Coroners and Justice Bill

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The Committee consisted of the following Members:

Chairmen: † Frank Cook, Mr. Roger Gale

† Bellingham, Mr. Henry (North-West Norfolk) (Con)

† Boswell, Mr. Tim (Daventry) (Con)

† Brown, Mr. Russell (Dumfries and Galloway) (Lab)

† Eagle, Maria (Parliamentary Under-Secretary of State for Justice)

† Garnier, Mr. Edward (Harborough) (Con)

† Gray, Mr. James (North Wiltshire) (Con)

† Hesford, Stephen (Wirral, West) (Lab)

† Howarth, David (Cambridge) (LD)

† Howarth, Mr. George (Knowsley, North and Sefton, East) (Lab)

† Iddon, Dr. Brian (Bolton, South-East) (Lab)

† Kidney, Mr. David (Stafford) (Lab)

† Lucas, Ian (Wrexham) (Lab)

† Michael, Alun (Cardiff, South and Penarth) (Lab/Co-op)

† Moon, Mrs. Madeleine (Bridgend) (Lab)

† Prentice, Bridget (Parliamentary Under-Secretary of State for Justice)

Robertson, Angus (Moray) (SNP)

† Willott, Jenny (Cardiff, Central) (LD)

† Wright, Jeremy (Rugby and Kenilworth) (Con)

Alan Sandall, Committee Clerk

† attended the Committee

Witnesses

John Thornhill, Chairman, Magistrates Association

John Fassenfelt, Deputy Chairman, Magistrates Association

Paul Cavadino, Chief Executive, Nacro

Gillian Guy, Chief Executive, Victim Support

Juliet Lyon, Director, Prison Reform Trust

Professor Michael Hough, Research Associate, Prison Reform Trust

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Public Bill Committee

Thursday 5 February 2009

(Morning)

[Frank Cook in the Chair]

Coroners and Justice Bill

Written evidence to be reported to the House

CJ 08 Prison Reform Trust

CJ 09 Justice for Women

CJ 10 British Medical Association

9 am

The Committee deliberated in private.

9.8 am

On resuming—

The Chairman: Good morning one and all, and welcome to the third evidence session of the Committee. I remind hon. Members and witnesses that the sitting must end at 10.25 at the latest. I hope that I do not have to interrupt hon. Members or witnesses in the middle of sentences, but I will do so if need be. I ask the witnesses to introduce themselves individually.

Professor Hough: I am Professor Mike Hough from King’s college London and a research associate of the Prison Reform Trust.

Juliet Lyon: I am Juliet Lyon, director of the Prison Reform Trust.

Gillian Guy: I am Gillian Guy, chief executive of Victim Support.

Paul Cavadino: I am Paul Cavadino, chief executive of Nacro.

John Fassenfelt: Good morning. I am John Fassenfelt, deputy chairman of the Magistrates’ Association. I sit as a magistrate in Kent.

John Thornhill: Good morning. I am John Thornhill, chairman of the Magistrates Association, and I sit in the busy court of Liverpool.

The Chairman: Many thanks. For the first question, I call Edward Garnier.

Q185Mr. Edward Garnier (Harborough) (Con): I begin by asking some questions about the aspects of the Bill that refer to the sentencing council for England and Wales, which are in part 4 of the Bill, beginning at clause 100. Traditionally, it has been the duty of the Government—the Executive—to provide resources, and it has been the duty of the court independently of Government to sentence appropriately, given the facts of the case. The impression could be gained from the design of this Bill that resource is to influence sentence. Is that your impression? Perhaps I can start with the magistrates and then ask others to comment.

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John Thornhill: I think that magistrates share your grave concerns. What is important is that magistrates and other members of the judiciary are free to sentence in an appropriate way the offender in front of them, taking into account the circumstances of the offence and the offender. Clearly, there must not be any impression or attempt to fetter that discretion. Our concerns are that if we look at something like clause 107, we are moving from “have regard to” sentencing guidelines, which is the current position, to “must follow”, where that is mandatory. Coupling that with a number of other clauses suggests that that might be the case. We have been given an assurance that it is not the intention to fetter discretion, but clearly those words might suggest that that is the case and that therefore there is an attempt perhaps to blur the distinction between the Executive and the judiciary. That is our concern.

Q 186Mr. Garnier: Mr. Fassenfelt, from your position as an officer of the association but also as a sentencer in a court in Kent, do you share Mr. Thornhill’s concerns?

John Fassenfelt: Yes, I can sum this up in very few words. Magistrates feel that the current guidelines are in fact guidelines. We feel in the association that the proposals in the Bill will in fact become tram lines.

Q 187Mr. Garnier: Mr. Cavadino, I do not know whether this is relevant to your area of work and experience, but if you have something that might help us, I would be pleased to hear it.

Paul Cavadino: First, the Bill does not require sentencing guidelines to take account of resources. I would be sympathetic to a case for its doing so, but it does not. In clause 102, a range of factors are set out that the guidelines have to take account of. They have to have regard to, for example, current sentencing practice, the need to promote consistency, the need to promote public confidence and the cost and effectiveness of different sentences. That is a replication of the statutory requirements that currently apply to the Sentencing Guidelines Council. It does not say in that clause that the guidelines must have regard to penal resources. Clause 109 says that the sentencing council should publish assessments of the impact on resources in relation both to the number of prison places and to the probation and youth justice services.

Q 188Mr. Garnier: Do you understand that clause 109 is directed at the Executive, rather than at the sentencer?

Paul Cavadino: I believe that it is directed at trying to ensure that everyone involved—the sentencers at the sentencing council, the Executive and Parliament, if the guidelines will still go before a Select Committee for scrutiny—will see the impact that any change in the guidelines or in new guidelines would have on penal resources. That seems completely sensible. The notion of producing guidelines without taking any notice of the impact on resources does not seem a sensible course. If we had more rigorous, more effective assessments of the impact on the penal system, the Executive could see what they needed to do by means of planning for penal resources. Also, the public and others involved, including Parliament, would be able to see whether the proposal would be counter-productive and frustrate the effectiveness of sentencing. The effectiveness of sentencing can clearly

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be reduced, if guidelines are passed without any regard being had to whether the resources are there to put them in place.

Q 189Mr. Garnier: Are you therefore saying—I will come on to the other witnesses—that had resource assessments been in place over the past 10 years, we might have had fewer criminal justice Bills and we would not have had 3,500 new offences being created with many of those offences sending people to prison?

Paul Cavadino: The combination of the requirement on the council to publish impact assessments of its guidelines, and the provision in the Bill enabling the Lord Chancellor to refer major proposed changes in legislation or penal policy to the council for an assessment, could have been a deterrent to some of the legislation brought forward and proliferated over the years.

Q 190Mr. Garnier: Gillian Guy, do you have anything to help us on this?

Gillian Guy: From our perspective of victims and witnesses, we welcome anything that adds credibility to the system and confidence in having comprehensible guidelines that make sentencing make some sense to victims and witnesses. I agree with Paul about needing to pay some cognisance to the impact on resources for planning and capacity purposes. I would not welcome guidelines saying, “If this is difficult to manage, you should change your sentencing accordingly.” We are concerned that offence legislation might not get implemented, because of those resource constraints and that the Bill creates 308 new prison places. We are concerned about whether previously enacted legislation that we would like implemented will see the light of day, because of the pressure on prison places.

Q 191Mr. Garnier: We know—the witnesses from the Prison Reform Trust might tell us more about this—that the prison population has risen by approximately 15,000 to 20,000 since this Government came into office. We also know—this is not a controversial point—that about a quarter of the prison population is accommodated in cells that are too small. That is to say that about 18,000 people are doubled up in single cells and that about 3,000 or 4,000 people are trebled up in double cells. Do you think that a resource assessment of the nature set out in clause 109 would help us to deal with prison overcrowding?

Gillian Guy: It should help us to plan for prison capacity in terms of what legislation we are bringing in and what offences we are seeing. It also prompts us to look at community sentencing and other alternatives to prison and to really think about what are appropriate sentences. Victims and witnesses are not clamouring for people to be banged up at all costs. This is about having appropriate justice and a system that is separate from them, so that it is not their responsibility to ensure—if incarceration is the right thing—that prisons have appropriate capacity and are properly managed.

Q 192Mr. Garnier: Juliet Lyon and Professor Mike Hough, do you think that clause 109, which deals with the resource implications of the guidelines, confuses the purpose of the other clauses dealing with the guidelines to the courts? Are there not two separate functions: first, calculating the available resources, given the state of the economy and Government finances, and how

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they should be deployed within the criminal justice system and, secondly, what a court should do in any given case? Would it be easier and clearer if those two functions were expressly separated rather than dealt with entirely by the Sentencing Guidelines Council?

Professor Hough: I think that they are separate functions, but there is absolutely no reason why they should not be discharged by a single body. The sentencing council is the obvious one to do it.

Q 193Mr. Garnier: Are you suggesting, therefore, that magistrates, sentencers and the Crown court should be informed of and required to take into account the resource implications following the assessments, or are you saying that that should be a matter for the Executive—the Government and the Ministry of Justice? Is it for them to learn the lessons of the assessment and to provide, or not to provide as their political policies may conclude, the answers to the questions posed by the assessment, and to leave the courts free, under statute and common law, to apply the relevant sentences?

Professor Hough: My view is that the council should take on the technical task of assessing the cost implications of any proposal. Others should decide what to do with that technical assessment. I do not think that it is for the council to actually have a handle on resources.

Juliet Lyon: In the broader context of rising prison numbers, I do not think that anyone is suggesting that introducing the new measures under the Bill would lead to a failure to provide the number of places that we might need for serious and violent offenders. However, there is the danger of seeing the system as infinite, when it is finite. Certainly, the Prison Reform Trust welcomes the proposals in so far as we like the idea of a council or commission that would look in three directions—guiding sentencers and advising prospective legislators and the public. The council or commission could serve a function in building public confidence—Gillian Guy mentioned that—but that is not altogether fleshed out as it is described currently.

Q 194Mr. Garnier: On Tuesday, Mr. Martin Narey—as you all know, he is the chief executive of Barnardo’s, but he previously worked for the Prison Service—said that just as we ration health provision, so we should ration criminal justice provision. In so far as I understood his argument, he appeared to think that there is no difference between the one public service and the other. Do you think, from the point of view of a magistrate or someone who has to look after and influence policy on prisoners and non-custodial defendants, that we can, by using these resource assessments, ration access to the criminal justice system?

Professor Hough: I have a little more to add, but if one asked the public how resource sensitive sentencing should be, they would probably answer that for grave offences, resources should not play a part, but for less serious offences, people would probably happy to see resource-sensitive justice.

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Prepared 6 February 2009