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We all know from what happens in our constituencies, be they urban or rural, that certain crimes become fashionable from time to time. There may be an epidemic
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of house burglaries, of car crime or of drug retailing on the streets. The courts need to be able to deal with that in the way that is most appropriate to the locality concerned. The advantage of the administration of local justice through magistrates courts and Crown courts is that those courts can respond directly and immediately to local circumstances. It seems to me that, while the Sentencing Guidelines Council—and the Sentencing Council, as it will become following the Bill’s enactment—have a role to play, they should not be allowed to overplay it, and to inhibit the sort of activities that my right hon. and learned Friend has described.

7.30 pm

Sir Alan Beith (Berwick-upon-Tweed) (LD): There is a danger in the approach implied in both the question and the answer. It is a twofold danger. First, in order to demonstrate that society will not put up with whatever may be happening in a locality, excessive reliance may be placed on the theory of deterrence and a sentence may be passed that does not have the deterrent effect that it was assumed it would have. Secondly, the process of signalling to society that the courts are not going to put up with the offence may draw them into prison sentences that are themselves ineffective. We should look for ways of making that sort of declaration that do not involve us in impractical sentences.

Mr. Garnier: I am grateful to the right hon. Gentleman for his intervention, but it is not a question of either/or—it is both/and. Local judges and magistrates should be able to take account of local conditions and from time to time deal with criminal campaigns through exemplary or extended sentences, but of course they want to be effective. Judges are not in the business of passing sentences that either are not obeyed, if they are community sentences, or that do not help to reduce reoffending. Unfortunately, some defendants are beyond education and understanding the effect of their offences. I say in parenthesis that I happen to be a great supporter of restorative justice, which the hon. Member for Cambridge mentioned, but it is vital that judges and magistrates should be allowed within a wide remit to conduct this most difficult exercise, which is to do justice to the defendant, society as a whole, the victim and the victim's family, and to play their part in the reduction of reoffending.

While I dare say the Government see themselves as entirely well motivated, they are being too dirigiste, statist and centralist in this aspect of criminal justice policy. Therefore, I urge them, even if they do not accept my amendments 43 and 44 today, to think rather more carefully. In any event, I will ask at the appropriate time, if I catch your eye, Mr. Deputy Speaker, to test the opinion of the House on amendment 43.

Mr. Neil Gerrard (Walthamstow) (Lab): I shall address my remarks to amendment 161. They follow on to some extent from some of the remarks made by the hon. and learned Member for Harborough (Mr. Garnier). He said that the measure includes the requirement that the guidance of the Sentencing Council be followed. On amendment 44, he talked about not wishing to allow resources to determine the sentence, but resources are key to what is happening.

Amendment 161 would amend clause 110. That clause requires the Sentencing Council to publish resource assessments in respect of its guidelines. In those resource
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assessments, the council will be expected to say what it thinks the guidelines will do in respect of the demand for prison places, the resources that are required for probation provision and for the provision of youth justice services. The question is: once the Sentencing Council has produced those reports about resource assessments, what happens to them? There is nothing whatever in the Bill to indicate that the Government will have to pay any particular attention to them, yet they are key if the recommendations of the Sentencing Council on sentences are to be put into effect. Amendment 161 therefore says that the Secretary of State must monitor those resource assessments and, as far as he practically can, ensure that there are adequate resources to ensure that the guidelines produced by the Sentencing Council can be put into practice.

The concept of the Sentencing Council has been widely welcomed. I do not have any difficulties with it. Many people outside this place have welcomed it, but what will happen if the recommendations from the Sentencing Council go in a particular direction that the council itself says will impact on prison places and probation services? As the Minister knows, some of us have already told him we have concerns about the resources that are available now and will be available in the next two or three years to, for example, the probation service. Probation representatives are telling us that they are concerned about the effects of their current budgets on front-line services.

I give just one example. The special domestic violence courts were introduced in 2005-06. A domestic violence programme is focused on changing attitudes and the behaviour of participants in that programme. It teaches people non-controlling behaviour. Courses run for a few months and involve individual sessions, group sessions and relapse-prevention meetings. They seem to be the sort of courses that we want to support, but we hear that there are considerable waiting lists for people to get on them: the waiting times vary from 13 to 42 weeks, depending on the area. The maximum wait for getting on a course varies from 33 to 208 weeks. If we are saying that we expect a course to be effective, but there is a waiting time of four years for someone to get on it, that hardly suggests that we are matching the resources to the programme we believe would be effective. Those are the issues that need to be considered in bringing the new regime into effect.

I am not suggesting for one moment that it will be a simplistic exercise; it obviously is not going to be easy always to do this, but if we do not look at what the Sentencing Council has to say about the resource requirements, and we do not consider what can be done to provide those resources, we will end up with more examples like the one I have just cited. There will be recommendations to the courts about what they should do in respect of sentencing, and the court will follow those recommendations, but then we will find gaps in, say, the probation provision to make those sentences work. I hope that when he replies to the debate the Minister will address that point and look at what might be done to make that link between the recommendations and the resources that are needed to put them into effect.

Mr. Hogg: I rise merely to express my anxiety about this House creating a regime that is unduly prescriptive. I agree with my hon. and learned Friend the Member for Harborough (Mr. Garnier) that sentencing is one of
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the most difficult functions of the judiciary and it has been enormously complicated by the volume of legislation that we have passed over the past 10 years and, if one is honest, many years before that. For example, indeterminate sentences of imprisonment for public protection and extended sentences of various kinds are extraordinarily difficult for the judges to determine. My own feeling is that they are also largely unjust in their implication and I dislike them very much. I also feel that Parliament needs to be—

Mr. Straw: I do not think there has been sufficient time for a full evaluation of the effectiveness of IPPs, but I can say that, when I go around prisons, which I do regularly, I am struck by the difference in attitude between those prisoners who are on determinate sentences and those on IPP sentences. Those on IPP sentences have now got the message that they will not come out and they will be on a long licence unless they stop their propensity to offend. That must be a good thing for the public and a good thing for them.

Mr. Hogg: That is a fair point, but there is another way of looking at this. When there is an indeterminate sentence and the release date is ultimately dependent not on the trial judge but on those who are assessing whether the person constitutes a risk, the natural attitude of those who make that decision is to guard their own back, and the result can be that many people are held in prison much longer than the index for offences justifies and much longer than a proper assessment of the risk would also justify.

Mr. Garnier: I do not know how many prisons the Justice Secretary has been to since he took up this new post, but it is my experience from having been to about 50 prisons in the last three years that IPP prisoners are the most difficult for the Prison Service to manage. They remember the tariff, but they find it difficult to comprehend that they have an unending or an indefinite sentence. That is why they become fractious and that is why prison governors tell me—whether they tell the Secretary of State this, I do not know—that they are very concerned about the management of such prisoners. I appreciate that the Criminal Justice and Immigration Act 2008 adjusted the IPP minimum tariff, but it is a very troublesome sentence.

Mr. Hogg: I agree with that. Many years ago, when I was an Under-Secretary at the Home Office, I was responsible for trying to determine when it was proper to release people from the special hospitals. We used to get advice from doctors and others on the safety—or otherwise—of the particular prisoner or patient, and no doubt that is still the norm. It was extraordinarily difficult to make that judgment, and I am sure that many officials—and, I suspect, clinicians—were guarding their back, thinking of the criticism that would come in the national press were they to recommend the release of somebody who went on to commit a crime. I think this is true of IPPs and extended sentences, and I fear that lots of characters are being held in our prisons now because people are unwilling to take that chance. I think we have to take that chance, unless we are going to detain people for unconscionably long periods of time.

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Sir Alan Beith: There is a further reason why some IPP prisoners are in prison for longer than they ought to be, which is that they cannot get on the necessary course to satisfy the conditions that would enable them to be released. That problem too tends to make them fractious, because they nurse a sense of grievance that the prison is preventing them from fulfilling those conditions.

Mr. Hogg: I think that that, too, is an important point, and I entirely agree with it. However, I shall move on from what is a somewhat narrow point—it might not even be within the scope of the amendment, but thank you, Mr. Deputy Speaker, for permitting that brief digression—and say that of course I accept that this House has to establish the appropriate brackets of the sentence. That is right; we have always done that, and we should continue to do so. However, my own view is that the imposition of sentences is very much a matter for the trial judge, guided by the appellate court. I think it is difficult to do justice unless we accept that the trial judge or trial magistrate is the person best placed to determine a sentence within the brackets established by Parliament. I therefore agree with my hon. and learned Friend the Member for Harborough that we should not put in statute the requirement that a judge should follow the guidelines set out by the council, hence my amendments. I believe the requirement should be that the judge take account of, but not feel obliged to follow, the prescriptive guidelines.

I accept that the council guidelines can bring about greater consistency. That is important, and to that extent I welcome the Bill’s proposals. It is true that the council’s guidelines—this is one of the points made by the hon. Member for Cambridge (David Howarth)—can bring to the notice of the judiciary sentences and alternatives that work, because not all judges go to all courses as assiduously as they should, and I have no doubt that the guidelines, the annual reports and the other material published by the council can inform the courts of what is available and what works.

I think, too, that it would be appropriate for the council’s guidelines and other published material to set out the cost implications of various sentence options; that seems to me to be entirely right. I also think that the council guidelines should stress the importance of non-custodial sentences. Whenever I have been to prisons—like my hon. and learned Friend the Member for Harborough, I have been to a large number of them in my life, both as a barrister representing defendants and as Prisons Minister—I have been conscious of the very many people who are in prison largely because of their own inadequacy or an addiction, and who could probably be dealt with other than by being kept in custody.

7.45 pm

Confidence in the penal system is important. Confidence should be not just national but local, hence the intervention of my hon. and learned Friend, who said that areas often suffer an epidemic of certain classes of crime, and a local judge may well form the view that a particular approach to sentencing is right given the particular local circumstances. I shall be very sorry indeed if the guidelines regime precludes a judge taking that local approach.

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May I make one further point, which will be deeply unpopular, especially to the hon. Member for Cambridge, and which will probably nowadays be regarded as deeply politically incorrect? I do not believe that the criminal justice system should be primarily focused on the victim. I get very concerned when I hear people say that the victim’s interests are paramount. I do not believe that. I think that the purpose of the criminal law is to do justice, and that does not necessarily mean following either the wishes or the interests of the victim. The interests, or at least the plight, of the victim must be taken into account; the victim is very often a witness and needs to be treated with great courtesy, be kept fully informed and be made aware of all relevant decisions. But actually the criminal law is seeking to create a system of punishment, deterrence, retribution and ways and methods of avoiding the repetition of crime. That is not about the victim, and the anxieties and distress of the victim can often cause judges to do things that are not right. When there are victim statements and so forth in court, I personally regard that as an irrelevance. That is not a popular view, and it is probably not shared by many Members. However, I strongly feel that we need to distinguish between the courtesies and respect that one owes to the victim and the fundamental purpose of the criminal law, which is to administer the interests of the state, and not necessarily to reflect the interests of the victim.

John McDonnell (Hayes and Harlington) (Lab): I rise to support amendment 161, which stands in the name of my hon. Friend the Member for Walthamstow (Mr. Gerrard) and which I have also signed. Let me explain the background to this amendment, because I know that some Members have argued it may be irrelevant.

Amendment 161 arises out of discussions with the trade union group that brings together the various trade unions representing workers in the justice field. The issue that arose time and again is that when Government wields the end, they should also wield the means. The amendment is in some respects intended to assist the Secretary of State in arguments with other Departments, and possibly the Treasury itself, because there has been a consistent pattern in the justice sector in this House: many Members have welcomed various approaches by the Government, particularly the development of sentencing policy—and innovative sentencing policy—but we have had difficulty extracting additional resources. Although there has been a significant increase in resources in this field, it has not matched the level of demand. That was demonstrated in the report by the Centre for Crime and Justice Studies published in December, which showed an increase in resources, but also a massive increase in demand and work loads. This legislation will develop the Sentencing Council and enable it to set out various guidelines, but unless the resources are made available we will pass legislation that will have limited effect—in fact, it could cause more frustrations within the justice system and therefore be less beneficial.

I shall give one example, which has become crucial in recent months. We have met the Secretary of State, and the National Association of Probation Officers, the trade union representing probation officers, has undertaken a survey. It demonstrates that as a result of a reductions exercise—a savings exercise—that is going on, a large number of staff are losing their jobs. We were hoping that this would not involve front-line staff, but it looks
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as though it will. The situation means that probation officers are having to ponder a quandary when they go before a court and recommend, as a part of their report, a particular approach on sentencing, be it a community sentence, a prison sentence or a particular innovative sentence—I am thinking particularly of sentences associated with restorative justice. They are having to consider whether they should be advising the court, in their professional capacity, that although a given approach might be the best course of action, the resources are not available, particularly within their locality, to implement the sentence. That puts an onus on the probation officer that causes them a considerable dilemma.

Amendment 161 seeks to remind the rest of government, as much as this Secretary of State, that if we are to develop the Sentencing Council and it is to be effective, we must ensure, as the amendment says, that as “far as reasonably practicable” the resources “are made available”. If we do not do that, we will undermine the credibility of this part of this Bill, which we, across the House, have supported. Even if we do not press the amendment to a vote, I urge the Government at least to take the spirit of the amendment back in their discussions with other Departments, in particular the Treasury. If we will the ends, we must will the means, and if we do not do so in this instance, we will undermine the credibility of this legislation.

Mr. Straw: This debate has been very interesting and well informed, and I shall try to conclude it in that spirit. It might be helpful if I were first to give some background to the proposals in the Bill for a Sentencing Council—I claim some authorship for those. In the mid-1990s, there was, as those of us who were in the House at the time will recall—a number are present on the Labour Benches—concern about the unrelenting rise in crime that had taken place under the Conservatives. Hon. Members may recall that recorded crime doubled between 1980 and 1995. The Conservative campaign guide of 1994 sought to point out that although recorded crime had risen, crime as calculated by the chosen measure of the Conservative Government—the British crime survey, which they had established—had risen by “only 50 per cent.” Both sets of data were true, but even a 50 per cent. rise was alarming.

Thus, following the appointment of the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) as Home Secretary in 1993, there was a big shift in the penal policy of the Conservative Government against what he regarded as the liberal and wet approach conducted by all his Conservative predecessors with, probably, the single exception of Lord Waddington; there was great concern about increasing the number of prison places and much else besides.

One of the things that I examined at the time was the question of consistency in sentencing. With great assistance from the statisticians in the House of Commons Library, I published a paper in 1996 called “Honesty, Consistency and Progression in Sentencing”, and its conclusions found their way into the Labour manifesto and then into the Crime and Disorder Act 1998, which was piloted through this House by my right hon. Friend the Member for Cardiff, South and Penarth (Alun Michael). I proposed a modest change: that a sentencing advisory panel should be established. He will recall how tentative we were about moving into territory that previously had been within the exclusive ambit of the judiciary.

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What the data that the House of Commons Library statisticians had produced and that I had published showed was that there was no necessary connection between crime levels—or the rates of growth or decline in crime—and local sentencing rates, be they the custody levels, the proportion of offenders sentenced to custody, or average sentence lengths. Of course I accept what both the hon. and learned Member for Harborough (Mr. Garnier) and the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) said about the fact that the court has to have discretion for all sorts of reasons, not the least of which is that there may be what the hon. and learned Gentleman has described as a local “epidemic” of crime and the court may wish to set out imperatives as to why that is not acceptable locally—no one argues about that. The argument is about areas where there are apparently random differences in sentencing that bear no direct relationship either to local crime levels or to reoffending rates.

What I was seeking to do was better to inform the sentencing process, without encroaching on the necessary independence and discretion of sentencers, so we established the Sentencing Advisory Panel. As a result of a major study into sentencing, which I got going towards the end of my period as Home Secretary, which my right hon. Friend the Member for Sheffield, Brightside (Mr. Blunkett) continued and which reported in 2001-02, we then had the Criminal Justice Act 2003—it established the Sentencing Guidelines Council. More recently, in the light, not least, of the pressure on prison places, the Carter inquiry was established and it reported in early December 2007.

Alongside Lord Carter’s report was published further statistical evidence called “Local Variation in Sentencing in England and Wales”. It was produced by my Department, but it never got quite the attention that it deserved—I say that because it contains extremely interesting data. It looks at the variations in custody rates, average sentence lengths and the use of determinate and indeterminate sentences. It showed that all those things varied “significantly” across the 42 criminal justice areas in England and Wales. It also suggested:

average custodial sentence lengths—

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