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.
| 
