Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Lloyd of Berwick Excerpts

Thursday 9th February 2012 Lords Chamber

Moved by

[Lord Lloyd of Berwick]

178B: Before Clause 113, insert the following new Clause—
“Effect of life sentence
In Chapter 7 of Part 12 of the Criminal Justice Act 2003 (effect of life sentence) omit section 269(5) to (7).”

[Lord Lloyd of Berwick]

My Lords, this amendment also concerns an innovation introduced by the Criminal Justice Act 2003. Prior to that Act it was the practice of the judges trying murder cases to write to the Home Secretary recommending the minimum period to be served in prison as punishment. The Lord Chief Justice always added his own comments, either increasing or decreasing the tariff, as it came to be called. The Home Office usually accepted the judicial recommendation but sometimes the tariff was increased by a year or two. I never in my experience remember it being reduced. Then came the case of Anderson in the House of Lords, in which it was held that Ministers could play no part at all in the fixing of the tariff; sentencing was for the judges and not for the Executive. Section 269 and Schedule 21 of the 2003 Act was the ministerial riposte to that decision. The purpose of Amendment 178B is to repeal Schedule 21.

Schedule 21 lays down an elaborate framework within which trial judges must work when fixing the tariff for a particular case. It has four different starting points: 15 years, 25 years, 30 years and whole life. It has seven different aggravating factors and seven different mitigating factors, all of which must be taken into account. The schedule was drafted within the Home Office without, as far as I know, any input from the judges. So far as I can remember, it was introduced at a late stage in the House of Lords without any debate in the House of Commons, but I may be wrong about that. In any event, the question arises: what was the reason for introducing Schedule 21? Why did the Government not leave the tariff to the judges? After all, it is the trial judge who fixes the tariff in all other life sentence cases, including manslaughter—why not murder?

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

I thank the noble Lord, Lord Beecham, for those comments. I approach any discussions on Schedule 21 with great trepidation because very early in my ministerial career, I was lured by the eloquence of the noble and learned Lord, Lord Lloyd, into agreeing with him about some of the flaws in Schedule 21, only to be hauled over the coals when I got back to the department and told that this was not departmental policy and I was not to listen to such siren voices.

I think the noble and learned Lord, Lord Lloyd, knows that both the Lord Chancellor and I—importantly, and less so—come instinctively to the view that judging is best left to the judges. This debate has taken place within this context. I am very grateful to my noble friend Lord Carlile for his intervention because he pointed out that what we are debating is where the responsibility of Parliament is in setting a framework, while leaving, properly, to the judges the flexibility to handle that framework.

I am also grateful for the intervention of the noble Lord, Lord Blair, for two reasons. First, he made the unique point—certainly in this Bill—that he was going to shorten his speech because somebody else had made the speech earlier. All I say to the rest of the House is: “Go thou and do likewise”. Secondly, he made the important point that I think will come back again and again in our debates—I wrote it down—that murder is “the crime by which the public judge the criminal justice system” above all others. Therefore, as the noble Lord, Lord Blair, said, it is right that Parliament has a duty to set a framework in these matters.

I take the point of the noble Lord, Lord Thomas, that it may seem an artificial framework, but in putting forward the 2003 Act Parliament allowed judges the necessary discretion to arrive at any minimum term from any starting point, which allows exceptional cases for minimum terms to depart from the norm. It is not as inflexible as is suggested. The 2003 Act puts in place arrangements for all minimum terms to be imposed judicially—something which I think has general approval. However, Parliament took the view at the time that it was right to have statutory guidance on sentencing for murder. The guidance provides for consistency of approach but still gives the court the necessary discretion to deal with each case appropriately.

I note what the noble and learned Lord, Lord Lloyd, said about the Sentencing Council and I pay tribute to its work, but the Government still believe, as Parliament believed in 2003, that it is right that Parliament should remain responsible for sentencing guidance for murder. It is for Parliament to reflect what circumstances should be considered as particularly or exceptionally grave for this, the most serious of crimes. With that explanation, I urge the noble and learned Lord to withdraw his amendment.

[Lord Lloyd of Berwick]

My Lords, I am grateful to the noble Lord and I am particularly grateful to the noble Lord, Lord Thomas. If it is right for Parliament to give such guidance, how did judges get on before 2003? The answer is that they managed perfectly well. The only effect of the rigid 2003 framework has been to increase the average sentence—I repeat the figure—from just over 13 years to 17.5 years. I do not suppose that anyone did an impact assessment before the 2003 Act was passed, but in my submission it cannot be right that we should suddenly increase the average by so large an amount without considering whether the framework is responsible for it and considering again whether that increase is actually justified.

The noble Lord, Lord Carlile, who made the main objection to this suggestion, has said that the tariff provides valuable help to counsel in advising what the likely sentence will be, but how did counsel manage before the 2003 Act? The answer is that they managed perfectly well and could manage perfectly well even today without Schedule 21. I can see that I have not persuaded enough of your Lordships, and in the mean time, I beg leave to withdraw the amendment.

Amendment 178B withdrawn.

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[Lord Goodhart]

My Lords, I was not involved in criminal law during my practice as a barrister, but I became very interested in IPPs in 2009 because we were then dealing with what became the Coroners and Justice Act. I became particularly concerned at this because Dame Anne Owers, who was then the Chief Inspector of Prisons, together with the Chief Inspector of Probation had written an absolutely devastating report on the defects of IPP. The defects disclosed in the inspector’s report are several. There is a lack of accurate pre-sentence reports on prisoners, which has led to a number of unjustified IPP sentences being imposed on people who should not have had them applied at all. There is a lack of resources for the Parole Board to enable it to determine the fate of prisoners after the prisoners have passed their tariff date. This means that the prisoners may languish for months or even years in prisons where they can not get the training that they require before they can apply for release, so prisoners under IPP are serving what is potentially a life sentence.

There have been some improvements of IPP as a result of amendments made in 2008 to the Criminal Justice Act 2003, but those improvements were not enough. By 2009, it was clear in my view that IPP was a disaster. It could work only with a lot more money put into it; if it did not have that money, it was grossly unfair to at least some of the prisoners. The Parole Board does not have the money that it needs and, as matters now stand, it will not for the foreseeable future.

I am going to repeat something that I said in a debate in 2009 because it covers my views now. I said:

“The IPP is wrong in principle and wrong in practice. English courts have a long-standing system of sentencing. Under that system, only the most serious offences can be punished by life imprisonment. It is unnecessary and wrong to impose a de facto life sentence on convictions for an offence which does not carry the life sentence. The IPP is even more wrong in practice. It is wrong because many pre-sentence assessments are inadequate and lead to the imposition of IPPs on those who should not be subject to it. It is wrong because many IPP prisoners, especially in local prisons, have no access to training, without which they cannot get a hearing before a Parole Board panel”.—[Official Report, 28/10/09; col. 1249.]

Little has been done to correct the situation that was so clearly stated by Dame Anne Owers and her colleague. Now we have Clause 117 of the LASPO Bill and some further amendments from the Government. These are not good enough. What would be good enough is Amendments 179ZA and 179ZB in the names of my noble friend Lord Thomas of Gresford and the noble Lord, Lord Ramsbotham, which are nearly identical; I hope that they will be merged in time for Report. What the amendments would do has already been explained to your Lordships: they would limit extended sentences only to cases where it had been shown that there was a strong and immediate probability, based on clear and competing evidence, that the prisoner would commit a serious violent or sexual offence.

Indeterminate sentences are deeply unsatisfactory. Amendments 179ZA and 179ZB come more than close enough to this test and I strongly support them. I also strongly support other amendments including Amendment 180, to which I am one of the signatories.

[Lord Lloyd of Berwick]

My Lords, the real scandal is that IPP sentences have gone on for so long. The previous Government had the chance to do something about them in 2008, as the noble Lord, Lord Goodhart, has indicated, when it was already obvious that IPP sentencing was going badly wrong. I remember tabling an amendment at that time to raise the bar and therefore reduce the number of those eligible for IPP sentences. The noble Lord, Lord Bach, was sympathetic but met me only half-way. The Conservatives, I am sorry to say, opposed the amendment. As a result, we have the situation in which we now find ourselves. I entirely share the indignation so well expressed by the noble Lord, Lord Ramsbotham. I add only that in my view something must be done, and done soon.

[Lord Beecham]

My Lords, it is quite clear that more people are serving longer sentences under the system introduced by the previous Government than was anticipated. It is also clear that insufficient resources were devoted to meeting the requirement that people should undergo training and courses, on programmes to be provided within the custodial setting, as a condition of release. As the Prison Reform Trust has pointed out, the situation is even worse for prisoners who are mentally ill or suffer from a learning disability. There is certainly a very real problem with how prisoners are to be assisted in demonstrating their fitness to be released. That undermines what would potentially have been a valuable way of protecting the public. It undoubtedly caused the system to fall into disrepute. The fifth report of the Justice Select Committee of the House of Commons made a number of perfectly valid criticisms of those matters.

Not the least irony of the situation is that referred to by the noble Lord, Lord Wigley. He pointed out that the cost of keeping substantial numbers of people in prison is excessive in relation to the cost that would arise from investing in the necessary programmes to assist people to make their case and earn their release. I am bound to say that that position is likely to recur in conjunction with the Government’s proposals for extended sentences.

I do not dissent from the critique of indeterminate sentences, although I remain far from convinced that extended sentences necessarily resolve the problem. In that context, will the Minister indicate in replying what additional resources are planned for rehabilitation and the like under the new system? How will people who remain under the old system be dealt with? As has rightly been pointed out, a substantial number are still in that position.

I do not know whether the Minister is aware of the Answer given by the Minister in the House of Commons to a Question from Andy Slaughter MP about the number of people who were likely to be retained in prison as a result of the extended sentence programme. That was a very illuminating document. It showed that around 550 people a year would be sentenced and treated in that way, so that over 10 years 5,500 people could be in the same position as those who were sentenced under the previous regime. That is a formidable figure and, as the noble Lord, Lord Wigley, implied in respect of the existing system, a very costly one. I am not aware of any impact assessment or analysis of the cost of that new proposal. I do not know whether the Minister can direct me to any such analysis. In any event, the figures suggest a very significant cost.

Having said that, I have difficulties with various amendments that are being proposed. In particular, as has already been mentioned by the noble Lord, Lord Ramsbotham, it is asking too much, even if the system were to receive an injection of money, for courses and the like to be laid on in such numbers and in so short a time as to meet the targets that some of the amendments suggest. Therefore, the amendment of the noble Lord, Lord Wigley, to require that within 30 days of the Act coming into force prisoners must have,

“access to relevant rehabilitation programmes”,

or be released simply does not seem realistic.

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Essentially, the Opposition cannot therefore support most of the amendments in the group, although we would certainly endorse the view—as the noble Lord, Lord Ramsbotham, suggested—that there ought to be a report to Parliament on the plans for release and how they are to be funded.

[Lord Lloyd of Berwick]

I am grateful to the noble Lord who is pointing out all sorts of difficulties. I am bound to say that I would be happier if he could at least feel the same sort of indignation that some of us feel at what has already gone wrong, and support the need to do something about it now. That is for the Government to do.

[Lord Beecham]

I share that view. I had hoped that I had made it clear that I think the previous Government did not invest anything like sufficient resources to fulfil their intentions. The intentions were reasonable but the means to fulfil them were not provided. That has to be acknowledged. However, I am afraid that the present Government are, to an extent, following the same course, if they do not look to avoid repeating the experience of under-resourcing a system that on their own figures is likely to lead to substantial numbers of people being held for a very long period—longer than is necessary for their good or society’s good—although there will always be some people who will have to be held for a long period.

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Debate on whether Clause 114 should stand part of the Bill.

[Lord Lloyd of Berwick]

My Lords, I say at once that Clause 114 seems to be wholly pointless. The only explanation for it that I can imagine is that it was a quid pro quo for the abolition of the indefinite sentence for public protection in Clause 113, in case somebody should say that the Government were getting soft on crime. Since the official position of the Opposition is not to oppose Clause 113—I am very glad about that—I suggest that the Government might now look again at dropping Clause 114.

In brief, the clause states that if a person commits an offence for which he serves 10 years in prison, and then commits another offence for which he might expect 10 years in prison, the judge must give him a life sentence unless this would be unjust. It has been called a mandatory life sentence, but of course it is nothing of the sort. The clause explains that the judge has discretion to do what is just, so there is no “must” about it. So what on earth is the point of Clause 114?

Considering the sort of facts that might give rise to a life sentence under Clause 114, the judge would almost certainly have a life sentence in mind anyway. If he does impose a life sentence, Clause 114 serves no purpose. If he does not, because it would be unjust to do so, Clause 114 adds nothing. Have the Government made any estimate of the number of people who will get a life sentence under Clause 114 who would not be given a life sentence anyway under the existing law? There is no point in replicating existing law with ever more offences.

Is Clause 114 perhaps meant to be a deterrent? Let us consider that for a moment and imagine a man coming to the end of his 10-year sentence in prison. How will he hear about Clause 114? Will he be warned by his solicitor, or will he hear about it from a fellow prisoner who is something of a barrack-room lawyer? The idea that this would ever act as a deterrent is ludicrous.

In debating a previous amendment, I warned of the dangers of Parliament becoming too closely involved in the sentencing process. At one extreme, it results in the sort of sentencing complexity of which we have plenty of evidence in the Bill. At the other, one finds clauses such as Clause 114 which, as far as I can see, serve no purpose at all and simply clutter up the statute book.

[Baroness Mallalieu]

My Lords, I support the noble and learned Lord. “Pointless” is a very good description of Clause 114. It is pure political posturing. That is the trouble in the area of criminal law; there has been too much of this going on in recent years, and to little effect. Why on earth can we not leave the detailed business of sentencing in cases such as this, with the guidelines that already exist, to the people who hear the evidence and see the cases: namely, the judges?

We have seen far too much interference with the criminal law. As a practitioner, I go along to courts and am asked by people in the robing room, “How on earth did you let this happen? Didn’t you speak up and point out that it’s a waste of time or has consequences that are totally adverse to the interests of justice?”. Well, I am speaking up, but without a great deal of hope that my words will fall other than on stony ground. Surely we can avoid, at the very least, complicating the statute book with clauses such as this which do not do anything.

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[Lord McNally]

When is the noble Lord going to go down the corridor and talk to Sadiq Khan and the other spokesmen from the Labour Party and engage in a serious debate about penal reform?

[Lord Lloyd of Berwick]

My Lords, I am grateful for the support of those who have spoken, particularly the noble Baroness, Lady Mallalieu, with her reference to political posturing, which to me seems to be what this clause really is; on this occasion for the support of the noble Lord, Lord Carlile, for which I am always grateful, and for that of the Official Opposition. But once again it was my noble friend Lady Stern who put her finger on it with those extraordinary statistics that she gave us of the comparison between those serving life sentences in England and Wales and all other countries. We seem to have a thirst for life sentences, and that bears out the only statistic that I gave earlier. I shall say it again: we have more people serving life sentences and indeterminate sentences than the whole of the rest of Europe put together.

Clause 114 agreed.