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Session 2009 - 10
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Delegated Legislation Committee Debates



The Committee consisted of the following Members:

Chairman: Mrs. Janet Dean
Bailey, Mr. Adrian (West Bromwich, West) (Lab/Co-op)
Browne, Des (Kilmarnock and Loudoun) (Lab)
Burrowes, Mr. David (Enfield, Southgate) (Con)
Carswell, Mr. Douglas (Harwich) (Con)
Holmes, Paul (Chesterfield) (LD)
Howarth, David (Cambridge) (LD)
Jones, Helen (Vice-Chamberlain of Her Majesty's Household)
Keen, Alan (Feltham and Heston) (Lab/Co-op)
Moss, Mr. Malcolm (North-East Cambridgeshire) (Con)
Plaskitt, Mr. James (Warwick and Leamington) (Lab)
Pritchard, Mark (The Wrekin) (Con)
Purchase, Mr. Ken (Wolverhampton, North-East) (Lab/Co-op)
Turner, Dr. Desmond (Brighton, Kemptown) (Lab)
Ward, Claire (Parliamentary Under-Secretary of State for Justice)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Wyatt, Derek (Sittingbourne and Sheppey) (Lab)
Mark Oxborough, Committee Clerk
† attended the Committee

Fourth Delegated Legislation Committee

Tuesday 12 January 2010

[Mrs. Janet Dean in the Chair]

Draft Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) Order 2009
10.30 am
The Parliamentary Under-Secretary of State for Justice (Claire Ward): I beg to move,
That the Committee has considered the draft Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) Order 2009.
As always, it is pleasure to serve under your chairmanship, Mrs. Dean. The order arises from public concern about murders that are committed using knives, and from the feeling that sentencing should properly reflect the seriousness with which these crimes are viewed. May I take a moment to pay tribute to all those who have campaigned on this issue and to express my deepest sympathy to those bereaved relatives who have lost a loved one in such terrible circumstances? In the light of concerns expressed, which the Government fully share, we conducted a review over the summer of murder using a knife. We also consulted the Sentencing Guidelines Council, as is required under statute.
Schedule 21 to the Criminal Justice Act 2003 sets out the principles to which a sentencing court must have regard when assessing the seriousness of all cases of murder to determine the appropriate minimum term to be imposed. At present, there are three starting points for adult offenders: a whole-life tariff for exceptionally grave offences, for adults over the age of 21; 30 years for cases of particularly high seriousness; and 15 years for all other cases. The schedule gives examples of the types of cases that would normally attract the higher starting points. Murder with a firearm would normally attract a starting point of 30 years, but murder using a knife would normally have a starting point of 15 years. That disparity has given rise to particular concern against the backdrop of too many lives—particularly young lives—being lost to knife crime.
Through the order, we propose to introduce a new adult starting point of 25 years for murder using a knife or other weapon that is carried to the scene with the intention of use and that is, in fact, used in the commission of the offence. We believe that that marks the seriousness with which both the Government and the public view such murder. It should also provide for more transparency and greater consistency in sentencing.
It is important to have the aggravating circumstance of taking the weapon to the scene with the intention of use, rather than simply referring to the method used to commit murder, because it is the circumstances surrounding the offence that reflect seriousness and distinguish between separate cases. Equally, we consider that we should include any weapon carried to the scene, because although the current culture of carrying knives gives particular cause for concern, there should be no difference in the starting point if the weapon carried is a knife, screwdriver, baseball bat or any other weapon. Under the order, the word “weapon” has its ordinary meaning; it is not a term of art requiring a specific definition.
We think that it is right to maintain a distinction between murder using a firearm and murder using other weapons. Firearms are subject to stringent legislation, and there is no excuse for carrying a loaded firearm in public. In contrast, knives and many other weapons are legally available in every domestic setting, and they are most commonly used in the heat of the moment when they are readily to hand.
The Court of Appeal has made it clear that a 30-year starting point for murder using a firearm is usually merited only when there is premeditation. In practice, firearms are most likely to be used in the commission of serious and organised crime, and they can give rise to multiple victims. For those reasons, we believe that there should continue to be a higher starting point for murder using a firearm, although the proposed increase in the starting point for murder using a knife or other weapon in aggravating circumstances will considerably reduce the gap.
We have decided against making any change to the starting point for juveniles, which is 12 years for all murders. Sentencing for juveniles is complex and encompasses wider considerations than sentencing for adults, including a consideration of the welfare of the child. However, it is important to note that the court will reflect the age, emotional maturity and culpability of a juvenile offender when they are sentenced. For example, if the offender is a mature 17-year-old who committed a murder with a weapon that was taken to the scene with the intention of using it, the minimum term is likely to be closer to that applying to an adult in the same aggravating circumstances.
I believe that our proposals strike the right balance in properly reflecting public concern about this type of murder. They are targeted at those murders where the offender deliberately decides to carry a weapon—usually a knife—with every intention of using it, and then uses it to fatal effect.
Mr. Ken Purchase (Wolverhampton, North-East) (Lab/Co-op): Will my hon. Friend say a little more about the definition of weaponry? Would a professional boxer or martial arts expert who took themselves to a scene with the intention of doing harm to another person—or even committing murder—be considered as being, in him or herself, a weapon?
Claire Ward: The order and the amendments to schedule 21 to the 2003 Act relate specifically to the use of weaponry. This is essentially about intent, and there are two elements of intent: the intention of taking a weapon to a scene for the specific purpose of assault or committing murder; and the intention required to meet the threshold for murder. Obviously, the situation would depend on the particular circumstances. Is my hon. Friend asking whether a karate expert who decided to use their skill to commit assault or murder should be treated as if they were, in a sense, the weapon?
Mr. Purchase: Well, yes. The practice of many courts over a number of years has been to treat an assault by a professional boxer more seriously than assault committed by someone who has never practised that sport. Does my hon. Friend accept that there is a problem with definitions, in that such a person might be considered to be the weapon, given the training that they have received?
Claire Ward: I think that the courts may already take such circumstances into account when a case is before them. I am not convinced that anything in the order would change a court’s existing powers of consideration in such circumstances.
We must be clear that such crimes are not to be tolerated and that they will be treated with appropriate severity by the courts. We believe that the change to schedule 21 gives the courts the ability to reflect the seriousness of the crime and of bringing weapons—especially but not exclusively knives—to the scene with the intention of using them.
10.38 am
Mr. David Burrowes (Enfield, Southgate) (Con): It is a pleasure to serve under your chairmanship, Mrs. Dean. As is the case when we consider such orders, I declare an interest as a just about practising solicitor.
We welcome the tough approach on knife crime. Indeed, my local borough of Enfield has a particular interest in the matter because we have sadly been ravaged by knife crime, with several young people being killed as a result of knives over the past two years.
We are pleased to have the opportunity to debate knife crime sentences in the context of the order, especially as we did not have the chance to respond to the Justice Secretary’s announcement during Justice questions on 10 November. The explanatory memorandum says that an “oral Ministerial statement” was made, but the seriousness of the issue merited a formal oral statement, as would normally be given, rather than simply an announcement in response to a question. The problem with such an approach is that it raises the suspicion that the Government are more concerned about likely press releases than the concerns of Parliament. Nevertheless, we now have the helpful opportunity to consider this important measure in detail.
The order will increase the starting point to 25 years in specific circumstances when an offender is convicted of murder using a knife or other weapon. The Lord Chief Justice, on behalf of the Sentencing Guidelines Council, responded to the announcement of the review by suggesting two alternatives: relying on existing sentencing guidelines; or amending paragraph 10 of schedule 21 to the Criminal Justice Act 2003 so that it would refer to the involvement of knives as an aggravating factor. The order is designed to take us in a particular direction, to a particular starting point. Will the Minister reassure the Committee by explaining why the Government decided to depart from the Sentencing Guidelines Council’s recommendation to add the involvement of an aggravating factor?
I understand that the Government were spurred into the review by the case of Ben Kinsella, whose murderers, aged 19, 18 and 20, were given tariffs of 19 years. I am sure the whole Committee will join me in paying tribute to the Kinsella family. I had the privilege of meeting them in October, and we all commend their courage and passion in leading the campaign to increase sentences for knife crime.
We all recognise the concerns about young people carrying knives and the need for appropriate deterrents, but as the Lord Chief Justice pointed out in response to the review, the order will not increase sentences for those under 18, for whom the starting point is still 12 years. We all know the prevalence of knife crime in that age group. Can the Minister justify to the family of a knife-murder victim why an offender aged 17 at the time of the offence should have a starting point of 12 years when another knife murderer aged 18 will have a starting point of 25 years? Is that 13-year difference justifiable? It is important, as we seek to support the order, for the Minister to be able to justify such a difference. Victims’ families would want to know about that, and we might see another ably fought campaign over that scenario, to get the starting points in line.
It will not surprise the Minister that, as a criminal lawyer, I am concerned about definitions. Can she clarify the meaning or definition of “knife or other weapon”? Does the definition of “knife” include, for example, a folding pocket knife of less than 3 inches, which it is lawful to carry under the Criminal Justice Act 1988? The definition of “other weapon” was rightly referred to by the hon. Member for Wolverhampton, North-East. The Minister said that the definition had an “ordinary” meaning. Does that mean any offensive weapon, in accordance with the Prevention of Crime Act 1953? As a particular starting point has now been prescribed for
“a knife or other weapon”,
that must, by implication, and indeed explicitly, exclude a firearm or explosive, which is already referred to in paragraph 5(1) of schedule 21 of the Criminal Justice Act 2003.
Does “weapon” follow the Sentencing Guidelines Council definition, which, as the council said in its response to the Justice Secretary, includes both “traditional” items such as baseball bats, iron bars or knives, as the Minister said, and parts of the body, to which the hon. Member for Wolverhampton, North-East referred, such as, classically, the head, as in a head-butt, and even extending to a karate kick? It is important for us to have clarity on whether that will now come within the ambit of the starting point of 25 years, rather than result in the usual 15-year starting point.
It is important to understand the rationale for the Government’s having decided on 25 years as the starting point. I understand that the intention was to be more in line with the starting point of 30 years for firearms or explosives offences, but is there any other rationale behind that particular figure? For example, have the Government’s considerations taken account of the number and type of cases that have already attracted sentences of 25 years or more? The Minister may wish to inform the Committee how many such cases have attracted such a tariff, and whether this is an attempt to align the “knife or other weapon” cases with those other very serious cases.
Will the Minister confirm that the aggravating and mitigating factors in schedule 21 will be fully available under the new amended order for knife or other weapon murders? Compared with possessing a gun, which usually would by its very nature involve premeditated violence, it is more often the case that a knife is carried and used without such premeditation, and might be used in an act of self-protection or partial defence, or under provocation or panic. Will the Minister give some assurance that those mitigating factors will be particularly applied in such cases, which can be distinguished from cases of possession of a gun or an explosive?
Finally, the advent of the proposed additional prescribed starting point, based primarily on the reasons by which death was caused rather than on the circumstances in which the killing took place, reminds me of the Court of Appeal’s concerns, which should be noted by the Committee. Those are that the exercise of determining the minimum term should allow judges proper discretion and provide a process that is not, in the words of the Lord Chief Justice, a mechanistic application, but a just one. The Committee must primarily be concerned about proper applications of principles of justice, based on the seriousness of the particular offence before a court.
Notwithstanding those questions and concerns, we are content to support the order.
10.47 am
Paul Holmes (Chesterfield) (LD): Obviously all murder is tragic, but especially senseless and tragic are murders such as that of Ben Kinsella, whose death was, I think, one of the triggers that spurred the Government action. If all murder is tragic, that of young people seems even more so, partly because they have their whole life ahead of them when they are tragically killed, but also because it seems so pointless. Knife killings often seem pointless. They often result from a street brawl or a drunken brawl in a pub. There seems to be no logic, and often no premeditation either, so such murders seem doubly tragic—we all feel that. However, in legislating to try to deal with those problems, we need to take action that works, rather than make knee-jerk, headline-grabbing proposals, which probably do not work in the slightest.
Will increasing the minimum mandatory sentence from 15 to 25 years be effective? Will an offender who is carrying a knife or another weapon stop and indulge in a cost-benefit analysis before carrying out an attack, in a drunken brawl or in the heat of the moment in a street fight? Will they undertake a cost-benefit analysis that says, “Well, I would have stabbed somebody and murdered them if I was going to get only 15 years in jail, but now that it’s 25, I won’t”?
It seems very unlikely, based on all the research that anybody has ever undertaken, that a young person to whom 15 years is a lifetime anyway—they have lived only 15, 16 or 17 years—would say, “I won’t carry out this murder now. I won’t carry this knife now because the sentence is 25 years rather than 15.” Those are long, meaningless periods to somebody in that situation. It is not just me saying that, or a body such as Liberty; the Lord Chief Justice has said that there will be little deterrent effect from the proposed change. It would be interesting to hear from the Minister why the Government have rejected that advice.
When the measures were announced, the Justice Secretary said he was clear that
“we will not stop in our efforts to stop kids killing with knives. Sentencing in individual cases is, and must remain, a matter for the courts, but the government will continue to play its part by ensuring that tough options are available to them.”
There are two points in that statement. First, if the measure is meant to stop kids killing with knives, it will have no effect whatever because, as has already been said, it does not apply to people under 18. Why, therefore, did the Justice Secretary parade it to the media as something that would deal with child murders, child stabbings and young people dying in that way when they are specifically excluded from the measure? As for leaving the courts to make judgments, they are clearly not doing so if we are saying that, as a starting point, the minimum sentence must be 25 years rather than 15. That is taking away the discretion of the court.
One advantage of our legal system, argued over many centuries, is that the court and jury process takes into account the circumstances of individual cases. Everybody remembers the Tony Martin case of a few years ago—the farmer who shot a 16-year-old burglar in the back when he was fleeing from his house—and the outcry about the length of his sentence. However, as I understand it, he was a victim of a measure introduced by the previous Conservative Government, which came into effect in 1997-98.
The discretion of the courts to take into account extenuating circumstances, such as the fact that that farmer had been burgled a number of times, that the burglary happened at 2 o’clock in the morning and that he was in fear from repeated attacks on his property, had been removed by a knee-jerk response that massively upped the minimum sentences and did not allow the courts, juries and judges to exercise discretion by looking logically at individual cases. For the Justice Secretary to say that he is leaving it to the courts to decide, when he is taking away that freedom, is another inconsistency of logic.
The Minister said that the Government had consulted with the Sentencing Guidelines Council, as they are obliged to do. What she did not go on to say was that the SGC was against the proposal and had a number of key concerns, saying that public anxiety about knife crime and the need to increase the severity of sentences are already well recognised by the courts The SGC said that
“use of a knife appears already to be accepted as an aggravating factor when imposing sentence for murder”.
It went on:
“Use of a weapon to frighten or injure is already an aggravating factor”
in the SGC’s existing list of guidelines, adding that the changes will not make any difference to young offenders, that “knife” is difficult to define and that the change is likely to lead to inconsistent sentencing decisions in similar cases based on “legal niceties”. The SGC said that knives are not comparable to guns, in respect of the difficulty to procure, the intent and the premeditation level of the murder that is involved.
The Lord Chief Justice also says that the measure will have no effect. Strangely, the Government do not refer in the explanatory memorandum to the Lord Chief Justice’s views. When the Liberal Democrats contacted the civil servants working on the statutory instrument, they did not refer to the Lord Chief Justice’s views, but the Lord Chief Justice’s office has given information on his concerns:
“Gun and knife crime cannot be directly compared: guns are often associated with multiple killings and serious organised crime, knives are available in every domestic setting.”
He explicitly states:
“There will be little deterrent effect from the proposed change.”
He points out:
“Judges can already take the use of a knife into account as an aggravating factor meriting the 30 year starting point.”
Therefore, both the SGC and the Lord Chief Justice have said that the measure will not have the effect that the Government presumably intend. It would be interesting to hear the Minister’s comments on why the Government have rejected the views of the SGC and the Lord Chief Justice.
It is worth remembering that the Lord Chief Justice was directly praised by Ben Kinsella’s mother for throwing out his killer’s appeal. She said that he “really understood” the issues involved with knife crime.
 
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