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Lord Ackner moved Amendment No. 227:

The noble and learned Lord said: My Lords, I ask your Lordships to say that they are not content for Schedule 19 to remain part of the Bill and I shall be inviting noble Lords to use the Not-Content Lobby when the vote takes place. Often mistaken and enthusiastic noble Lords keep up the old business of going to the wrong place by mistake.

Schedule 19 is, in the words of the noble Lord, Lord Windlesham, "sentencing by ministerial decree". It is the result of an angry, frustrated action by a Home Secretary who did not understand the requirements of the rule of law. When, in November 2002 the case of Anderson was decided in the Judicial Committee by reason of the human rights legislation, the Home Secretary no longer had any role to play as a politician in deciding how long someone should stay in prison. That is something that this House had been saying year in and year out. As a result, there was an intemperate outburst—

Lord Tordoff: My Lords, I am most grateful to the noble and learned Lord for allowing me to intervene. Perhaps he has confused the Report stage and the Committee stage. The Motion that he is moving is to leave out the schedule, in which case he would wish to vote Content. That would remove the schedule, which has already been agreed.

Lord Ackner: My Lords, I am sorry, but I cannot agree. This is a Motion to persuade the House that

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they are not content in the continuation of Schedule 19. Perhaps the noble Lord would be kind enough to confirm that I am right because he is so much more experienced than I.

Lord Tordoff: My Lords, I doubt that, but with some reluctance I have to say that I think the noble and learned Lord is wrong. The proposal set out in his amendment is to leave out Schedule 19. I understand what he seeks to do, but he is moving to leave out the schedule and therefore he should advise people to vote Content on that proposal.

Lord Ackner: My Lords, very well. I am always happy to learn from my elders and betters, or perhaps I should say "betters". In those circumstances, I invite noble Lords to go on being content with everything I submit, as has happened in the past.

I was saying to noble Lords that there was an intemperate outburst by the Home Secretary, demonstrating that he had not understood how the rule of law works. That was exacerbated by a ruling in relation to the lawfulness of an immigration law or order which he had promulgated.

The history of this situation bears a little repetition. Your Lordships will know that the sentencing guidelines were in effect invented by the former Lord Chief Justice, the noble and learned Lord, Lord Lane, advising judges on the way of viewing offences according to their nature and providing a set of brackets within which they could consider imposing a sentence, lowering or raising it according to mitigation or aggravation. The judiciary has shown no reluctance to accept assistance and in 1998 the Crime and Disorder Act was passed. That legislation brought into existence the Sentencing Advisory Panel. By that Act, the panel investigated, researched and sought advice from the public. It consisted of a variety of disciplines—although with very few, if any, lawyers—and provided guidance.

The Court of Appeal, which was then laying down sentencing guidelines, was obliged to take into account what was proposed by the panel. If the Court of Appeal itself had been contemplating taking the initiative of laying down guidelines, it would have to consult the panel. That worked smoothly and satisfactorily over a period of some four years, by which time the Court of Appeal had accepted the advice of the panel and imposed the necessary decision on 10 different species of offences.

In 2002, one year before the schedule was produced, the panel made suggestions with regard to what were the appropriate sentencing guidelines for murder, the offence to which Schedule 19 is directed. The Court of Appeal had regard to that advice and was minded to accept it, but first consulted with the Attorney-General, the Lord Chancellor and the Home Secretary, the very one responsible for Schedule 19. They made very minor alterations, which were accepted, and the guidelines were introduced via a practice direction given by the Lord Chief Justice. Everything proceeded swimmingly until the angry reaction of the Home Secretary produced Schedule 19.

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It is perhaps worth breaking off at this stage to recall the "holier than thou" homilies to which the public have been treated by the Home Secretary on how to put back trust in the Government; on how essential it was for any government to work effectively to have that trust. The Home Secretary said that the only way to do that was to be "patently honest". Your Lordships may not think that the history I have outlined fits very happily into that expression.

The schedule purports to lay down minimum starting points, and they are at least 50 per cent in excess of the guidelines in the Lord Chief Justice's practice direction. In the period of the year between the Court of Appeal's guidelines and the emergence of Schedule 19—Schedule 17 as it was previously—nothing occurred to suggest that the guidelines which were being followed pursuant to the Lord Chief Justice's practice direction were in any way proving inadequate, not being followed or had any disadvantages about them. On the contrary, it all went swimmingly.

The proposed 50 per cent increase will obviously have an effect, but the Home Secretary has limited his attention to the effect it will have in 10 years time, when the murderers with whom one is concerned would be coming out from prison but for the fact of the 50 per cent increase. He has totally overlooked the fact that sentencing guidelines have to be consistent, and if you up by more than 50 per cent the sentence for murder, you have got to do the same with all other serious offences. There is no question about waiting 10 years for that to happen; that will have to happen forthwith. The effect that will have on the demands on prison accommodation will be disastrous. The schemes to add currently to prison accommodation will be swamped and the position will be quite impossible.

So there has been produced this oddity. Parliament purports to set up the Sentencing Guidelines Council in the Bill—which we considered recently—and then the Home Secretary has pre-empted the Sentencing Guidelines Council by saying, "Before you begin to operate, I will tell you what has to be done in regard to murder cases, and what I am going to tell you will involve the whole of the sentencing pattern which has existed up until now being distorted". It will be distorted by this extraordinary increase.

That is why I suggest that the situation created by Schedule 19 requires the robust action of taking out the entire schedule. Only thus can one return to what Parliament initially proposed—the Sentencing Guidelines Council laying down what should be the appropriate sentences. It is only thus that one can prevent this extraordinary distortion, the result of a distorted approach to the two decisions to which I have referred. For those reasons, I beg to move my amendment.

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5.45 p.m.

Lord Thomas of Gresford: My Lords, I have added my name to the amendment. The justification for Schedule 19, we have been told, is that it introduces clarity and transparency in the sentencing process in a way, it is implied, that does not exist at the present time. To illustrate how the practice and procedure of the law develops over a period of time, I should tell your Lordships that when I was first at the Bar it was utter anathema then for prosecuting counsel to talk to witnesses, whether or not they were victims. It was almost a professional foul to do so. I entered at the end of a long tradition where the leading counsel for the defence in a murder case did not speak to his client at all. He communicated with his client through junior counsel and received his instructions from the solicitor. I was a junior to a somewhat elderly silk who took that view and did not speak to his client from start to finish of the case.

Things have moved on dramatically. Over the past 50 years or so it has been customary for leading counsel for the defence in a murder case to have lengthy consultations with his client. In very recent years—within the last two or three—it has become appropriate to talk to defence witnesses. There is now a duty laid upon prosecuting counsel to talk to victims, their families and witnesses. It is quite the reverse. At the beginning of my career, the rationale was that counsel appearing at the Bar would be removed entirely from the emotion of the case and would conduct it with all the forensic skill that they had, unclouded by the views that were pressed upon them by either the prosecution witnesses, the victims or the defence.

We have a position today where it is the positive duty of prosecuting counsel to explain to a victim, family or witnesses why the judge has done what he has done. The noble Baroness told us that she was an officer in, or played a part in, an organisation that is concerned with victims. She said that they do not understand why a particular sentence has been passed. Victims will never really understand why a certain sentence has been passed—particularly in a murder case—at the end of the trial because they are overwhelmed with emotion for what has happened.

So let us consider Schedule 19, which we are now told lays down statutory guidelines. I made the same point in Committee as the noble and learned Lord, Lord Ackner, made a moment ago when I said that it was an oddity that we should have statutory guidelines for fixing a tariff in the same Bill that sets up the Sentencing Guidelines Council. It is curious that the Government have not waited to hear what the deliberations of that council are before setting what the Minister describes as "sentencing guidelines". However, it goes beyond that.

What is now proposed is that the judge should take a mechanistic approach to sentencing. He has the Bill in front of him, which contains a tick-list or shopping list of aggravating and mitigating factors. He ticks them off, asking himself whether he has considered this or that. What on earth do the Government think that a judge does at the present time other than to

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consider all the aggravating and mitigating factors as they appear to him in a case? What else is he there for but to consider the facts of the case, the circumstances in which the crime was committed and the personal circumstances of the defendant before he sets his tariff?

Why must we put that process into a straitjacket, as I described it in Committee—a tick-list to put into statutory form what anybody making a decision would do anyway? Taking any important decision in one's life, one will set up the factors in favour of the decision on the one side and the factors against it on the other, and come to a conclusion. If one was forced by a statute before one took out one's mortgage to consider one's wages, one would think it ludicrous to be placed in a straitjacket of that sort.

The other aspect of Schedule 19 about which the Government are being very vague is the purpose of the "starting point". They do not call it the "norm", so that sentences would be either larger or smaller but the average would be somewhere around the norm—they call it the starting point. If the Minister, as I hope she will be, is to be followed on the Pepper v Hart principle after the debate we had recently about young people, we learned that one can start by taking anything up to four or five years off for the youth of the defendant. If the starting point is supposed to be a norm, it has suddenly shifted down just because of age to 10 or 11 years. Then one starts from there, taking into account other aggravating or mitigating factors. That is the sort of explanation that we had from the Minister.

I believe that behind the interference in the sentencing process in the schedule—and the oddity of guidelines being promulgated by the Government in statutory form before their own Sentencing Guidelines Council comes into operation—is a future excuse for politicians. When a judge passes a sentence that causes an outcry in newspapers, they can say, "Look at our Bill; just have a look at what we said was the starting point. The judge has gone berserk and ignored it!" An excuse is being built in for the Government to explain away decisions that are not attractive to the public—as appears in the tabloid press.

Since prosecutors today are under the duty to explain to victims and their families why a sentence is passed, why are they not allowed to get on with doing that, while listening to the judge's sentencing remarks? The judge does not simply say, "I pass a life sentence, the tariff is 12 years"—he gives his reasons. Why do we not allow the present system to continue, and throw this political device into the dustbin? I know that there is a certain reluctance on the part of the Front Bench of the official Opposition to go along with throwing the proposal into the dustbin, and I understand their difficulties. But surely, on all sides of the House, we ought to walk into the Content Lobby when the Division is called.

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