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Those who support the amendment have to say what explanation there can be for these figureswhich are unchallenged, as I understand itother 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,
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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.
A suspended sentence, intuitively, is different from an immediate custodial sentence where the offender has no opportunity to avoid the clanging of the gatesprison. Introducing a freely available suspended sentence, which was intended to be a useful tool to the courts as an alternative to custody, has in factI maintain that the figures show thishad 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 moreI stress moreby 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
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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.]
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 peopleI 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 pastwould 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 problemI accept his argument for a momentby 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?
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
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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 figuresand no one has come up with one yetit 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 usedorder, 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.
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.
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 haveat least, to some degreebenefited 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 someones 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.
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 omittedan 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 Lords amendment and I gather that it is shared by the Government. In the event that the amendment might succeedI do not wish to be pre-emptedI 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.
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