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“in the Crown Court narrowed between 2003 and 2006, suggesting that sentencing practice became more consistent across the CJAs over this period.”
I suggest that that was partly as a result of the work of the Sentencing Guidelines Council.
The document also suggested that there was little in the way of linkage, stating:
“Variation in sentencing amongst the CJAs was not well explained by local crime rates, although there was a weak relationship between recorded crime rates and magistrates’ court custody rates for theft and handling stolen goods offences.”
“No statistically significant relationships existed between changes over time of recorded crime and sentencing in magistrates’ courts and Crown Court centres by CJA.”
Against the background of the relative partial success of the Sentencing Advisory Panel and the Sentencing Guidelines Council, Lord Carter recommended that I should establish a judicially led working group to look more closely at whether we could have better machinery for advising and guiding the judiciary on sentencing.
Lord Justice Gage kindly accepted the invitation to chair this sentencing commission working group, and his report was produced late last year.
What I sought to do is to replicate, of course in more detail, the key recommendations of his report. I note what the hon. and learned Member for Harborough said about the need for proper judicial independence, but he also said that we had to avoid a judicial free-for-all. I have said very much the same thing and I made it clear in my statement on 5 December 2007 on Carter. I assume that the hon. and learned Gentleman knows Lord Gage and many of the other distinguished members of the working group, so he will know that they would not have made the recommendations if they thought that they would fetter the proper discretion and independence of the judiciary.
8 pm
We have tabled amendments 143 to 146 to clause 104 and amendment 148 to clause 108 because those provisions were criticised in Committee— [ Interruption. ] I welcome the hon. Member for Mid-Sussex (Mr. Soames) to the Opposition Front Bench. It is good to have him here to listen to this important debate. We have responded to the criticism that was made on both sides in Committee that the original provisions were too dirigiste. Therefore, clause 104 will no longer make it a requirement on the Sentencing Council to subdivide all offences into categories of offence, but it will have the discretion to do so. If it does, we invite it to subdivide the offence categories in much the same way as they are currently subdivided. We also make it clear that aggravating and mitigating factors can be related to the offender as well as to the offence, and that is the important effect of amendment 144.
Clause 108 sets out the duties of the court in respect of the sentencing guidelines to be found in clauses 103 and 104. Here, too, we have sought to add greater flexibility to the system. Generic offences such as burglary, robbery and theft cover a range of behaviours and, therefore, the Sentencing Guidelines Council has subdivided them into categories. Where they are divided and there are aggravating or mitigating factors, they can be within the overall range of the guidance for the offence and not just in that particular category of offence. I suggest to the hon. and learned Member for Harborough that that will give sentences a considerable degree of flexibility.
The hon. and learned Gentleman suggested that he would divide the House on amendment 43. Currently, the council will be asked to follow sentencing guidance and he suggests that instead it should “have regard” to it. Those words are in the 2003 Act. I was abroad at the time, so I claim no authorship and I cannot remember whether the Opposition thought that it was wonderful. In any event, especially in the area of the law, we have to learn from experience. The hon. and learned Gentleman would not suggest that the criminal justice process or law is fixed in the concrete in which it was embedded back in 1997—at least I hope not.
Mr. Garnier:
Of course not. Lord Justice Gage very kindly invited me and the right hon. Member for Knowsley, North and Sefton, East (Mr. Howarth)—who was also a member of the working party—to a briefing by him last summer, just before publication of his report. He
made it clear that he was not producing a grid, or Minneapolis, system, and it was clear that he intended there to be a fair degree of discretion. However, what he told us then is not exactly replicated in the word “follow”.
Mr. Straw: It is common ground that none of us wants a Minneapolis system or any other kind of American grid system, and that is not proposed. The Gage report said:
“A majority of the Working Group”—
the chairman was part of that majority—
“recommends that the test for departures from the guidelines be made more robust by providing that the court may only pass a sentence outwith the guidelines if it is of the opinion that it is in the interests of justice to do so. A minority of the Working Group recommends that there should be no amendment to the statutory tests contained in the Criminal Justice Act 2003.”
Earlier in the report, the working group considered the responsibilities that should be imposed on the Sentencing Council, but—critically—the reader is referred to annexe C where the working group proposes a change to sections 172 and 174 of the 2003 Act. The working group suggests the wording:
“Every court must...in sentencing an offender, apply any guidelines which are relevant to the offender’s case unless it is of the opinion that it would be contrary to the interests of justice to do so”.
The draftsman of the Bill has, as faithfully as possible, replicated that recommendation, so clause 108(1)(a) states:
“Every court must...in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case unless...the court is satisfied that it would be contrary to the interests of justice to do so”.
There are better lawyers than me here, but I defy anybody to explain what is the difference between “must apply” and “must follow”.
Mr. Garnier: What the courts have been doing since the 2003 Act is apply the guidelines by taking account or having regard to them. If the Secretary of State is reducing this debate to a semantic discussion about the meaning of the word “follow”, we have been wasting our time. I have a suspicion that “follow” means something more directional than “take account of”.
Mr. Straw: It is the hon. and learned Gentleman who has made it a semantic debate, because he tabled amendment 43, which proposes that “follow” be replaced by “have regard to”. There is a difference, and although I am not in favour of casuistry, I am in favour of semantics, because words are all we have, and they have meaning. There is a difference between “have regard to” and “follow” or “apply”. My point is that in clause 108(1)(a) we are seeking to apply or to follow—not have regard to—what Lord Justice Gage and his colleagues explicitly recommended.
They wanted a closer connection between the guidelines and what the courts were doing.
I remind the hon. and learned Member for Harborough and the right hon. and learned Member for Sleaford and North Hykeham of two things. First, the changes proposed in the other Government amendments that I moved offer considerably more flexibility than the arrangements in the original Bill, as the hon. and learned Gentleman correctly suggested in Committee. Secondly, there is a very clear exception for the courts. Judges in
court have great flexibility to refer to the whole of the sentencing guidelines when they judge that aggravating and mitigating factors make that appropriate. If they think that a sentence is outwith those guidelines, they are entitled to pass it if they believe that it would be contrary to the interests of justice to stay within the guidelines.
Mr. Hogg: Does the Secretary of State accept that, when he advocates the use of the word “follow”, he is giving judges less discretion than they would have if the amendments tabled by my hon. and learned Friend the Member for Harborough (Mr. Garnier) and me were accepted?
Mr. Straw: I accept that to a degree, although there is not much difference. I am seeking to implement what Lord Justice Gage recommended when he pointed out that most of the working group had said that the test for departing from the guidelines should be made “more robust”. The people making that recommendation are not inexperienced in these matters.
David Howarth: That is something different, not “follow”.
Mr. Straw: The hon. Member for Cambridge says that that is not “follow”, but something different. I say to him that it is “follow”, but the suggested alteration to the current section 172 of the Criminal Justice Act 2003 uses the verb “apply” rather than “follow”. I am perfectly happy to trade “follow” for “apply” because I do not know what the difference between those words is. I believe that they amount to the same thing.
First, and above all, the Government are trying to ensure respect and proper protection for the independence and autonomy of sentencers when they pass their sentences. That is critical: we need to provide considerable discretion, but we must also ensure that that discretion is exercised in a structured way that the public and other sentencers can understand. We are not fettering the judiciary, but we are saying that there should be a carefully moderated body of guidance. That guidance will be moderated by the process of drafting by the Sentencing Council and by the consideration that it will be given—not in the partisan bear pit of the House of Commons but in the more bipartisan Justice Committee.
When the guidance is finally endorsed by the Sentencing Council, perhaps following amendment, it will become the framework that sentencing judges and magistrates will be expected to follow. It will give them a great deal of flexibility, although they will have to make judgments about the starting point. For example, the existing robbery matrix offers considerable flexibility. Judges and magistrates have to make judgments about additional aggravating and mitigating factors—they can decide that those factors cover the whole of the range laid down for a sentence and not just one category of case within an offence range—and they can depart from the whole thing, if they consider that to be necessary and in the interests of justice. My hope is that we shall end up with greater consistency, which would be in the interests of justice, and of the public.
8.15 pm
The right hon. and learned Member for Sleaford and North Hykeham made an interesting point about whether victims—and, by implication and to a degree, the public—
had a role in the criminal justice system. I have great respect for the right hon. and learned Gentleman, who paid me the honour yesterday of supporting—
Mr. Hogg: I was his only friend!
Mr. Straw: He was not quite my only friend, but they were few and far between. I was very grateful for his support, not least for where it came from and the level of information that lay behind it.
The right hon. and learned Gentleman’s view that victims do not have a proper role in the criminal justice system is, however, one that I respect but disagree with profoundly. One reason for our success in raising the confidence of those who experience the criminal justice system very considerably over the past dozen or so years—and it is also a factor in ensuring that, far from rising by 50 per cent., the level of crime as measured by the British crime survey actually went down by 39 per cent.—is the fact that we have sought to place the victim at the heart of the system. I am unapologetic about that.
My hon. Friends the Members for Hayes and Harlington (John McDonnell) and for Walthamstow (Mr. Gerrard) mentioned resources. If I may, I invite them not to press their amendment to a vote, but I accept the burden of the argument—that on a number of occasions Parliament has been invited to endorse new approaches to sentencing, only to find that the resources have not been made immediately available.
As a response, the Government have inserted proposals in the Bill that amount to virtually the same thing as amendment 161. Clauses 110 to 115—but, in this respect, clause 115 is the most important—contain duties placed on the Sentencing Council to assess the
“impact of policy and legislative proposals”
I accept that when enthusiastic Ministers—and I can claim to have been one on a number of occasions—have bright ideas about new sentences, those bright ideas need to be checked for their effectiveness and for their cost. When we seek to translate those ideas into legislative form, we must also be able to tell Parliament where the money will come from.
Jeremy Corbyn (Islington, North) (Lab): This is an admission of past mistakes.
Mr. Straw: My hon. Friend the Member for Islington, North (Jeremy Corbyn) is muttering, but I am afraid that I cannot hear what he is saying as I am deaf in that ear. However, I shall give way, if that is what he wants.
Jeremy Corbyn: Since the Minister invites me to join in, I can tell him that I was just wondering whether what he was saying was an admission of some past mistake about which more should be told.
Mr. Straw: I am full of past mistakes—
Mr. Garnier: We are suffering from them.
Mr. Straw: The hon. and learned Member for Harborough says that we are suffering from them, but I was about to say that my mistakes pale into insignificance when compared with the triumphs of this Administration, of whom I have been an adornment.
Mr. Andrew Robathan (Blaby) (Con): Name the triumphs!
Mr. Straw: Another hon. Gentleman on the Opposition Front Bench asks me to name the triumphs. I could name a number of them, but I shall name just one. According to the Conservative campaign guide of 1994, crime rose by 50 per cent. between 1979 and 1994. Under this Labour Government, crime has fallen by 39 per cent., which makes this the first Government since the war to achieve a fall in crime.
Alun Michael: Will my right hon. Friend bear it in mind that part of that success was due to giving the youth justice system a clear purpose to reduce offending and reoffending? Will he deal with the amendments suggesting that the Sentencing Council should be given similar clarity of purpose?
Mr. Straw: I am glad that my right hon. Friend intervened with that remark, because it brings me to my last point. This is a parliamentary debate, and it is a good process. When I looked at the provisions on the Sentencing Council, I was a little surprised—even though I claim authorship of them—to find that although the purpose of the Sentencing Council was embedded in the clauses, it was not explicitly stated. Its purpose is to issue sentencing guidelines. I am happy to consider what my right hon. Friend has suggested, and to consider whether it would not be appropriate specifically to mention the importance of victims in clause 103(11), where we set out the matters to which the council must have regard. At the moment, we mention in subsection (11)(c)
“the need to promote public confidence in the criminal justice system”;
by implication, that includes victims, but they are not mentioned explicitly. I promise my right hon. Friend that I will examine both those matters before, and during, the Bill’s passage through the other place.
Alun Michael: Does my right hon. Friend accept that the interests of victims are specifically linked to the reduction of offending and reoffending?
Mr. Straw: I absolutely do. I hope that I have satisfied the hon. and learned Member for Harborough in respect of amendment 43. If he reads Gage, he will see that what we are doing is entirely consistent with that report.
David Howarth: I will be brief, but perhaps I should first gently point out to the Secretary of State that crime has fallen in every western European country since 1995, except Belgium, so his claims for the unique success of his policy are a little odd.
I draw the Secretary of State’s attention to what the hon. Members for Hayes and Harlington (John McDonnell) and for Walthamstow (Mr. Gerrard) said about the problems in the probation service, which mean that no matter what is said in this place, certain sentences will not be available to the courts. Probation officers will have to tell the courts that some sentences are not available in the area. The ideal is what is proposed by the Conservatives in amendment 44, which deals with the relationship between total resources and sentences. However, in reality, if the resources are not provided, we end up with the position that the hon. Member for Hayes and Harlington talked about.
I am in a bit of a dilemma on amendment 43, although the discussion between Labour and Conservative Front Benchers about the meaning of “apply”, as opposed to “follow”, helped me to conclude that there is not much difference between what they said. However, to the extent that the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) is correct, and that what the Government propose is meant to be slightly more restrictive than what the Conservatives propose, I come down, in the end, on the Government’s side. That is not because I agree with what they are doing in the Bill, which is to say that we should follow guidelines that are mainly still about punition and the seriousness of the offence.
In an ideal world, the guidelines would say more about reducing reoffending and would be properly designed to draw the courts’ attention to sentences that they would otherwise probably not impose. The right hon. and learned Member for Sleaford and North Hykeham is absolutely right: judges are not fantastically well informed about criminology, although perhaps they ought to be. In that ideal world, the guidelines should be followed, because it would mean that judges had to think about other sentences, and would have to give reasons before moving from them towards a more traditional, comfort-zone sentence.
On the amendments that I tabled, I was glad to hear what the Secretary of State said right at the end of his remarks; I take what he said to the right hon. Member for Cardiff, South and Penarth (Alun Michael) to have been said to me, too, because we signed the same amendments. On the basis that the Secretary of State will consider what we said, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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