sentencing judge to take into account? A particular class of crime often becomes prevalent locally. In such circumstances, a sentencing judge may well consider it necessary to propose a sentence that is different from, and perhaps more severe than, the general category or bracket specified in the sentencing guidelines.
Mr. Garnier: My right hon. and learned Friend is entirely right. What he has said is doubtless based on his experience both as a Home Office Minister and as a practising member of the criminal Bar.
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