Crime and Courts Bill [HL]

Lord Elystan-Morgan Excerpts

Tuesday 13th November 2012 Lords Chamber

[Baroness Howe of Idlicote]

My Lords, I support the approach of my noble friend Lord Ramsbotham to the whole of this schedule. We have been over this ground before. As the noble and learned Baroness, Lady Butler-Sloss, has pointed out, punishment is in the sentence. The important scenario is how that sentence is to be worked out for the rehabilitation of the offender, with the effort being to see that that offender does not return to the court. As we all know, all too often that is not the case.

My other concern is that we have had no result—again, this was mentioned by my noble friend Lord Ramsbotham —from the Government on the probation consultation. For us to be asked to make judgments at this stage without having in front of us all the facts about who will do a lot of this very necessary, specialised work, is not acceptable. Frankly, I do not want any of the alternatives that have been suggested but, if others are prepared to keep this whole section in and I had to choose, I would go for that suggested by the noble and learned Lord, Lord Woolf. Then it would be left to the judges to make the decision, which is the way in which we have in the past treated, and should continue to treat, the judicial system.

[Lord Elystan-Morgan]

My Lords, alongside those who have already spoken, I humbly subscribe my support for this amendment. If ever there was an argument on the part of government that has been shot through and shattered, this is it. If ever there was a piece of legislation where there was an overwhelming and unanswerable case against it, this, in my respectful submission, is it. I appreciate the argument put forward on 30 October by the noble Lord, Lord McNally, when he mildly, with considerable charm, chastised me. He said that it is wrong to argue that a Government should take a view which is different from the policy that has been established by judges over a long period of time. I think I do him fairness in summarising it in that way. He must be right. Parliament is sovereign and supreme. Judges do their best within the limits set down by law, but they can—and should, on occasion—be overruled by Parliament. That is what Parliament is about.

However, I believe that there should be a qualification to that rule: Parliament should never do that, and certainly should never circumscribe the discretion of judges, properly and justly used, unless a case had been made for that, and that case would rest on facts. In my submission, this case does not rest on facts at all. It rests much more on some form of political prejudice. The noble Lord, Lord Ramsbotham, on 30 October, quoted a speech made by the Prime Minister on 22 October dealing with this particular matter. These were the words used by the Prime Minister on that occasion:

“‘At every single level of sentence this Government is getting tougher ... we are toughening up community sentences too. If you are on a community sentence you will be supervised-you will be properly punished-you will be forced to complete that sentence’.”.—[Official Report, 30/10/12; col. 523.]

It seems to me—and I made the point in a general way on the previous occasion—that essentially the Prime Minister was talking about including some element of hurt in a sentence. That is not the same thing as punishment.

The noble and learned Baroness, Lady Butler-Sloss, has already made the point that the fact that a person, with the sanction of the law, is enjoined to do something that he may not wish to do, is of itself a punishment. He is subjected to the sovereignty of the court in that respect. I would argue further that the very fact that a person is convicted of a criminal offence, and that stain will be on his escutcheon for ever, even with all the ameliorations of the 1974 Act, is of itself a punishment. However, what is asked for here is something that society regards as hurting the offender. The rationale behind it seems to be that society in some way, through the courts, has failed to recognise that essential element of hurt. In other words, it is saying, “You are namby-pamby. You are soft. You are far too liberal in your attitude in this matter. You are not tough enough”. There is no evidence whatever to support that contention.

As far as the probation service is concerned, the noble Lord, Lord Ramsbotham, has shown quite clearly that it is tough, it is not soft and it is succeeding. The vast majority of cases are dealt with satisfactorily up to level 3; indeed, some of them up to level 4. No professional body could be expected to do better than that. Where is the evidence of the failure to exercise the element of harshness and pain—for that is what the Prime Minister was talking about?

It is entirely proper for a Government, where they are justified in doing so, to circumscribe the discretion that lies with any judge. I think that both Governments have been doing it a little too liberally over the past 20 years. Be that as it may, where they genuinely believe that there is such a case, they are entitled and indeed, one might say, obliged to do so. The case has not been made. If the Government cannot come forward with any hard evidence at all, they will, in effect, be relying on what the noble and learned Baroness, Lady Butler-Sloss, described really as a cosmetic and rather vulgar attitude, where they will be seeking a populist commendation for something that is utterly unworthy.

[Lord Carlile of Berriew]

My Lords, I support entirely the sentiments behind the amendment moved so ably by the noble Lord, Lord Ramsbotham. I support verbatim the comments that were made by the noble and learned Baroness, Lady Butler-Sloss, and share the concerns expressed by the noble and learned Lord, Lord Woolf, about the use of the word “exceptional” in these provisions.

These proposals ignore what happens every day of the week in court rooms up and down the country. There is a substantial class of cases—or there are classes of cases—which are not particularly common but fall far short of being exceptional. I am the last person here who should attempt to explain to this House in the presence of members of the judiciary who have already spoken what the term “exceptional” means, but usually it means roughly what the dictionary definition says that it means. These are not the common class of cases; they are truly exceptional.

I mention one group of cases that I have experienced as a practitioner and sitting as a recorder and that causes me real concern in the context of this part of the schedule. It is a group of cases in which the defendants are usually women who have been subjected to often very severe domestic violence and sometimes sexual violence. They have done something fairly serious in terms of criminal law and have usually pleaded guilty. They have to be sentenced by the court, but punishment is somewhere low down the list of the priorities that the judge passing sentence has in mind. The sentence can serve a useful service; there are elements in community sentences that are restorative or retributive and can help to resolve the situation that has given rise to the appearance in court. The requirement of punishment in all but exceptional cases seems to ignore the reality of a class like the one that I have mentioned. For that reason, I invite my noble friend the Minister to hearken very closely to this debate, which has had some very authoritative voices speaking in it, and think again.

--- Later in debate ---

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, it seems a long time since I was looking forward to us reaching this part of the Bill, where, as noble Lords will recall, we slightly bent the rules—goodness knows what they are now—to allow for Clause 23 to bring in rehabilitation proposals. Of course, in a debate in which a former president of the Supreme Court, a former Lord Chief Justice, a former president of the Family Division and a former Her Majesty’s Inspector of Prisons give their opinions, I listen—as I indeed listened to the noble Baronesses, Lady Howe, Lady Hamwee and Lady Linklater, the noble Lord, Lord Carlile, and particularly the noble Lord, Lord Elystan-Morgan. We had a very interesting discussion about the relationship and power of Parliament and the judiciary. I look forward to reading the noble Lord’s memoirs, which I notice have just been published in Welsh. Have they been published in English? I do not know.

[Lord Elystan-Morgan]

As yet, this is so.

[Lord McNally]

They are on my Christmas list.

The proposal of the noble Lord, Lord Ramsbotham, is a nuclear option, which I will address in my remarks. However, I will start by reassuring noble Lords that the Government fully recognise the point that underpins many of these amendments and agree that offenders who receive community orders are a diverse group, with wide-ranging characteristics and individual circumstances. For example, such offenders are more likely than the general population to have a disability, to come from low-income households or to receive work-related benefits. Many other examples were brought out in detail by the practitioners who responded to our public consultation on these proposals.

It is clearly vital that community orders take into account these diverse needs. We cannot have a one-size-fits-all approach to non-custodial sentences. At the same time, we also need to recognise that community orders cannot focus only on the reoffending needs of the offender. Many who receive community orders have committed not inconsequential offences. The sort of offences for which sentencing guidelines suggest community orders would be appropriate include actual bodily harm, thefts in the hundreds or low thousands of pounds and first-time domestic burglaries.

While it is critical to address the causes of such offending, it is legitimate to expect such behaviour to face punishment. It is clear that fines and custodial sentences provide punishment for an offender; but at the moment it is possible for a community order to be based solely on addressing the offending needs of an individual offender. Our argument is that, by including the punishment element, we will win the vital public confidence for the holistic response that is at the heart of our proposals: the rehabilitation of offenders.

Our provisions seek to balance the purpose of punishment with ensuring that the courts retain flexibility to tailor community orders around offenders’ circumstances. To that end, I remind noble Lords that we have already amended our original consultation proposal that courts should be required to include specified elements, such as community payback or a curfew requirement, in every community order. Practitioners were clear that, although some community order requirements such as curfews or unpaid work were more often likely to represent a punishment than others, in the right circumstances—this comment has been made by a number of noble Lords—all the existing 12 community order requirements could potentially be punitive for a particular offender. That is why Part 1 of Schedule 16 gives the courts the flexibility to choose which requirement would be a proportionate and appropriate punishment for an individual offender.