Offender Rehabilitation Bill [HL]

Debate between Lord Williamson of Horton and Lord Marks of Henley-on-Thames

Tuesday 11th June 2013 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, this amendment, in my name and that of my noble friends Lord Dholakia and Lady Hamwee, builds upon the general principle embodied in Section 152 of the Criminal Justice Act 2003, which is, in the words of the section, that:

“The court must not pass a custodial sentence unless it is of the opinion that the offence, or … offences … was so serious that neither a fine alone nor a community sentence can be justified for the offence”.

That is a sensible principle that is soundly based on the wealth of evidence that short sentences are not only unhelpful but in many cases profoundly damaging. That evidence has been commissioned by the Howard League for Penal Reform and by many others. The findings are well known to the House. Short sentences are disruptive. They cut offenders’ ties with their communities, with their jobs if they have them, and with their families. They introduce offenders, particularly first-time offenders, to a culture where reoffending is the norm.

It is of course to be hoped that the impact of this Bill will reduce the reoffending rates of this cohort of prisoners by introducing periods of supervision, but balancing a hoped for mitigation of damage against the evidence that we have of actual damage still leads to the conclusion that short sentences are to be avoided.

Our amendment goes a stage further than Section 152 and is an attempt to address the risk that was identified by several noble Lords at Second Reading. The risk is that the availability of short sentences of imprisonment that will carry an automatic period of supervision upon release will make short sentences more attractive to sentencers. The point was put succinctly in particular by the noble and learned Lord, Lord Woolf, who said:

“The Bill will create problems, as has already been indicated, as there will be a temptation in some courts to undermine the objective of the Bill by seeing the proposals for dealing with reoffending as justifying short sentences”.—[Official Report, 20/5/13; col. 653.].

A little later he said:

“What can be achieved by a short sentence in prison can always be better achieved, in my experience, by a community sentence”.—[Official Report, 20/5/13; col. 654.]

The existing provision in the Criminal Justice Act deals with the seriousness of the offence or offences. The suggested provision in our amendment would make it very clear to sentencers that the availability of a period of supervision should not lead to or encourage the imposition of short sentences. The court would have to be satisfied not only as to the seriousness of the offence or offences themselves but that there were special reasons to justify a custodial sentence, and those reasons would have to be stated in open court. The principle would be strengthened that short sentences are to be avoided unless they are really necessary in an individual case. I beg to move.

[Lord Williamson of Horton]

My Lords, I have a favourable approach to this amendment, which would be a substantial change in practice. However, it is important that we do not present the question of short custodial sentences and community sentences simply in terms of hard or soft sentencing, although that is what actually happens in the media comment on some of these issues. For me, the real question is what arrangement is more likely to protect the public against continuing crime. That is the issue that we face in this amendment. At present, we have short custodial sentences, which do of course protect the public for a short period, but because the reoffending rate is high we also have periods when the public are not protected because we get a continuation of crime. The question is: can we do better?

The amendment does not take away the power of a court to impose a short custodial sentence where there are special reasons for doing so. Like the noble Lord who presented the amendment, I think that part of it is well drafted and correct and that we should concentrate on the special reasons. Furthermore, it requires the court to explain its decision in such cases. Over a period, such explanations will provide a good basis for assessing the effectiveness of the proposals. It is certainly possible—in my view, probable—that the proposal in the amendment, with a presumption for community sentences, will reduce crime and thus benefit law-abiding citizens. Therefore, I have a favourable presumption for the presumption.