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Alun Michael: I intervene on the hon. and learned Gentleman simply to say that he underestimates the importance and significance of the success of appeals against unduly lenient sentence, given that the threshold is high and they have to be not only unduly lenient, but unreasonably so. Several hundred cases have reached that threshold. It is not a big point, but it is more significant that he is suggesting.
Mr. Garnier: I do not need to have a long argument about the matter. Statistically, the number of cases is tiny compared with the number of sentences passed each year. Let us just leave the matter there and allow the Committee to make a bit more progress.
On the wider points, I draw attention to some concerns that have been expressed to all of us by the Bar Council, which sent us a brief on such aspects of the Bill. On the “have regard” as opposed to “follow” point, it says that the stricter approach that the Government advocate,
“a) will involve an artificial exercise of comparing the facts of an individual case with an abstract list of criteria (when having to decide the most comparable category), which may simply generate more argument and appellate activity;
(b) may make it more difficult for a judge to exercise independent judgment in a particular case if it seems that there is a burden on the defendant to demonstrate that a guideline sentence would not be in the interests of justice;
(c) could consequently have the effect of increasing the prison population if judges are constrained to pass longer sentences than they might otherwise pass or feel that they may be criticised or appealed when showing leniency.”
In any event, unduly lenient sentences can be and are appealed—that was the point I discussed with the right hon. Gentleman—so that if a judge is overly generous, the sentence can be increased. That neatly describes my concerns about amendment 248, so when we come to discuss it, I will not go beyond what I have already said.
I also draw the Committee’s attention to a useful report produced last year by the Prison Reform Trust entitled, “Creating a Sentencing Commission for England and Wales: an opportunity to address the prisons crisis.” I am not going to read out everything in it, but it contains a number of interesting suggestions, some of which are more in line with the Government’s proposals than mine. None the less, it is a useful resource document that describes the issues that we need to consider. We do not have time today to consider those matters at length or in the detail used by the Prison Reform Trust in its report; instead, I will pick out one or two salient points with a view to helping our deliberations.
It is undeniable, and I hope uncontroversial, that there is a prison capacity crisis. The figures speak for themselves: when the Government came to power in 1997, there were 60,000 to 61,000 people in prison; there are now approximately 83,000—the figure goes up and down around that point. Whatever one thinks of people who commit crimes and what they do or do not deserve, the prison population has grown in an uncontrolled way for almost two decades.
The Prison Reform Trust says that there is “extensive sentencing disparity”. That is debateable, but it is what a lot of people think. The opening remarks made by the right hon. Member for Cardiff, South and Penarth suggest that he agrees with the Prison Reform Trust. I suggest—I might be wrong as I have not done any research into this—that the disparity may be greater in the magistrates courts than in the Crown courts. However, I have no evidence for that, it is just a hunch.
The Prison Reform Trust says:
“Any effective response to these problems needs to take into account all the factors that are driving up the prison population and leading to disparity.”
That is a sensible and uncontroversial suggestion.
“The quality of media coverage of law and order issues, public opinion about crime and punishment, and the associated penal populism which characterises political debate all need to be factored into any strategy for containing the prison population.”
Criminal justice policy and sometimes individual sentences are matters of huge interest to the public; they are also matters of “public interest”. I hope that the Government are sufficiently self-confident to resist knee-jerk reactions from newspapers that want stories to fit their headlines, rather than allow them to design or have too great an influence on criminal justice policy. The public unquestionably have a proper interest in participating in public debates about the shape of our criminal justice and sentencing policies.
The Prison Reform Trust goes on to note:
“Simply constraining sentencers’ discretion, without addressing the underlying pressures for tougher sentencing, is not a viable, long-term solution to the prisons crisis.”
I wholly agree with that. It continues:
“A long-term solution needs to have both political and technical dimensions to it.”
Again, that is not controversial.
How can a sentencing commission address the crisis? The report continues:
“A sentencing commission can serve three main functions: providing guidance to sentencers; gathering and providing information and statistics for monitoring, planning and policy development;”
I do not mind either of those, but I am concerned that the information should influence the Ministry of Justice and the Executive, not the sentencer.
Mr. George Howarth (Knowsley, North and Sefton, East) (Lab): The proposals in the Bill, and those of the Gage committee, are that we specifically reject the use of the word “commission” in favour of the phrase “sentencing council”, which builds on the experience that already exists.
Mr. Garnier: I am referring to the Prison Reform Trust report that came out in 2008. It does not matter, for our purposes, whether it is a commission or a council, but we are in the business of deciding what it should do and what its powers should be.
Thirdly, the Prison Reform Trust says that a commission or council should provide
“community engagement—to inform and to consult with the public.”
Again, that seems to be wholly outside the realm of the courts; such matters are for the Government and academics and are wholly disconnected from the court system.
On guidance for sentencers—this takes us back to my point about “have regard to” and “follow”—I am concerned that under the Bill, the sentencing council, armed with its resource assessments, will issue instructions, which is what they will essentially be, to sentencers in both the Crown and magistrates courts. Those will—if not expressly, at least by implication—say, “We can no longer provide custodial or non-custodial resources for the following types of offence.” Therefore, although in the past one might have thought it appropriate to give a custodial offence to a persistent burglar, or to give a particular type of community sentence to a less serious offender, one could not do so now, because we cannot afford it.
The Parliamentary Under-Secretary of State for Justice (Maria Eagle): The hon. and learned Gentleman is embarking on a flight of fantasy. The proposals in the Bill do not do that at all.
Mr. Garnier: The Minister says that, but if one looks at how the clauses are constructed, it is clear that clause 109, which deals with resource implications of the guidelines, will feed into the guidelines, which must be followed, rather than simply be taken account of. We can have a perfectly friendly argument on whether that is a good idea, but it seems to me, after reading the relevant clauses under discussion this afternoon, that as night follows day, the guidelines published and promulgated by the council will have that effect.
I know that the Government and the Liberal Democrats think that that is a good thing, and so does Mr. Martin Narey, who used the analogy of rationing in the health service. I did not think that that was a true analogy, but none the less, the Labour and Liberal Democrat parties, and no doubt many others, think that this is a good idea. I do not happen to agree.
Maria Eagle indicated dissent.
4.30 pm
Mr. Garnier: The Minister shakes her head and says that I have got it all wrong. But that is what seems to come out of the Bill, given the way in which it has been spun. She can tell me why I am talking nonsense in a minute, either from a sedentary position or on her feet. Either way, I shall listen with interest, but either way we are right to be deeply concerned. We are not engaged in some student union activity. We are right to be concerned and to warn the Government that, if they interfere with the discretion of sentencers to adjust their sentences to fit with Government resources, although that is sensible in many ways, in this sphere of public policy it is ill advised.
I shall not go through the Prison Reform Trust’s research and monitoring or community engagement recommendation for a sentencing council, because time does not permit and those matters are not strictly relevant to my amendments. What I shall do—briefly—is discuss some of its key recommendations, to see how they fit within the proposals that are coming from the Government and that came from the Gage committee.
The Prison Reform Trust recommended:
“A well-resourced, unitary sentencing commission should be set up to replace the”
Sentencing Advisory Panel and the Sentencing Guidelines Council. In the current recession, it will be interesting to see how well resourced that is, but if the Bill is passed we shall get a unitary sentencing commission.
Secondly, the trust recommended that the commission
“should have a wide range of functions—principally the provision of sentencing guidance, research and monitoring, and community engagement”,
although I worry about the real definition of “guidance” in relation to sentencing.
Thirdly, the trust says:
“The sentencing guidance produced by the commission should be based on the existing SGC guidance and should thus permit sentencers to give due weight to offender-related factors in passing sentence. Parliament should consider restricting the scope for departure from the guidance”—
an area of disagreement, where the Government with their “follow” and we with our “take account” part company.
“The commission should monitor compliance with the guidelines, contribute to government forecasts of prison population trends, assess the impact of proposed reforms to sentencing policy, and conduct original research.”
I have no issue with that fourth recommendation, which is sensible. However, its impact on sentences concerns us.
The fifth recommendation is that
“Community engagement should be seen as a core function of the commission; this would entail both informing and educating the public about sentencing, and undertaking public consultation.”
Again, I have no objection, but that does not seem to be something that should impinge on the activities of sentencers without the intervention of legislation on particular types of offence.
Sixthly, the trust states that
“The commission should aim to be an authoritative and trusted source of non-partisan information and guidance on sentencing practice and policy.”
We need not get hung up about that. Our real issue is with the effect that resource assessments will have on the sentencing guidelines and the requirement under the Bill for sentencers to follow strictly the guidelines of the commission.
In relation to clauses 100 to 118, I have described a number of matters in particular amendments, but subject to the discussion that we had right at the beginning, perhaps before the Committee officially started, I had better wrap up my remarks as I have, without asking the Committee to permit me to discuss each separate set of amendments, seriatim.
Mr. George Howarth: I apologise that I was not here for the start of the debate. Unfortunately, or fortunately depending on one’s point of view, I had to attend a meeting of the Intelligence and Security Committee this morning, at which we were interviewing the Foreign Secretary about one of the cases mentioned in this Committee last week. My presence there was, unfortunately, necessary.
I want to make a couple of brief points in response to the hon. and learned Gentleman. He mentioned the Gage report and generously said that I was a member of that group—on which I sat throughout its proceedings—and briefed him. We offered to brief the hon. Member for Cambridge, but unfortunately he was unable to attend and sent a researcher along at the time. I am not saying that as a criticism; he had the opportunity but was unfortunately unable to take it.
I want to enlighten the hon. and learned Member for Harborough on one point. He said that we carried out a courts survey. We did that because we were alarmed, at the beginning of our inquiries, that there was a complete lack of data on sentencing. In fact, we covered that in chapter five of the report. The hon. and learned Gentleman speculated about whether the departures from guidelines might have been greater in the case of magistrates courts compared with Crown courts. I am unable to answer his question because we only surveyed Crown courts—10 of them over one month, with 229 returns. I will not go into the statistics, but there was a significant departure from the guidelines in a number of cases. If the hon. and learned Gentleman has the time to read the document before we get to Report stage, he might find the direction of travel of those departures surprising, but now is not the appropriate time for me to get bogged down in that detail.
May I characterise the hon. and learned Gentleman’s concerns? First, he is concerned that the procedure laid down in the Bill, which to a large extent follows closely the recommendation of the Gage report, is likely to be too prescriptive and therefore would fetter the courts’ discretion. I think that he is being overly cautious in his interpretation of what is intended to happen under the Bill and what the Gage committee intended. The senior members of the judiciary on that committee—magistrates were represented as well—defended their corner well against people like me who would have fettered the freedom of the courts a lot more, had I had my own way. However, I am here to represent what they said rather than my personal opinion. Those people explicitly set out in the report the ways in which the court needs to have discretion and those are repeated in the Bill. For example, clause 103(3) mentions mitigation. I will not go into the definition of that, but it is one of the discretions available to the court in determining specifically the circumstances that may soften the sentence as a result of mitigating factors. The courts are also able to decide whether a particular offence in particular circumstances was so bad that that aggravation should also be reflected in the sentence.
Clause 103 also mentions sentencing ranges. The hon. and learned Gentleman is right to say that we rejected as overly prescriptive the grid system that was studied in North Carolina and Minnesota. The direction that we went in, echoing what already happens in the Sentencing Guidelines Council, was to give ranges so that there will be some certainty, predictability and consistency in sentencing, because there is widespread concern that, currently, there is not always consistency in sentencing. Indeed, the data that we collected from our survey bore out that concern.
The hon. and learned Gentleman’s first concern about the discretion of the courts being fettered is overstated. I hope that when he has had the opportunity to consider this matter more fully, he will realise that what we have recommended, and what is set out in the clauses, will allow considerable judicial discretion. I do not think that they will have the effect that he fears.
The hon. and learned Gentleman fears that we are tying resources too closely to sentencing. The working group debated this issue a great deal, and it was clear to us that there should not be a direct relationship. However, we also thought that if we can collect sufficient data to enable some prediction of the size of the prison population and the demand for community sentences and probation orders, it ought to be possible to predict what resources are likely to be available. That is not to say that sentences should be determined and guidelines produced with that in mind.
The hon. and learned Gentleman thinks that the Executive has such a role, but, last night, Parliament considered estimates. There was no Division, but nevertheless Parliament decides what resources are to be made available for every area of public expenditure, including prison places, custodial places, community sentences and probation. Although such estimates may go through on the nod without a Division, it is Parliament’s responsibility to be aware of the relationship between sentencing and what we can predict about what might happen in the future, as well as the resources that will be needed.
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