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If your Lordships look more closely at our amendment, you will see that we are not suggesting that the local authority should itself be under a duty to provide a report to the court but merely that the pre-sentence report includes information from the relevant local authority. In other words, the youth offending team that is putting the pre-sentence report together should have a paragraph or more in that report that outlines the local authority’s attitude to the individual child or young person. That is really what we are concerned with; not the provision of more reports, but that the youth offending team should have that very much in mind. Although we have heard of the guidelines and the assessment tools, which seem admirable in themselves and which have been laid down for youth offending teams to utilise, the Minister has demonstrated that, according to the annual report, there are failures in the provision of the necessary information.

Lord Hunt of Kings Heath: I am grateful to the noble Lord for letting me intervene, and I congratulate him on the birth of his sixth grandchild, which we all rejoice at. I mentioned those failures deliberately to

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show that I have not come to your Lordships’ House to argue this point from complacency. I accept that weaknesses have been identified that need to be improved. My argument is that we have a mechanism to monitor, judge and then make improvements.

Lord Thomas of Gresford: My argument is that that mechanism is not working at the moment. I am not here to criticise local authorities or to ask the court to discipline them for the non-provision of services, nor to argue that youth offending teams should be disciplined for failing to follow the mechanisms, the assessment tool, with which they are provided. I argue that the court may not pass a custodial sentence, it will not send the child or young person to prison, unless it is satisfied, on information that has been obtained from the local authority—through the youth offending team, no doubt—that everything that that local authority could have done for the child or young person has been done.

I also support the amendment that has been put forward by the noble Lord, Lord Kingsland, that everything should be in writing. The old way of working—the probation officer going downstairs, having a chat with the individual young person in the cells and then coming back and giving some sort of a report that he has achieved mainly from the young person or possibly from his parents—is simply not good enough. The court requires a wider provision; not just the probation officer’s view but the local authority’s input into what is the most appropriate way of dealing with that offender. While I am glad that there are the mechanisms to which the Minister has referred, the duty on the court must be to ensure that those points have been covered and not to take either an oral report or a written report simply at face value without asking, “What have you done under this section to obtain the local authority’s attitude?”.

As I said, I am grateful to your Lordships. I do not intend to pursue the matter at this stage, but we will certainly come back to it on Report. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 80 not moved.]

Clause 10 [Abolition of suspended sentences for summary offences]:

On Question, Whether Clause 10 shall stand part of the Bill?

Lord Kingsland: We now pass from issues special to children and young people to more general questions of sentencing. The remainder of Part 2 contains specific sentencing proposals, some of which were considered in Committee in another place and some of which were introduced quite late in the day inspired by the report of the noble Lord, Lord Carter of Coles. If I were a more cynical person I might suggest that some of these amendments owe a great deal more to the desire to reduce the scale of the prison population than they do to their inherent merits. However, I have no doubt that the Minister will have something to say about that.



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The first of these matters concerns the Government’s desire to remove the power of magistrates to impose suspended sentences in summary cases. Clause 10 proposes that suspended sentences could not be ordered for summary offences although the power would remain for indictable and either-way offences. However, if two or more custodial sentences were being considered on the same occasion, one summary and one indictable, and it is intended to impose a suspended sentence for the indictable offence, a suspended sentence could then be imposed for one or more of the summary offences. As I understand it, this is the first time there has ever been a proposal which differentiates so radically in sentencing disposals between summary and either-way matters. Indeed, in many cases the distinction will almost be a distinction without a difference. For example, in matters of criminal damage, whether something is a summary matter or an either-way matter can turn on the financial scale of the cost of the damage.

But the key issue that needs addressing under Clause 10 is this: when one is dealing with a suspended prison sentence, one is dealing with an offence that has passed the custody threshold. This flows from the guidelines of the Sentencing Guidelines Council. At page 24 of the guidance, the Sentencing Guidelines Council sets out the questions that the court should ask itself. First, has the custody threshold been passed? Secondly, if so, is it unavoidable that a custodial sentence be imposed? Thirdly, if so, can that sentence be suspended? So if the court concludes that a custodial sentence should be imposed and if the option of a suspended sentence is removed, as the Government so intend, it is inevitable that the person in the dock will be sent to prison. In my submission, removing the power of magistrates to use suspended sentences for summary offences will actually have the opposite effect to that the Government intend. It will increase the prison population, not reduce it. The suspended sentence provides flexibility that enables the magistrate to provide a sentencing option which will, always assuming that the individual concerned will stick to the terms of the licence, keep him out of prison.

As I understand the Government’s argument from reading the relevant passages in another place, their view is that what the court would normally do, if the option to issue a suspended sentence were removed, would be to impose a community sentence. If that is the Government’s view, it flies in the face of the guidance given by the Sentencing Guidelines Council. So the Opposition believe that Clause 10 is misconceived and will have an effect contrary to the one the Government intend. We believe that the Government should think again.

6.15 pm

Lord Elystan-Morgan: My attitude to this clause is certainly not condemnatory. However, it is very cautionary. The main issue has already been put most articulately by the noble Lord, Lord Kingsland. But I bear very much in mind what he said rather cynically, and perhaps justifiably so—that this is not wholly unconnected with the fact that our prisons are bursting at the seams. That echoed the words of that most splendid gentleman, the late Lord Allen of

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Abbeydale, who told me more than once when I was a Minister in the Home Office some 40 years ago that in his experience—he had been in the Prison Commission and in the Home Office for 30 or 40 years—most of the splendid things that had been done by way of criminal law reform had been done for the wrong reasons. I suspect that we still operate under that reality and that very probably all governments, whatever their problems, face much the same situation.

As I am in anecdotal mood, I recount what happened in 1968 in the Home Office when it was discovered, after the Criminal Justice Act 1967 which introduced suspended sentences had run for 12 months—I am not exactly sure of the figures but they must be very near exact—that the number of fines had fallen by some 18,000 in that 12 months. The number of suspended sentences was either 19,000 or 17,000—it was 1,000 one way or the other—and with the greatest possibility of coincidence in the world, there must have been some causal connection between those two factors.

The point that I seek to make is this. You can never be sure how courts will react to these situations, especially when you bear in mind that the courts which will be dealing with these matters day in and day out will mostly be magistrates’ courts. Noble Lords will know far better than I how two magistrates’ courts with adjoining petty sessional divisions and very similar social backgrounds will adopt totally different sentencing policies. Therefore, there is a danger that you will not get what you expect to get and what you wish to get with this clause. Magistrates may well say, “We would like to fine this person but he has no money”. For a number of reasons they may react against the alternative prospect of a community sentence and say, “Very well, my lad, it’s got to be prison in your case”. So although you defend yourself against the danger that the subjects of suspended sentences may breach those sentences and end up in prison, other people will go to prison immediately.

I believe that a suspended sentence for a comparatively minor offence can be very useful. When you look at the escalation over a person’s criminal career, you say to yourself, “What if he had been stopped early on? What might have happened if he had been pulled up with a short suspended sentence for a summary offence?”. The consequences of losing that tool should be taken very much into consideration.

My other point is the one made most elegantly by the noble Lord, Lord Kingsland. That is, it involves some logical gyroscopics to be able to bring about the situation. Before a sentencer determines that a matter is one for custodial sentence, he must determine whether the custodial threshold has been passed and custody is appropriate. Then he has to constitute himself into a parole board and say to himself that the man he decided, one second ago, to send to prison need not serve that sentence after all. Such mental athleticism and gymnastics are not what ordinary people would appreciate as being very sensible.

It is done and I appreciate that, perhaps, in this case, the alternative to doing nothing to what is contained in Clause 10 might well be to issue very sound advice to magistrates’ courts. However, the logical track is still there. You are still inviting them to

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take that logical track on the basis of an administrative precept, rather than on the basis of legislation. While I have sympathy with the Government, appreciate their motives in this case and wish, indeed, that they would succeed in reducing the prison population, I am very unsure that that will, necessarily, be the case.

Lord Mayhew of Twysden: I hope I will remember the story of the noble Lord, Lord Elystan-Morgan, about all splendid law reforms having been undertaken for the wrong reasons. The trouble with Clause 10 is that it is not a splendid law reform. It is going to be a rather stupid one, for the reasons that have already been identified in this short debate.

What is the merit of the suspended sentence? It is surely that it enables the gravity of the offence to be marked, but at the same time offers the accused person the opportunity to avoid prison by reforming his behaviour. This is a very good thing for him and for the taxpayer. I cannot see the logic in keeping it as a sentencing tool for indictable offences, yet taking it away from the far more numerous summary-only offences. The point has already been made, but is worth alluding to again, that before a suspended sentence can become a possibility, the sentencing threshold, as defined by the Sentencing Guidelines Council, has to be passed. The consequence, then, will not be a community order sentence; it will be, in the vast majority of cases, an immediate custodial sentence. That renders this a stupid reform, and not one of those splendid ones, albeit that it will be introduced for the wrong reasons.

The Earl of Onslow: I must make the following contribution to this debate. This clause says that to reduce the prison population, we must send people to prison. I cannot believe that that makes sense.

Baroness Carnegy of Lour: I follow what my noble and learned friend Lord Mayhew has just said. The Committee should remember that a suspended sentence, for some people, is a very great punishment indeed. You have been sentenced to prison, but the sentence has been suspended. It is a great disincentive for some people to reoffend. To have a community sentence instead, if the Government think that is what will happen as a result of this clause, is not the same punishment. The public will see that; people know the difference between these things. In my experience, the suspended sentence is enormously effective for some people. Of course, many reoffend and despite a suspended sentence, they will go to prison. I see that, but for many that is not the case and we should not forget that.

Lord Thomas of Gresford: In another place, my honourable friend David Heath drew the attention of the Members to the Adult Court Bench Book, which gives advice to magistrates on how to proceed. On page 49 is the heading, “What level of sentencing are you considering?”. The first tier is an absolute or conditional discharge. The second tier is a fine. The third is a community sentence. It is only at the fourth

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tier that a custodial sentence is referred to, where the offence is so serious that neither a fine alone, nor a community sentence, can be justified. Only after that stage—if the court decides that the first three tiers are not appropriate, and they consider prison to be appropriate—are they to consider whether the sentence should be suspended.

The Government’s premise is that if you abolish suspended sentences of imprisonment, the courts will naturally move to the community sentence, as opposed to the immediate sentence of imprisonment. What is the basis for that? Mr Hanson in another place said:

He was then asked, in effect, how he could be so sure about that. He said:

He invents some new English phrases, but does not really give any reason. He then said:

He later tells the Committee that,

How does that follow? The court, before it even considers the suspension of sentence, has gone through what levels of sentence can be considered. It has concluded that it does not want an absolute discharge, a fine, or a community sentence, and that a sentence of imprisonment should be imposed. This clause abolishes the ability of the magistrates or judge to suspend that sentence. The only conclusion one can have is that immediate sentence of imprisonment should and will be imposed.

Lord Hunt of Kings Heath: This has been an interesting debate. I say to the noble Lord, Lord Kingsland, that a number of clauses in the Bill will have, we hope, a positive impact on the prison population. There is no escaping that we have a very serious problem with the prison population. I hope that the provisions in this Bill will commend themselves as worthy in their own right, alongside contributing to an easing of prison population pressures. Generally, noble Lords are always urging me to do this, except when it comes to a particular amendment, when we sometimes take a different view.

The noble Lord, Lord Elystan-Morgan, certainly had wise words of advice for Ministers and those who seek to influence these matters. He reinforced the importance of sentencing guidelines when it comes to the advice available to magistrates in doing their very important work. I want to make it clear that in moving that this clause stands part of the Bill, it is not my intention to criticise the work of magistrates. They do an excellent job. It is more to help give them the appropriate guidance that is required.



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These orders were introduced in April 2005. As we have heard from the noble Lord, Lord Kingsland, they enabled a court passing a sentence of imprisonment of less than 12 months to suspend that custodial sentence for a period of between six months and two years. These have been used extensively. In recent months, more than 3,500 per month have been given out by the courts, of which 40 per cent are for summary-only offences. However, at the same time as the rapid increase in the use of suspended sentences, there has been no drop of equivalent magnitude in custodial sentences. The view of the Government is that many of those sentenced to a suspended sentence order would previously have been sentenced to a non-custodial disposal.

The noble Lord, Lord Elystan-Morgan, would say that that is a result of the Elystan-Morgan law of not getting what we expect. But, clearly, to merit a suspended sentence an offence should have reached the custody threshold. We think that as a result of the introduction of the suspended sentence order we have added about 400 places to the prison population, and that number will build up over about a two-year period from now. The reason for that is that those who breach suspended sentences are almost certain to go to prison, whereas breach of community orders has a wide range of consequences which do not necessarily end in custody. Therefore, we are concerned about the way in which the new suspended sentence has been used where we think a community disposal would previously have been deemed appropriate.

6.30 pm

The Earl of Onslow: From looking at those extra suspended sentences that have been imposed, has the Home Office discovered whether they are people who should be sent to prison across the custody threshold that the noble Lord, Lord Thomas of Gresford, was talking about, or is the evidence that normally they would be community sentences? I am seeking information with an open mind.

Lord Hunt of Kings Heath: It is a fair question. I cannot say that each case has been looked at individually. The concern has come from the figures and from the fact that while the use of the orders has increased, there has not been a consequent decrease in custodial sentences. Therefore, the supposition is that there has been, to use that awful term, up-sentencing—

Noble Lords: Up-tariffing.

Lord Hunt of Kings Heath: I apologise, up-tariffing. Noble Lords then would argue about the fact that these offences must have reached the custody threshold, so that if this provision is enacted in future it will lead to up-tariffing. I understand the point that has been raised. I pray in aid first what the Lord Chief Justice said in an interesting speech on 15 November 2007:

That is particularly true in the case of magistrates’ courts, which suggests that there is a grey area. It is in that grey area that the greater use of suspended sentences has fallen.

Lord Thomas of Gresford: Is the Minister saying that magistrates are not following the book to which I referred and the processes of arriving at a suspended sentence?

Lord Hunt of Kings Heath: I am very hesitant to stand here and criticise the work of magistrates. The noble Lord may draw that conclusion, but I am not going to stand here and criticise magistrates. It would be wholly inappropriate for me to do so. Clearly, there may be some questions about the guidance that is given to them about training.

I refer the noble Lord, Lord Thomas, to his colleague, the noble Lord, Lord Dholakia, who sadly for me is not in his place. He said at Second Reading:

So there is an argument for what the Government are seeking to do.

On the question of guidelines, the Sentencing Guidelines Council has already set out very clearly in its guidelines that an offence must reach the custodial threshold before a suspended sentence can be imposed. Yes, I accept that, clearly, the issue of suspended sentences needs to be kept under discussion with the council. I understand that the council plans to review its guidelines on general seriousness and on the new sentences arising from the Criminal Justice Act 2003, so there will be an opportunity to look at suspended sentence issues again in relation to the custodial threshold.

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