Sentencing

Lord Clarke of Nottingham Excerpts

Monday 23rd May 2011 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

I beg to move an amendment, to leave out from “House” to the end of the Question and add:

“deplores the previous Government’s failure to tackle the national scandal of reoffending and its mismanagement of the justice system; notes that discounts for guilty pleas have been an established principle of common law for decades, and that they can speed up justice and spare victims and witnesses the ordeal of waiting and preparing to give evidence at trial; and welcomes the Government’s intention to overhaul sentencing to deliver more effective punishment for offenders and increased reparation for victims and to reform offenders to cut crime.”

I welcome the shadow Secretary of State’s coming to the Dispatch Box and moving the motion, which took me rather by surprise when it was tabled at the last minute last week. At one point, he gave a clear exposition of the opinions of the Leader of the Opposition on the encouragement that is given for an early guilty plea. No doubt we will discover at some stage how many days ago the Leader of the Opposition came to that conclusion, but I think it is rather more the right hon. Gentleman’s than his leader’s.

The shadow Secretary of State also, quite fairly sometimes when giving way to interventions, said that there were substantial parts of the proposed reforms with which he was in broad agreement with the Government, and he offered to work with my colleagues and me in that regard. However, he tried to get away from that by saying that he would support me if it were not for the reductions in public expenditure in my Department to which I am submitting. I regard it as being in the national interest to make reductions in public expenditure in most Departments. If the right hon. Gentleman believes that my Department should be totally exempt from any reductions in public expenditure at all, perhaps he would indicate in which other part of the public service he would volunteer reductions. With respect—I do not normally tender such advice—the weakness of the Labour party is that it does not have the first idea when it is going to stop denying the need for any reductions in public expenditure. There are some perfectly reasonable reductions to be made in the criminal justice system, but that is not the principle motive for reform. The principle motive is to make the criminal justice system better and to tackle some of the problems we have inherited, as my right hon. and hon. Friends have touched on.

[Fiona Mactaggart (Slough) (Lab)]

Will the Secretary of State give way?

[Mr Clarke]

The right hon. Member for Tooting (Sadiq Khan) was very generous in giving way and we all appreciated that, but there will be no Back-Bench speeches if I give way too frequently. I will give way in a second.

Let me get one thing out of the way first. I have always believed, along with every sensible person, that Britain needs a criminal justice system that is effective in properly punishing offenders for their wrongdoing and in protecting the public from further crime. When I took office as Justice Secretary it seemed to me perfectly obvious that that had to be the first priority for all my policies. That is self-obvious; it is a platitude. The Government’s policy, and my first duty, is to punish crime and have an effective system for protecting the public from further crime. The problem that I face, which causes the reforms, is the fact that I inherited a system that was not effective in protecting against offenders’ committing further crime or even in punishing offenders. So that is at the forefront of where we are going.

Without going over all the exchanges that we have just had, let me explain briefly what we have taken over, which causes the need for the proposed reform. Our prisons are pretty nasty, unpleasant places, far from the holiday camps they are sometimes made out to be. The people in most of them pass their days in a state of enforced idleness, quite a few of them making some tougher friends than they have had in the past, and not facing up to what they have done. That is not what I think of as a satisfactory and effective punishment. But a bigger scandal still is our system’s failure to protect the public from future crime committed by offenders after completion of their time inside. Reoffending rates in this country, as we have taken over the system now, are straightforwardly dreadful.

[Philip Davies (Shipley) (Con)]

The Secretary of State has made much of the fact that short-term prison sentences lead to higher rates of reoffending than longer-term prison sentences. Given that his proposals now are to give people a 50% discount on their original sentence, plus they will be let out 50% of the way through their time in prison, and given that short sentences do not work, as he says, why is he so determined to make long prison sentences into short prison sentences?

[Mr Clarke]

The point that I make is not the one that hair-splits the variations between different forms of sentence. All our reoffending rates are very bad. I have no intention of addressing the sentencing tariffs for any offence in this country. I have no proposals for reducing the overall powers of the courts to deal with any crime. What we are talking about is the difference between someone who pleads guilty, particularly at an early stage, and someone who makes the witnesses and the victims go through the crime. That is what I will address.

Ever since I published the proposals five months ago, although we have not faced any clear alternatives or views from the Opposition, I faced a debate about my apparent desire to let prisoners out and reduce the sentences. I have no such desire; nor do I use statistics to illustrate the need for that. What I am talking about—

[Dr Julian Lewis (New Forest East) (Con)]

Will my right hon. and learned Friend give way?

[Mr Clarke]

Let me continue briefly. I want to get on to the quite small proposal in our overall reforms that this debate and the publicity of the past few days have focused on. Let me explain what the reoffending problem is, because that is at the core of the Government’s policy and my proposals.

Within a year of leaving jail, half of Her Majesty’s guests will have been reconvicted of further offences. For adults released from short-term sentences the figure is 60%. For young offenders leaving custody it rises to three-quarters. The same people cycle around the system endlessly, costing endless suffering to victims and, for those released from short sentences alone, costing between £7 billion and £10 billion a year to society. That is the key part of the penal system that is not working. I offer this analysis because it throws into sharp relief the record of the Labour politicians who are now criticising bits of our proposed reforms. What I have just described is part of the legacy of the previous Government.

[Dr Lewis]

Will my right hon. and learned Friend give way?

[Mr Clarke]

Let me finish describing the legacy of the previous Government, then we will move to the more constructive matter of my reforms and I will give way to my hon. Friend.

I have not forgotten, and I am sure the public have not forgotten either, what 13 years of Labour government was like in this field, despite the attempts of the right hon. Member for Tooting to skate over some of it. We had 13 years of eye-catching initiatives, schemes, meddling and prescription that made a complete Horlicks of the criminal justice system. We had more than 20 Criminal Justice Acts. Thousands of new criminal offences were created. Senior judges complained that

“Hell is a fair description of the problem of statutory interpretation”

when talking of this stream of legislation. We had a 39% increase in the number of prisoners in our jails—it was not planned and it was not policy—with the cost to taxpayers rising by two thirds in real terms.

And what for? That was meant to be the embodiment of the policy of being tough on crime and tough on the causes of crime—an attempt to give reality to an admittedly rather catchy slogan. What we got was a sentencing policy so chaotic and badly managed that, as my hon. Friends quite rightly keep emphasising, the previous Government had to let out early 80,000 criminals, who promptly went on to commit more than 1,000 crimes, including alleged murders and one rape. We had a system under which more than 1,000 foreign national offenders were released without being considered for deportation—the total number of foreign prisoners in our jails doubled during Labour’s period in office. We had a system under which offenders serving community sentences in practice usually completed only one or two days of unpaid work each week. Above all, as I keep emphasising, there was the national scandal throughout Labour’s period in office—not a new problem—that the exorbitantly high reoffending rates went completely ignored.

Why was that? A recent quote from the right hon. Member for Tooting is worth repeating, as he gave an extremely good description of what went wrong and what was driving Labour’s policy. Speaking to the Fabian Society about New Labour’s record on this subject just two months ago, he said that

“playing tough in order not to look soft made it harder to focus on what is effective”.

He gets a murmur of approval from the Conservative Back Benches, and certainly from those of us who had to witness the effect of that policy.

Let me move on to our proposed reforms, including the one to which the Opposition’s motion refers. What are the problems that we are now tackling and that our large package of reforms seeks to address? First, criminal trials are needlessly long, drawn out and expensive. The court experience is often deeply unpleasant and almost always uncomfortable for victims, witnesses, jurors and most people who have anything to do with it. As I have said, at least half of all crimes are committed by people who have already been through the criminal justice system. More than one in 10 adults in prison have never been in paid employment, almost a fifth of prisoners who have used heroin did so for the first time while in prison, and one in five appears to have mental health problems. If we wish to take this subject seriously and really want to protect society and the victims of crime, we must recognise that that is the context of today’s debate.

[Fiona Mactaggart]

I thank the right hon. and learned Gentleman for giving way at last. He is talking about practical studies on how to deal with prisoners with mental health problems, such as the work done by the Bradley review. I will go along with him on those issues, but I do not understand what studies he has done on the precise issue that we are debating today and on the effectiveness of early guilty pleas. It is clear that already two thirds of Crown court cases that result in a conviction involve people who have pleaded guilty. More than 10,000 of those cases in 2008-09 were at the door of the court but could easily have been dealt with in a magistrates court. Why is he not acting to ensure that those guilty pleas happen in a magistrates court, rather than having this widespread policy that will lead to violent criminals being let off?

[Mr Clarke]

On Lord Bradley’s report and the problem of mentally ill people in prison, it seems plain from the hon. Lady’s intervention that she agrees with me. My right hon. Friend the Secretary of State for Health and I are working on ways to divert people from prisons, in proper cases and with proper protection of the public, to places where they can be more sensibly and suitably treated. In that respect the hon. Lady and I are in total rapport.

What I am suggesting about the system of guilty pleas, and the reason I have described the unpleasantness of going to court for most people who unwillingly go there as victims and witnesses, is that although most cases wind up with guilty pleas, more should do so and far too many such pleas are made ages after the event and at the last possible moment. I shall explain in a moment how we are addressing that problem, because the long-standing system we have at the moment is not working well enough.

[Dr Julian Lewis]

Will my right hon. and learned Friend allow me?

[Mr Kenneth Clarke]

Let me just take our proposal on early guilty pleas. Let me get into that. I am sorry to be unkind to my hon. Friend, but I have to bear in mind the people trying to be called, otherwise there will be no BackBenchers’ debate, and as someone who was until recently a Back Bencher for many years, I always used to find it irritating when we had a short Opposition day debate.

[Chris Bryant (Rhondda) (Lab)]

You always got called early.

--- Later in debate ---

[Mr Clarke]

An advantage the hon. Gentleman will have one day.

From the proposals of the right hon. Member for Tooting, I cannot quite see any difference in principle between the two sides of the debate. It is, and always has been, a well recognised and fundamental practice in this country that those who lie their way through a trial and are ultimately found guilty should face a greater punishment than those who own up early, take responsibility for their crime and commit to making amends. That has taken place for at least the past 40 years. I suspect that anybody here who does enough research will find that, for the past century, people who fought it out and braved it out got a longer sentence than those who put their hands up early and pleaded guilty.

What is the purpose of that practice? The public are sometimes startled when they hear that that is the practice, though it always—always—has been in the courts of this country. The purpose is, as we have already stressed, because of the situation of victims and witnesses, above all. No one should underestimate the relief that is felt by anybody who is a victim of crime and has complained to the police about it when they are told that the offender is going to admit to it, and that they, the victim, are not going to be put through an ordeal in court. The witnesses feel equally relieved. It is far, far worse when someone fights on, because often the victim finds that on public evidence and in a court of law they are being accused of lying, of bad behaviour, of promiscuity or of whatever it is that the defendant is trying to run. That is why the justice system of this country has always included the practice. It also saves an awful lot of police time, an awful lot of Crown Prosecution Service costs and everything else.

[Dr Lewis]

On that point, will my right hon. and learned Friend allow me?

[Mr Clarke]

I will give way on that point, but I just say finally that it is a pity practising lawyers have always referred to the practice as the guilty plea “discount”, because that is not actually the best way of explaining it to a sensible member of the public. I give way to my hon. Friend at last.

[Dr Lewis]

I am grateful to my right hon. and learned Friend for his generosity in giving way. He talks about what victims feel, and I always thought that victims felt very unhappy with the previous Government’s policy of letting many criminals out automatically halfway through their sentences. When in opposition we always used to talk about honesty in sentencing, so are we going to change that policy, or are people going to be let out automatically halfway through a sentence which has already been reduced by half as a result of the new measure under discussion?

[Mr Clarke]

Halfway through the sentence, people are released on licence, therefore they are liable to recall. If they reoffend, they are brought back; they are not free of their conviction for some time. We are going to address not just release on licence or supervision on licence, but what more can be done once people are out of immediate custody in order to increase the chances of their not reoffending. That is where we get into payment-by-results schemes, and that is why I already have a contract at Peterborough prison, which I inherited, and a new one at Doncaster prison, whereby we will pay more to providers who stop such people coming back when they leave prison. That is not for today, but it is a key part of our reforms, and I do not think that any Member opposes it.

Let me move on to what we are debating. We have the decades-long principle of offering for an early plea a reduction of up to one third on the sentence that a judge hands down. The previous Government made that clearer, because they calmly allowed the Sentencing Guidelines Council to spell out the one third, and it was actually made more binding on the courts in 2009. If anybody in the Opposition is against in principle the idea of what I say is unfortunately called a “discount” for a plea, why have they not mentioned it for the past 13 years? Why was the previous Government’s policy based on that principle and on the arguments that I have just raised? Why are we readdressing this?

[Emma Reynolds (Wolverhampton North East) (Lab)]

rose—

[Mr Clarke]

Ah, here we are—somebody who supports the idea. The trouble is that if a discount is not given and the man gets to the court door and finds that there is not much coming off his sentence any more, he might as well instruct his lawyer to have a go and see whether the defence can shake the story. That is why no lawyer has ever objected to the discount for a guilty plea.

[Emma Reynolds]

The right hon. and learned Gentleman knows full well that there is a big difference between a 30% discount and a 50% discount. Will he turn his mind to the evidence that has been suggested by the Sentencing Council, which says that the 50% plea discount will not bring forward any more criminals to plead guilty? What does he say to that?

[Mr Clarke]

I do not agree with that. It is not evidence; there are a variety of opinions. However, it is a perfectly good question. We have got down to the fact—I can be precise—that the difference appears to be 17%. That is what we are arguing about. I do not think that anybody in this House has any principled difference whatever on the policy.

The present system is not working effectively, so we have gone out to consultation on proposals that might improve the encouragement offered to people to plead guilty earlier. In over 10,000 cases listed, the trial stops right at the courtroom door; judge, jury, victims, police officers, probation officers are all amassed for a full trial, and then at the last minute the person pleads guilty. Those long delays are wrong, not only because of the cost to the police and the waste of time of everybody attending for any purpose connected with the trial, but because victims and serious witnesses have to endure the uncertainty of it all as they prepare for the ordeal of reliving the trauma of what are sometimes very harrowing experiences.

I hope that the right hon. Member for Tooting will forgive me for saying that saving a bit of cost to the police, the Crown Prosecution Service, Her Majesty’s Courts and Tribunals Service and the public purse might be advantageous, although I know that it was not new Labour’s approach. If we could get more of those involved in these cases to plead guilty earlier, an awful lot of victims would feel that they have been better treated by the system.

[Sadiq Khan]

The right hon. and learned Gentleman has enthusiastically set out the case for why he believes an increase in the discount of up to 50% should be carried through. Does the Prime Minister agree with him?

[Mr Clarke]

This was an entirely collectively agreed policy on which we went out and consulted, so the answer is yes, of course. The Prime Minister runs a scrupulously collective Government, and I am an extremely loyal Minister much used to collective Government. I do not think the right hon. Gentleman has much experience of collective Government, but I commend the system to him—and to the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), who was of course fiercely embattled on one side in the previous Government.

We agreed that this was a reasonable proposition on which to consult because, as I said, the system that we inherited is not achieving the benefits that the previous Government presumably thought it might achieve when they set it up.

[Sadiq Khan]

I thank the right hon. and learned Gentleman for generously allowing me a second bite of the cherry. He has correctly said that the Prime Minister signed up to the consultation, which ended on 4 March this year. He talked about collective responsibility. Can he confirm that last Tuesday morning the Cabinet Committee signed off on this proposal?

[Mr Clarke]

Even in a collective Government, one does not analyse what happens in Cabinet Committees before coming to one’s final conclusions. I am not going to disclose the contents of the Cabinet Committee’s proceedings for at least 20 years. The right hon. Gentleman will not be surprised to know that we do go to Cabinet Committees, but we have not yet finished our consultation process. [Interruption.] He is persisting, so let me repeat what I asked earlier: how many days ago did he and the Leader of the Opposition decide that they were going to run with this? Was it by any chance connected with the slight flurry of excitement in the media at the end of last week? He and his party, and his Front-Bench team, have not had a policy on this or any other subject to do with criminal justice for the past nine months. Let him study the processes that this Government follow, and no doubt they will guide him if ever he is lucky enough to get into great office.

The current system does not get enough early pleas and is a complete waste of resources. The police, the Crown Prosecution Service and others in the legal system use up millions of hours preparing cases that never make it beyond the door of the courtroom. That has to be changed. The Director of Public Prosecutions, Keir Starmer, has called for

“a reorientation of our approach so that guilty plea cases can be dealt with as swiftly as possible, leaving us to devote our valuable time and resources to cases that really require them. That way we may just begin to tackle the delays that still bedevil criminal justice.”

We are still considering the responses to our Green Paper proposals to increase the maximum discount for the very earliest pleas to one half, and to then have a taper, to encourage the earliest plea and disincentivise the late plea. We received many calm and reasoned responses over many months. There was no loud opposition at all to the principle of the proposal until last week. The rush for this debate is slightly pathetic and slightly comic. I do not know where it came from. I have a feeling that the Leader of the Opposition, not yet having decided what he was for, was wandering the streets looking for a passing bandwagon and prodded the right hon. Member for Tooting into putting down a motion.

Some people are claiming that the proposal is simply to reduce the sentences available for criminals, and that is worrying some of my colleagues. As I began by emphasising, it is no part of our reforms to reduce sentences, the protection of the public or the punishment for serious crime. That is not what the Government or I are about. In response, I say very clearly that judges will continue to have discretion in setting the appropriate sentence in individual cases. I will not shorten the length of sentences available to them in any kind of criminal case. I do not think that the Opposition contest the principle, as has been emphasised. I do not understand the argument that they would be in favour of my reforms if they were not combined with saving public expenditure. That is not a compelling point. Reforms to the efficiency and effectiveness of the system are required.

[Karl Turner (Kingston upon Hull East) (Lab)]

rose—

[Mr Clarke]

I apologise to the hon. Gentleman, but I really should sit down soon.

Let me deal with what we are trying to reform and why. The former Home Secretary, the right hon. Member for Sheffield, Brightside and Hillsborough (Mr Blunkett), said in the Daily Mail on Friday that I should

“order a wholesale review of how the court system works”.

He went on:

“my own jury experience left me staggered by the sheer waste of time and public money resulting from the chaos in our courts.”

[Chris Bryant]

It is the judges.

[Mr Clarke]

After 13 years, they say it is the judges. It is actually that the system does not facilitate the disposal of cases in the best possible way in the interests of victims, the police, the taxpayer and, above all, justice itself.

I have found quotations from the former Lord Chancellor, the right hon. Member for Blackburn (Mr Straw), who unfortunately is not in his place. He is the one who placed a more onerous obligation on judges to follow the early guilty plea guideline. Perhaps he is not here because, like me, he cannot understand what on earth got into the head of the right hon. Member for Doncaster North (Edward Miliband) in thinking that this was a suitable subject for debate.

I remember the right hon. Member for Tooting declaring in this House that he welcomed plans for a clear sentencing framework. In December he thought that they were

“a perfectly sensible vision for a sentencing policy, entirely in keeping with the emphasis on punishment and reform that Labour followed in government”.—[Official Report, 7 December 2010; Vol. 520, c. 171.]

I pay tribute to him for being so helpful and constructive in response to our proposals. It is a pity that he has been bullied into picking out bits and distorting them in this debate. The principle of a more efficient system of justice is not wrong, and the principle of the early guilty plea is not wrong—I am afraid that it is the state of the Opposition that is really wrong. That is what has brought the debate to the House.

The former Prime Minister’s old speechwriter, Phil Collins, apparently said last Friday:

“Labour don’t have a particularly strong position on crime of any kind”.

Well, we will help them. We have a policy, and it is very clear. We will reform the criminal justice system to focus it on punishing offenders, protecting the public and tackling the scourge of reoffending. We intend to make prisons places of hard work, not enforced idleness. We will get prisoners off drugs, and drugs out of prisons. We will toughen up the current weak and failed system of community sentences, and we will introduce a radical payment-by-results approach that will introduce innovative public and private sector solutions focused on what really matters, which is breaking the devastating cycle of crime.

[Several hon. Members]

rose—

--- Later in debate ---

[Philip Davies]

My hon. Friend is clutching at straws. The Secretary of State made it clear that as a result of the proposal fewer people would be in prison. That is the whole purpose of the measure. My hon. Friend ought to reflect on the fact that this is an arbitrary proposal, because there is absolutely no evidence suggesting that more people will plead guilty as a result. If that does not happen, will the Secretary of State return to the House in a few months suggesting a three-quarters discount for pleading guilty in order to get a few more convictions? Where will it end? Why not scrap prison sentences altogether? This is a slippery slope. It is ludicrous and not based in evidence.

Most people think that punishment is not heavy enough. It has been estimated that between 2007 and 2009, criminals on probation have been responsible for 121 murders and 44 cases of manslaughter, along with 103 rapes and 80 kidnappings. In total, they were responsible for more than 1,000 serious violent or sexual offences in the two years from April 2006, while almost 400 more suspects are awaiting trial. Most people looking at these figures would conclude that too few, not too many, people were being sent to prison, and most would conclude that people are not being sent to prison for long enough, not that they should be let out even earlier.

As we have heard, a senior judge, Lord Justice Thomas, warned that as a result of these proposals, a rapist facing five years in prison could get off with a sentence halved to just 30 months by pleading guilty earlier. However, because of what the previous Government did, which the Secretary of State appears to support, that offender would then be released after only 15 months behind bars. Fifteen months for a five-year sentence! That is what is happening under a Conservative-led Government.

[Mr Kenneth Clarke]

The example given by my hon. Friend is fanciful, because the average sentence for rape is eight years. Sentences will vary but in the end the judge will decide what justice and the seriousness of the offence justify. Needless public alarm is caused because the public find it difficult to know what the sentences are. If it reassures my hon. Friend, however, I can say that I would regard someone being released from the prison part of their sentence after 15 months as quite inadequate in a case of rape.