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Before Clause 37, insert the following new clause--
(" . After subsection (2A) of section 3 of the Criminal Justice Act 1991 there shall be inserted the following subsection--
"(2B) A court shall not form such an opinion as is mentioned in subsection (2) above or subsection (4A) below unless it is of the opinion that the sentence or sentences which it will pass (including the length of any custodial sentence) will be the same whatever the content of any pre-sentence report.".").
The noble Lord said: I move this amendment on behalf of my noble friend Lord Thomas of Gresford. He will now speak to it.
Lord Thomas of Gresford: The wording of the new clause is somewhat obscure because it refers to amendments to the Criminal Justice Act 1991. It proposes that a court may dispense with a pre-sentence report before passing a custodial sentence only if its sentence, including the length of any custodial sentence, would be the same whatever the content of that report might be.
There may be a number of circumstances where a court might conclude that a pre-sentence report would not alter its sentence; for example, where the offender is already serving a prison sentence and the court's intended sentence would not increase the length of time the offender will spend in prison; where the sentence that is envisaged falls at the lower end of the range of sentences which are possible for the offence within guidelines laid by the Court of Appeal; or where the offender has been remanded in custody and the short custodial sentence that the court considers appropriate would result in immediate release. That is a means of disposal which very frequently happens after a defendant has been held on remand for a considerable period of time.
In all other cases it will be necessary for the court to obtain a pre-sentence report which could make a difference to the sentence. I have already indicated the nature of the information that would be contained in such a report about the personal circumstances of the offender and it is right that in every case the sentencer should have that before him. In its absence it is possible that the court will impose a sentence which might be a great deal harsher than is justified in all the circumstances or, alternatively, the mistake may be in the opposite direction because, without the assistance of a report, the judge might pass a sentence which is too short to protect the public. For all those reasons the amendment is put forward to ensure that, save in exceptional circumstances, the sentencer will have a pre-sentence report before him. I beg to move.
Baroness Blatch: This amendment would not merely amend the Criminal Justice and Public Order Act 1994,
We do not believe that this amendment is either practical or desirable. Requiring the court to be satisfied that any pre-sentence report could not in any measure or circumstances affect its decision as to sentence, is an impossibly high threshhold to meet. One can never totally rule out the theoretical possibility that the content of a report might have some impact on the outcome, however small. The effect would therefore be that the court would be required to obtain and consider a pre-sentence report in every case. That would effectively reverse the discretion given to the courts in this matter in the Criminal Justice and Public Order Act 1994. Our reason for giving the courts discretion at the time was that the previous arrangements were wholly inflexible, and imposed unnecessary fetters on the courts and unnecessary costs for the criminal justice system as a whole. These changes took account both of the views of judges and magistrates, and of the results of a review into the way the previous arrangements worked undertaken by Her Majesty's Inspectorate of Probation. We would not wish to reverse these changes. Research evidence shows that the courts are using this discretion wisely and we see no reason to alter the position.
I can appreciate the sentiment behind the noble Lord's amendment that the decision to sentence a person to custody and for how long should be carefully weighed. The courts are already required to take account of a number of factors in taking that decision. However, it does not necessarily follow that a pre-sentence report will help in that decision. The primary purpose of a report is to help the court to consider matters such as the suitability of a community sentence, the need to protect the public from further offending and the seriousness of the offence. A court that decides that a pre-sentence report is unnecessary will have made that decision on the basis that the probation service is unlikely to be able to offer anything further that could influence the outcome. Given the practical choices that have to be made in a limited time, the sentencing process has to be constructed on the basis of judgments as to likelihood of relevance. While there is always a slight possibility that further information could be provided, which might make some difference in some cases, this is not a reason to take away the court's discretion.
The defence will of course have the opportunity to put facts before the court relevant to sentence and, if necessary, ask the court to consider requesting a pre-sentence report. And if the defence believes that a sentence is too harsh, it can appeal against it. For those reasons, I hope that the noble Lord, Lord Thomas, will not press his amendment.
Lord Carlisle of Bucklow: Perhaps I may briefly support my noble friend on this matter and say to the noble Lord, Lord Thomas of Gresford, that surely this
However, if it is apparent that, because of the nature of the offence, after the trial there will inevitably be a custodial sentence and the defence, recognising that, do not ask for a report, surely it is in everyone's interest that the man should be sentenced straightaway rather than the case having to be adjourned for a pre-sentence report. It seems to me that the words of the amendment will mean that there should be a report in every case. Since one could not be absolutely 100 per cent. sure what was in the report, the court would be bound to ask for one.
The other point I raise is purely one of practicality and it is an important one. The noble Lord, Lord Thomas of Gresford, and myself both sit as part-time judges in the Crown Court from time to time. One knows of situations where, having listened to a trial, and having come to the end of the judge's two-week sitting, suddenly, although the defence is not asking for a report, under the 1991 Act one had to put the case over to obtain one. That meant that the case had to be fixed for a day when the noble Lord, Lord Thomas or myself, or whoever the Recorder was, was available to come back to that town, resulting in considerable delay, additional expense and very little advantage. I say to the noble Lord, Lord Thomas, that I draw a different conclusion from the one he does as regards the present situation under the 1994 Act.
Lord Thomas of Gresford: I always pay the highest respect and regard to the views expressed by the noble Lord, Lord Carlisle of Bucklow. All I shall add to what he said is that, in my experience these days, there is a certain resistance and reluctance shown occasionally by judges and Recorders in asking for a report at all or in granting an application for a report. Very frequently queries are raised as to whether that is really necessary. With some humility, sitting as a sentencer, one perhaps gets the bit between the teeth at the end of a trial. It is an advantage, even if one does not think so at the time, to have a pre-sentence report. I am sure the noble Lord, Lord Carlisle, agrees that it is helpful to have time to reflect and to have an independent report from someone who is not part of the defence team who has investigated the circumstances and can give perhaps a range of options, which may be other than those that one has immediately in mind sitting as a sentencer. However, as I say, I always pay great regard to the noble Lord's views and with that in mind I shall not press the amendment.
Amendment, by leave, withdrawn.
Clause 37 [Committals for sentence]:
Viscount Tenby moved Amendment No. 103:
The noble Viscount said: This is a simple amendment which would be beneficial to the administration of the lower courts and equitable in the execution of justice. To the relief of all, I promise to be brief because the matter is simple.
Clause 37 extends the circumstances in a magistrates' court in which an offender who has been convicted of an either way offence may be committed to Crown Court for sentence. The amendment seeks to include in the package, so to speak, any related summary offences to which the offender has pleaded, or been found to be, guilty. Some of those offences might not in the usual way of things be passed to the Crown Court. I refer, for example, to some motoring offences, such as driving while disqualified or without insurance, which can attract a custodial sentence. Others, such as construction and use offences or not having a vehicle excise licence do not attract such a sentence. No matter, let them be passed up together. This simple proposal will reduce administrative costs and ensure that the offender, having served whatever sentence the Crown Court imposes, will not have to return to a magistrates' court at a later date and have all the related matters brought up again. It will also enable the Crown Court to have a more complete picture when it comes to sentencing.
This is such an unexceptionable and common sense proposal that I can only assume that the drafting team left it out of the final version of the Bill by mischance. Perhaps I may invite the Minister, with her usual robust common sense, to put the matter right. Indeed, to paraphrase her last week, the sky may not fall in if this amendment is agreed to, but I nevertheless fear that counsel will inevitably have something of an uncompromising nature to say on the subject. On this common sense proposal, however, can counsel for once be overruled? I beg to move.
Page 27, line 24, leave out ("triable either way").
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