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Lord Dholakia: My Lords, perhaps I may add my congratulations to the noble and learned Lord, Lord Falconer, and the noble Baroness, Lady Scotland. The noble Baroness is in a unique position to ensure that politics remain separate from judicial functionsa separation sadly lacking at the top level in the Home Office in recent days.
I do not object to the expression of the principles of our criminal justice system, but I do object to the unremitting attacks on our judiciary in recent days. That may raise applause at Police Federation meetings, but it does little to maintain public confidence in our criminal justice system. Public opinion is shaped by the quality of leadership that politicians offer. There has been much criticism of our judiciary, but we have heard little said about our system of justice, which is the envy of the rest of the world.
I shall avoid the temptation to pose many questions that noble Lords have already raised. Suffice it to say that there are important matters, especially those raised in the 11th report of Session 200203 of the Joint Committee on Human Rights, published two days ago. They will require the Government's response, which, I trust, will be available before the Committee stage of the Bill.
Important contributions have been made to the debate, but none more important than that of the noble and learned Lord, Lord Woolf. We need less political interference in our judiciary. Even at this stage, the Government will save valuable time if they can narrow the differences between the Home Secretary and the judiciary by appropriate
I glanced at the document placed in the Library by the noble and learned Lord the Lord Chief Justice. It consists of 22 pages and about 70 paragraphs. The noble and learned Lord has given his evidence to the House of Lords. I now expect the Home Secretary's response to that documentbefore the Committee stage, I hope. That would help us to advance the debate.
The media play a substantial role in shaping the criminal justice debate. We have had two Home Secretaries since 1997. Is it not staggering that we have had 45 Home Office Acts between then and now? I suspect that the worst is still to come. As is often mentioned, the prison population now totals 73,000 inmates. It will be helpful to know what the rise in the prison population will be when the Bill is implemented. The noble Lord, Lord Brennan, was right to seek that information.
At the heart of the Government, there is an insatiable appetite to promote legislation without giving previous legislation sufficient time to bed down. Like any Criminal Justice Bill, this one is a wide-ranging mixture of provision covering many aspects of criminal procedure, bail and sentencing. It contains provision that we welcome, including provision to help more witnesses to give evidence by live television link and a more sensible framework for short-term prison sentences, which has the potential greatly to improve the scope of rehabilitation of offenders.
The right reverend Prelate the Bishop of Blackburn rightly mentioned the Children's Society's concern. There is a need for fundamental review of the system, especially in how we deal with justice for young people and children in England and Wales. The noble Baroness, Lady Stern, also mentioned that. My noble friend Lady Linklater is right to point outthe noble Baroness, Lady Massey, supported thisthat our Government's performance has been criticised by the United Nations Committee on the Rights of the Child and successive reports from Her Majesty's Inspectorate of Prisons.
We must ensure that the best interests of our children are at the heart of the youth justice system. We shall set out our concerns about that in Committee. That is in no way to take away from the great credit that attaches to the Youth Justice Board, whose work we certainly value.
The Bill also contains some fundamentally objectionable measures that will significantly increase the likelihood of wrongful convictions, greatly increase injustice in sentencing and produce a further, unsustainable rise in our already excessive prison population.
I served as a magistrate for over 17 years. Unlike many noble Lords, I am aware of what happens in the retiring rooms. Prejudice often overtakes evidence produced in court. Things have improved substantially and now there is a proper framework in which to reach a decision, but the dangers always remain. Clauses 90 to 106, which will enable juries to be told of defendants' previous convictions in a much wider range of circumstances, are a recipe for serious injustice. They carry the real risk that people will be convicted because of their past record rather than on clear evidence that they committed the crime for which they are now charged.
Of course it is right that juries should know of defendants' previous offences if these have substantial probative value such as, for example, if the earlier offences demonstrate a modus operandi particular to the offender which was also used to commit the current crime. But the admittance of previous convictions simply because they are in the same category as the current offence is deeply objectionable. It will undoubtedly lead to wrongful convictions and will provide an incentive to prosecute suspects where the evidence that they committed the current offence is relatively weak.
Equally objectionable are the provisions for minimum sentences, both those relating to firearms offences in Clauses 271 to 276 and those relating to life sentence tariffs in Schedule 17. Minimum sentences are fundamentally wrong because they prevent judges from doing justice to offenders by tailoring the sentence to the individual circumstances of the case. They are wrong because they deter guilty pleas, unnecessarily put witnesses through the trauma of giving evidence and, because of the difficulties witnesses face, sometimes produce wrongful acquittals of offenders. In those cases the offenders will walk free, although they would have pleaded guilty if they had not been confronted with a draconian minimum sentence.
The proposed minimum tariffs for murder are also wrong because they introduce morally indefensible distinctions between different types of murders. They will rapidly bring sentencing into disrepute, just as the distinctions between different types of murder in the Homicide Act 1957 hastened the end of the death penalty because of their flagrant injustice.
Why is shooting someone necessarily morally worse than stabbing them to death? Why is killing a police officer necessarily morally worse than killing a security guard or a bank clerk? Why is a murder for an ideological motive necessarily worse than one for personal financial gain? Why is a killing for financial gain necessarily worse than one committed for revenge?
The minimum tariffs and high starting points for murder and the minimum sentences for gun crime will have another effect. They are almost certain to have a knock-on effect, leading to a ratcheting up of sentences for other crimes so that the differential between them does not appear excessively wide. The noble Baroness, Lady Kennedy, was right to point that out. This country already has the highest proportion of its population in prison of any nation in western Europe. Our Prison Service is struggling to cope with a record rising and excessively overcrowded prison population.
Overcrowding and overstretch in our prisons is not a sensible way of combating crime. It makes it much harder to provide rehabilitative prison regimes which can reduce a prisoner's chances of re-offending on release. It means that many thousands of prisoners are continually shifted around the countrya point made by the noble Baroness, Lady Sternto any prison which has a space available, interrupting their progress on educational and offending behaviour courses and seriously damaging family relationshipsyet these are things that we should be protecting because of their crucial role in reducing offending.
The purpose of prison is to rehabilitate, to provide treatment and medical models, not to act as a recipient of a bankrupt criminal justice system which cannot distinguish between assisting individuals to live useful lives rather than containing them for an indefinite period.
In contrast, there is much to welcome in Part 12 of the Bill, most of which restructures the sentencing framework in line with the provisions of John Halliday's thoughtful report, Making Punishments Work.
The new custody plus sentence created by Clause 174 will require prison sentences of under 12 months to combine a short period in prison with a period of post-release supervision in the community. This is a far more sensible approach than the current system whereby many offenders are imprisoned for short periods, during which little, if anything, is done to rehabilitate them. They are then released without supervision, or support. Most longer term prisoners, other than those subject to the new provisions for dangerous offenders in Chapter 5 of Part 12, will be released to spend the second half of their sentences under a longer period of post-release supervision than currently applies to released prisoners. This will produce greater certainty for many long-term
All this is welcome. However, I wish to enter three caveats in relation to the new sentencing framework. The first relates to Clause 136(2), which is designed to bring about stiffer sentences for persistent offenders by requiring courts to treat each previous conviction as an aggravating factor. Courts already take into account offenders' previous records in deciding on the severity of sentences. To provide in this way for a greater increase in penalties for repeat offenders will do little, if anything, to reduce crime but will undesirably increase the prison population.
The second caveat is the risk that even some welcome changes in the sentencing framework could have the undesirable consequence of increasing the prison population if courts use them in the wrong way. For example, if courts use the new custody plus sentence for those who now get a short prison sentence it will produce beneficial results. However, courts could alternatively use custody plus for offenders who now receive community sentences, thereby increasing the prison population. There is also a risk of a much larger number of offenders being returned to prison for breach of their supervision conditions because there will be an increase both in the number of offenders under supervision and in the length of supervision periods.
Whether courts use this provision in a way that reduces or increases the prison population depends in part on the general climate to which courts feel they are responding. The Government's partiality to tough rhetoric is one of the key factors that has undoubtedly fuelled the rise in the prison population as courts feel that they need to respond to a more punitive climate.
It also depends in part on the sentencing guidelines that emerge from the new Sentencing Guidelines Council created by Clause 160. The Halliday report suggests that the face value of sentences might be scaled down in recognition of the fact that the content of many sentences would be more meaningful and that post-prison supervision would last to the very end of the face-value sentence.
My third caveat relates to resources. If the new provisions are to work effectively they will require substantial resources, not only for the Probation Service but alsoand I declare an interest here as chair of Nacrofor the voluntary sector. As the Halliday report points out:
The noble Lord, Lord Windlesham, made an important point in relation to Victim Support. Over 4,000 dedicated, trained volunteers, providing services in the courts to victims and witnesses, are well aware of the many adversarial contacts between victims and the criminal justice system. The independence of Victim Support provides the credibility and confidence that victims appreciate. I trust that the Minister will resist any attempt to devolve the funding to the local criminal justice boards.
Despite those caveats, the overall framework proposed by the Halliday report and enacted by the Bill is more rational than the present framework. If it were accompanied by adequate resources, the abandonment of the misguided provisions for minimum sentences, and a genuine effort by the Government to sell to courts and to the public the merits of a more sparing use of prison sentences, it could provide much greater scope to reduce reoffending by effectively rehabilitating offenders.
Lord Hunt of Wirral: My Lords, this has been a valuable debate. It has not been conducted in a party political atmospherevery much the opposite. It has demonstrated the range of expertise to be found in all parts of this House. It is the best possible answer to Mr Hain's outrageous comment on this morning's Today programme that all we ever do in this House is engage in "perpetual filibuster". I hope that the noble and learned Lord the Lord Chancellor will pass to Mr Hain a copy of today's Hansard.
We have had 28 very good contributions. I am sorry that the noble and learned Lord, Lord Lloyd of Berwick, was unable to deliver his speech. We look forward to his speedy recovery and to reading his speech on some future occasion.
I, too, add my congratulations to the noble and learned Lord the Lord Chancellor on his appointment. He has a very difficult act to follow. We on this side of the House have on many occasions paid tribute to the reforming zeal of his predecessor, the noble and learned Lord, Lord Irvine of Lairg, who contributed a great deal during his time as Lord Chancellor.
I should also inform the noble and learned Lord that, during his temporary absence from the Chamber, the noble Lord, Lord Brennan, told us that he did not intend to continue with this Bill. I am a little confused about that statement, because he did not mention that he was now exiting the Bill. Perhaps the noble Baroness will explain whether or not the noble and learned Lord has been granted an absolute or conditional discharge from the Bill.
He will no doubt hear that considerable concern has been expressed from all sides of the House about a number of provisions in the Bill. The noble Baroness, Lady Stern, spoke with all the authority that she has gained with Penal Reform International of what she described as her "grave anxiety". But he is greatly assisted by the very welcome promotion of the new Minister of State, the Minister for Criminal Justice and Reform. We welcome her in that new capacity. I would not go quite as far as the noble Lord, Lord Thomas of Gresford, in describing her as a bufferundoubtedly a young rather than an old bufferbut I thought that the noble Lord was quickly assisted by his noble friend Lady Linklater of Butterstone, who described the noble Baroness as a beautiful butter.
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