Coroners and Justice Bill

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Q 177Mr. Howarth: Would you agree that it is right to say that if you do not balance the sentences that are handed out with the correctional capacity to deliver those sentences, there should be a safety valve somewhere in the system that inevitably leads to early release schemes?
Martin Narey: I agree with every word of that, Mr. Howarth. Moreover, it also means that prisons cannot achieve what they can. I spent seven years leading the prison and probation services and failed, on any significant level, to make them genuinely rehabilitative. I believe to this day that prisons could be decent, caring, compassionate and rehabilitative institutions, but the pressures of numbers invariably mean that they are failing institutions.
Q 178Mr. Garnier: Where do you think the pressure is currently coming from? I fully understand that it is sensible for a Government and a Department to know what impact sentencing is having on its prison estate and the probation service, and I fully understand that it is sensible for a Government to plan on the basis of evidence and sensible projections for what will be needed in years to come. You cannot just create a prison or employ 1,000 new probation officers at the drop of a hat. But is the Bill in danger of confusing us by bringing resource assessments into a part of a Bill that deals with sentencing guidelines?
Is not the resource matter something for the Executive to think about, and is not sentencing, through the courts, to be dealt with independently of what the resource implications are? I am not suggesting that people should be sentenced inappropriately—to come back to the Staffordshire case, I think that that is a poor example of how we sentence people—but, surely, if the courts are to do their job and are to have genuine discretion, the resource part of the equation must be settled by the Government and the Executive outside the courtroom. It is for the court to deal with the appropriate sentence, given the resources provided for it by the Executive.
Martin Narey: I do not agree with that, Mr. Garnier. I do not understand why, in a world where we expect consultant physicians to operate within the investment available to run the health service and to make decisions based on clinical need where we have waiting lists, there is no rationing whatsoever in the realms of prison and anyone sent to prison today must be absorbed, no matter what the consequences for the effective running of those institutions. I think that it is for the Government to determine the resources that they will dedicate to any public service. In this case, while having the freedom to say that those resources are inadequate, it is for judges at any particular time to match sentencing to those resources. I realise that that is an unpopular view, but I believe that we would have a much more effective criminal justice system if we had that in place.
Q 179Mr. Garnier: I do not mind if it is unpopular; I just want to see how it will work. If it is unpopular and it works for the benefit of the public and the criminal justice system and for the betterment of offenders, so much the better. Can you give me one or two practical examples of how you see it working, because I appreciate that, traditionally, courts sentence people irrespective of available resources and leave it to the Government to find, or not, the requisite places. How do you see a judge in Kingston Crown court in outer London sentencing on the basis of a resources estimate?
Martin Narey: The guidelines would give the judge or magistrate some direction about what appeared to be the proper sentence in a particular case. They would adjust it, depending on the circumstances, and the working party carefully avoided recommending any rigid sentencing grade. I do not shy away from the fact, however, that the judge should be influenced by what the Sentencing Guidelines Council considers appropriate in a particular case, and I think that, to some extent, there is a chance of depoliticising sentencing. For example, last year in England, we sent into custody 820 children aged 12, 13 and 14. It would have been illegal to send 760 of them into custody in 1995, so why we feel it necessary to do that now is beyond me. A good sentencing guideline would make it plain that the sentencing to custody of children as young as that should be wholly exceptional.
Mr. Garnier: Have I had too much time?
Q 180The Chairman: Yes. I hesitate to interrupt any line of questioning, because hon. Members are here to ask questions, but we have less than 15 minutes left. There will be a Division at 7 o’clock and two witnesses have scarcely had the chance to say anything at all. Mrs. Esam and Mr. Robbins, without asking you to make lengthy statements, I propose that if you wish to draw any matter quickly to the Committee’s attention, you had better do so. If there is time, I shall then revert to questioning.
Barbara Esam: I would like to mention a couple of matters regarding vulnerable and intimidated young witnesses. I was pleased to see the provisions on young witnesses. A review of child evidence was announced back in December 2004, following the launch of the NSPCC report, “In their own words: the experiences of 50 young witnesses in criminal proceedings”, which involved speaking directly to young witnesses. Out of the review, several recommendations were made, and these provisions were among them. A consultation paper was issued in June 2007, called “Improving the criminal trial process for young witnesses”, which came out of the 2004 steering group. The results of, and responses to, the consultation paper have yet to be published, however, and I do not understand why, given that it has been such a long time since the response period closed. That is one point.
My second point relates to a disappointment about one recommendation that was made by the steering committee, by the Pigot report back in 1989 and by the “Speaking up for Justice” report, which the then Home Office prepared. The recommendation was to introduce a provision that would allow young witnesses to give their cross-examination by visual recording, away from the court setting, and it has been around since 1989, following the recommendations of Judge Pigot. The Bill was an opportunity at least to pilot the provision, but I recognise that it is not a straightforward or easy piece of legislation. In fact, it is already in legislation, but section 28 of the Youth Justice and Criminal Evidence Act 1999 has never been implemented, and we are disappointed.
Having spoken to a number of young witnesses for the report that was published in 2004 and for a report that is about to be published—we interviewed nearly 200 witnesses across the country—we feel that such legislation would be a very positive step for them. I am disappointed that there is not an opportunity to pilot it as a possibility.
Peter Robbins: In terms of the possession offences, the IWF does not have a role in relation to suspects or potential offenders who may be in possession of such images. That is a law enforcement responsibility. However, the definitions are important to us, if there were any websites hosted in the UK that depict non-photographic images. We urge the Committee to ensure that the law is very clear on that subject. The clearer it is, the easier it is for everybody who has to work with it.
The number of websites that are hosted abroad of a cartoon fantasy in computer generated imagery-style is significant. Therefore, the number of people who can download such images is significant as well. Cartoons and fantasy stuff are the sorts of images that children can access rather easily. Again, there is an implication for the criminalisation of young people. Should they be looking at cartoons, they could find themselves in areas in which there are particularly graphic and sadistic cartoon images.
Q 181Jenny Willott: You have said that you would like the law to be as tight as possible and the definitions to be really clear. Are there any definitions in the Bill that you do not think are clear enough and that you would like to see tightened up?
Peter Robbins: I understand that the desire of Government, in this instance in particular, is to catch content at the upper end of sadistic levels. There are examples of images that we have seen—the Committee is welcome to see them as well—where it is not clear whether or not they would fail the current test, because they show people in preparation for sex with a child depicted in a CGI image. The way in which it is described in the legislation is about sexual intercourse. There are acts preparing for and afterwards. There is a grey area in the middle involving the types of images that we can show the Committee, where you can see the difficulties in making a judgment, if such images were hosted in the UK.
Q 182David Howarth: I want to come back to Mr. Narey on one point. It is about how this works rather than what its purpose is, although it is related to the purposes. The Bill quite rightly says that in drawing up the sentencing guidelines, one of the things that the council has to have regard to is the relative effectiveness of sentences in preventing reoffending. Mr. Michael and I share the view that in a way the most important aspect of sentencing is that reoffending is reduced, and I think that you implied something similar in your remarks. Therefore, what works is very important. What I cannot see is how that feeds into the sentencing ranges that the council will be asked to produce. From clause 103, it appears that they will be about the offender’s culpability in committing the offence and the harm caused or intended to be caused by the offence, rather than the capacity of the sentence to improve the likelihood of the offender not offending in the future. How is it envisaged that restorative justice, for example, in which I am very interested, would fit into the guidelines?
Martin Narey: My understanding, which is limited on this, is that effectiveness is to be taken into account, but it is acknowledged that the potential for rehabilitation is not the only purpose of sentencing. Punishment and deterrence are also important, and the court will always take them into account.
My understanding is that once the requirements of punishment and deterrence are met, effectiveness will have some significance. I believe that the effect of that—the way that that could work—might be a guideline that considers effectiveness. There is not much difference between, say, an eight-year sentence and a six-year sentence. Given that very short custodial sentences are almost always a waste of time and resources, a community sentence would be better. However, I accept entirely that there will always be some individuals who are sent to prison with short sentences, because the court primarily wants to deal with the need for punishment and deterrence.
Q 183David Howarth: Is there not a danger in the way in which clause 103 is designed that what you just described will be built into the system? In that case, the court will, in effect, be required to look first at pseudo-deterrent but ineffective sentences and not at sentences which do not have a particular metric of more or less, like restorative justice, but which will protect the public better in the long term, because they will reduce reoffending?
Martin Narey: I am not a sentencer, but I think that that is how sentences are approached right now. The court has to look first at the need for punishment and deterrence, and what is appropriate for the crime based on the damage caused to the victim and so on. Only then can it look at effectiveness. In my view, that still leaves a considerable amount of scope for prison sentences in particular that might allow prisons to be used rather more constructively and thereby make a much bigger impact on crime.
Q 184Alun Michael (Cardiff, South and Penarth) (Lab/Co-op): I very much share David Howarth’s concerns, and I wonder whether you can help us. It appears that we will have a sentencing council that will be dominated by court experience and legal expertise rather than by what works. Can you make any suggestions about how we might persuade the Government to deliver into that mix people who can focus on outcomes rather than processes?
Martin Narey: There might be an easy solution. When the original Sentencing Guidelines Council was created, there was a great deal of sensitivity about my joining it, because I was a civil servant and a non-judicial member. The previous Lord Justice got around that very easily by inviting me and occasionally others to be full members of the council, but, technically, as observers. I hope that on this occasion somebody who is able to give serious advice on the effectiveness of alternative sentences will be able to take part; otherwise, I fear that we will get into a situation where sometimes the potential impact of very short sentences, for example, may be overestimated.
The Chairman: Mr. Narey, Mrs. Esam and Mr. Robbins, thank you very much indeed. The Committee is deeply grateful to you for taking the trouble to come, particularly on a day like this, and for the information that you have provided. Thank you very much and have a safe journey home.
Ordered, That further consideration be now adjourned.—(Ian Lucas.)
6.59 pm
Adjourned till Thursday 5 February at Nine o’clock.
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