Previous Section Back to Table of Contents Lords Hansard Home Page

The noble and learned Lord said: My Lords, at Second Reading, the Minister exercised a very wise discretion in not attempting to explain what Clause 19 is all about. I have read it many times and I am still

2 Apr 2008 : Column 1128

not sure that I understand it. As one does in such circumstances, I turned to the Explanatory Notes, which say that under this clause the judge must distinguish between three things: first, serious offences; secondly, exceptionally serious offences; and, thirdly, offences with,

Those are the very words that one finds on page 38 of the Explanatory Notes, which explain the need for the clause.

The judge is required to identify something which is exceptionally exceptionable, to use a phrase used by Mr Garnier in the other place. When judges are required to do such things, does that not illustrate what a quagmire we have got into when Parliament takes a hand in sentencing? When I became a judge 30 years ago, sentencing was difficult, as it must always be, but at least there was a framework which we could all understand. Now sentencing has become a nightmare: it is a nightmare for counsel; it is a nightmare for judges; and it is a nightmare for which Parliament must take a very large share of the responsibility. Clause 19 is a good example of the kind of nightmare in which we all now get involved.

The purpose of Clause 19, so far as I can ascertain it, is to provide for two types of case which are, on any view, likely to arise only very rarely in practice. I will not attempt to describe them, but leave it to the Minister when he replies. The one thing of which I am absolutely sure is that, by enacting Clause 19, we are only going to make the nightmare worse. We will provide yet more opportunity for judges to slip up—heaven knows there are enough opportunities for that already—and more opportunities for appeals to the Court of Appeal.

When the present Prime Minister was Chancellor of the Exchequer in 1997, his first act was to abandon any attempt to micromanage the rate of interest. He wisely handed that over to the experts at the Bank of England and was much praised for doing so. I respectfully suggest that he now do the same for sentencing. Why does he not accept that the judges are the experts here, guided as they are by the Sentencing Guidelines Council, set up under the 2005 Act, and decisions of the Court of Appeal? Of course, Parliament has a role to play in the broad field of sentencing—there is no doubt about that—but nobody could justify Clause 19 on the ground that it deals with broad grounds of sentencing policy.

The experience of the 2003 Act shows what happens when Parliament tries to micromanage sentencing. It is high time that it showed some abstinence in sentencing, and we should make a start now by throwing out Clause 19. I beg to move.

Baroness Butler-Sloss: My Lords, I strongly support the observations of the noble and learned Lord, Lord Lloyd of Berwick. When I read the clause—I had to read it several times and I still do not really understand it—I heaved two separate sighs of relief: first, that I was not a criminal judge, and secondly, that I had, thank goodness, retired. That is because it is a nightmare, if I may be blunt. There is no need to micromanage the exceptional cases that

2 Apr 2008 : Column 1129

the noble and learned Lord, Lord Lloyd of Berwick, spoke of and every reason to leave this area to the judiciary. The clause should be got rid of as quickly as possible.

Lord Mayhew of Twysden: My Lords, it is quite unnecessary for me to add anything to what the noble and learned Lord, Lord Lloyd of Berwick, has said, but I cannot resist it. We learn from the world of education that examinations have become increasingly a matter of ticking boxes, or not allowing answers to be given in free style. This clause is a product of that kind of culture. It requires the judges to tick boxes when reviewing the ingredients for a sentence. Those ingredients are infinitely variable from case to case and do not lend themselves sensibly to the exercise of ticking boxes. When the Minister winds up, which he will do in about 30 seconds so far as I am concerned, I hope he will identify the deficiency in the current practice of the judges that in the minds of the Government make this clause necessary.

9.30 pm

Lord Thomas of Gresford: My Lords, I associate myself with those remarks. This is labyrinthine, if I can use another metaphor. It can have the result that happened in Cardiff when a Crown Court judge of great experience—the Recorder of Cardiff, who has since been made a High Court judge—followed previous directions of this nature to the letter and was criticised for his sentence by the Home Secretary and, as I recall, the Prime Minister, who simply did not understand the nature of the legislation that their own Government had passed. One can see that so readily happening here when the noble Lord, Lord Hunt, may be called upon in the Ministry of Justice to criticise a judicial decision when somebody is simply following the maze that he is creating.

Lord Hunt of Kings Heath: My Lords, I will not do that because it is not the Ministry of Justice’s intention to do so. Whatever criticism may be made of the Government or my department, my right honourable friend the Lord Chancellor has clearly signalled his intention to work hard to establish the right and proper relationship with the judiciary. Thinking back to his appointment last summer, I do not think there has been one instance when he has criticised the judiciary. That signals the intent.

I gather from noble Lords that they do not like this clause. I recognise that there is the question of what is in the clause and the more general question about judicial discretion. I shall deal with the clause first and then come on to the important question of the right relationship between Parliament and the judiciary, which has been at the heart of a great many of our discussions tonight and during other stages in the Bill.

This clause is designed to give courts wider discretion to set suitably high tariffs for offenders who have received a life sentence for a particularly serious crime. I should emphasise, as other noble Lords have done, that it is intended to apply to exceptional cases

2 Apr 2008 : Column 1130

only rather than to routine life sentences. It will apply where an offender receives a discretionary life sentence; that is to say, any life sentence other than a life sentence imposed for murder under the provisions of the Criminal Justice Act 2003. It will not apply to sentences of imprisonment for public protection; that is to say, indeterminate sentences.

Section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 specifies that when setting tariffs for discretionary life sentences, courts shall take into account the seriousness of the offence, remand time and early release provisions for determinate sentences. There has been concern that that results in a method of calculating the tariff that can undermine public confidence because the courts determine the punishment part or tariff of the life sentence by using the appropriate determinate sentence as a starting point, which is then halved to take account of the fact that an offender with a determinate sentence will be released on parole at the halfway point of the sentence. This exercise in some very serious cases can seem to result in what appear to be disproportionately short tariffs. An example is the case of Sweeney. Sweeney was sentenced to life imprisonment for the offences of kidnap and sexual assault of a child under 13. Following the usual calculation, his tariff amounted to six years.

This clause will mean that where a particularly serious crime has been committed by a person over 18, judges will be able to calculate tariffs without taking into account the parole arrangements that apply to standard determinate sentences. Under the current law they must do so, which means that the final tariff is assessed as half of what the full determinate sentence would be. This clause—the Case A—allows the court to apply some reduction less than 50 per cent or to make no reduction at all, as appropriate in the particular circumstances of an individual case. The Case B element of this clause reflects case law and allows a court to apply a smaller reduction to the tariff, though not less than one-third.

The exceptional cases to which this is relevant have historically been ones where an offender already serving a determinate sentence is sentenced for another offence to an indeterminate sentence. For technical reasons, the tariff of an indeterminate sentence should not run consecutively to the tariff of a determinate sentence, but, for reasons of justice, it may be important to ensure that the later offence will result in the prisoner serving extra time in custody. Case B is simply to maintain case law; it brings nothing new to sentencing practice. It is Case A that introduces the new discretion for exceptionally serious cases. The Government believe that the clause will meet a gap in the current law where the type of sentence that would normally be imposed on a determinate basis would not be adequate.

I fully accept that that refers to cases in exceptional circumstances. I also understand concerns raised by noble Lords that Parliament should not seek to micromanage the performance of the judiciary, in whom we have great confidence or, as the noble and learned Lord, Lord Mayhew, said, go towards a tick-box approach. That is not our intent at all.

2 Apr 2008 : Column 1131

I agree with the noble and learned Lord, Lord Lloyd, when he says that it is Parliament’s duty to accept the broad parameters under which the courts work by legislation and then for the judiciary to have discretion within that framework, and to have regard to judgments given by superior courts and the guidelines issued by the Sentencing Guidelines Council—which, as noble Lords know, is an independent body chaired by the Lord Chief Justice. I also say to the noble and learned Lord that the Sentencing Commission Working Group published its consultation on establishing a structured sentence framework on 31 March. That arose from the Carter recommendations, which suggested that there was a need, in thinking through criminal justice policy in future, to ensure that all the relevant elements were brought together, so that there was consistency of purpose. I am sure that the noble and learned Lord will want to respond to that consultation.

I fully accept that it is one thing for me to stand here and say that I agree with the noble and learned Lord that Parliament should set the broad framework and then we ought to allow the judiciary to get on with the job. He will then point me to legislation that he thinks does not meet the case. Of course there are instances of that. There will be reasons why Parliament seeks to be more precise in certain ways.

It is interesting to look at our various debates so far. By my reckoning, noble Lords have argued against greater judicial discretion in about six or seven cases; whereas, in another five cases, noble Lords have argued for greater judicial discretion. In a sense, that is part of the parliamentary process: we tend to pray in aid whatever argument we can discharge to make the case for the point that we believe in.

Although in general all noble Lords will sign up to increased judicial discretion, clearly, as legislation goes through, there are areas where they say, “On that matter, we do not think that there should be greater judicial discretion. We want to give a clear indication to the judiciary of what they should be doing”. In our debates on youth justice, many noble Lords have been concerned that there is too much judicial discretion. We can see why Parliament is sometimes tempted to fetter the judiciary.

I am not trying to excuse the Government from their responsibility to ensure that there is a proper balance between parliamentary direction and judicial discretion; I am trying to say to the noble and learned Lord that it is often easier said than done. The sentencing framework to which I referred and the consultation that has just been held will, I hope, provide us with a sensible way forward that meets the Government’s needs and those of noble Lords who wish to reinforce the discretion of our excellent judiciary.

Lord Lloyd of Berwick: My Lords, again, I am very grateful to the Minister. I am afraid that even as he read the explanation of the clause, I was not sure that I altogether followed it, but we will all read it again.

Lord Hunt of Kings Heath: My Lords, I certainly offer to write to all noble Lords with a detailed explanation of the clause if that would help.

2 Apr 2008 : Column 1132

Lord Lloyd of Berwick: My Lords, I am sure that the first thing we will want to do is to read in Hansard tomorrow what the Minister said. That may shed some light on it. The mere fact that he has to offer to write to us shows that this is the sort of clause that should not be in legislation. It is intended to cover the appearance of injustice in only one case—the Sweeney case, to which the noble Lord, Lord Thomas of Gresford, referred—where there was no injustice at all because the judge did exactly what Parliament said he must do. It therefore illustrates both aspects of my argument. It is a marvellous example of Parliament interfering where it is not wanted. Parliament is now asked to give judges greater discretion, but the discretion should not have been removed in the first place. It is a very good example of Parliament interfering in such a way as to make the judges’ task even more difficult than it already is. I hope that the clause will be considered for a second time in the Ministry of Justice. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland moved Amendment No. 61:

The noble Lord said: My Lords, after the extremely elevated tone of the previous debate, I almost hesitate to introduce this amendment. Nevertheless, I will introduce it. This is one of a family of issues which the Government advanced, I think, following the report of the noble Lord, Lord Carter of Coles, on Report in another place. I am not going to speculate on the reasons why a number of these measures were introduced; I am simply going to introduce my amendment, which I can do briefly as I did in Committee.

I am asking the Government to insert after Clause 19 the following new clause, entitled, “Increase in maximum term that may be imposed on summary conviction of offence triable either way”. The substance reads:

In other words, all we wish to do is to bring into law a matter which the Government always intended to bring into law as a result of the passage of the Criminal Justice Act 2003. The amendment would in effect implement a clause that originally appeared in the Government’s Act. I am not sure why the Government have not yet implemented this clause.

One of the factors that I think lay behind the Government’s intentions in 2003 was a scheme called custody plus. We know that, for a variety of reasons, it has not been possible to introduce that yet. I would be interested to hear from the Minister what the Government’s intentions were with respect to it. I have no doubt that factors such as resources, finance

2 Apr 2008 : Column 1133

and so forth were part of the problem; but there may be other matters as well on which the Government will wish to dilate.

Quite independently of custody plus, we think that, in itself, the substance of the proposal in the 2003 Act is inherently desirable. I suspect that the Government are trying to walk away from this because they fear that the consequence of it would be more people going to prison. I see no reason why that should be so. Magistrates have a sentencing structure in which to operate. In so far as I have had experience of watching magistrates’ courts in operation, I have no doubt that they will abide by the appropriate guidelines in their sentencing policy. We think that this is an important power for magistrates to have. For that reason, I beg to move.

9.45 pm

Lord Bach: My Lords, I am afraid that our position has not changed since we debated this in Committee. Section 282 of the 2003 Act was designed to enable magistrates’ courts, as the noble Lord implied, to give custody plus sentences in respect of these offences. There has never been any intention to increase the sentencing powers of the magistrates’ courts in this way as a freestanding measure. We have, as noble Lords by now will have gathered, no date for the implementation of custody plus. Let me be frank: it is a question of resources as much as anything else.

As I explained, the increased custody limit would not actually result in any longer period of actual prison time under a custody plus sentence. Magistrates’ courts would be able to impose 13 weeks for one offence, which is the same as the three months’ prison time that they can currently give. We have never espoused the principle that the magistrates’ courts should be able to hand down more actual prison time. It would mean more time for supervision under the custody plus measures.

If Section 282 were to be implemented without the rest of the custody plus legislation—the noble Lord has made it clear that he thinks that there is merit in it in any event—the magistrates’ courts could give 12 months’ actual prison time for one offence. That would be a very substantial increase—a radical change—and an important alteration in our criminal justice institutions and principles. We do not think this is appropriate or necessary. Even at this late hour, perhaps I may pose a question to the noble Lord. What is the maximum total sentence that he is suggesting the magistrate should be able to pass in all, given that there might be consecutive sentences? If the maximum of each one can be 12 months, where does it end without custody plus?

The magistrates’ courts are lay courts, which do a wonderful job. They represent the community, but it has never been their role to deal with the most serious and dangerous offenders, who may require long custodial sentences. On a previous occasion, the noble Lord, Lord Kingsland, argued that it is logical for magistrates’ courts to have increased powers in respect of triable either-way offences, as against summary-only offences. We do not agree. The logical

2 Apr 2008 : Column 1134

position is that magistrates’ courts and the Crown Court have their own areas of expertise, relating to the seriousness of the offending. The point about offences triable either way is that they can span a range of seriousness. At the lower end they are absolutely suitable for magistrates’ courts to deal with and more serious cases are suitable for the Crown Court to deal with.

Anyone who has practised in the criminal courts knows that magistrates’ courts can and do send cases to the Crown Court for sentence if they think that the case is sufficiently serious and falls outside their sentencing powers. We do not believe that it can be argued that the proposed amendment is necessary to ensure that offenders receive their just deserts. As I assured noble Lords in Committee, Clause 53 will ensure that the power to direct is available undiminished under Schedule 3 to the 2003 Act when it is implemented. I hope that the noble Lord will consider withdrawing his amendment.

Lord Kingsland: My Lords, I do not blame him for it, but the Minister was extremely blunt in his opening sentence when he said that he had absolutely no intention of accepting my amendment. It may seem a minor matter when compared with many others that we have debated today, but we consider it to be an extremely important amendment. Given the unremitting way in which the Minister has responded, I wish to test the opinion of the House.

9.50 pm

On Question, Whether the said amendment (No. 61) shall be agreed to?

Their Lordships divided: Contents, 25; Not-Contents, 61.

Division No. 4


Bottomley of Nettlestone, B.
Bridgeman, V.
Dundee, E.
Geddes, L.
Hamilton of Epsom, L.
Henley, L.
Howe of Aberavon, L.
Inglewood, L.
King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Mancroft, L.
Marland, L.
Mayhew of Twysden, L.
Montrose, D.
Morris of Bolton, B. [Teller]
Norton of Louth, L.
O'Cathain, B.
Seccombe, B. [Teller]
Sheikh, L.
Stevens of Ludgate, L.
Taylor of Holbeach, L.
Verma, B.
Waddington, L.
Wilcox, B.


Addington, L.
Adonis, L.
Bach, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Bilston, L.
Boyd of Duncansby, L.
Brett, L.
Brooke of Alverthorpe, L.
Butler-Sloss, B.
Cotter, L.
Craigavon, V.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dixon, L.
Donoughue, L.
Dubs, L.
Evans of Parkside, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ford, B.
Gibson of Market Rasen, B.
Gould of Potternewton, B.
Hilton of Eggardon, B.

2 Apr 2008 : Column 1135

Howe of Idlicote, B.
Hoyle, L.
Hunt of Kings Heath, L.
Next Section Back to Table of Contents Lords Hansard Home Page