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Our view is that it will not lead to further increases in the prison population. I acknowledge that magistrates would prefer to receive further training on the intended use of suspended sentence orders. The Sentencing Guidelines Council has already set out in its guidelines that an offence must reach the custodial threshold before a substantial sentence can be imposed.
The Earl of Onslow: Before Report stage, can we have some serious investigation into the custody threshold level? Either it is a criticism of the magistrates, or there has been a sudden surge in crime. We do not know which, and we should not legislate where we do not know what is going on. I see that, perfectly reasonably, the noble Lord is not saying, “I criticise the magistrates”, but something must be wrong if what has happened has happened. Therefore, we need more information on it, and that is what I am badgering for.
Lord Hunt of Kings Heath: I am happy to see what I can provide. I am not guaranteeing that I can provide the hard evidence that the noble Earl requires. Our estimates are that it has led to a net increase in
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Lord Mayhew of Twysden: Before we proceed, perhaps I may pick up on what the noble Lord said about not wishing to criticise the magistrates, which I am sure we are all agreed is very sensible. When he gives further thought to this, will he undertake to take into account the briefing that the Magistrates’ Association has sent us, which I expect he has seen? It says:
“We can see no logical or good reason for this proposal ... we feel the present situation is an excellent deterrent with the right to impose immediate custody, but suspend it ... We believe that research into SSOs made since April 2005 has not been sufficiently robust yet to show that it is SSOs that have, or will have, a significant impact on prison population”.
These are the people at the sharp end, who deal with 95 per cent or 96 per cent of the criminal cases tried each year in this country.
Baroness Carnegy of Lour: I can understand deeply why the magistrates are saying that. It is trivialising the whole thing to be talking lightly in this way about the threshold and to be talking about community sentences and suspended prison sentences. It shocks me deeply and I hope that it shocks other people. To be sentenced to prison is a major event in most people’s lives. If that sentence is suspended, it is perhaps a great relief, but its meaning remains “sentenced to prison”. For Parliament to be asked to do away with probably one of the most valuable tools at present available to magistrates seems really foolish to me. The Government are making an enormous mistake, which will affect the public locally. When they see it happening, it will enormously trivialise the difference between the two sentences. I really hope that the Government will think again about this.
Lord Elystan-Morgan: I want to make one point, to which I unashamedly admit I forgot to refer in my earlier intervention. The Government’s perfectly laudable motive is to diminish the number of persons who are sent to prison on the breach of a suspended sentence. In order to do that, they limit the area in which suspended sentences can be imposed. I suggest that it may well be worth considering this alternative path.
Many people commit offences while they are the subject of suspended sentences, because there is little or no support for their position. As I understand it, the law, as it stands, is that below a certain level—is it still 12 months or is it six months?—no suspended sentence supervision order can be made. That meant that as far as magistrates were concerned there would be no such orders. To change that rule, and to bring the bar down to three months would, I appreciate, involve substantial human resources, which would have to be paid for in money and in human terms. Yet
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Lord Hunt of Kings Heath: All of those comments have been helpful, and I will of course study the remarks with interest. However, perhaps I may say to the noble Lord, Lord Elystan-Morgan, that there are issues of resources, priorities and appropriate use of the skills of probation officers. I understand the noble Lord’s point: that an early intervention might be a better preventive approach and that the result of that would be fewer breaches of these orders and, therefore, fewer people going into prison. I suspect that it would be at a heavy cost, and given all of the pressures I am not sure that the answer would be in the affirmative.
I understand why noble Lords are keen to retain the discretion of the magistracy in this area. I have already paid tribute to the work of magistrates. The fact is that we have hit a substantive problem, which has led to a significant increase in the prison population. In general, I think all noble Lords are as concerned as I about the current level of the prison population. We think that this measure will deal with part of the problem. There is evidence—I guarantee to the Committee and to the noble Earl, Lord Onslow, to find what further information I can to justify this response—suggesting that accepting Clause 10 will lead to a lessening of the pressure.
Based on the statistics, it is certainly our supposition that SSOs may have been used—I hesitate to say “inappropriately”, or I will fall into the trap set for me by the noble Lord, Lord Thomas—in the grey area to which the Lord Chief Justice referred. It may be that magistrates might have been over-zealous in using the order. There is really nothing further that I can say to the Committee at this stage on what has been a very good debate.
6.45 pm
Baroness Butler-Sloss: I have been listening to this debate with great interest and trying to understand where the Government really expect to go. What do the Government expect to happen if a bench of magistrates, or a stipendiary magistrate—now a district judge magistrates’ court—goes correctly through the hoops of the sentencing guidance and gets to the point of saying, “This is not appropriate for a community service order”? I am no criminal lawyer, but I understand that you have to get to that point before ever considering imprisonment. On the assumption, then, that they have gone through the hoops correctly, what does the Minister expect magistrates to do if Clause 10 becomes law?
Lord Hunt of Kings Heath: I would expect them to use all of the options that are available in community sentencing.
Baroness Butler-Sloss: Forgive me, but perhaps the Minister may have misunderstood my question. If the bench of magistrates has gone correctly through all of
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Lord Hunt of Kings Heath: I am sorry for being so obtuse in responding to the question at first. That is of course correct, although given the flexibility offered by the community sentencing structure one has to hope that it will have a positive impact and that that will happen in fewer cases. I urge the Committee to support Clause 10 on that basis.
The Earl of Onslow: If you arrive at the place where you have to send somebody to prison and cannot not send them to prison on a suspended sentence, then the prison population expands and does not decrease. The noble and learned Baroness, Lady Butler-Sloss, put that logic much more clearly than I did. I am trying only to help the Minister understand that that irrefutably logical process seems to be what will happen. If we all wish to reduce the prison population, Clause 10 cannot do it.
Lord Thomas of Gresford: I have already referred to the court bench book and to what level of sentencing is being considered. It is necessary to go back to the guidance of the Sentencing Guidelines Council, which says on page 24:
“The crucial difference is that the suspended sentence is a prison sentence and is appropriate only for an offence that passes the custody threshold and for which imprisonment is the only option”.
The relevant questions from the guidance are:
“(a) has the custody threshold been passed? (b) if so, is it unavoidable that a custodial sentence be imposed?”,
- “(c) if so, can that sentence be suspended? (sentencers should be clear that they would have imposed a custodial sentence if the power to suspend had not been available)”.
Now, if the Government want to remove,
the answer is that the sentencer must impose a custodial sentence.
Lord Hunt of Kings Heath: But the point is that we are talking about 30,000 magistrates and their individual decisions. Clearly, there will be circumstances in which some of the offenders will end up in custody even without the suspended sentence order. There is no argument about that. Equally, we contend that removing this option will lead to an overall reduction in the numbers. The community sentencing structure allows for flexibility. I come back to the noble Lord’s point; perhaps I may quote the speech by the noble and learned Lord the Lord Chief Justice back to him, as it clearly said that, within the context of the custody threshold, there is a wide borderline area where it is open to the court to choose between sending the offender to prison or dealing with him in some other way. It is not a simple black or white issue, which is why we need to take this action.
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Lord Elystan-Morgan: With the greatest respect, there is no wide area. Once the hoops have been gone through, the court has effectively foreclosed the discretion that it would otherwise have on non-imprisonment. There is an illogicality in the situation, although I say in fairness to the Minister that it is not Clause 10 that causes the illogicality. The illogicality has been there for some years; it has been there since there was a provision in one statute that stated that you had to determine whether imprisonment was inevitable in all the circumstances and a power from 1967 to suspend a sentence. The noble and learned Baroness, Lady Butler-Sloss, is absolutely right. The situation has already been foreclosed. There is no discretion once that finding is made. Going back on that decision is utterly illogical. Our concern is to see fewer people sent to prison for breach of suspended sentences and I do not mind how logical the ultimate situation will be if it is successful in achieving that end.
Lord Thomas of Gresford: For the Lord Chancellor and the Minister to be correct in their belief that there would be more community sentencing, they must presuppose that more magistrates get it wrong in their approach to sentencing than those who get it right. The Minister has to suppose that more magistrates are giving people suspended sentences than are following the procedures in the correct way—the procedure of the Sentencing Guidelines Council and the procedure in their court bench book.
Lord Kingsland: I hope that the Minister will agree that my opposition to Clause 10 standing part of the Bill has commanded a considerable degree of support in the Committee. The reason why the Government have got themselves into difficulties on this is that they have an ulterior motive for the clause, which is to reduce the scale of the prison population. The correct way to approach this clause is to look at it on its merits. The fact is, as many of your Lordships said, that when magistrates approach sentencing matters, their first port of call will be the Sentencing Guidelines Council. On the question of suspended sentences, as many of your Lordships again said, the guidance is about as crystal clear as it could possibly be: once the custodial threshold is passed, unless there is an option for a suspended sentence, the magistrates must imprison.
It is much more likely that the magistrates will be paying attention to the Sentencing Guidelines Council than to a speech by the noble and learned Lord the Lord Chief Justice. In saying that, I in no way wish to disparage his wisdom. Indeed, there are circumstances in which judges in the Crown Court and magistrates, having decided that an offence reaches or passes a custodial threshold, will nevertheless, in very specific circumstances that they will set out in great detail when they sentence, give a community disposition. In my submission, however, those circumstances are rare, particularly as nowadays the Crown Prosecution Service is quick to inform the Attorney-General if it thinks that a judge is undersentencing. The notion that a whole raft of community sentences will replace the removed suspended sentence is a chimera.
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Moreover, although the Government have referred to some evidence since 2005 about the likely behaviour of magistrates in the absence of a suspended sentence option, I know that the Minister will agree that the conclusions of those investigations are at best exceedingly tentative.
At a late stage in the Minister’s observations, he urged the Committee to leave the clause in place for the time being. I am wondering what he meant by that. Did he mean between now and Report?
Lord Hunt of Kings Heath: No, the noble Lord should not read anything into that.
Lord Kingsland: My hopes were momentarily lifted.
Lord Hunt of Kings Heath: I was responding to the request of the noble Earl, Lord Onslow, for further information. I have certainly committed myself to providing as much information as possible. I had assumed that noble Lords might bring this matter back on Report, but I was certainly not intimating that I was prepared to come back with a different view then. That is all.
Lord Kingsland: Well, I cannot criticise the noble Lord for looking at me while replying to my noble friend Lord Onslow, who is, as ever, at my shoulder, giving me advice of the highest quality.
The Earl of Onslow: We are also equally bald.
Lord Kingsland: This is an important issue. The Minister can be in no doubt that I shall come back to the matter on Report.
Clause 12 [Restriction on power to make a community order]:
On Question, Whether Clause 12 shall stand part of the Bill?
Lord Kingsland: My concerns are with Clause 12(5), which inserts new subsection (1A)(b) into Section 151 of the Criminal Justice Act 2003. The clause states:
“Where the current offence is not punishable with imprisonment, subsection (2) applies where ... on three or more previous occasions the offender has, on conviction by a court in the United Kingdom of any offence committed by him after attaining the age of 16, had passed on him a sentence consisting only of a fine”.
In other words, if three less serious matters are dealt with by means of a fine, the court can impose a community sentence but, if there have been more serious offences in the past, it cannot. So if we are dealing with an offence that is non-imprisonable, magistrates can impose a community order only if matters are aggravated by three previous fines, rather than more serious sentences.
For example, if an offender has been fined for three previous drunk and disorderly offences, the magistrates
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This is another example of the Government trying to remove the discretion of a judge. There are a whole range of factors that the court would wish to take into account before determining whether or not to make a community order. In our submission, it must be a matter for the court at its judicial discretion to say how serious a particular offence is and to mark that with a community order if appropriate.
7 pm
Lord Bach: I congratulate the noble Lord, Lord Kingsland, on the point that he makes in this debate on Clause 12 stand part. He knows that the aim of the clause is to ensure that limited probation resources are directed where they can have most effect. This will help the Probation Service to concentrate on offenders who really need intensive supervision, either because they are dangerous or because they are at a very high risk of reoffending. Those who commit offences where the maximum penalty is a fine are unlikely to fall into this category; for them, a fine is usually the most appropriate punishment. That is why the Government believe that community orders should be available only for imprisonable offences. It seems so far in this debate that that view is shared in the Committee, as there has been no amendment to suggest that we are wrong in that thought.
For offences where a fine is the maximum penalty, courts will still be able to impose a fine or discharge, as at present, plus other ancillary disposals, such as compensation, driving disqualification or football banning orders, as appropriate. Committal to prison will still be available for wilful refusal or culpable neglect to pay the fine. The new provision will apply to offenders aged 18 and over only. Examples of offences for which a fine is the maximum statutory penalty are having no vehicle insurance, minor public order offences, careless driving, TV licence evasion, simple drunkenness and firework offences. These are all offences where discharge or a fine is generally the appropriate sentence and where it is not normally necessary to involve the Probation Service by imposing community interventions.
The history of all this is interesting. Before April 2005, some community sentences were available for imprisonable sentences only—for example, the community punishment order, which imposed unpaid work, and the community punishment rehabilitation order, which imposed unpaid work and supervision. Since that date, under the Criminal Justice Act 2003, the community order with its 12 possible requirements has been available for all offences. For the reasons that I have given, we are now restricting its use to imprisonable offences
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The clause also updates the provision on the statute book; it is to this provision that the noble Lord, Lord Kingsland, refers in his argument. It allows a court to impose a community order where the offence is not serious enough to warrant such a sentence but where the offender has previously received three or more fines. This represents an exception to the restriction of the community order to imprisonable offences. However, as the noble Lord, Lord Kingsland, will know, this provision has not been commenced, but is amended so that it is consistent with restricting the community order to imprisonable offences. Even without this provision in force, the law allows a court to regard persistence as an aggravating factor when deciding seriousness, so that repeat offenders will receive higher fines than would otherwise have been imposed.
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