Committee (7th Day) (Continued)
Clause 104 : Sentencing Council for England and Wales
187A: Clause 104, page 64, line 7, at end insert—
“( ) The purpose of the Council shall be—
(a) to issue guidance to sentencers, having particular regard to the effectiveness of each form of sentence in reducing re-offending;(b) to gather and provide information and statistics for monitoring—(i) compliance with sentencing guidance, planning and policy development; and(ii) the attitudes of sentencers and the public to the guidelines; and(c) to inform, consult and engage with the public on penal issues.”
Having not yet spoken on this Bill and not having been present earlier due to my flight being delayed, I hope that the Committee will bear with my saying for the record how desperately sad and sorry we are at the loss of Lord Kingsland. He is a huge loss to this House. I admired him hugely for his expertise, knowledge and skill. I will also miss him very much as a friend.
We have reached Part 4, a small but none the less very important part of the Bill concerning the sentencing council. I will speak to the four amendments in this group collectively. Amendment 187A states what the overarching purposes of the sentencing council should be. This is a very important and necessary part of the process of defining and giving a framework and context to the role of the new sentencing council proposed in the Bill. The aim of the amendment is to clarify what the council is for, what it is meant to achieve and how this will be arrived at.
I welcome these proposals, albeit with some important amendments which I hope will commend themselves to the Government. I see them as representing an opportunity to take forward through the council the delivery of criminal justice in this country in an improved and perhaps more creative way. No body or organisation takes decisions in a vacuum. This is as true for sentencers as for anyone else. Their job is extraordinarily difficult, hugely important as their decisions can change lives, and is often a lonely one. Knowledge of the law, skill and experience are the tools, but it is now generally accepted that it is necessary for there to be a broad framework within which sentencers of all descriptions interpret the law as laid down by Parliament before making their decisions according to the facts of the cases before them.
As the Explanatory Notes claim, the framework should therefore provide for,
“a more consistent and transparent sentencing framework”.
The exponential rise in the use of custody to unacceptable levels over the past 10 years or so against a background of falling crime rates and virtually unchanged numbers of people being sentenced by the courts has led to the need for a strategy to address the problems of prison overuse and sentencing disparity. Almost most important of all, it is the issue of public perceptions of and lack of confidence in our criminal justice system, as represented by the sentencing decisions being made, that must be addressed.
I suggest that the council should have three distinct functions. They follow a model drawn up originally in New Zealand but which never left the drawing board as a new Government came in. Now it has been developed in a report for the Prison Reform Trust by Mike Hough and Jessica Jacobson, on which this amendment is based. The three functions of the council are set out in the amendment and would achieve two key objectives. The first is greater consistency and stability in sentencing practice, thereby ideally preventing any further upward drift in sentencing severity. The second is to reduce the politicisation of sentencing policy and practice. These objectives are interdependent because the stability of sentencing practice depends on the reduction in the temperature of political and public debate on sentencing, which would in turn relieve pressure on the courts.
The first function, in proposed new paragraph (a), is,
“to issue guidance … having particular regard to the effectiveness of each form of sentencing in reducing re-offending”.
In my Second Reading speech, I indicated that I would come back to the reduction of reoffending being one of the key performance indicators, if you like, of the way sentencing as a whole works. Thus the overarching purpose should be that sentencing reduces offending or reoffending, which is the ultimate test of both its effectiveness—another key element—and the extent to which our criminal justice system is getting it right. This really should be on the face of the Bill.
There is much in the Bill about guidelines but not enough emphasis on effectiveness. Indeed, there is a plethora of evidence of what is effective in reducing reoffending, most obviously community sentences as opposed to custody, restorative justice, residential drug and alcohol treatment, specialist mental health provision, and small localised units around the country, to name but a few—and all well known to criminal justice practitioners in the community. Effectiveness in reducing reoffending means a better protected public; victims at the heart of the criminal justice system, because there will be fewer; and the best possible use of public resources. Instead, the reality is the deeply serious problem of our use—more our overuse—of prison and the less effective response whereby we outstrip any other European country with all the damage caused by overcrowding, and the cost, both economic and social.
Today figures show that sentencers are more likely to pass custodial sentences than ever before, and that when they do they sentence for longer, in the Crown Court in particular, although that is no longer so true in the magistrates’ courts. The steady flood of new legislation in the last 10 years or so has contributed significantly to the current situation, including most obviously the increase in mandatory sentencing and specific new sentences such as IPPs—they will be discussed later in the Bill—and the suspended sentence, both of which have been used far more frequently than was ever predicted. That is coupled with a more risk-averse Parole Board, the rise in recalls following breach and prison being more likely to be used for breach of community orders. Everyone has become more risk averse, as they see it, and all that despite the relative ineffectiveness because reoffending rates following custody average about 50 per cent but can get as high as 80 per cent for very young prisoners, while with community penalties reoffending rates are around the 37 per cent mark and in many cases are much lower. Furthermore, the general public have shown from countless polls and studies that they do not favour the so-called tough approach, namely the use of custody, when they have the facts.
If the stated purpose of reducing reoffending through effective sentencing was implemented, custody would remain—as it should be and as government policy states—the sanction of last resort for those dangerous, violent and prolific offenders from whom we need to protect the public, and for whom there really is a chance that prison, over a longer period, could achieve positive outcomes. That is what prison is for.
Paragraph (b) of my amendment on the purpose of the council is,
“to gather and provide information and statistics”,
whereby monitoring and compliance with the guidelines can be tracked. Despite the significant amount of information in the annual Ministry of Justice sentencing statistics publication for England and Wales, showing sentencing patterns, there is no information at all on the degree of judicial compliance with the guidelines. No one has any idea to what extent they are being followed, or with what outcomes. Indeed, the Prison Reform Trust points out that most sentencing commissions have a duty to collect analysed and published statistical information. Therefore, our lack of knowledge of judicial compliance is a weakness, and there is no way of knowing what impact any given guideline has on prison capacity.
The practical implication of this part of the amendment is that judges will have an added chore at the end of the case, or the day, to fill in a form giving this information. However, this can be designed to be minimally tiresome and is very important in terms of the information that it can give. Its justification is that the information is hugely important if the attitudes of sentencers and the public are to be better understood. If these basic statistics were available, they would also make it possible to obtain an idea of the extent to which disposals were indeed achieving the goal of reducing reoffending. It would identify guidelines which secure high levels of compliance and those which do not. Where compliance is low, this might indicate either a need to adjust the guidance or the practice, which, in turn, would feed into the guidance issued by the council. The ultimate aim would be to bring guidance and practice into alignment by a process of mutual accommodation. Essentially, it would be a flexible and responsive process that was adaptable to the needs of all concerned.
Ever since the SPA and the SGC were established, sentencers—the people who actually do the business—have not been canvassed systematically on the use and impact of the guidance. It would be extremely helpful if the council was able to conduct original research and periodically survey the opinions of the judiciary for the future. Therefore, it is proposed in the amendment that the council should have the capacity to commission research into other aspects of the sentencing process. This, in turn, would feed into the developments of sentencing guidelines, as is suggested by our Amendment 188B. It is intended that statistics could not only be compiled, but provide a core of knowledge to inform policy and future development, whereby the system could become much more responsive and transparent over time, as it is intended.
Finally, the most innovative element of the amendment is paragraph (c), which states that the council’s purpose will be,
“to inform, consult and engage with the public”,
on its role. I shall return to this issue later in the Bill, but I refer to it now, as it is part of the amendment. There is so much lack of information, or so much misinformation, given to the public through the media. A sentencing council that was a source of authoritative, trusted and accessible information could do so much to redress the balance and, in so doing, create a more constructive climate of public debate on penal issues. In the mean time, until I come to it again, I simply re-emphasise the importance of all three elements of guidance, research and engagement being spelt out as the core purposes of the council. I beg to move.
I say at once that the noble Baroness has expressed sentiments in relation to the late Lord Kingsland which I obviously share. I think that it does no harm at all that, in addition to the major and significant tributes paid earlier this afternoon, in the course of a Bill on criminal law we should especially remember the contribution that he made over many, many years on, as the Opposition would no doubt point out, many, many Bills also dealing with criminal law.
I also share the general view of the noble Baroness, Lady Linklater, that at the very beginning of Part 4, which for the first time in the Bill deals with sentencing, one wants to have an expression of the purposes of the sentencing council for England and Wales, which is set up under the Bill. I make that as a general point. One often finds Bills announcing the setting up of a new body and it takes a considerable amount of foraging about in the Bill before one finds out what the new body is supposed to do. It may be obvious to some extent—this is a sentencing council—but it is not entirely obvious, and I am glad that the amendment refers not only to sentencing with special regard to reducing reoffending but to the other issues mentioned in proposed new paragraphs (b) and (c). I welcome that.
It is most helpful that the amendment has been brought forward but I have a question for the noble Baroness. Has she adequately taken into account existing Clauses 114 and 115, which deal respectively with monitoring and promoting awareness of sentencing matters? Much of what she referred to in terms of informing, consulting and engaging with the public on penal issues assists the public’s awareness of sentencing matters. I know that she must be aware of those clauses because she, together with the noble Lord, Lord Thomas of Gresford, has tabled an amendment to one of them, but how does that relate to this issue? However, I do not want that question to spoil my main view, which is that the purposes of the council should certainly be spelt out right at the beginning of Part 4.
The noble Lord makes a very fair point. I feel that there are recurring themes. Rather like doing a piece of knitting, you come back to the same stitch; you do a kind of backstitch and there it is again. The amendment may not add very much more but I think that it makes the argument coherent at this point.
I am grateful to the noble Baroness, Lady Linklater, and to the noble Lord, Lord Thomas of Gresford, for tabling Amendment 187A and the other amendments in this group, which, as the noble Lord, Lord Borrie, said, permit us to have a discussion about what sort of sentencing council we should have and what its priorities should be.
It is clear from clauses in the Bill that we shall come on to that the main function of the council will be to produce and police the application of sentencing guidelines. This group of amendments gives us the opportunity to consider, albeit briefly, a sentencing council with a slightly different emphasis—a council that has a remit to look at sentencing and the effects of sentencing; to study and report on sentencing generally; to look perhaps at matters such as why sentences in England and Wales are much longer than those passed in general in western Europe; to enter into a range of activities to enable the public to be better engaged in what sentences can achieve and the processes by which a sentence is arrived at by a sentencer; and to be a research, consultative, advisory and educational body, following the model of the body in the state of Victoria in Australia.
An example of the sort of work such a body might do is the study commissioned by the Sentencing Advisory Panel called Public Attitudes to the Principles of Sentencing, published last month. The research examines public attitudes to a number of issues: the purposes of sentencing; the impact of common aggravating and mitigating factors relating to the offence and the offender; and whether the relative costs of custodial and non-custodial sentences should impact on the sentence chosen. The findings of that study are of some interest and relevance to this debate, and I shall refer to just some of them.
In brief, the public see different objectives applying to serious crimes from those that should apply to less serious crimes, which is a common-sense, expected approach. The public are more concerned with the objectives of punishment and deterrence when considering the sentencing of serious crimes of violence. But support for rehabilitating offenders is high, even for those convicted of serious crimes of violence. I am sure that that will be welcomed. A big majority believed that use of a weapon increased the seriousness of an offence. Only a minority thought that theft from the state was more serious than theft from an individual. Where the victim was vulnerable the offence was seen as more serious.
Particularly interesting is the finding that when the survey respondents were asked to consider examples of burglary, assault and fraud, and asked whether all, almost all, most, only some or no offenders convicted of these crimes should be imprisoned, the public did not see these offences as either always requiring custody or never requiring custody. It seems that the public are very flexible and are prepared to say that it all depends. However, the researchers conclude that people take the view that the decision to imprison should be affected by many aggravating and mitigating factors, not simply the nature of the offence.
The research also found, as the noble Baroness, Lady Linklater, has already suggested, that people are misinformed about the extent to which the courts use custody, and their perspectives on sentencing are shaped by the mistaken belief that the courts are lenient. It concluded that any attempt to accommodate public opinion on sentencing principles will achieve little until these misperceptions about current practice are addressed.
The research seems to suggest two things. First, there is a considerable job to be done in informing the public about the actual levels of sentencing. Secondly, the public appreciate that sentencing is complex, that many factors about the person and the situation should be taken into account, and therefore, that prescription and rigidity are not the pathway to justice. This is useful research and, as far as I know, it is the most detailed that we have on the subject.
The document produced by the Sentencing Commission working group called, A Summary of Responses to the Consultation Paper suggests that there is considerable opposition among the judiciary and magistrates to the proposal to strengthen the force of the guidelines and much support for the view that they should be advisory at most. How far sentencing can be reduced to a formula and how far it is an exercise involving a complex weighing-up of many ethical considerations of culpability and the interests of the victims and the wider society can perhaps be seen in the case of Schumann. Angela Schumann was jailed for 18 months after jumping from the Humber Bridge with her young daughter in her arms in a suicide attempt, which they survived. She then pleaded guilty to attempted murder and, as I said, was jailed for 18 months.
Allowing her appeal against the prison sentence, the noble and learned Lord, Lord Phillips, who was Lord Chief Justice at the time, said:
“We have asked ourselves, is it really necessary or was it really necessary to send this unhappy woman to prison to punish her for the momentary aberration which led her to try and take her own and her child's life? ... There is one word that you will not read in the sentencing guidelines and that is ‘mercy’... There are occasions where the court can put the guidelines and authorities on one side and apply mercy instead”.
In so far as the amendments move away from the model of the sentencing council that the Government are proposing and suggest that we would benefit from something with much broader concerns, they are welcome. I can see great advantages in a body with a broader consultative and educational remit, and very few advantages, if any, in most of the proposals in subsequent clauses.
I end by pointing out that when countries establish bodies such as the Sentencing Guidelines Council, their prison populations always rise. With our high use of prison already, it is worth thinking about whether that is the path to follow. It seems perhaps appropriate this evening to end by citing what Lord Kingsland said at Second Reading. He said:
“what worries me about all this is that judges are increasingly seen—if I may put it bluntly—as civil servants. They are not seen as independent under the throne, as they ought to be viewed constitutionally. The constraining of their discretion in the Bill is at least one and possibly two steps too far.”—[Official Report, 18/5/09; col. 1213.]
I support the amendment. I especially support the speech just made by the noble Baroness, Lady Stern, and the important point that a sentencing council should be advisory, rather than in some senses intimidating and certainly, if not carefully arranged, leaning on the judiciary. Clearly, it is important to have advice. All sentencers require it.
I am very attracted by the wording of the amendment tabled by the noble Baroness, Lady Linklater, because it emphasises three separate matters. With all three, I entirely agree, but I am especially attracted by new paragraphs (b) and (c). It is extremely important that the effectiveness of sentencing is monitored, that research is done—especially research to see the extent to which prison is really working and the extent to which young people, especially those aged under 18, get the right approach from the courts and from those who are taking them to the courts.
I am also really attracted by the provision in new paragraph (c) about informing, consulting and engaging with the public on penal issues. That seems highly desirable. I give just one instance. The public are very punitive about young people. The public often see children and young people as evil rather than as children who may have had very bad backgrounds that have caused them to behave in a way that is totally unacceptable to the public. If the council were to “inform and engage” with the public on penal issues, a great deal of good could be done in the public perception, fuelled as it is by the press, especially the popular press, of the offences of some children. Some children are bad and have no good reason to be behaving as they do. Others have considerable mitigating reasons for their offending. It is extremely important that the sentencing council should have that really very valuable role, and, if I may respectfully say so, I commend the noble Baroness, Lady Linklater, for this amendment. As the noble Lord, Lord Borrie, has said, the amendment cuts across Clauses 113 to 115, and I boldly suggest to the Minister that it would be very useful at the beginning of this part of the Bill. Almost everything else in Clauses 113 to 115, if really needed, could most usefully go into guidance and not be part of primary legislation.
I will add a few brief words to this debate. First, I thank the noble Baroness, Lady Linklater, for her very kind words about my late friend Lord Kingsland, which were echoed by the noble Lord, Lord Borrie, and put into very useful terms by the noble Baroness, Lady Stern, when she quoted my late friend at Second Reading talking about judges being seen as mere civil servants and not as independent lions under the throne, or whatever the expression was—I am trying to remember it from my days doing the Bar exams. Certainly they had that independence.
I am also very interested in everything that the noble Baroness, Lady Linklater, had to say about Amendment 187A as she took us through it and about what the purposes of the council could be. Similarly, I agree with the noble and learned Baroness, Lady Butler-Sloss, that purpose clauses can be very useful on certain occasions and can often lead to us being able to delete other parts of the Bill. I am a great one for deleting other parts of Bills, as the noble Lord, Lord Borrie, is on some occasions. On this occasion, he suggested that Clauses 114 and 115 would become unnecessary to some extent if the purpose clause suggested by the noble Baroness’s amendment was put in.
At this stage, having said that I was interested in what the noble Baroness had to say particularly about reoffending, which is almost our best guide to whether prison is working, I will be very interested to hear whether the Government think there is some merit in having what amounts to a purpose clause immediately after Clause 104, which says simply:
“There is to be a Sentencing Council for England and Wales”,
but does not say much more. A purpose clause might make it easier for all of us to understand what was going on, and I would certainly welcome the Government’s response.
In supporting the amendments in the name of my noble friend Lady Linklater, I reflect over a somewhat lengthy career that sentencing has gone up and up to an extent that would have been unrecognisable when I started out at the Bar. I wonder why that is. It seems that the confidence of the judiciary—I refer to the Crown Court, to recorders and so on—has been shaken by the constant sniping, by both government and the press, at their discretion and what they do. The Government’s role has been to try to curb the discretion of the judiciary in sentencing, and the press’s role has been to criticise judges as being completely out of touch. No one rises to the bench in the criminal courts—to the Crown Court bench or even as a recorder—unless they have had a lifetime’s experience in the criminal law. They really know what they are talking about, and over time they may from their experience be best able to distinguish between one case and another and to determine where there should be justice and where there should be mercy. That is their job and their profession. Then along comes a Minister with no experience of the criminal law who says, “You are doing it all wrong. This would not go down well in my constituency. They do not like this”, and increasingly tries to lay down lines that the judiciary must toe. That is wrong, because he does not have the expertise. The sentencing council could be a very positive thing because it will include people who really know what they are talking about. I have every confidence that it will perform the proper task of issuing guidance to sentencers.
If there has been a shaking of the confidence in sentences then it is necessary to get clear information about what is effective. What is the best way of rehabilitating prisoners and giving people a chance to renounce their criminal ways and perhaps to build new lives for themselves? To what degree do sentencers move away from the guidance they are given? What sort of discretion do they have? In particular, as this amendment suggests in paragraph (c), how can they try to take over from the red-top press the role of informing the public of what sentencers do and how effective they can be? I fully commend my noble friend for putting these purposes at the beginning of the clause and giving a context within which everything else that follows can be understood. I support the amendment wholeheartedly.
It is a pleasure to see the noble Baroness, Lady Linklater, taking part in Committee. We have missed her. However, I think that we could have presumed that she would return after her Second Reading speech on this part of the Bill. She knows that she is respected around the House for her expertise in this field. Our general discussion tonight on sentencing is one that I am sure we will continue in the groups to come—which, alas, will not be debated today. I shall concentrate on the amendments in the name of the noble Baroness.
I remember the Second Reading speeches of the noble Baroness and the noble Lord, Lord Dholakia, who saw great prospects and hopes for the sentencing council. They were optimistic about it. The noble Lord, Lord Thomas of Gresford, began to be optimistic about it in his remarks a few minutes ago. However, I am afraid that I will disappoint the noble Baroness tonight in the Government’s reaction to these amendments, which create statutory purposes for the new sentencing council. These purposes include issuing guidance with particular regard to reducing reoffending, gathering information on compliance with guidelines and engaging with the public on penal issues. We understand the intent behind the amendments but doubt whether it is necessary to have statutory purposes for the council in this way and, if it is right to do that, whether these purposes are the right ones.
The duties on the council are set out in Part 4, Chapter 1. If these amendments were carried, they would slightly skew those duties in a way which we do not believe is helpful. It is clear that one purpose of the council is to issue guidelines. In passing, I should say that guidelines have been in existence for quite a long time. But I am not sure that it is correct to say in the purposes of the council that it should propose guidelines having particular regard to the effectiveness of sentences in reducing reoffending. Reducing reoffending is a key part of the Government’s penal policy. No one, particularly in this Committee, would underestimate its importance. It is an important consideration when considering guidelines but it is not the only one and it will be more important in some guidelines than in others. It would be less important in guidelines dealing with very serious offences which, for public protection reasons, will require long custodial sentences. The amendment underplays the importance of the other factors to which the council must have regard that are set out in Clause 106(11)(a) to (e), to which no doubt we will come the next time we meet.
Amendment 187C seeks to add to the skills of judicial members in Schedule 13,
“experience … for evaluating evidence on the effectiveness of different sentences”.
Of course the judicial members of the council will be experienced sentencers; they will all be experienced in evaluating evidence of many different things. On the other hand, there will also be non-judicial members who are specialists in research and academic fields. We therefore we do not think that this addition is a necessary requirement.
Amendments 188B and 188C would mean that in proposing sentencing guidelines the council must have specific regard to one factor; namely, the comparative effectiveness of the different sentencing options. The amendments give the comparative effectiveness of sentences first place in the list of relative factors which inform the work of the council in preparing guidelines. We do not think that that approach is right. The Government’s concern is that these amendments seek to give priority to one factor when there is no prioritisation of the factors in this list. Prioritising one factor would be at the cost of the other equally important factors. In some guidelines, especially for more serious offences, the consideration of the impact on public confidence may be more important than relative effectiveness.
I do not want to escape entirely from answering the noble Lord’s question today but we will be debating these guidelines and the form that they will take in some detail when we come to discuss other amendments. Undoubtedly the form these guidelines take will be different from what they have been in the past, but it will be very much a question of argument whether they actually change the judges’ discretion—which I know is in the back of the noble Lord’s mind—in what they are able to do. I put it guardedly because we shall see how the other amendments play out.
I take the point of my noble friend Lord Borrie, who is much more supportive than I am able to be of the noble Baroness’s amendments. She said that we did not know enough about how sentencers follow guidelines. This is covered to some extent by Clause 114, which places duties on the council to monitor departures, the effect of the guidelines and consistency. Other duties in Clause 113 relate to assessing the impact of guidelines. Indeed, under our provisions the council will need to collect new data in order to discharge these duties.
I know that the noble Baroness, Lady Linklater, would prefer statutory purposes, but some of the matters that she raises in her amendments are, I agree, to be found in Clauses 113, 114 and 115. Although it is always tempting to follow the suggestions of the noble and learned Baroness, Lady Butler-Sloss—I think that her description of them was “bold”—I am not really in a position to do so this evening and doubt that I will be even when the Bill has progressed further. It is for those reasons that I ask the noble Baroness to withdraw her amendment, not out of any deep hostility to her proposals but because, in our view, the purposes should not be statutory. I have no doubt that we will return to this matter on another occasion.
I thank the noble Lord for his very kind opening remarks, which I greatly appreciate. I thank other noble Lords as well for their extraordinarily interesting and important contributions.
I still want to stick to my basic premise, which is that we have an overarching sense of priorities, and that reducing reoffending and the effectiveness of sentencing are key. All the other elements that the Minister then referred to come, as it were, within that framework—for example, the fact that a long custodial sentence for a very violent crime is entirely appropriate. In such circumstances, you can argue—as I did—that there is a place for prison for certain offenders and certain types of offences and that prison is able to do the very constructive work which ultimately will prevent reoffending in the same way as many other different situations. I do not think, in making that case, that the Minister has undermined mine. I will think very hard about what he has said; I may well be tempted to return to it later. Indeed, when we get to Clause 115, I will want to expand a little on the educational and public engagement roles which, while overlapping, are distinct. In the mean time, I beg leave to withdraw the amendment.
Amendment 187A withdrawn.
Clause 104 agreed.
House adjourned at 9.53 pm.