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
livesparticularly young livesbeing 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
weaponusually a knifewith 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 personor
even committing murderbe 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 courts
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 weaponsespecially
but not exclusively knivesto 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 Secretarys 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 Councils 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 Governments
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
Governments 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 Appeals 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 tragicwe 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 its 25, I
wont?
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
anywaythey have lived only 15, 16 or 17 yearswould say,
I wont carry out this murder now. I wont 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 agothe farmer who shot a 16-year-old burglar in the back
when he was fleeing from his houseand 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 oclock 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 SGCs 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 Justices views. When the Liberal Democrats
contacted the civil servants working on the statutory instrument, they
did not refer to the Lord Chief Justices views, but the Lord
Chief Justices 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 Ministers 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 Kinsellas mother for throwing out his killers
appeal. She said that he really understood the issues
involved with knife
crime.