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[Amendment No. 46 not moved.]

Lord Thomas of Gresford moved Amendment No. 47:



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The noble Lord said: My Lords, your Lordships are aware that I have already spoken on this amendment, because it was grouped with the government amendments at the beginning of our deliberations today. I do not propose to rehearse again the arguments that I put at that time. I was grateful for the support I received from all quarters of the House for the amendment.

There are one or two points to which I am entitled to reply that were made at that time—in particular, on the syntactical infelicity to which the noble and learned Lord, Lord Mayhew, referred. I do not think that there is such an infelicity. Proposed new subsection (2) says:

in other words, in so promoting—

All of us who have listened to today’s debates will appreciate that it is very much the welfare of children that we have in mind and that if there is a promotion of the welfare of children it may well stop offending or reoffending in the way in which this amendment is phrased.

The noble Lord, Lord Kingsland, was good enough to say that we confront Section 37 of the Crime and Disorder Act 1998, with which, he said, the law began to go wrong. I was interested to discover that the noble Lord, Lord Windlesham, who was in his place earlier today, said about the provision in the then Bill, at Second Reading in December 1997:

There have been practical problems. In my earlier remarks, I outlined how the provisions in the 1998 Act has been overtaken by later legislation that has incorporated our duties and responsibilities under international treaties.

What we are trying to do with his amendment is to rebalance the youth justice system so as to put the welfare of the child first and make it the purpose and principal aim of the statement of principle for the youth justice system as a whole. It is a principle that should not simply be confined to the court’s sentencing and the purposes of the court in sentencing, to which Clause 9 refers. It should be a principle that applies across the board to every agency, whether it is the police, prison officers, youth

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offending teams, probation services and so on. I am interested to hear that a youth crime action plan is being proposed by the Government, in which, no doubt, those cross-agency problems will be addressed.

I put the amendment forward for your Lordships’ consideration in order to bring the 1998 Act up to date, having regard to the obligations of which I have spoken. I beg to move.

Baroness Butler-Sloss: My Lords, the amendment comes after Clause 9. On a technical point, is the part of Clause 9 that does not deal specifically with this intended to be interfered with?

Lord Thomas of Gresford: No, my Lords.

Lord Hunt of Kings Heath: My Lords, the noble Lord, Lord Thomas, invitingly asks me to respond, but we had a very full debate on this group. Noble Lords will know that the House has kindly accepted the government amendment, which seeks to ensure that there is no hierarchy when it comes to the matters to which the court has to have regard, as it was thought there was by some noble Lords in Committee. I hope that noble Lords will consider that the government amendment properly deals with concerns that many noble Lords have.

Lord Thomas of Gresford: My Lords, we feel very strongly on these Benches on this issue. We feel that it is time to rebalance and bring up to date the youth justice system, so I intend to test the opinion of the House.

6.24 pm

On Question, Whether the said amendment (No. 47) shall be agreed to?

Their Lordships divided: Contents, 57; Not-Contents, 117.


Division No. 1


CONTENTS

Addington, L. [Teller]
Avebury, L.
Bowness, L.
Bradshaw, L.
Burnett, L.
Butler-Sloss, B.
Carlile of Berriew, L.
Chester, Bp.
Chidgey, L.
Cobbold, L.
Cotter, L.
Craigavon, V.
Dholakia, L.
D'Souza, B.
Dykes, L.
Falkland, V.
Falkner of Margravine, B.
Goodhart, L.
Hamwee, B.
Howe of Idlicote, B.
Jay of Ewelme, L.
Kennedy of The Shaws, B.
Kirkwood of Kirkhope, L.
Laird, L.
Lee of Trafford, L.
Listowel, E.
Low of Dalston, L.
Maclennan of Rogart, L.
McNally, L.
Masham of Ilton, B.
Miller of Chilthorne Domer, B.
Murphy, B.
Neuberger, B.
Northover, B.
Ramsbotham, L.
Redesdale, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Sandwich, E.
Shutt of Greetland, L. [Teller]
Stern, B.
Stoddart of Swindon, L.
Taverne, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tonge, B.


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Tope, L.
Tordoff, L.
Tyler, L.
Ullswater, V.
Vallance of Tummel, L.
Walmsley, B.
Walton of Detchant, L.
Watson of Richmond, L.
Williams of Crosby, B.
Young of Hornsey, B.

NOT CONTENTS

Acton, L.
Adams of Craigielea, B.
Adonis, L.
Alli, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Boyd of Duncansby, L.
Bragg, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Christopher, L.
Clark of Windermere, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Craig of Radley, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Dubs, L.
Eatwell, L.
Elder, L.
Elis-Thomas, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jones, L.
Jones of Whitchurch, B.
King of West Bromwich, L.
Kinnock, L.
Lofthouse of Pontefract, L.
Macaulay of Bragar, L.
McDonagh, B.
McIntosh of Haringey, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Malloch-Brown, L.
Maxton, L.
Mitchell, L.
Montgomery of Alamein, V.
Moonie, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
O'Neill of Clackmannan, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Prosser, B.
Quin, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B. [Teller]
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Soley, L.
Stevens of Kirkwhelpington, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Thornton, B.
Tomlinson, L.
Triesman, L.
Tunnicliffe, L.
Vadera, B.
Wall of New Barnet, B.
Warner, L.
Watson of Invergowrie, L.
West of Spithead, L.
Whitaker, B.
Wilkins, B.
Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.34 pm

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



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Lord Kingsland moved Amendment No. 48:

The noble Lord said: My Lords, this amendment was thoroughly debated in Committee. Therefore, I can be reasonably telegraphic in introducing it again at Report. Clause 10 proposes that suspended sentences cannot be ordered for summary offences heard in magistrates’ courts. The Government’s argument for advancing that is that if the option to issue a suspended sentence is denied the court, it will impose a community sentence, thereby assisting the Government in their well known difficulties with prison overcrowding.

In our view, the inference is illusory. When one is dealing with a suspended prison sentence, as your Lordships know, one is dealing with an offence that has passed the custody threshold. This follows from guidance issued by the Sentencing Guidelines Council, as I indicated in Committee. 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? Thus, if a court concludes that a custodial sentence should be imposed and if the option of a suspended sentence is removed, as the Government so intend, prison is inevitable. Removing the power of magistrates to use suspended sentences for summary offences would have the opposite effect to that intended by the Government: it would increase the prison population, not reduce it. I beg to move.

Lord Thomas of Gresford: My Lords, I spoke at length on this amendment in Committee and I do not propose to repeat what I said at that time save to say that we support the stance of the noble Lord, Lord Kingsland.

Lord Lloyd of Berwick: My Lords, I did not speak on this in Committee, but I found the inexorable logic of the argument of the noble Lord, Lord Kingsland, irresistible.

Baroness Butler-Sloss: My Lords, I also share the view of the noble Lords, Lord Kingsland and Lord Thomas of Gresford, and the noble and learned Lord, Lord Lloyd of Berwick. The Government are going down the wrong path. They will not get a community sentence out of the absence of a suspended sentence because the point has been crossed, as the noble Lord, Lord Kingsland, pointed out from the sentencing guidelines. Therefore, whatever else may be said, if you cannot have a suspended sentence you will just carry on filling up the prisons.

Lord Elystan-Morgan: My Lords, the clear purpose of the provision in the Bill is to reduce the prison population. That is a laudable objective, but I have the gravest doubts about whether that can be achieved by the risk that the Government are taking with regard to this provision. Indeed, in all likelihood it will have the opposite effect. I referred in Committee and I will do so again to what happened in the Home Office 40 years ago when I was a junior Minister,

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which rather dates one. A careful analysis was carried out of the effect of suspended sentences under the Criminal Justice Act 1967 after the Act had been in force for 12 months or so. The objective of the Act, among many other things, was to try to reduce the number of prison sentences.

The figures were something like this. The number of prison sentences remained exactly the same. The number of fines fell by about 18,000. The number of suspended sentences was about 18,000. In other words, one could never prognosticate nor indeed have any confidence in exactly how courts, particularly magistrates’ courts, will react to such a situation. That is in no way pejorative of magistrates’ courts. There are petty sessional divisions that are apparently very similar socially but that have entirely different sentencing policies. There is therefore every likelihood that the ironic consequence of this provision will be to increase the prison population rather than reduce it.

There is one other reason why this clause should not be allowed to proceed. There is real merit in having the power to suspend for relatively innocuous offences, or let us say offences that are not of the highest rank of seriousness. Like so many other sentencers, I have often looked at a person’s antecedents and seen how he or she was dealt with most leniently four, six or eight times before, and then seen a chasm where a very serious sentence had suddenly to be imposed. One often wonders what would have happened to that person if a shot across the bows by way of a suspended sentence had been fired much earlier in their criminal career.

As for the logic of the situation, much as I respect the normally unremitting and perfect logic of the noble Lord, Lord Kingsland, I think that one might make this distinction. In so far as there is reference to crossing the threshold of custody and whether the case merits imprisonment, that is a decision for a sentencing court. Of course the decision whether one suspends a sentence is a decision for the sentencing court by definition; but actually it is a sentencing court sitting as a parole board. It has already sent the person to prison in its mind, and then one second later it reconstitutes itself as a parole board and asks whether it is necessary for that sentence to be served. I think that there is that justification for what might seem a matter of rather slick mental gymnastics.

I simply ask the Minister—who has been most accommodating on all the points raised on the Bill—to consider that the Government might be wrong on this matter and that an unnecessary risk is being run.

Viscount Tenby: My Lords, I warmly support the amendment. I declare an interest as a magistrate for 25 years. I also apologise to the House because I was not able to take part in Committee on this matter. I promise that I will not make a Committee speech. I agree with the comments made. One point which perhaps has not been made is that the provision removes discretion from the magistrates’ court. It chips away at an institution that has served the British legal and judicial system very well over the years. The fact is that the suspended sentence is an extremely valuable sentence. I remember that it was in disfavour

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in the 1980s and it was suggested to us that we should not impose it, but we would have given our eye teeth for the ability to impose it. It is a sword of Damocles hanging over someone to ensure that they do not step out of line. It is an absolutely perfect way of administering justice.

Like all noble Lords who have spoken so far, I think that the provision will have the reverse effect. If magistrates are unable to impose a suspended sentence they will look for another disposal. It should not be assumed that it will automatically be a community order or fine; it may well be a custodial order. I therefore invite the House to support the amendment.

6.45 pm

Lord Mayhew of Twysden: My Lords, it is relevant to point out what the Magistrates' Association has said about this proposal in Clause 10. It has said:

suspended sentence orders—“made since April 2005”, when they were conferred to this extent on magistrates,

We have all expressed our admiration for the magistrates and our belief in the importance of not fettering unnecessarily the discretion of the judiciary—to use a phrase used only an hour ago by the Minister. Surely it is very important to remember that the Magistrates’ Association has said:

Surely that must cause the Government to think again.

Lord Ramsbotham: My Lords, I, too, support the amendment, for another practical reason. I am concerned that there are not enough resources to provide enough community sentences. We have been talking about more and more being put in. To suggest this on top of everything else seems impractical, because I very much doubt that the resources will be available to do as the clause seeks.

Lord Bach: My Lords, let me do my best. To start off with, I remind noble Lords that we are seeking in Clause 10 to remove the rights for summary offences to be dealt with by suspended sentence orders; we are not for a moment trying to remove the right to use suspended sentence orders for either-way offences, let alone indictable offences. We are talking about summary offences only. Let me make clear our premise. The courts are in practice using the new suspended sentence—which came in on 1 April 2005—for substantial numbers of summary cases which would previously have received non-custodial sentences. The courts have made substantial use of the orders since their introduction. There has, however, been no commensurate drop in the use of the immediate custodial sentence. Suspended sentences are therefore not being imposed instead of immediate custody.



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Let me go through the figures. Comparison of the confirmed sentencing figures for all courts for 2006, after the legislation came in, and those for 2004, before it came in, show that the immediate custody rate has remained stable at just under 7 per cent, whereas the usage of suspended sentences has increased from 0.2 per cent in 2004 to 2.4 per cent in 2006. The number of suspended supervision orders has increased from 2,900 to 33,500, 12,700 of which were for summary offences as against 700 in 2004. The figures for the magistrates’ courts alone may be even more significant. A comparison of 2004 and 2006 shows that the immediate custody rate has remained stable at 4 per cent whereas the usage of suspended sentences has increased from 0.1 per cent in 2004 to 1.7 per cent in 2006. The actual numbers increased from 1,300 to 23,300. Some 12,400 of that number were for summary offences, as against 700 in 2004 before the Act came into force. For summary offences sentenced in the magistrates’ courts alone there was a slight drop in the immediate custody rate, from 2.1 per cent to 1.9 per cent. However, the rate of use of suspended sentences shows a much greater increase of 0.1 per cent, to 1.1 per cent.

As I said, we do not believe that that is due to a change in the seriousness of offences. The only explanation offered in Committee was that there had somehow been a sudden increase in the seriousness of offences so that the number of suspended sentences shot up even though the number of those going to prison remained the same. We are not aware of any evidence that there has been a sudden change in the seriousness of offences. It seems to us very unlikely that such a change would coincide exactly with the availability of the new suspended sentence. It also seems implausible that any such increase in seriousness would coincide so exactly with the availability of the new suspended sentence. In fact, use of immediate custody for summary-only offences in the magistrates’ courts has been fairly stable at around 2 per cent for the last 10 years, up to and including 2006, which would appear to argue against an increase in seriousness in recent years.

The implausibility is twofold. First, it seems implausible that an increase in seriousness has occurred specifically to coincide with the introduction of the new suspended sentence. Secondly, it seems implausible that such an increase would manifest itself by moving offences from community disposals to suspended sentence orders, but that no significant proportion of offences would justify a move up to immediate custody.


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