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Lord Thomas of Gresford: My Lords, the ringing sentiments which the noble and learned Lord, Lord Ackner, has read out from earlier proceedings set out the Government's position as we have understood it throughout. I am quite sure that we will not hear any resiling from that position tonight.

I hope that the Minister will be able to give us something that can be put in the front of any Bench book on sentencing that the Sentencing Guidelines

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Council issues so that every judge who deals with sentencing matters will know from the very beginning of the book that he has absolute discretion regarding what his sentence should be.

7 p.m.

Baroness Scotland of Asthal: My Lords, I am obviously tempted by the noble Lord's invitation, but he will know that the Judicial Studies Board would probably be very alarmed if I took it up. The Judicial Studies Board is independent and crafts its own guidance, and what goes into the Bench Book is not something on which we mere Ministers would ever attempt to trespass.

The principle of judicial independence is one of great importance and one that the Government have sought to protect in the provisions. The Government recognise that issues concerning sentences are very important to society as a whole, which is why we have built on the success of the Sentencing Advisory Panel by creating a process for formalising sentencing guidelines, which brings in a wide range of views but continues to leave the final decision with the Sentencing Guidelines Council, which is independent and will have a majority of judicial members.

The noble Lord, Lord Carlisle of Bucklow, is absolutely right in saying that guidelines have been with us for a very long time and have been issued by various different bodies or parties—if one wants to refer to the Lord Chief Justice or the Court of Appeal, or any of the others that went before. On each occasion when the guidelines have been issued, they have been considered with seriousness and propriety by the judiciary in seeking to do justice in individual cases. They have been taken into account, but they have not provided a straitjacket out of which a judge cannot go in order to do justice on the merits of the case in point.

A guideline will be issued after extensive consultation and thought and will reflect a considered view of the right level at which to start thinking about a sentence in particular circumstances. Guidelines exist to help a court to develop a consistent approach to crime and to make clear to offenders, their advisers and the public the important factors in dealing with particular types of cases. The current provision, that a court shall "have regard to" a relevant guideline, emphasises that guidelines are important. However, as has always been the case, it is for the court to make the decision on the sentence in the light of the circumstances before it.

It is right that a court should have regard to those guidelines, and that is what is expected now. The provision in the Bill is complemented, as the noble Lords know, by Clause 156, which requires a court, in explaining its sentence, to give relevant reasons when the sentence passed is of a different kind or outside the range contained in the guidelines. The provision will help to ensure not only that a guideline has been properly considered, but that anyone with an interest in a case can understand the line of thought that has led to a decision different from that which might have been expected.

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Every case is different, and no guideline can cover every eventuality, but it is crucial for confidence in the sentencing system that it is clear why a decision has been made—particularly when, at first blush, it may seem a little unusual. It is right that a court that passes a sentence should explain why it has reached its decision. That approach is already regarded as good practice, and the best of our judges do it anyway. Doing so by reference to guidelines will assist clarity and understanding by providing a common and easily accessible point of reference. Your Lordships will know that we have had difficulties with widely varying regional approaches to some issues, which does not give confidence.

The amendment states something that is already self-evident—that a court passing a sentence must make up its own mind about the appropriate sentence. Those decisions are not, and never have been, subject to unlimited discretion. There is always the maximum sentence passed by Parliament, as part of the Act creating the offence, or statutory limitations on the availability of a particular penalty, which may set limits on the type of sentence available or the circumstances in which it can be passed. Justice requires a consistent approach and clarity about what circumstances will make an offence of a particular type more or less serious. For many years, guidelines have been issued by the Court of Appeal or the Magistrates' Association, all of which came through other decisions of the Court of Appeal or the Divisional—now Administrative—Court. All courts have recognised the authority of decisions coming from the two courts and have recognised that they are bound to apply the guidance that has come through them.

The creation of the council builds on that approach, removes some of the practical problems of the present system and enables wider guidance to be given. It is important to remember that in Committee it was emphasised by some of the judicial Members that often the Court of Appeal has felt constrained. It has not given guidelines about everything, but now the Sentencing Guidelines Council has the opportunity to do so. It is simply not possible to say that nothing in guidance shall fetter a court's discretion.

Judges have never been able to go on frolics of their own, and we do not propose that they should start now. It is clear that there is an obligation on a court to have regard to the guidelines and, in giving reasons for a sentence, to use the guidelines as a point of reference. However, it will continue to be the court's responsibility to decide sentences, and it will continue to be the case that any concerns over any sentence can be resolved only through the Court of Appeal.

Amendment No. 226 would remove the word "detailed" from the deliberation that the court must make of aggravating and mitigating factors. The effect of the amendment is not entirely clear, but I know why the noble Baroness has tabled it. I shall not deal with that amendment specifically, unless the noble Baroness wants me to—which she indicates that she does not. For that, I give her many thanks.

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I hope that I have dealt with the points made by the noble and learned Lord, Lord Ackner. We believe that the framework as drafted strikes a balance between promoting consistency and clarity in tariff setting while protecting the discretion of the judge to pass a tariff suitable to the particulars of each case. I hope that noble Lords, and the noble and learned Lord in particular, will find that I have said enough to make it plain that, while discretion will remain, it will be exercised with propriety within the guidelines, as it has always been.

I hope that on that basis the noble Baroness will not move her amendment and that the noble and learned Lord will feel a modicum of satisfaction, although I do not expect him to be content.

Lord Thomas of Gresford: My Lords, will the Minister clarify one matter? She said in her final words that a sentence must be within the guidelines, whereas earlier she said that it could be without the guidelines if the judge said that it was just for it to be so.

Baroness Scotland of Asthal: My Lords, I meant that the judge would have to take into consideration the guidelines. Within the parameters of the guidelines, one must identify that one has taken them into account, and clarify, if one is not going to abide by them, why one has departed from them. That is the normal way—it is what many of us who have had the joy of practising in the courts of this country have become familiar with.

Lord Carlisle of Bucklow: My Lords, the Minister said that it was self-evident that the discretion existed, so it was unnecessary to add the words to the Bill. Is it not equally self-evident that, in sentencing an offender, the court must,

    "have regard to any guidelines which are relevant to the offender's case"?

Why have the clause at all, in that case? Both are self-evident, so surely it is wrong to put the one in and not the other.

Lord Ackner: My Lords, I believe that I am one of the leading admirers—alphabetically, probably the leading admirer—of the Minister's forensic skill and her charm in putting forward an answer to an unarguable case.

The noble Baroness overlooks the fact that I do not suggest that the judge who decides the case should have complete freedom to do whatever he likes. There is provision that enables the Attorney-General to take any decision of a trial judge that he thinks unduly lenient to the Court of Appeal. If the Court of Appeal agrees, its decision becomes the sentence of the court. I do not suggest that there is any infallibility about the trial judge; I merely want the noble Baroness to agree that he has complete and unfettered discretion within the law to pass the sentence and that nothing in the sentencing guidelines detracts from that important principle.

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I stress that because the same problem arose—when I referred to it—some time ago. I said:

    "There is a dangerous illusion that everyone supports judicial independence; but do they? I recently pointed out that that very question was answered by Lord Hailsham in a lecture that he gave in 1989. I shall shorten the quotation as follows:

    'Certainly not the Opposition—whatever Party happens to be on the Speaker's left. Certainly not Party Conferences of any hue. And least of all I assure you, individual members of the Cabinet whose Departmental interests from time to time basically conflict, not only with the view of the judiciary, where they are entitled to differentiate, but in the provision of the necessary means to enable the Courts to discharge their functions'".—[Official Report, 6/10/03; col. 30.]

That is why I want that clearly stated. Here is a case in which the present Lord Chancellor, when he has only his one hat as Secretary of State, cannot be either of his own volition or bullied into saying that that is not a discretionary matter for the judges but that the guidelines council binds everyone in a way that is any way inimical to that discretion. I should therefore like to test the views of the House.

7.13 p.m.

On Question, Whether the said amendment (No. 217) shall be agreed to?

Their Lordships divided: Contents, 36; Not-Contents, 90.

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