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Those who support the amendment have to say what explanation there can be for these figures—which are unchallenged, as I understand it—other than our explanation, which is that these sentences have been used, not altogether but largely, in place of what would otherwise have been community orders.

We believe it is very much more likely that magistrates have not maintained the previous custody threshold. It is one thing to say that magistrates should go through a simple logical process whereby they simply label an offence as being one side or another of the custodial threshold, in complete isolation from consideration of the sentencing options. I intend no disrespect to any court, let alone magistrates’ courts,

2 Apr 2008 : Column 1093

but we all know that this is a grey area, as the noble and learned Lord the Lord Chief Justice has acknowledged, where a prison sentence might or might not be appropriate for an offender, and with these offenders it is difficult to consider the question in isolation from the available options.

The noble and learned Lord the Lord Chief Justice said on 15 November 2007:

“The seriousness of the offence determines whether it crosses what is known as the ‘custody threshold’, but factors personal to the offender can justify the court in passing a non-custodial sentence even where the custodial threshold is crossed. In practice there is quite a wide border-line area where it is open to the court to choose between sending the offender to prison or dealing with him in some other way. This is particularly true in the case of Magistrates”.

I think that was the point that the noble Lord, Lord Elystan-Morgan, was making.

A suspended sentence, intuitively, is different from an immediate custodial sentence where the offender has no opportunity to avoid the clanging of the gates—prison. Introducing a freely available suspended sentence, which was intended to be a useful tool to the courts as an alternative to custody, has in fact—I maintain that the figures show this—had the unforeseen effect of blurring the level of the custodial threshold.

But in any event, if the suspended sentence is no longer available for summary offences, courts will impose an immediate custodial sentence only in those cases where they are clear that they have no alternative, and in other cases they will use community disposals. Under these circumstances we believe that the custodial threshold is likely to revert to something close to its previous level.

To support the case that I am putting, I pray in aid the fact that the chief executive of NACRO, Paul Cavadino, agreed precisely with the point that I just made. The noble Baroness, Lady Stern, was a director of NACRO for many years. It is a very well respected organisation. In other words, Paul Cavadino should know what is happening. He said:

“Restricting suspended sentences to more serious offences should help to avoid the ‘boomerang’ effect of these sentences which is boosting the prison population. This happens when courts pass suspended prison sentences on offenders who would not otherwise have been jailed and then activate them on top of a new penalty if the offender returns to court”.

Not all suspended sentences are successful, if that is not already obvious. When a suspended sentence is given, in as many as 30 per cent of cases the offender, alas, offends again and is then liable to a longer period of imprisonment for his original offence and for the new offence.

In a newsletter of May 2007 the Sentencing Guidelines Council said that the number of suspended sentences rose steadily between 2004 and 2005, that provisional figures for 2006 show a much more rapid increase and that the information available to the council and the panel appears to indicate that this increase has been accompanied more—I stress “more”—by a reduction in the number of community orders than in the number of custodial sentences. Therefore, having seen the operation of this new change, the Sentencing Guidelines Council

2 Apr 2008 : Column 1094

came to the view that the case we are putting today is more likely to be true than the opposite.

I have spoken to the noble Lord, Lord Dholakia, and told him that I wished to quote from his Second Reading speech. He is a most distinguished Member of your Lordships' House who has gained great expertise in this field over many years. I stress that he was speaking from the Back Benches when he said:

“The Bill provides for the restriction of suspended sentences to indictable offences and those that can be tried either way. There is evidence that courts too often pass suspended sentences where they could have passed a community sentence. Even where courts use the suspended sentence properly to replace an immediate jail sentence, they often fix suspended periods of imprisonment longer than the immediate prison sentence that they would otherwise have passed. If the criminal reoffends and the sentence is activated, the offender is imprisoned for longer than if he had received an immediate prison sentence in the first place. Let us hope that the Bill will at least limit this damage by prohibiting the passing of suspended sentences for minor summary offences”.—[Official Report, 22/01/08; col. 163.]

It is only that which the Government seek to do—to prohibit the passing of suspended sentences for minor, summary offences.

If there is concern about the supervision aspect, I should say that all conditions that can be imposed under a suspended sentence can be imposed under a community order without adverse effect on the prison population. It is our firm belief that if we do not introduce Clause 10, the courts will continue to impose suspended sentence orders where they would previously have used community orders. The results of that, ultimately, would be that around 400 people—I want to be very careful with figures here because there is no way of proving the point as I am referring to the future rather than the past—would end up in prison who would not be there if we remove the suspended sentence for summary-only offences. I have spoken for some time but this is a serious matter. I ask the noble Lord to consider withdrawing the amendment—

Lord Elystan-Morgan: My Lords, bearing in mind the fact that the new provisions have been operating only for a short period, as the Minister said, was any effort made to cure the situation if, in fact, there is a problem—I accept his argument for a moment—by giving strong advice to magistrates? If not, how can the Government say that they do not trust magistrates as regards suspended sentences yet trust them as regards custodial sentences? If they are totally unable to analyse the situation in relation in one area, how are they competent to deal with it in the other?

7 pm

Lord Bach: My Lords, Governments of whatever colour are always extremely careful not to go beyond what they are entitled to do in terms of advising on sentencing. I do not know, I have to say, what approaches have been made to magistrates from the Government in relation to what we feel is happening. But no great criticism of magistrates is intended in anything that I have said or in what the Government intend.

If I am right about the custody threshold being a greyer area than we sometimes like to think when we are debating these points, or a greyer area than what

2 Apr 2008 : Column 1095

the textbooks say, it is hardly surprising that where there is a possibility of a suspended sentence, those who are able to impose one will do so just to try to give a bit more force to their sentence at the time, perhaps to frighten an offender in the best possible way. That is exactly the way that the noble Lord himself used to pass suspended sentences. But if the consequence of suspended sentences is that people come back in large proportions and have to be sent to prison—that is what should happen if a suspended sentence is broken—the problem is that the prison sentence increases, rather than decreases.

I am advised that the magistrates have already received strong advice in sentencing guidelines. That has been pointed out. The statute is clear. But the figures, I am afraid, speak for themselves, and unless there is a better explanation of those figures—and no one has come up with one yet—it would seem that this particular reform of 2003 has not worked.

Lord Kingsland: My Lords, I am most grateful to the Minister, who has characteristically given a full and earnest response to my amendment in his customary way. In fact, I can save myself most of the trouble in winding up, because the noble Lord, Lord Elystan-Morgan, said it all for me in the most telling way in his previous intervention.

The Government can reasonably be accused in a phrase that the noble Lord, Lord Ramsbotham, has often used—“order, counter-order, disorder”. The Government have only recently introduced these changes. They have decided after a very short period that the changes are not working and to reverse rules that they made only a few years ago. Quite apart from the uncertainty of the statistics, the very least that your Lordships’ House can ask of the Government is to give the present system a chance to see whether it could work.

Perhaps I may say, with enormous respect to the noble Lord, that some of the observations that he made about the conduct of magistrates in their courts are rather unfair. Magistrates are bound by the sentencing guidelines. They have to follow them. The sentencing guidelines are crystal clear about the circumstances in which suspended sentences can be applied. Is he suggesting that magistrates are now breaking those rules for some reason? I am sure that he is not, or I am sure that he did not intend to suggest that. The case for our position is quite irrefutable and for those reasons I wish to test the opinion of the House.

7.03 pm

On Question, Whether the said amendment (No. 48) shall be agreed to?

Their Lordships divided: Contents, 147; Not-Contents, 106.

Division No. 2

CONTENTS
Anelay of St Johns, B. [Teller]
Arran, E.
Astor, V.
Attlee, E.
Avebury, L.
Barker, B.
Bell, L.
Bowness, L.


2 Apr 2008 : Column 1096

Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnett, L.
Butler-Sloss, B.
Byford, B.
Carlile of Berriew, L.
Cathcart, E.
Chester, Bp.
Chidgey, L.
Cobbold, L.
Cotter, L.
Craig of Radley, L.
Craigavon, V.
Crickhowell, L.
De Mauley, L.
Dean of Harptree, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Elliott of Morpeth, L.
Elton, L.
Elystan-Morgan, L.
Falkland, V.
Falkner of Margravine, B.
Feldman, L.
Ferrers, E.
Flather, B.
Fookes, B.
Fowler, L.
Fraser of Carmyllie, L.
Freeman, L.
Gardner of Parkes, B.
Geddes, L.
Glenarthur, L.
Goodhart, L.
Goodlad, L.
Goschen, V.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hayhoe, L.
Henley, L.
Hogg, B.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Inglewood, L.
James of Blackheath, L.
Jenkin of Roding, L.
King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Laing of Dunphail, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Leach of Fairford, L.
Lee of Trafford, L.
Lindsay, E.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Luke, L.
McColl of Dulwich, L.
Maclennan of Rogart, L.
McNally, L.
Mancroft, L.
Marland, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Monson, L.
Montgomery of Alamein, V.
Montrose, D.
Morris of Bolton, B.
Neuberger, B.
Noakes, B.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Park of Monmouth, B.
Patten, L.
Pilkington of Oxenford, L.
Plumb, L.
Ramsbotham, L.
Rawlings, B.
Reay, L.
Redesdale, L.
Rees, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Ryder of Wensum, L.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Seccombe, B.
Sharples, B.
Shephard of Northwold, B.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Stern, B.
Stewartby, L.
Stoddart of Swindon, L.
Swinfen, L.
Taylor of Holbeach, L.
Tebbit, L.
Tenby, V.
Thatcher, B.
Thomas of Gresford, L.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trumpington, B.
Tugendhat, L.
Ullswater, V.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Walmsley, B.
Walton of Detchant, L.
Watson of Richmond, L.
Wilcox, B.
Williams of Crosby, B.
Wolfson, L.
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.


2 Apr 2008 : Column 1097

Ashton of Upholland, B. [Lord President.]
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Boyd of Duncansby, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Clark of Windermere, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
D'Souza, B.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
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.
Hilton of Eggardon, B.
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.
Lipsey, L.
Listowel, E.
Lofthouse of Pontefract, L.
Low of Dalston, L.
Macaulay of Bragar, L.
McDonagh, B.
McIntosh of Haringey, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Malloch-Brown, L.
Massey of Darwen, B.
Maxton, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Murphy, B.
O'Neill of Clackmannan, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Prosser, B.
Quin, B.
Richard, L.
Robertson of Port Ellen, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B. [Teller]
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Smith of Finsbury, L.
Soley, L.
Stevens of Kirkwhelpington, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L.
Vadera, B.
Wall of New Barnet, B.
Warner, L.
Watson of Invergowrie, L.
West of Spithead, L.
Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.

7.15 pm

Clause 12 [Restriction on power to make a community order]:

Lord Hunt of Kings Heath moved Amendments Nos. 49 to 51:

Clause 12, page 9, line 5, leave out from “offence” to end of line 10 and insert “(“the current offence”) committed by a person to whom subsection (1) or (1A) applies”.”

Clause 12, page 9, line 12, leave out paragraph (a) and insert—

“(a) for “Subsection (2) applies where” substitute “This subsection applies to the offender if—“(za) the current offence is punishable with imprisonment;”;”

2 Apr 2008 : Column 1098

Clause 12, page 9, line 19, leave out from beginning to end of line 20 and insert—

“(1A) This subsection applies to the offender if—

( ) the current offence is not punishable with imprisonment;”

On Question, amendments agreed to.

Clause 13 [Sentences of imprisonment for public protection]:

The Deputy Speaker (Baroness Gould of Potternewton): My Lords, before I call Amendment No. 52, I have to inform your Lordships that if it is carried, I cannot call Amendment No. 53 for reasons of pre-emption.

Lord Kingsland moved Amendment No. 52:

Clause 13, page 9, leave out lines 41 and 42

The noble Lord said: My Lords, Amendment No. 52 brings us to IPPs, which will also be the subject of later groupings. Before I introduce the amendment, I make it clear to your Lordships that I entirely accept that there is a real problem with IPPs and prison place availability. If you are in prison as a result of receiving an IPP and have served your minimum term, you cannot, as your Lordships well know, get out without having been through a period of rehabilitation and having demonstrated that you have—at least, to some degree—benefited from it.

As we all know, the current situation in prisons is such that it is simply not possible to initiate rehabilitation schemes which meet the requirements of the law. As a result, there is growing frustration among prisoners who have received IPPs about their inability to have the opportunity to improve their lot. The problem is now deeply ingrained in all the associated difficulties of prison resources. Indeed, at the end of the Committee debate, the noble Lord, Lord Neill of Bladen, raised a very interesting question about the compatibility of the current state of prisons with the European Convention on Human Rights. His second point was that, if someone is awarded an IPP, what goes with it is a right to be rehabilitated. If that right is in practice, as he put it, a fiction, is that a denial of someone’s human rights under the convention? That question was posed at the end of Committee and I should be most interested to know whether the Minister has managed to reflect on it between then and now.

Perhaps I may introduce this matter again very briefly, because we had a long debate about it in Committee. As your Lordships are very well aware, the conditions for imposing an IPP are that, first, the crime must be one of 153 specified sexual or violent offences; secondly, the offence must be capable of attracting a sentence of 10 or more years of imprisonment; and, thirdly, the offender must pose a significant risk of causing death or serious injury by the commission of further offences. In such cases, the judge must impose an IPP and the offender must serve a minimum tariff before he can be considered for release; but, as I have already indicated, he can be held in custody for as long as he is considered to pose a threat to public security.

2 Apr 2008 : Column 1099

The most recent figures indicate that at least half of all sentences given for threats to kill, child sex offences and sexual assault resulted in a tariff of less than two years. That means that, if the Government press ahead with their plans, those individuals will not be eligible for IPPs, given that their sentence length would be below the threshold that is to be introduced. I quite understand the convenience to the Government of seeking to legislate in that way, but judges sentence individuals to IPPs because they believe that they are dangerous. The assessment of danger is quite independent of the length of the sentence of imprisonment that judges give for the offence charged. They are not connected but are completely different exercises.

Desirable though it may be to relieve the pressures of the IPP system, it should not be done by undermining the assessment of a judge that a particular person should receive an IPP because he represents a real threat. I repeat, the judge has to undertake two completely different exercises. On the one hand, there is the sentencing exercise and, on the other, the assessment of whether the individual is capable of being a threat to society. This is what we complain of. Whether the tariff is below or above two years, the judge faces exactly the same problem in either case. I beg to move.

Lord Lloyd of Berwick: My Lords, I am in the same difficulty as I was in Committee. If one leaves out proposed new subsection (3B)—the lines which the noble Lord, Lord Kingsland, suggests should be omitted—an indeterminate sentence could be imposed only where an offender has previously committed a very serious offence such as murder or rape, as set out in Schedule 6. There are 22 very serious offences as distinct from the 153 offences set out in the other schedule. The amendment would reduce the number of those for whom an indeterminate sentence would be available. That is my view of the effect of the noble Lord’s amendment and I gather that it is shared by the Government. In the event that the amendment might succeed—I do not wish to be pre-empted—I had better develop my further argument on Amendment No. 53. What is the view of the House? I am giving the noble Lord a chance to say that he does not intend to press his amendment to a Division.

Lord Kingsland: My Lords, I do wish to press my amendment. The noble and learned Lord would, no doubt, not want the purity of his argument corrupted by the contents of my amendment. I respectfully suggest that he holds his fire until the next group of amendments, when he can put his always very welcome thoughts to your Lordships' House.

Baroness Butler-Sloss: My Lords, is it possible to deal with Amendment No. 53 if Amendment No. 52 is passed?

Lord Lloyd of Berwick: My Lords, that is my point.

Baroness Butler-Sloss: My Lords, as I understand it, I do not think that the noble and learned Lord can wait for the next group.

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