Transparency and Consistency of Sentencing
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The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
I beg to move,
That this House has considered the work of the Sentencing Council and the transparency and consistency of sentencing.
I am glad to have the opportunity to debate this issue today. Public confidence in our criminal justice system rests on the principle that justice is dispensed independently by a judge in possession of the full facts of a case. It is normal to quote Magna Carta: we do not deprive people of their liberty
“without due process of law”
in this country. It is not the case in the United Kingdom, as it still is, unfortunately, in many parts of the world, that the Executive can order the detention and trial of people simply on the basis that they disagree strongly with the Government. Neither is it the case, as it is in some other judicial systems, that trials can be stretched out and rerun, until the “right” judgment is reached. Politicians do not sentence people in individual cases, judges do, and British Governments lose cases when they are parties in civil actions. I shall not go on, because we all know that those are the fundamentals of civil liberties and the rule of law in this country.
Independence is what we employ judges for, but alongside that fundamental truth lies an equally important principle—the discretion to do justice in individual case. Only judges see the full circumstances of each case, and they need the freedom to vary sentences in individual instances in accordance with the gravity of the offence. They have to bear in mind the circumstances of the individual offender and such mitigation as they may be able to offer. Sometimes the offence will be so aggravated that a higher than average sentence is required, as we saw, for example, after the riots in August. On other occasions, there will be significant personal mitigation, or relatively little harm caused to the victim, which means that a lower sentence than average will be justified. Just as we trust that our independent judges are the right people to make sensible decisions about the running of cases, so we generally trust them to apply the framework of criminal law across a range of different kinds of case of varying degrees of seriousness.
Keith Vaz
On the point about gravity, the right hon. and learned Gentleman will have noted the sentences that were given yesterday to a group of four al-Qaeda inspired fundamentalists, who as the result of a Goodyear hearing will, in effect, be out of prison within six years. Does he consider it important to revisit the whole notion of Goodyear hearings in view of the fact that people who were going to cause mayhem in London have got away with being in prison for only six years?
Mr Clarke
I am not yet familiar with the full facts of the case, so I certainly shall not comment. There is also a matter of principle. The custom is growing that Ministers conduct a running commentary on sentences in individual cases as they proceed. I do not think that that is wise. I believe in the separation of powers. The right hon. Gentleman is a senior and respected Member of the House, but my understanding is that those people will be sentenced next week. I will check. When the sentence is actually imposed, we have a system whereby the Attorney-General can put in an appeal on the ground of leniency and ask the Court of Appeal to reconsider it. I will inquire more closely during the course of the debate, as the right hon. Gentleman is obviously concerned.
Public confidence would not be well served if individual judges gave widely varying sentences in similar cases. We have one body of law as determined by Parliament, and the punishment should fit the crime. Parliament imposing the law is the guardian of public opinion. We are answerable to the general public and the maximum tariffs set by the House have to be taken as a guide by judges in all cases.
Different cases should attract different punishments. The question is how to ensure that our independent judiciary can make judgments that fit the facts of the case but are also consistent with each other: how to balance, on the one hand, the imperative of judicial freedom—such that they have the latitude to sentence according to circumstance—with, on the other hand, the need for a consistent approach across the system and in all our courts.
Philip Davies (Shipley) (Con)
My right hon. and learned Friend rightly focuses on public confidence. What assessment has he made of the current state of public confidence in sentencing? Does he have a view about the poll commissioned by Lord Ashcroft and carried out by Populus, which shows that more than 80% of the public, more than 80% of the police and more than 80% of victims think that sentencing is too lenient at the moment?
Mr Clarke
That has always been the case, certainly in my lifetime, and I suspect it always will be. I always wonder why that is the consistent public attitude. I shall not launch into criticism of the press, but I think it is because of the way these things are always presented to the public. The newsworthy cases are those where the newspaper decides to give a short version of the case and rouses the indignation of its readers by the apparent leniency of the sentence. Much though I respect opinion polls, particularly those obtained by Lord Ashcroft, the fact is that most citizens never go to a court of law. Most people, if we ask them, do not know what sort of sentences are imposed by the court. If all they read about are individual sensational cases, which a particular editor is trying to present as scandalous because of a lenient sentence, it tends to form public attitudes.
I shall not go further, but when we read a newspaper, we should not believe we are hearing all the facts of the case. The judge has probably heard hours of evidence from both sides, but what we read are two or three snappy lines summarising what is supposed to have happened in the opinion of the journalist.
Mr Edward Leigh (Gainsborough) (Con)
Let us look at the facts. Perhaps the public are worried about this fact: 48% of burglars do not receive an immediate custodial sentence.
Mr Clarke
In a moment, I shall probably make another passing reference to the fact that the Sentencing Council guidelines make it clear that custody is undoubtedly a normal sentence for burglary. In my experience, it always has been, and it still is. There has to be a clear mitigating circumstance for anybody to avoid a custodial circumstance.
Mr Robert Buckland (South Swindon) (Con)
My right hon. and learned Friend is correct in his assertions about lack of knowledge. It is not the fault of the public; it is the fault of the system that there is lack of knowledge in the public domain. That point is eloquently demonstrated and backed up by the findings of research conducted by Ipsos MORI for the Sentencing Council in May last year.
The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
You be the judge.
Mr Clarke
I am reminded by my hon. Friend.
The facts of a case are given and the public are invited to give what they think is an appropriate sentence. Then they are told the sentence the judge gave. In fact, members of the public tend to give more lenient sentences than judges impose, because they have been led to believe—I shall not carry on, because it will only lead to reprisals in the morning. Some of our right-wing newspapers, which I started reading when I was a very small boy, have been telling the nation about soft judges letting off criminals for as long as I can remember, and in my opinion that will be the theme of some of our leading popular newspapers in 50 years’ time, if they survive that long. I shall move on.
This is where the Sentencing Council comes in—the independent body established in 2010 and ably led by its chairman, the right hon. Lord Justice Leveson, to whom I am grateful. Its role is precisely to promote a clear, fair and, above all, consistent approach to sentencing, backed up by supporting analysis and research. As hon. Members know, it does that by publishing guidelines—carefully crafted analyses that set out a clear decision-making process for courts and give guidance on aggravating and mitigating factors to help inform the sentence.
The guidelines include examples of the different levels of harm that a crime can cause, both to victims and the community. They set out varying levels of culpability that apply to offenders, such as whether the offence was committed on the spur of the moment or whether it was carefully planned in advance. They suggest common starting points and ranges for courts to use for different levels of offence. Importantly, they are guidelines, not tramlines or a rigid framework. They are flexible, and judges are always free to depart from them in exceptional circumstances. The most valuable quality for any judge in any court is judgment, which is what, in the end, they bring to bear.
Rehman Chishti (Gillingham and Rainham) (Con)
The point that guidelines should be guidelines was demonstrated after the riots, when in extraordinary circumstances judges used their discretion and gave firm sentences. Guidelines are for ordinary circumstances, but for those extraordinary events judges were spot-on in using their discretion.
Mr Clarke
As it happens, I entirely agree with my hon. Friend’s opinion. Judges rightly reflected the fact that the background was a sudden, alarming outburst of public disorder and that they needed quickly to give firm and severe sentences, in some cases above the average normally imposed for the offence. That was a correct response to public need.
In the two years it has been operating, the Sentencing Council has done much valuable work not only to promote consistency but in its more general role of seeking to improve public confidence in the criminal justice system. However, it has on occasion been criticised for both its general role in developing guidance for the courts and the contents of particular guidelines. The case that I want to make today, before listening to the views of the House, is that the current system is the right one and that these criticisms are largely misdirected. Contrary to what one sometimes reads in the newspapers, sentencing guidelines take a proportionate and sensible approach to the punishment of offenders, and one in which the public should have great confidence.
Mr Stewart Jackson (Peterborough) (Con)
My right hon. and learned Friend, in his normal charming way, has encompassed some of the problems in his overview of the concerns about the faith and trust of taxpayers and constituents in the criminal justice system. He says that he does not want to set a precedent whereby Parliament provides a running commentary on sentencing, and he criticises the media prism in which sentencing is discussed, but surely he concedes the obfuscation of court procedures. When will the average taxpayer get a say on sentencing in this country?
Mr Clarke
That is what this debate is for. MPs, and everyone else, are of course perfectly entitled to make whatever comments they wish about the criminal justice system, which, like every part of the public service, is accountable to Parliament, and ultimately it is Parliament that determines the framework of law by which the whole thing is conducted. It seems to have become rather fashionable nowadays for a running commentary to break out about a series of cases, and I think that we should be more sparing. I also think that anyone who comments on this or any other matter should ensure that they have the full facts before going out and giving a considered opinion, rather than just reacting to something they read over their morning coffee.
Nicola Blackwood (Oxford West and Abingdon) (Con)
Will the Lord Chancellor give way?
Nicola Blackwood
I thank the Lord Chancellor, who is being extremely generous, for giving way. His points about press sensationalism, the separation of powers and not wanting to have a running commentary from politicians are well made. However, I think that the lack of public confidence is not just due to a thirst for punishment beyond reason, because there is also the fact that reoffending rates are high. The point about sentencing is that we want it to be an effective deterrent against reoffending. At the moment, 49% of all prisoners reoffend within a year of release, and for adults released from short-term prison sentences the rate rises to 60%. We have to convince the public that our criminal justice system is effectively deterring prisoners from reoffending, which is not an issue of sensationalism.
Mr Clarke
I could not agree more. In fact, in so far as I have brought anything into policy since taking up my current post, it has to put much greater emphasis on reoffending, which is the biggest weakness of our system, but covering the full range of reforms would be outside the scope of the debate. The system punishes first of all, but it would serve the public better if it also led to the reform of more offenders, so that we could get reoffending rates down to a more respectable level. My colleagues and I are trying to address that in everything that we do in the Department of Justice.
It is relevant to the debate to consider what is most effective in deterring reoffending. Some people have held the belief for years, quite understandably, that in order to cut reoffending we must deter people by sending more and more to prison for longer and longer sentences. My personal opinion is that the evidence completely refutes that view. That approach does not work, particularly if it makes prisons overcrowded and unresponsive places where prisoners toughen up and meet some rough friends before being released to fend for themselves in the outside world. We are making more intelligent use of the prison estate so that, in addition to the punishment of confinement, there is a process of reform based on a working environment that tackles drugs, drink, mental illness and all the other things in order to lead people to behave when they are released.
Derek Twigg (Halton) (Lab)
I am very interested in what the Secretary of State is saying and agree with his view about the importance of deterrence as well as punishment, but there is a flaw in what he is saying about sending people to prison. When talking to police officers in my constituency a year or so ago, I was told that they took five or six prolific burglars off the streets and put them away for a year or two, which had a massive impact on burglary rates in the area, so it does work. Although they will be released eventually and might reoffend, the fact is that putting people in prison does have an impact in certain circumstances.
Mr Clarke
Burglary rates dropped in recent years because we had an economic boom, and I think that there is a serious danger that they will go up again—they are going up at the moment—if we do not get out of our present economic difficulties quickly. Better policing also counts. In my opinion, the police have become much better at targeting suspected offenders and arresting the people causing most of the crime. Of course prison is the right place for serious offenders, so the sentences that the hon. Gentleman describes sound quite light to me for persistent burglars, and everyone gets a rest while they are sent to prison. As I said when agreeing with my hon. Friend the Member for Oxford West and Abingdon (Nicola Blackwood), while such people are in prison, given that they will be released one day, we should make more intelligent use of prisons to try to ensure that we reform those people so that they are less likely to reoffend.
Philip Davies
The Secretary of State seems to be arguing that sending people to prison for longer would not help to reduce reoffending, but his Department’s own figures indicate that the longer they spend in prison, the less likely they are to reoffend. If he is not sure about that, I can tell him that the reoffending rate for people who spend less than 12 months in prison is 61%; for those who spend 12 months to two years in prison, it is 36%; for those who spend two to four years in prison, it is 28%; and for those who spend more than four years in prison, it is 17.6%. It is clear that the longer people spend in prison, the less likely they are to reoffend.
Mr Clarke
There is another debate to be had on that, which my hon. Friend will no doubt press for. If people are sent to prison for less than 12 months, we really do nothing whatsoever for them there. They are locked up, released at the end of their sentence and given no support when they leave, and there are staggering levels of reoffending. One thing that has always been done, by the previous Government and every Government, is that the more serious offenders are kept in prison for longer and more effort is made to try to keep an eye on them when they get out. That is a very brief summary of that debate. Once we start swapping statistics in this way, we could argue practically anything, particularly as most criminal statistics have been remarkably unreliable in recent years—I hope that they are now being improved. My hon. Friend’s view is not quite the same as mine, but I respect it.
Mr Stewart Jackson
My right hon. and learned Friend is being most gracious and generous in giving way. I wish to be helpful, if I can. I am puzzled by his view on the fact that putting people in prison does not work, because he will know about the possible great success of the social investment bond in HMP Peterborough, where 46% of the indicative income for keeping prisoners in prison will go back to St Giles Trust, Nacro and other third sector organisations. That approach will be rolled out across the whole country, if it is successful. Surely the point is that putting people in prison can work, if it demonstrably reduces recidivism in the long run.
Mr Clarke
I do not disagree. I have always held up the arrangement at Peterborough prison as a model of where we want to go. It is exactly what I wish to encourage. People are imprisoned, first, because they have to make their reparations to the public and be punished for what they have done but, as my hon. Friend has rightly said, there is now an extremely interesting situation in place where attempts to start reforming criminals start in the prison and are followed through outside by St Giles Trust, which is the partner of the private sector managers of the prison. We hope to replicate that pilot across the country, which is an example of where we ought to go. People get the punishment first and then proper efforts to stop them offending when they are released.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
To pursue that point further, is it not the case that if we have a system that faces constant increases in numbers, overcrowding and prisoners being moved around in order to accommodate the problems that the system faces, we will not get sentence planning, the careful structuring of sentences or measures to prevent reoffending, which are needed.
Mr Clarke
I entirely agree with the right hon. Gentleman. Indeed, that problem has constantly recurred with the extraordinary explosion in the number of people in prison in recent years.
As I have said, I am not saying that everything is perfect in the wider criminal justice system. I freely acknowledge that reporting and public understanding of our system is far from ideal, which is one reason why the coalition Government have a far-reaching programme of criminal justice reform as well as measures to promote transparency and public understanding. However, we should not muddle the problems of an overly complex body of law, which is too rarely reported accurately, with the rules governing how our judiciary apply the law in particular cases.
For the avoidance of doubt, it is worth saying that although the Sentencing Council is a recent innovation, the approach that it embodies is not new. Sentencing has operated in England and Wales for more than 100 years under broadly the same well-established constitutional settlement, in which Parliament sets the overarching legislative framework within which courts sentence, including the maximum penalty and, for some offences of particular public concern, the minimum penalty available to the courts. The role of independent judges is to work within that framework.
Since 2010, the Sentencing Council and its predecessor, the Sentencing Guidelines Council which was created in 2005, have provided courts with a decision-making process to assess the harm that offences cause to victims and communities, suggesting common starting points and ranges, and highlighting aggravating factors. The Sentencing Council has not fundamentally changed the basic division of responsibilities or the balance of power between Parliament, Government and the judiciary. Before the previous Government created the Sentencing Council, the Court of Appeal carried out this function. Its criminal division gave guidance to courts when it thought that discrepancies were beginning to occur. The Court of Appeal has not lost that power entirely and still gives guidance when it feels it necessary. However, the council now provides the great majority of such support to the courts.
Stephen Phillips (Sleaford and North Hykeham) (Con)
Will the Secretary of State give way?
Mr Clarke
If my hon. and learned Friend will forgive me, I ought to get on or else I will be running a seminar for a large part of the afternoon, which would not satisfy all my hon. Friends.
The Sentencing Council adds stronger checks and balances to the tradition. It does so, first, through its 13-strong membership. The majority of its members are judges and magistrates, but it also includes the Director of Public Prosecutions, the former acting Metropolitan Police Commissioner and the former chief executive of Victim Support. The council has not yet produced guidelines for any category of offences that have not received the support of the Association of Chief Police Officers. These are not simply judge-made guidelines for the courts; a range of backgrounds are represented on the council.
Secondly, the guidelines are determined independently and transparently, but with extensive public consultation. The consultations for recent guidelines have happened over 12 weeks and have elicited thousands of responses. Thirdly, the guidelines enjoy a proper level of parliamentary scrutiny. The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) and his colleagues on the Select Committee on Justice consider every draft guideline in detail, taking extensive written and oral evidence from a wide range of experts, including the chairman of the council. The Select Committee’s work ensures that there is meaningful democratic engagement in sentencing guidelines, without compromising the crucial principle of judicial independence.
Over the past 18 months, the council has published guidelines on a number of areas, on occasion attracting lurid headlines about excessive leniency and so-called soft judges. Let me address that directly. Our judges are far from overly lenient. The average length of prison sentences has increased by 20% over the past 10 years. I do not have proper figures but, having practised myself 30 years ago, I think that the increase has been even greater. We now send many more people to prison and impose longer sentences than was ever the norm until the past four years. As my hon. Friend the Member for Gillingham and Rainham (Rehman Chishti) pointed out, judges can still respond to things such as the riots in an appropriate way.
The guidelines are concerned centrally with ensuring that sentences properly reflect the seriousness of an offence. They are statutorily required to have regard to the impact of sentencing on victims and public confidence in the criminal justice system. Naturally, people seize on isolated parts of the guidelines and quote them out of context. However, when set against the cases that courts see every day, they are well-thought-out, carefully considered, serious pieces of work. For example, the guideline on burglary concludes that domestic burglary should habitually attract a custodial sentence, that the sentimental value of any goods taken must be considered alongside their financial value, and that the presence of children when a burglary is taking place will significantly aggravate its seriousness.
Mr Leigh
My right hon. and learned Friend is gracious in giving way so often, and he has made clearly his point that burglars should get a custodial sentence. Let me refer to my previous intervention. If we are talking about domestic burglary—which is the worst thing—in 2009, 37% of those convicted of domestic burglary were given a non-custodial sentence. Does it worry him that the courts are not following what he is advising, which is that the people who cause such misery should end up in prison?
Mr Clarke
Individual judges must have considered the guidelines, which are quite new. I am surprised by that figure, however, because burglary has always habitually required a custodial sentence. There must have been some feature in those cases that made people think—either because of a particular problem with the offender when it might have been better to send them on a drug-rehabilitation course, or some other mitigating feature—that on this occasion they would not impose a custodial sentence.
Like all criminal offences, burglary is a wide-ranging offence. It covers everything from someone who has opportunistically opened a door, nicked something off a shelf and run, to two men wearing masks and going into a building, prepared to be violent towards anyone who tries to stop them. There is bound to be a range of sentences, but the guidelines of the Sentencing Council state that domestic burglary should habitually attract a custodial sentence. I have always agreed with that, as does my hon. Friend.
I want to consider the guideline on drug offences that produced some headlines last week. That guideline helps courts to distinguish between organised criminals who, as we know, cause misery to families and the whole community, and those who have become involved in the drug trade through intimidation or a dependency of their own. Contrary to the rather inaccurate headlines that occurred last week, which claimed that street dealers caught with 6 kg of cocaine could avoid jail—that startled me when I heard it repeated on the radio—the truth is that possession of that amount of a drug would be a very serious crime. The starting point for sentencing would be at least seven years in custody, even for an offender playing a lesser role in a criminal operation, rising to a starting point of 14 years in custody for those who have a leading role. The wholly inaccurate headlines stating that drug offences would receive lighter sentences were based solely on the reduction of the sentence for so-called drug mules, if they are addicts and are being exploited to carry drugs for the person who is manipulating them. That sentence has been eased a bit, to the extent that sentences for drug mules who bring in 1 kg of heroin or cocaine now have a starting point of only six years in custody, whereas previously that might have been 10 years.
Significantly higher sentences were recommended for those who play leading roles in a criminal operation, which is why the guidelines on drug sentencing did not receive the slightest criticism from anybody who knows the criminal justice system, including the police and prosecutors. Frequently, the commonly made criticisms of our judiciary and of the guidance produced by the Sentencing Council are unmerited.
I do not, however, wish to defend the status quo uncritically. Anyone who is remotely acquainted with our justice system knows that there are genuine challenges facing it, and that we cannot afford any complacency in addressing them. Sentencing guidelines, and the work of the Sentencing Council, would benefit from further public scrutiny and understanding. The need to ensure that the guidelines receive due public and parliamentary focus is precisely why the Government have allocated today for this debate. I look forward to listening to right hon. and hon. Members and hope that the debate will make a small contribution to establishing public attitudes, and perhaps also to successfully scotching some of the myths that surround the Sentencing Council’s work.
More broadly on confidence in the criminal justice system, it is no surprise to me that the public find it difficult to make sense of the body of criminal law, given that it has grown like Topsy in recent years. Under the Labour Government, constant changes and 20 criminal justice Acts over 13 years left us with a system that even experts have struggled to make sense of. Top-down schemes, meddling and prescription left the system in a complete mess. There were thousands of new offences. I was greeted publicly at the judges’ dinner with the complaint that
“hell is a fair description of the problem of statutory interpretation”.
The net result? A sentencing policy so chaotic and badly managed that towards the end of the last Government’s time in office, they had no room for all the extra people they were putting in prison. They had to let 80,000 criminals out early who promptly went on to commit more than 1,600 fresh crimes. I approved of the new unpaid work community payback scheme, but the way in which it was put into practice meant that offenders serving community sentences usually completed only one or two days of unpaid work each week. That is why there is an urgent need to sort out sentencing, and why we are reforming it. We will simplify it and make it easier to understand, and the House has already considered the Legal Aid, Sentencing and Punishment of Offenders Bill, which is currently in the other place and will introduce some of our far-reaching reforms.
Under that Bill, we propose to reform the statutory duty on courts and judges to explain the meaning and effect of their sentences and communicate them in plain English so that people can understand what will happen to the offender. We are simplifying the release framework so that all prisoners will be governed by one set of rules, making it easier for justice agencies to keep victims informed, and we are replacing the disgrace of so-called indeterminate sentences for public protection with a tough, determinate regime that can be easily understood by victims and the public. [Interruption.] I hear protests, but we all know that the guru on sentencing, Mr Thomas, described those sentences as an “unmitigated disaster”. In due course, we will also bring forward proposals to ensure that community punishments punish and reform more effectively.
Finally, I believe that our system suffers from a fundamental lack of information and openness. Public understanding of sentencing is critical to confidence in the system and to its effectiveness in ensuring that justice is done. We need to open up a system that to many people remains a rather mysterious world, to reassure people that the law is on the side of the law-abiding citizen. That is why I have announced measures that, in my opinion, collectively amount to a revolution in transparency in our courts.
One major item of progress is that we are developing legislation to remove the prohibition on cameras in courts and allow the broadcasting of sentencing remarks. That will be introduced in the Court of Appeal in the first place, but will be followed by extension to the Crown court at a later date. The filming of victims, witnesses, defendants and jurors will of course not be allowed under any circumstances. The change is intended to ensure that the public can see and hear sentences being handed down and hear the comments that judges make on cases. It is not so that our courts will become theatre. I hope that it will help to demystify the court process without undermining the seriousness and diligence that is so central to the quality of our justice system.
Alongside the televising of sentencing remarks, we are seeking to expand the use of restorative justice. Though the restorative approach is often seen as a means of reducing reoffending, for victims who want to take part it also helps to open up the court process. It allows victims to play an active role in helping the court determine how to deal with an offender, which is one reason why victim satisfaction levels with the approach are so high. Restorative processes can help to turn the justice system from one that does things to victims to one that does things with victims.
Last but not least, we are releasing more data than ever before on the performance of our courts. The radicalism of that policy has perhaps not yet been fully recognised, but it has the potential to deliver major progress in public understanding. For the first time, we are making available information on court performance, including delays and total times, and on sentencing decisions classified by offence. That will enable the public to see exactly what sentences are being handed down and where, particularly in their own locality, and it will help them to put that information in context.
What we are doing will represent a fundamental shift in how the justice system works. Justice must not only be done but be seen to be done if it is to command public confidence. The challenge is to deliver reforms to the wider system to simplify it and make its performance more visible to the public. As the measures that I have outlined suggest, I believe we are on the threshold of a step change in openness and transparency. The changes will complement and strengthen the sensible arrangements under which the Sentencing Council operates, which I readily acknowledge were introduced by the last Government, and its wider place underpinning the sound and long-standing division of responsibilities between the judiciary and the Executive in England and Wales. I look forward to the whole process being subject to parliamentary scrutiny, which we are taking a step further by having this debate.
Madam Deputy Speaker (Dawn Primarolo)
Order. Telepathy is difficult for Hansard to pick up and it is not easy for other Members in the Chamber. It would help if we made that sequence a little clearer.
The Solicitor-General (Mr Edward Garnier)
To make it clear, the right hon. Member for Leicester East (Keith Vaz) meant that I, not Lord Justice Leveson, was his parliamentary neighbour. I say that in case that does not appear clearly on the record either.
Keith Vaz
In football terms, that was an instant replay. I am glad that Lord Leveson now chairs the important inquiry into the media. After that is completed, he will start the next inquiry. He must be an incredible chap to be able to chair the Sentencing Council and conduct all these other inquiries. I am glad that he is still there; continuity is important.
Let me go back to the intervention I made at the start of the Lord Chancellor’s speech. He said that the Government would be able to give us more information at the end of the debate on the case that I raised, which has been concluded in the courts. It concerns a group of four al-Qaeda-inspired fundamentalists who admitted planning to send mail bombs to their targets during the run-up to Christmas 2010. Their targets included the Palace of Westminster, the home of the Mayor of London, the Stock Exchange, and other buildings of that kind.
Those defendants participated in what is known as a Goodyear direction, which, as the Lord Chancellor and other Members will know, enables a trial judge to indicate the sentence that will be given if a defendant pleads guilty. I understand that the sentence that is indicated cannot be increased by the judge at the time when the defendants are sentenced.
Keith Vaz
The hon. Gentleman is a very experienced prosecutor, and he knows much more about these matters than I do. Perhaps, given the charges that were levelled against the individuals in the case that I mentioned, the judge ought to have refused the application, but the fact remains that two of the defendants, Mohammed Chowdhury and Shah Rahman, were effectively told by Mr Justice Wilkie that they would be out in six years, because that was what was indicated by the sentence of twelve and a half years that he proposed to give them.
I have raised that case because it came before the court yesterday, because we are debating this issue today, and because I think we should consider the severity of what would have occurred had the matter been brought to fruition.
The Solicitor-General
I do not want to rain on my right hon. neighbour’s parade, but I am afraid that I will not be answering questions of the kind that he has put to me when I wind up the debate. The matter is ongoing. It may well be that the judge has given a Goodyear indication, but he will be sentencing next week, and nothing that I shall say today, or that the right hon. Gentleman will say today, should in any way impinge on the judge’s discretion. The Goodyear direction system is there, and its conduct is circumscribed by fairly strict rules. While the right hon. Gentleman is perfectly entitled to make any point that he wishes to make about particular sentences, I think that—as my right hon. and learned Friend the Lord Chancellor said earlier—we would be better advised to leave that particular issue until the sentence has been promulgated. All sorts of implications may flow from that.
Keith Vaz
I am very happy to take the Solicitor-General’s advice. What I have sought to do is ensure that the issue is looked at, as I hope it will be in future when the sentence is finally determined.
Let me move from the specific to the general. I do not want us to reach a point at which we have plea bargaining in criminal justice, because I think that that would be wholly wrong. The hon. Member for Gillingham and Rainham (Rehman Chishti) mentioned the riots. I pay tribute to the way in which the criminal justice system operated throughout that period. I well remember going to Horseferry Road magistrates court at midnight and receiving a call from the Under-Secretary of State for Justice, the hon. Member for Reigate (Mr Blunt), who welcomed me. I do not know how he knew that I was going to be there, but somehow he knew that I was looking at the 24-hour courts. Although there was something of a gap because both the practitioners and the defendants had to be brought from police stations, the courts moved very quickly at a time when it was necessary for that to happen.
Although politicians are very wary of trampling on the jurisdiction of the judiciary, the public, and even the Prime Minister, made known their views on sentencing during the riots. The result was that the courts issued sentences that were, on average, more severe than for similar offences committed outside the period of the riots.
I also pay tribute to the Lord Chancellor and the Ministry of Justice for providing my Committee with so much information. I do not think that we have had so much transparency before, as regards figures relating to the riots being made available. I think it was the Lord Chancellor who told us, in a Select Committee evidence session, that 76% of people who appeared before the courts for offences committed during the riots had a previous conviction. He also told us that for adults, the figure was 80%, and for juveniles it was 62%. It is important, as we look at sentencing and transparency, that figures are made available to Select Committees and Parliament, so that we can have informed views on the issues that we are deliberating.
The hon. Member for Oxford West and Abingdon (Nicola Blackwood), who has left the Chamber, raised the issue of rehabilitation in her intervention on the Lord Chancellor. One of the most important issues that the Lord Chancellor has raised during his time in office is that of rehabilitation. As the Chairman of the Justice Committee has said, there is no point in just sending people to jail; if one convicted criminal in four reoffends soon after completing their sentence, something is wrong with the way we deal with rehabilitation. Of course people have to go to prison to be punished in certain circumstances, but the prison authorities need the time and space to start the process of rehabilitation.
We have been looking at the roots of radicalisation and will publish a report on the subject on Monday next week. We feel it is very important that when people are incarcerated, those who are able to detoxify—that was the word used in the evidence given to us, and I use it again today—people who have been radicalised have time to do that. One cannot do that in a short period, or without resources; it has to be done over a period of time. We need to ensure that when those people come out, the experience has made a difference to their lives, because at the end of the day it is our constituents who suffer if that is not the case.
This is a good debate, and I hope very much that it will not just be about tougher sentences, because as we all know, 83 of the 134 prisons in this country are classified as overcrowded. If we are to make sure that when people come out, they do not reoffend, we need a criminal justice system that is fit for purpose and able, in the end, to do the one thing that we want it to do: help in the reduction of crime.
Philip Davies
I think my hon. Friend is very good friends with Ministry of Justice Front Benchers and I suggest that he ask them some parliamentary questions, because those are the answers they have given. To be as helpful as possible, I will furnish him with the parliamentary answer that shows that people with 100 previous convictions behind them are still more likely not to be sent to prison than to be sent to prison. He might wish to take this up with his hon. Friends on the Front Bench.
I was shocked to receive a parliamentary answer showing the number of people who were given cautions for indictable offences, which are the most serious category of criminal offence and include murder, wounding with intent, abducting children and arson. That answer showed that 22 rapists, 24 people convicted of arson and 140 people convicted of unlawful intercourse with a girl under 16 have been given a caution. Bearing in mind the fact that cautions are given on admission of guilt, how on earth can we have a situation in which those people are not being sent to prison and are merely handed a caution? The Government are completely out of step with public opinion, particularly those highlighted in the Populus poll conducted by Lord Ashcroft, which showed that 80% of the public said that sentencing was too soft and that 70% called for life imprisonment to be made much harder.
There is this wrong idea that community sentences are far more effective at reducing reoffending and are also cheaper, but I want to point out that a Home Office survey found that the number of crimes committed per offender in the year before they were sent to prison averaged out at 140—or 257 for those on drugs. The typical cost calculated for those crimes was £2,000 each, which works out at £280,000 a year, in comparison with an estimated cost of £38,000 for a prison place, so perhaps we ought to think about what is most cost-effective.
In 2008, offenders who had completed a community sentence went on to commit a further 250,000 crimes in the 21 months following their sentence, 1,500 of which were serious offences including murder, rape and robbery. As I mentioned to the Secretary of State earlier this week, in 2008-09 some 6,600 people whom the probation service deemed to be high risk or very high risk were serving community sentences.
Then there is the myth that prison does not work. The reoffending rates for people serving short-term sentences is higher than any of us would like, but I have been to lots of prisons in the past 12 months, probably about a dozen—I even visited one in Denmark to see what they do there—and I argue that prison does work. It could probably work better but it does work. As I made clear in my earlier intervention, the longer people spend in prison, the less likely they are to reoffend. If prison itself was the problem, the longer people stayed there the more likely they would be to reoffend, but the opposite is true. I have given the figures: for people who spend less than 12 months in prison, the reoffending rate is 61%; for those spending 12 months to two years in prison it is 36%; for those spending two to four years in prison it is 28%; and for those spending four years or more in prison it is 17.6%.
Professor Ken Pease has used Home Office statistics to show that 13,892 offences resulting in conviction could have been prevented if offenders serving short sentences had been kept in prison for an extra month. That suggests an argument for sending people to prison for longer, rather than for not sending them to prison at all. My right hon. and learned Friend the Secretary of State complained, rightly, about the previous Government’s early-release programme that let people out of prison 16 days early, but the solution should not be not sending them to prison at all, which is what he seems to be advocating now.
When people are in prison we must try to rehabilitate them, but I do not understand why rehabilitation has to occur in the community. I have been arguing about this for quite a while with my Front-Bench colleagues. I should like a system modelled on the TBS programme that has been operating in Holland for many years. It treats prisoners with a personality disorder, of whom there are a large number in our prisons, and has achieved low reoffending rates. People are treated in prison, which is much easier because they do not have so many distractions—they cannot go off and do other things. In prison, they can be given proper targeted support, which is much harder when they are out of prison.
I very much support the Secretary of State’s promoting a stronger work ethic in prison. When I go round prisons, I am appalled by the lack of work ethic. Many prisoners are from families that have never worked; they are often the third generation who have never worked. Surely, one of the things we can do for them in prison is to get them into a proper disciplined routine so that they get up at a certain time in the morning and carry out tasks that get them into a work ethic. My right hon. and learned Friend is absolutely right to do that.
A study by Frances Simon in 1999 followed 178 prisoners until five months after their release. She found that 75% of those who had not sought regular work reoffended compared with only 28% of those who were actively looking for work and 15% of those in regular employment. That shows that even the discipline of going out and looking for a job can make a big difference to reoffending rates. Prison has to be the prime place where some of those people are given the discipline of a work ethic.
I think the Government are making a huge mistake about indeterminate sentences for public protection. Earlier today, my hon. Friend the Member for South Swindon (Mr Buckland) cast doubt on Ministry of Justice figures, but I trust my hon. Friends on the Front Bench. According to those figures, by the end of the 2010 calendar year, 206 people serving indeterminate sentences had been released from prison. Of those, only 11 had reoffended—a rate of about 5%, from my quick calculation. The criminal justice system as a whole would give its right arm for a reoffending rate of 5%.
If the Government are so obsessed with reoffending—the Secretary of State has said that he is—why on earth do they want to give up the part of the criminal justice system that probably has the lowest reoffending rate? It goes to show that the Secretary of State is not really preoccupied with the reoffending rate; he is preoccupied with reducing the number of people he sends to prison. That cannot be the right course of action and it is certainly not something that my constituents want.
Mr Kenneth Clarke
I am sorry to intervene just after my hon. Friend and I were warmly agreeing on the need to get a working environment in prisons. I can tell him that I had an excellent meeting this morning at the CBI, with leading figures from British business and the Prison Service, and we are making progress. On that we are totally agreed. With great respect, the figures my hon. Friend uses for IPPs are, unlike some of his other statistics, not very reliable. A tiny number of people have been released from IPPs, so to make a comparison between the very small sample he cites and the very large numbers he was using earlier is ever so slightly misleading. Most people imprisoned under IPPs have not been released and do not know when they will be released. There is an enormous backlog of cases for the Parole Board, which is wondering what to do with them.
Philip Davies
The figures my right hon. and learned Friend dismissed are the ones supplied by his Department. All I can do is give the figures as they are. They indicate that of the 206 people who have been released having served an IPP sentence, only 11 have reoffended. It is up to hon. Members to draw their own conclusion from those figures. The principle that we should not release people from prison until it is safe to do so strikes me and my constituents as a rather good one to have in the criminal justice system. His suggestion that we should release people from prison regardless of whether it is safe to do so seems rather bizarre.
Anna Soubry
Absolutely. If I may say so, there was so much I agreed with in the right hon. Gentleman’s speech. From my short time on the Select Committee, I know he brings a huge weight of experience and plain, good common sense to his chairing of the Committee. I absolutely agree with what he says.
To be frank, I would never stand up and say we definitely want to keep the Sentencing Council. I know some of us disagree about this, but I always thought the Court of Appeal was a good place to determine the issues we are discussing, and I could see no good reason why that should not continue. However, we are where we are.
What we do know—this has already been mentioned—is that the sentencing judge will look at the aggravating and mitigating features in relation to every offence. It is therefore important that when the police go out and take witness statements, they make sure everything that should be in them is in them so the judge can pass the right sentence. If items of great sentimental value are stolen in dwelling-house burglaries, for example, that is an aggravating feature.
The same is true of trashing or ransacking the property, and of inducing fear in a particularly vulnerable person. One of the burglaries I suffered was at night-time, and my children were of an age where they were very frightened. They thought—this is common among children who have the misfortune to have their homes burgled at night—that the person would come back, and they were in fear of that. Such things must be in the witness statements so the judge can pass the right sentence. That will give us the consistency we want.
One of the things that is extremely annoying for somebody who has been the victim of a car crime is the fact that they lose their no claims bonus. There is also the huge inconvenience caused by the fact that their car has a broken window and that they will not be able to use it because it has to go off to the garage. Again, those are important aggravating features.
In offences of violence, there can be an assessment of the physical scarring that might remain, and of the pain and suffering the victim might have been caused, but their mental anguish must also be set out in detail so that the proper sentence can be passed.
I would go further and say that when police officers go out to get statements from witnesses, they should include in them the effect of a particular crime on the witness. The classic example is somebody who witnesses a fight in the street, which might be a particularly violent and unpleasant incident. That will have an effect on the witness, and if it does, it should be in the witness statement.
At the heart of good, consistent and transparent sentencing is an overriding and underlying belief in the fact that we should trust our judges. I say that with absolute certainty in one respect: if I had not come to this place, I would undoubtedly never have been made a judge. I am not, therefore, making these comments to curry favour with any judge. Hon. Members may not find this surprising, but the reason I would not have become a judge is that I fell out with so many judges.
Anna Soubry
The Solicitor-General makes an unfortunate intervention, because I did indeed have the great pleasure of appearing in front of him—I was going to reference him slightly later—and we certainly did not fall out. No doubt, though, some of his brother and sister judges would say that that was because I appeared in front of him only twice, and that had I done so several times, perhaps the outcome would have been different.
One of the problems that occurred under the previous Administration was that they began not to trust judges enough, which was a terrible mistake. My attitude is this: I would give the judges the powers that they need and then leave them to exercise their discretion. At the end of the day, most judges come to the bench after many years in practice—usually in the discipline in which they sit in judgment. I said that I was going to mention the Solicitor-General, and I know that he has sat as a recorder in the criminal division, even though that was not his area of practice. I am not trying to curry favour with him, but the fact is that many recorders do not come from the criminal Bar and did not work as criminal solicitors but nevertheless have the great ability and skills required to act in just as brilliant a way as any other judge who was at the Bar for 15 or 20 years. [Interruption.] I am glad to see him nodding in approval.
The point is that with few exceptions our judges are outstanding, having practised at the highest level and coming to the position after years of experience on the basis that they have the ability to exercise good and wise judgment. That is why, with few exceptions, I trust them, and those of us who have practised know that if a judge makes a mistake, the case can be referred to the Court of Appeal.
Our judges have training, and I give full credit to the previous Government for something that I noticed at the criminal Bar: a huge shift in judges’ attitude towards what we call domestic violence—an unfortunate term, because it is normally violence against women by somebody with whom they are either in a relationship or have been in a relationship. Undoubtedly, when I returned to the Bar about 18 or 19 years ago, some senior members of the Bar and judges just saw domestic violence as a bit of a domestic scuffle and not something to be dealt with or viewed as seriously as it is now. I give full credit to the work undertaken by the previous Government in that respect. I certainly saw a sea change among the judiciary, which was no longer going to tolerate any man even slapping his partner or previous partner. I saw that on a regular basis in the Crown courts in which I had the great pleasure to appear, and I give the previous Government full credit for that. That should give us confidence that our judges are properly trained and are more than able to pass the right sentences, as long as we trust them and enable them to use their discretion.
That, of course, was one of the great failings of IPPs. These sentences, introduced in the Criminal Justice Act 2003 to deal with defendants deemed to be dangerous, sounded like, and were, a very good idea. What could be more sensible than providing that a paedophile who had sexually assaulted a child and who had done the same thing previously would not only be sentenced for the outrage that they had committed against a child but that there would be a report on him—invariably it was a “him” as opposed to a “her”—specifically looking at whether he would pose a danger even after completing the determinate part of his sentence? If the report revealed that he had delusions and fantasies of a particularly vile and alarming nature, it was thought only right and proper that he be in custody, in prison, not just for the offence that he had committed but for the protection of the public—in this case, children—at large, because he posed a clear and obvious danger to those children.
In theory, therefore, the idea was wonderful. Many of us approved and agreed with the theory; however, I do not think that the legislation was ever properly looked at—I fear I am criticising both sides of the House for that. Indeed, we talked about the idea in robing rooms at the criminal Bar, and as we thought about it more, and then as it was rolled out, we could see its profound shortcomings. Because it was overly prescriptive, judges effectively had no discretion, so people were sent to prison—quite properly, because they had committed a serious offence—but then found themselves in custody with no time limit on their sentences and no idea when they might be released, on the basis that they were supposedly dangerous. However, that was often because the judge had no alternative but to making that finding, when the offender was clearly not dangerous in the terms that they have should been, as the sort of offender that I have described. Not only did those in custody not know when they were going to be released, but there were no courses and no proper treatment available for them. None of the things that should have been done to drill down into their offending were done, so people were literally—and still are—languishing in prison. With great respect to my hon. Friend the Member for Shipley, I find it perverse that Opposition Front Benchers should agree with that aspect. For a party that has always prided itself on the liberty of the individual and the rights of the prisoner, it is absolutely wrong to support a system that has people languishing in prison, year after year, without the treatment that they need.
Mr Leigh
I agree with my hon. Friend. I do not want to weary the House with too many figures, because then I will be accused of quoting statistics, which do not give the whole story. However, these figures are alarming and it is up to the Government to reply to them. As I have said, 48% of all burglars do not receive an immediate custodial sentence. Some 37% of burglars of private dwelling houses—the worst form of violation of our fellow citizens’ rights—do not receive a custodial sentence. Approximately 87% of custodial sentences for domestic burglary are for less than three years. In 2010, only 16% of those convicted of burglary were sentenced to more than 18 months in prison. In other words, only 16% were sent to prison, and a lot of them were out within nine months. We know that a house that has been burgled has a 20% chance of being burgled at least once more within a year.
Apart from the trauma and the violation of people’s rights and privacy, burglary costs insurers a staggering £370 million per annum. Members should not believe all those insurance adverts in which the kind insurance company comes in the next day and mends everything—that does not happen. As I and our fellow citizens know, it is hard going every inch of the way with these insurance companies.
What about the clear-up rate? The British crime survey shows that approximately 659,000 domestic burglaries were committed in 2009-10. Given that only 9,670 such offenders were convicted, the clear-up rate was a mere 1.4%. So, not only are many of the punishments derisory—someone who is convicted, if indeed they are convicted, will not go to prison for very long—but the clear-up rate is incredibly low and the police are obviously struggling to deal with the problem. As my hon. Friend the Member for Shipley said—the point he made bears repeating—according to Ministry of Justice figures for a particular year, 2,980 burglars with 15 previous convictions were not sent to prison. I hope the Minister will reply to that point when he sums up the debate.
We had an argument earlier about current sentencing guidelines. I quoted various figures to the Secretary of State during interventions, saying that only 48% of burglars go to prison, and he said, “I’m sorry, but my position is absolutely clear: I believe that if you burgle a private dwelling house, you should go to prison.” The purpose of my speaking in this debate is to try, in my own small way, to convince the Secretary of State, the judges and the whole system that there is a widespread and strong belief and understanding among our fellow citizens that someone who breaks into and steals from a private dwelling house will go to prison, and I want to drive that message home. However, I was told that sentencing guidelines—my hon. Friend the Member for Broxtowe spoke with great authority on this issue—suggest a community sentence for first-time offenders. They may have been convicted for the first time, but how many burglaries have they actually committed? We have no idea. We are talking about a community sentence—no prison sentence at all.
Currently, for a category 3, lesser harm or lower culpability domestic burglary—I do not accept this language, which is that of the Sentencing Council—the sentencing starting point is a high-level community order. Our fellow citizens will be astonished to hear that somebody can commit a domestic burglary and get a high-level community order. The suggested range goes from a low-level community order to a mere 26 weeks' imprisonment, which, as we all know, is nothing like 26 weeks' imprisonment. On top of that, criminals receive a guilty plea discount. I am sorry to have to say that we are simply not doing enough to grip this.
Mr Leigh
I shall give way in a moment, and I hope that the Minister will reply to this point. There are far too many domestic burglaries and people do not feel safe in their homes. The punishments are not sufficient and neither is the clear-up rate, and that has a major effect on the quality of life in this country.
The Solicitor-General
On my hon. Friend’s point about category 3 burglaries, is he suggesting that public policy should not allow any differentiation between domestic burglaries? For example, if in broad daylight the burglar puts his hand through an open window, steals a paperweight from the windowsill and walks off, should that be treated in the same way as a night-time domestic burglary in which an elderly couple are traumatised and frightened or—as happened in his case—the house is trashed? Is he saying that there should be just one category, burglary, and that the sentence should be prison full stop?
Mr Leigh
Of course I am not saying that and of course judges should have some discretion. There is a range of burglaries. It is not for me to lay down the law and to say that there should be a minimum sentence or what it should be. I want to drive home the point that there should be a general understanding among the law-abiding public that their homes will be protected, as there should be a general understanding among them and among the criminal classes of what will happen if someone commits any kind of domestic burglary. I do not accept the language, by the way. We have heard descriptions of burglaries before in which somebody puts their hand through a window and takes a paperweight, and we have to ask how many people are going around taking paperweights—I do not know. The language suggests that it does not really matter very much, but it does matter and it is important.
Of course, there must be differentiation, but my point is very important: I want a general understanding of what will happen if a person violates someone’s privacy and causes them trauma. I suspect that a lot of the time what is being stolen is not just a paperweight but something that is very personal and precious. It goes back to what my hon. Friend the Member for Broxtowe said about her grandmother’s wedding ring. It might not be worth much, but the experience was traumatising. I want to drive home the point that if someone goes into somebody’s private house and takes something, they should end up in prison.
The Solicitor-General
My hon. Friend has sat down already, so that is all right. I am trying to extract clarity from him. I want him to make the best case he can, but unless he speaks clearly it is difficult to respond in a way that does his argument justice. That was why I asked him the question and he has provided me with an answer.
Mr Leigh
I thank the Minister. We are at idem and I hope that the Government will now make an announcement in accordance with what I have been arguing for the past 10 minutes or so.
I want to drive home the point that it is the poor and vulnerable who suffer. A family with a household income of less than £10,000 is more than twice as likely to be burgled as one with a household income of £40,000 to £50,000. As a House of Commons, we are right to have this debate today and to raise this issue. I understand that the Government will make an announcement this afternoon on spent convictions—I have been told by the media that that will happen, but I do not know whether that is right. At the end of this debate and over the next few weeks and months, I want to elicit a response from the Government that shows that they are seized of the problem and are prepared to put sufficient resources into clearing up domestic burglaries through the policing system and to encourage the courts to take seriously the crime of burglary, of all crimes, because that is one thing that our fellow citizens want more than anything else.
Stephen Phillips
This is a rare area in which I might disagree with my hon. Friend. Before the Sentencing Guidelines Council was established, as my hon. Friend will know and as the House heard in the Front-Bench speeches, the Court of Appeal used to issue guidance in the form of judgments in particular cases on how judges should proceed in sentencing. That was worth while, and, as my right hon. and learned Friend the Secretary of State made clear in his speech, the Court of Appeal retains that role. We saw it, as an intervention revealed earlier in the debate, in the riots last year. The Court of Appeal, essentially, was able to establish that as a matter of English law the context in which otherwise minor offences had taken place required much stiffer sentences to be imposed than would otherwise have been required either by previous guidance from the Court of Appeal or by guidance from the Sentencing Guidelines Council.
I can agree with my hon. Friend the Member for South Swindon to the extent that it does seem important that the Court of Appeal should retain that overarching ability to exercise its right to indicate to lower court judges what would be an appropriate sentence in particular circumstances. What the Court of Appeal never had and still does not have the opportunity to do is consult more widely, whereas the Sentencing Guidelines Council did have that opportunity, as does the Sentencing Council, which consults much more widely than the Court of Appeal ever could in a criminal case. In any case in which the Court of Appeal was handing down guidelines, it would receive submissions only from the parties to the case—and perhaps from the Attorney-General; I know not—but it would not be able to consult extensively with the public as the Sentencing Council can and does. If we are to encourage public confidence in the sentencing regime, it is very important that the public are consulted.
The only respect in which I might criticise the Sentencing Council—perhaps I am going slightly off the topic here—is in relation to its consultations on mandatory or discretionary guidelines on sentencing, which are not well publicised or well known. The representations it receives usually come from the Criminal Bar Association, other specialist associations and those who are particularly interested in the criminal justice system.
The Solicitor-General
Is there not another point to bear in mind? The Court of Appeal’s criminal division can look only at past cases and must have cases brought to its attention either singly or in groups in order to introduce thematic judgments on particular areas of criminal activity. The Sentencing Council, however, can proactively look at burglary, sexual assault and other areas of crime and give forward, rather than retrospective, guidance.
Stephen Phillips
My hon. and learned Friend makes an excellent point, as usual, which I had not thought of. No doubt that is why he is the Solicitor-General and I am two Benches behind him. He is absolutely right and I entirely agree with him.
I differ from my hon. Friend the Member for South Swindon only inasmuch as although I think the Court of Appeal should indeed retain the overarching ability to indicate to lower court judges the framework within which sentencing must take place, I also consider the existence of the Sentencing Council to be important for the reasons I have indicated. The council’s guidelines ensure a large measure of consistency between sentences that are handed down for similar, if not identical, crimes across the entirety of England and Wales. For that reason, although I understand that there is a cost implication with the maintenance of that body and that it can be described, as it always is, as a quango—indeed, some would say it is a quango we should dispense with—it is a body that should continue to exist if we are to encourage confidence in the sentencing regime in England and Wales.
I hesitate, particularly given the time, to say very much about the hon. Member for Hammersmith’s spirited defence from the Front Bench of the sentencing regime and the way in which sentencing was treated by the previous Government, but it is right to point out that a large number of criminal justice Acts were passed under the previous Administration. If he were to go, as I recommend he should—perhaps he already has—and talk to those who had to use that legislation and were bound by it in their sentencing exercises, he would find a universal, or near-universal, level of criticism, particularly regarding the Criminal Justice Act 2003. Many of the measures that the previous Government introduced, such as custody plus, which was the example given by my hon. Friend the Member for South Swindon, were never brought into being or had to be changed in subsequent Acts. The difficulty with the previous Government’s approach was that it sought to micro-manage the judiciary and to remove large elements of discretion so that the sentences that were passed did not necessarily reflect the offences of which the accused had been convicted or for which a guilty plea had been entered. Sentencing became, to a large extent, a tick-box exercise, which as the hon. Gentleman acknowledged, at least by implication, and as other Members acknowledged, is a most unsatisfactory way of proceeding. I listened to the spirited defence from the Opposition Front Bench, although I sought not to intervene, but I have to tell the hon. Gentleman that the approach the Government are taking in their reforms is the right one and I commend it to the House, as indeed I commend the motion.
The Solicitor-General (Mr Edward Garnier)
I think that I am the 16th contributor to the debate, and it is not surprising—indeed, it is welcome—that although the debate is entitled “Transparency and consistency of sentencing”, and we are required by the motion to have
“considered the work of the Sentencing Council and the transparency and consistency of sentencing”,
contributions from right hon. and hon. Members have dealt with a number of wider issues within the criminal justice system. I congratulate the two Deputy Speakers who have chaired our debate on permitting such a liberal approach to the terms of the motion, which has allowed a number of informed and informative contributions.
I confess I thought that at some stages in the debate, the hon. Member for Hammersmith (Mr Slaughter) who, at least this afternoon, speaks for the Opposition on such matters, had been sentenced to a period of solitary confinement. For considerable periods he was the only Labour Member who thought it appropriate to remain in the Chamber. He, poor fellow, had no liberty and no discretion about whether to sentence himself to time in the Tea Room or somewhere else. It was a pleasure to see him sitting there silently for much of this afternoon. He has assisted us greatly with two contributions. Many people will no doubt find assistance from reading, with great care, what he had to say, in tomorrow’s Hansard. His praise for our judiciary and the criminal justice system was of considerable value, and the sentiment was shared across the House. I think he said that there was no room for complacency. If he did say that, he was right to do so.
From listening to the speeches of Government Back Benchers, I think it is fair to say that while there is universal acceptance of the high quality of our judiciary, from the highest court in the land, the Supreme Court, to the lay magistracy, there is no room for complacency and plenty of room for public comment. There is plenty of room for Members of Parliament—indeed, there is a duty on them, when it is appropriate—to make stinging comment, often in offensive terms. It is the right and duty of a Member of Parliament to speak up for his constituents or for a particular group of citizens who have strong views. It is right that my hon. Friends the Members for Gainsborough (Mr Leigh) and for Shipley (Philip Davies) come to this place not to agree with everything that goes on, but to disagree and explain why they disagree. The Government and the Opposition can make judgments about their contributions and reach a rational conclusion about whether to agree or disagree with them. I am grateful to both of them, and indeed to all Members who have taken part in the debate.
As I said, it is not surprising that our debate has been spread widely. We have considered the work of the Sentencing Council and whether it is a constitutional abomination that is interfering with the freedom of Englishmen. I say to my hon. Friend the Member for Penrith and The Border (Rory Stewart) that in some senses I hope it is interfering with the freedom of Englishmen who commit crimes and deserve to be sentenced to terms of imprisonment or, if their offences are not so hideous, to non-custodial disposals.
I know that my hon. Friend is a man who thinks a great deal about a great many things, and it is clear that he has thought a great deal about the difficult constitutional issues that are revealed in any discussion of the separate roles of Parliament, judges, juries and the Sentencing Council. None the less, I disagree with his conclusion if it genuinely is that the Sentencing Council is an affront to the liberty of Englishmen.
During the passage of the legislation that the last Government introduced setting up first the Sentencing Guidelines Council and then the Sentencing Council, I expressed the view that there was a danger that those bodies would interfere with the discretion of the judiciary. I said that both as a Member of Parliament and as someone who has sentenced people—until I came into government in 2010, I used to sit as a Crown court recorder, like my hon. Friend the Member for South Swindon (Mr Buckland) and my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips). I think if my hon. Friend the Member for Penrith and The Border were to sit either as a spectator in the public gallery or alongside the judge—or even, dare I say it, if he were to imagine what it must be like to sit in the dock and hear a judge promulgate a sentence—I do not think he would be in any doubt whatever that our judiciary is not fettered in the way that I feared it might be, and the way he perhaps implied it was, by the guidance of the Sentencing Council.
Time and time again as Solicitor-General, I have appeared in the Court of Appeal criminal division referring what I consider to be unduly lenient sentences to the Court for review. I remind the House that I do that not as a member of the Government but as an independent Law Officer protecting the public interest. When I do so, I am constantly reassured that the Court of Appeal reminds the judiciary and the public who are in court that the sentencing guidelines are simply that—guidelines. When it is just to depart from them, the judiciary must do so. When it is just to show mercy, it is right and proper that the court should do that.
In cases such as the riots, to which my right hon. and learned Friend the Secretary of State referred, it is right that sentencing judges in London, Birmingham, Liverpool or Manchester can go beyond the range of sentences recommended in the guidelines for affray, robbery, burglary of shops, arson or whatever it may be. The Court of Appeal and the Lord Chief Justice have said that given the context in which the crimes were committed, it was entirely proper that the sentencing judge should go beyond the sentence that might normally be expected for, let us say, the theft of three bottles of water, a cardigan or a pair of trainers from a shop.
It seems to me that we need to bear in mind the context in which the Sentencing Council does its work. Yes, the situation has changed from what happened 20, 30 or 40 years ago, when we relied only on the Court of Appeal to set out guidelines. However, now that we have the council I am, if not an enthusiastic convert, a convert who is prepared to say that its work, and previously that of the Sentencing Guidelines Council, has demonstrated its worth.
I should like to echo those who thanked Lord Justice Leveson—I am thinking particularly of the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), the Chairman of the Justice Committee. Lord Leveson’s work on sentencing is in addition to his ongoing inquiry into the press and his work as an ordinary member of the Court of Appeal. He has to fit in sitting days in the Court of Appeal and deal with the work of the Sentencing Council in addition to his work on the Leveson inquiry, so I hope it will not be suggested that that judge, let alone any other judge at that level, shirks in his public responsibilities. He is working extremely hard and producing good work.
However, the fact that the council produces those guidelines does not mean that we must agree with them. Members of Parliament can disagree with them, as can members of the public who read about sentences in their local or national newspapers. We can form our own views, but as my right hon. and learned Friend the Lord Chancellor said at the outset, Members of Parliament must be a little careful when we express such views, because the public expect us to have opinions based on fact, not simply on conjecture or rumour, or on a bad report of a case that we read in the newspaper. When Members of Parliament disagree with a sentence that a Crown Court judge has arrived at, we are under rather more of a duty than the young reporter or the ordinary member of the public to do our best to find out the facts.
One good way of finding out the facts is to ask the House of Commons Library to do the research for us. Another good way of increasing our knowledge of what the Crown Courts and other sentencing courts do is to go and sit in them, which I did in opposition. I urge my right hon. and hon. Friends and the few Labour Members in the Chamber to go to their local Crown court to see what happens. Friday is a very good day to do so because it is often the day when the sentencing lists are dealt with.
I take what my hon. and learned Friend the Member for Sleaford and North Hykeham said about cases sometimes being dealt with by one judge at one instance and then being referred to another judge, but by and large, I like to think that happens only when they are dealing with cases in which there is a guilty plea followed by a sentence. The sentencing judge on a guilty plea is in just as good a position as the judge that received the plea. The important thing to bear in mind—this is a piece of advice that the Court of Appeal constantly gives, and my right hon. and learned Friend and I constantly give it to the Crown Prosecution Service, which we superintend—is that the factual basis on which the plea is made is established. Sentencers cannot sentence in a vacuum. It is essential that the facts of the case as admitted or as found by the jury are clear, so that the sentencer knows precisely on what basis he is sentencing.
Mr Buckland
Will the Solicitor-General reassure the House that the basis of pleas are reduced into writing—that they are court documents? Transparency is an important part of that process, as has been emphasised by all courts, including the Court of Appeal, for some years now.
The Solicitor-General
I am sure my hon. Friend is right about that—he will know that from his experience both as an advocate and as a sentencer. It is utterly frustrating to have to analyse sentencing remarks that are based if not on conjecture, then on a total lack of knowledge of the facts. Advocates—those who appear for the Crown and the defendant—have a duty to ensure that the court is given the facts.
Advocates also have a duty to ensure that the court is advised about the relevant sentencing law and powers. One of the problems, or unintended consequences, of the raft—I was going to say the flood—of legislation passed by the Labour Government was that those Acts had something to do with amending the criminal justice system. The previous Government were not so silly as to call every one of those 64 Acts of Parliament a criminal justice Act, but I can assure the hon. Member for Hammersmith that 64 pieces of legislation passed between 1997 and 2010 affected the way the criminal justice system worked. It is completely—I will not use an unparliamentary expression—confusing to have to sit there and try to work out which piece of legislation deals with which type of offence and whether that legislation is in force, not yet in force or out of force.
Let me take the example of the Criminal Justice Act 2003, which is almost as thick as this great tome—the wonderful “Vacher’s Parliamentary Companion”—in my hand. Before this Government came into office, I asked a parliamentary question of the previous Government, and it was quite clear that they had simply mismanaged the conduct of that piece of legislation. About a third of it was repealed before it even came into force. Another third was not in force by the time the previous Government left office. Individual bits of the remaining third were brought into effect, and we are now having to repeal them—I am talking, for example, about the IPP legislation. Other bits were also brought into force by the previous Government, but they then realised they needed to repeal them.
What we require from the House, therefore, is an understanding that legislation needs to be thought about. We need, of course, to consult—this is what the Sentencing Council does—the people who have to apply it and the people it will affect. We need to work out what we will get if we pass what I call early-day motion legislation—expensive appeals; judges telling my right hon. and learned Friend the Lord Chancellor that statutory construction is hell; and a huge lack of public confidence and satisfaction in the justice system.
Stephen Phillips
My hon. and learned Friend may remember—I wonder whether he agrees with this—that, in March 2006, Lord Justice Rose, speaking of the 2003 Act, which most of the judiciary consider to be the worst criminal justice Act of all time, said:
“Time and again during the last 14 months, this Court has striven to give sensible practical effect to provisions of the Criminal Justice Act 2003, a considerable number of which are, at best, obscure and, at worst, impenetrable.”
Does my hon. and learned Friend agree that it was not the high point of Labour’s justice policy?
The Solicitor-General
My hon. and learned Friend is too kind. I will also say this: Lord Justice Rose is a very great man.
Rehman Chishti
On that point, does my hon. and learned Friend agree that the 3,000 new offences brought in by the Labour Government had little effect in reducing crime? It was simply a case of legislation being made for the sake of making legislation, rather than making a real difference to people’s quality of life.
The Solicitor-General
I do agree. We made the same points during the passage of the 2003 Bill, as it then was, and subsequently.
The Solicitor-General
The hon. Gentleman has been very lucky—he has been allowed two goes. I have two more minutes, so he will just have to sit there and wait.
In the final minutes remaining to me, I want to thank the hon. Member for Hammersmith for his contributions, which were utterly valuable. My right hon. Friend the Member for Berwick-upon-Tweed contributed thoughtfully and with all the experience he has gained as the Chairman of the Select Committee. The right hon. Member for Leicester East (Keith Vaz) has now gone. I am afraid that I had to cut him short because I thought his remarks were straying into an area we should not stray into until the case he wanted to talk about is completed. I mentioned the remarks of my hon. Friends the Members for Shipley and for Gainsborough. I am sorry I do not have time to deal in detail with the points they made, but I commend them on the forceful way in which they put them across. It is important that Members of Parliament do not just sit there like lemons, but get up and speak for their constituents.
Furthermore, if Members have particular experience —my hon. Friend the Member for Gainsborough and I have both been victims of several burglaries, as has my hon. Friend the Member for Broxtowe (Anna Soubry)—we should use that personal experience. However, we should also use our professional experience, and a number of lawyers have brought to the House their experience as lawyers and as Members of Parliament. Their work as Members of Parliament is all the better for it. I am thinking of my hon. Friends the Members for Dartford (Gareth Johnson), for Gillingham and Rainham (Rehman Chishti) and for South Swindon, and my hon. and learned Friend the Member for Sleaford and North Hykeham. I apologise for not commenting in detail on the contribution from my hon. Friend the Member for Stroud (Neil Carmichael). I also wanted to comment on the speech by my hon. Friend the Member for Blackpool North and Cleveleys (Paul Maynard)—