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Lord Henley: My Lords, I thank the noble and learned Baroness the Attorney-General for introducing the order. I join with her comments about the public concern over knife crime, particularly following the murder of Ben Kinsella and many others over the past few years. It is a growing problem and it is right that we should look at it and address it. I, too, offer our condolences to the families who have lost relations as a result of this growing problem.
As the noble and learned Baroness is aware, my honourable friend David Burrowes in another place expressed his general support for this measure when it was debated there on 12 January. I therefore need not repeat everything he said on that occasion. However, I wish to deal with a number of concerns that have since arisen.
The first concern, which the noble and learned Baroness quite rightly addressed, is the question of the definition of a knife or other weapon. As she put it, it is the intention that makes an object a weapon rather than its intrinsic nature. We all know what a knife is; the other weapon becomes a weapon if there is an intention to use it as such. Therefore a baseball bat-even a cricket bat, dare I say it, in England-or a screwdriver could become a weapon if there was an intention to use it as such. Similarly, although a knife is quite obviously a weapon, there are many legitimate occasions when people can carry knives. As often as not there is a small Swiss Army knife in my briefcase. In the old days it would be there to take stones out of horses' shoes-we all had knives with a long implement
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I also accept that the position with firearms-which has a 30-year minimum rather than a 25-year minimum-is very different. Again, as the noble and learned Baroness put it, it is quite difficult to go out accidentally with a firearm. The noble and learned Baroness referred to the need for premeditation: one could argue that there is premeditation merely in having a firearm on one's presence, or there is at least a certain recklessness that gets quite close to premeditation in carrying a weapon. I am satisfied with what she has said about that.
My honourable friend's second question was about increasing the figure to 25 years for those aged 18 and upwards and leaving the figure for those under 18 at 12 years. We are beginning to get something of a discrepancy: it was 12 years and 15 years; it is now 12 years and 25 years with the break at 18, whereas, if I understand the noble and learned Baroness correctly-she will tell me if I am wrong-it used to be at 21. I shall be grateful for her comments on that. That will create a big discrepancy and the Government might want to look in future at whether it might not be appropriate to raise that figure for the under-18s. There will be occasions when two people-one just under 18 and one just over 18-will offend together and very different sentences will be prescribed as a result of this discrepancy.
The third point on which I would like further comment relates to the concerns of the Lord Chief Justice. When he was speaking on behalf of the Sentencing Guidelines Council he thought that there were other ways in which this matter could be addressed rather than by simply increasing the minimum. Having said that, we on these Benches are satisfied that this is the right way ahead. I would be grateful if the noble and learned Baroness will address those points when she replies.
Lord Wallace of Tankerness: My Lords, I, too, thank the noble and learned Baroness the Attorney-General for introducing the order and for indicating the underlying thinking behind the Government's intention. It is widely recognised that murder is one of the most heinous of crimes, and nothing I say in the debate will detract from that, nor from the sympathy that is due to the families of victims. I concur with both the noble and learned Baroness and the noble Lord in expressing our deepest sympathy to them. This order can perhaps be traced back to the senseless and brutal murder of Ben Kinsella, whose family's loss continues, as does our sympathy for them.
I also share with the noble and learned Baroness her expression that the courts should ultimately be free to determine the minimum sentence by taking into account all the factors and that we are debating
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However, as is clear from the order and as the noble and learned Baroness has said, the order does not affect kids because the starting point for those under 18 will still be 12 years even after the order comes into force. It will do nothing for kids.
If, as the Attorney-General said, a mature 17 year-old uses a knife with premeditation, the circumstances may be such that the end point could be the court determining a sentence which is not far distant from that for an adult. However, that could happen at the present time without the need for the order, which does not affect anyone who is 17 years of age.
I sometimes fear that there is a gulf between the kind of rhetoric that the Justice Secretary used in announcing this order and the reality-that it will not have the impact that he claimed-which may be what leads to public cynicism about our political process. I am also sceptical about whether it achieves what the Government claim that it will achieve. Will it indeed be effective in tackling knife crime or, more specifically, murders involving knives? As we have heard, the Government were required to consult both the Sentencing Guidelines Council and the senior judiciary. Responses from those two sources show that that scepticism is somewhat shared. In its response, the Sentencing Guidelines Council made the point that I have already made: that this measure will not deal with public concern about kids carrying knives, and that the need to increase the severity of sentences is well recognised by the courts where the,
The noble Lord, Lord Henley, talked about the use of a knife and definition of a knife-a point raised specifically by the SGC-and the word "weapon". It may be too easy for the Government to say, as they do in the Explanatory Memorandum, that the ordinary English usage will determine it, because there could be circumstances when a screwdriver is not deemed to be a weapon. I think that carrying a baseball bat would certainly involve that, but what about a pair of nail scissors, which could be turned into a weapon? Then you get occasions, which by all accounts are relatively common in violent situations involving gangs of youths, when a bottle which has been used with the intention
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My concern would be that you could reach the stage, which the Sentencing Guidelines Council warns against, where there is inconsistency, with some cases being considered to fall within the ambit of this order and others not. It is the inconsistency and lack of clarity that the Government have said that they want to try to get away from, but it might actually be made worse or imported by this order.
However, we are not given any indication as to what the Lord Chief Justice said in his response. As my colleague Paul Holmes said in Committee in another place, the office of the Lord Chief Justice was approached to try and ascertain what kind of response he made. It is only fair to say that the information that we got suggested that there was scepticism on his part and the part of the senior judiciary about the merit and efficacy of this measure. Gun and knife crime cannot be directly compared, because guns are often associated with multiple killings and serious organised crime, whereas knives can be available in many ordinary domestic settings. There is little deterrent effect from the proposed change-that was another view expressed-and judges already take the use of a knife into account as an aggravating factor when coming to a decision as to the appropriate starting point.
If both the Sentencing Guidelines Council and the Lord Chief Justice have cast doubt on whether the measure will have the effect intended and claimed by the Government, it might be useful for the noble and learned Baroness to indicate what the Government heard from the Lord Chief Justice and how they respond to the specific concerns that he appears to have raised.
I apologise for bringing up what may seem to be legal niceties, but that is what we are here to do. The Minister made things clear in her introduction, and the Explanatory Memorandum refers to an offender aged 18 or over who takes a knife or other weapon to the scene of the crime, with the intention of using it to commit any offence. However, sub-paragraph (2) of new paragraph 5A, which is to be added to Schedule 21 to the Criminal Justice Act 2003, states:
It does not state, "intending to commit any offence with that knife". As I interpret it-I may be totally wrong, and I welcome assurance that I have got it wrong-the offender could have taken a knife to the scene of a crime intending to commit a crime of a non-violent nature. At it stands, if something happened and the knife was used, that would bring the offender
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I thank the noble and learned Baroness for her explanation of the costs given by the Government's estimate and by the Sentencing Guidelines Council. It is helpful to have that on the record. The government figure used in the Explanatory Memorandum-about £11 million-is an annual average over a 45-year period, but we should be talking about a 30-year period, because none of it will kick in until the first 15 years have expired. The figure of £11 million will probably be closer to £16.5 million after the first 15 years.
Given the objective of this order, one of the most important points is that the Government accept that the important issue in trying to tackle knife crime and murders involving knifes is the fear of being caught. I believe that is the greater deterrent. Paragraph 3.9 of the evidence base attached to the Explanatory Memorandum states:
"A key factor for the prospective offender is the probability of detection. Knives are relatively easy to conceal and dispose of. Given the detection of gun crime is higher than knife crime, the incentive to use a knife rather than a firearm may be significant. Similarly, where the costs of acquiring weapons may have a significant impact, the ready availability of knives and other sharp objects means that acquiring these is relatively easy compared to other weapons e.g. guns".
I do not dispute the factual nature of that, but it indicates that the Government accept that the fear of being caught is a key factor. You cannot punish unless you catch, so perhaps the focus is wrong. The focus should be on detection because only then can punishment come into effect. I am somewhat sceptical that the young thugs who commit these crimes do the cost-benefit analysis suggested by the Explanatory Memorandum.
I have far more experience north of the border than south of it. Knife crime is a serious problem in Scotland and is usually combined with drink. The usual explanation, which by no means mitigates the crime, is that young people-young men in particular-take knives with them because they know that others are out with knives, and it might be that they will need a knife for self-defence. That is not a cost-benefit analysis; it is a culture that we have to tackle. The important thing is trying to find ways in which detection can be more effective.
I conclude by drawing attention, as did my colleague Paul Holmes in another place, to the so-called Cardiff model, based on the work of Professor Jonathan Shepherd, who is chairman of the violent crime task group of the Cardiff Community Safety Partnership. He took casework from the accident and emergency unit in a hospital in Cardiff, because he found out that many of the cases that he
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Interestingly, in Cardiff since 2002, when I understand this project started, overall accident and emergency violence-related attendances have been reduced by 40 per cent. Cardiff moved from mid-table to being the safest city in a Home Office list of 15 similar cities. The Home Secretary, Mr Alan Johnson, asked for a report on this in October 2007. What has been done to disseminate what would appear, on the surface, to be the good and effective practice that was covered in that report? I acknowledge that the Government have deployed several measures, engaging with the police in more visible policing, but there would appear to be something worthwhile there.
"There are 150 hospital trusts with emergency departments in England. Of the 123 that have replied, just 20 per cent are co-operating with their local police force in providing Cardiff-style data. Nearly four out of five are not helping the police".
My final plea to the Minister would be for some assurance that that kind of effective policing can be taken forward. It is a far more effective way of tackling the outrage of knife crime and murder by knives than the provisions that we have in this order.
Lord Elystan-Morgan: I join noble Lords in congratulating the Minister on this initiative and the clarity with which she explained its content. I also join in the condolences to those who have suffered in consequence of murder.
I regard the 2003 Act, brought about by the decision of the House of Lords in Anderson v Home Secretary, as one of the wisest developments of the past decade in the law of murder. I regard it as a failure that we have not somehow been able to partition the punishment for murder into those areas which require proper partitioning, rather than having a blanket overall punishment. This is not levelled at this Government alone. I am not the first nor, I am sure, the last to make those comments. It is entirely proper that one should set a high penalty, at a starting point of 25 years, for the use of a knife in bringing about murder.
Having said that, I am somewhat intrigued by the wording-which is, I think, the same as that quoted by the noble and learned Baroness-that appears at paragraph 7.1 of the Explanatory Memorandum and explains the scope of this measure,
The scope of that can be considerable. If the intention is to deal with a situation where a person uses a knife intending to cause grievous bodily harm or to kill, I can well understand it. Those are the two areas of mens rea relevant to murder. I could also well understand it if with "knife" one said ejusdem generis, that is, "or similar weapon". However, the trouble with using just the word "weapon" is that a person might have a relatively innocuous weapon that is intended to be used for a relatively innocuous purpose-for example, for no more than joining in an affray. If some of the wording is left as wide as that, it seems to me that there will be difficulties. Having said that, I have little doubt that the discretion of a wise and sensible judge would cure practically all these difficulties.
Lord Jones: My Lords, I support the order and thank my noble and learned friend the Attorney-General for her exposition. In the context of this debate, are figures available for, say, 2008, if not for 2009, regarding the level of knife crime? If such figures are available, would it be possible to know how many people over the age of 21 committed such crimes, as well as those in the age brackets 18 to 20 and 12 to 18? That might help us better understand the context of the debate.
Baroness Scotland of Asthal: My Lords, I shall deal with my noble friend's last point first. I do not have those figures with me today, and I am not sure whether we have the precise data. My noble friend asks for a breakdown according to age, but I am not confident that we have those figures. However, I certainly take his point and undertake to ensure that he receives them if they are available.
I turn to the issue that the noble Lords, Lord Wallace and Lord Henley, raised in relation to the court's position. I understand that, on the face of it, there appears to be some minor difference, but I do not think that the views of the Sentencing Guidelines Council or, indeed, the judiciary depart very much from those of the Government. The council and the Government share the view that has been expressed in this Room; namely, that knife crime is a very serious offence and it needs to be dealt with robustly. As noble Lords will know, the courts have not hesitated to do so, particularly where it is clear that an individual has used a knife with the intention of causing harm. Therefore, agreement in relation to those matters appears to be solidly based.
The Sentencing Guidelines Council's response highlighted a number of issues. With regard to the law on murder using a knife, it highlighted that seriousness is normally related to the circumstances of the offence; for example, premeditation rather than simply the method used is important. We listened very carefully to that point. We also took on board the view that the council expressed about intention. Your Lordships will see that the provision that we have brought forward is focused on the intent of the individual, because that is what will determine whether the higher starting point is merited. Someone may take a knife, a bat or a weapon of some sort with them to commit a burglary. If they took that weapon with them to commit a criminal offence-they did not find it there, they did not just come across it and it was not used in the heat of the moment-and they then used it to kill, then the judge, exercising his or her discretion would be entitled to start at the higher starting point. Your Lordships know that it does not stop there because the court is entitled to take into account mitigating features that might cause it to reduce it significantly or aggravating features that might cause it to go higher. We have created clarity that when you commit a premeditated offence and where there is the intention to take a weapon with you for use in the commission of a criminal offence, the court is entitled to make a judgment on whether that is appropriate.
The noble Lord, Lord Wallace, and, I think, the noble Lord, Lord Henley, asked about the discrepancy between the 17 year-old and the 18 year-old. We come right back to intention, circumstances and consequence because the court can take into account the maturity of the 17 year-old and is entitled to take into account the maturity of the 18 year-old. Noble Lords will know that age is not always the determining factor of maturity. My right honourable friend the Secretary of State for Justice talked about "kids". Your Lordships will know that many of us who have reached a certain age still talk of anyone under 30 as a kid. One can be forgiven a certain looseness of tongue that may not necessarily detract from the maturity that some individuals have at 18.
It is important for us to look at it in the round and say that Parliament is putting down a marker or a starting point, but no more. I absolutely agree with the noble Lord, Lord Wallace, about the wonderful work that has been done by Professor Shepherd in Cardiff. Not only has Professor Shepherd looked at knives, he has also done a huge amount of work on domestic violence and has been instrumental in helping us to collate information across health, so that we are now making an appreciable difference. I agree that one cannot look simply at this legislative provision. We must look at what we are doing on family intervention projects, safer school partnerships, neighbourhood policing teams, community prosecutors, the triaging that we are now-I hope-giving to victims and offenders to identify what risks there are for them and how we can intervene in their behaviour, and the work done on domestic violence. That work has made a significant impact. If we look at the causes why some of the young people that the noble Lord, Lord Wallace,
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The Committee should know that we have, together, done a great deal; I am talking about statutory, non-statutory and not-for-profit agencies and individuals. On domestic violence, Sylvia Walby's research, which was used in part by Professor Shepherd, said that it cost us £23 billion in 2003. Her most recent research shows a reduction of £7.5 billion, so I take on board everything that the noble Lord, Lord Wallace, said about that and assure him that Professor Shepherd's work is being used extensively. He has participated in the Tackling Knives Action Programme that encompasses a range of police forces across England and Wales. Fifteen force areas, plus the British Transport Police, are now targeting over £5 million this year on tackling teenage crime.
We are focusing very hard on prevention; we are working with retailers nationwide to prevent the sale of knives to under-18s and have given teachers new powers to search for knives at school. That goes hand in hand with educational work to convince teenagers that carrying a knife does not make them safer and actually puts them in more danger. South Wales is part of the Tackling Knives Action Programme and probably has the best practice. It has been identified by the Home Office under that programme. I hope that I have said enough to reassure the noble Lord that we are right alongside him when it comes to that issue.
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