Sentencing Bill
Neil O'Brien Excerpts(1 year ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Alex Chalk
This is a formulation that is well understood by the courts. It applies, for example, in respect of possession of a firearm contrary to the Firearms Act 1968, as was. I once defended a young woman, 16 years old, who was in possession of a firearm—although, in fact, she was not. Her boyfriend, who had subjected her to coercive and controlling behaviour, had said, “You have to hold on to the gun, because I think the police will come and find me.” She had the gun in her house, but she did not touch it or do anything with it. The police came, raided her house, found the gun, and said, “There is a mandatory minimum sentence of three years.” She had never committed an offence in her life: she was of completely good character. Should the judge have sentenced her immediately to three years’ custody—it would have been at least five years if she had been 18 or over—or should he have considered that there were exceptional circumstances? In that case he found that there were, and that is the sort of case in which that might apply.
The evidence is clear. More than 50% of those who are sentenced to less than 12 months will go on to commit another offence within a year of release, and the cost to taxpayers of keeping someone in custody for that time is a staggering £47,000 per year, per prisoner. In the case of offenders who are given suspended sentences in the community—those are still custodial sentences which go on to their records as sentences of imprisonment—the reoffending rate is much lower, at about 24%. This type of community sentencing can have tough conditions attached to it, such as tagging, strict curfews—incidentally, we have extended the maximum period for which a curfew can apply to 20 hours out of 24 —and exclusion zones, which are designed to protect the public and keep offenders out of trouble. A requirement to receive treatment for addictions or mental health problems can also help offenders to address what are so often contributing factors to their offending. Critically, as this should be about punishment as well, that can also enable them to stay in work and participate in community payback, such as picking up litter, removing graffiti and otherwise repaying their debt to society.
Madam Deputy Speaker (Dame Rosie Winterton)
Order. Just before the Secretary of State takes an intervention, I wish to remind hon. and right hon. Members that if they are going to intervene on a speaker, it is polite to stay to the end of the speech—as well as to be there at the beginning. I believe that the Secretary of State was about to give way to Neil O’Brien.
Neil O’Brien
Are we really comparing like with like here? The statistics produced by the Ministry of Justice compare the effect of community sentences on reoffending from the start of the community sentence, but the end of the prison sentence, therefore completely ignoring the effect on reoffending of the actual prison sentence itself. Surely if we want to understand the effects of short prison sentences on the community, we must take into account the actual effect on crime of the prison sentence itself.
Alex Chalk
I have looked very carefully at the extremely rigorous analysis that my hon. Friend has provided. Having sat down, wrapped a wet towel round my head and looked at the stats, here is the position. Somebody who completes a custodial sentence and comes out is, for that 12 months thereafter, more than 50% likely to commit an offence, but for somebody who completes a suspended sentence order and comes out, the figure is around half that for the 12 months thereafter. [Interruption.] I just want to finish the point. This is not something that is peculiar to England and Wales; as I have observed from the data. this is a pattern that is seen in Australia, the Netherlands, France and Northern Ireland. In simple terms, it is because, with the technology that we have now, there is a sword of Damocles hanging over someone’s head. If, for example, the trigger for their offending has been that they drink too much and their index offence was that they thumped someone in the queue in Gartree in Leicestershire, by putting on that alcohol tag they know that if they breach that tag by drinking—I thank my right hon. Friend the Member for North West Hampshire (Kit Malthouse) who rolled out those alcohol tags—it means that they can expect to be breached and brought back before the court where they can then go to prison. It is a sharp sword of Damocles that hangs over them.
Alex Chalk
I will make a bit of progress and then I will take an intervention.
Requirement to receive treatment for addictions or mental health problems can also support and address what are so often contributing factors to offending, as I have already indicated. So, what is going wrong with some of these short sentences? One explanation is that when offenders are sent to prison for short periods, there is not enough time for our prison staff to work with them to tackle their addictions, improve their employability, manage their behaviour, and reduce their risk of reoffending. They are often more likely to meet hardened criminals keen to direct them ever further on the road to ruin.
It is important to look at the evidence through the lens of the new technology that is available to us—modern solutions that can support a modern sentencing approach, which were simply not available in our criminal justice system 10 years ago. Other nations have spotted that and we should too, which is why we are doubling the number of GPS tags available to courts to ensure that offenders comply with strict conditions imposed to curtail their liberty.
Neil O'Brien
My only concern about the reply my right hon. and learned Friend gave me a few moments ago is that we are no longer making a comparison with the same cohort. In a previous analysis by the Ministry of Justice, we had a like-for-like cohort and we looked at the period from the end of the prison sentence and the start of the community sentence. Will he agree to rerun that analysis with a matched cohort, this time with a like-for-like comparison beginning at the start of the prison sentence, so that we have that incapacitation effect and can have a fair comparison?
Alex Chalk
I am certainly happy to look at the data, but whichever way we slice it, the central message is unassailable. Essentially, those who have a sentence of imprisonment that is suspended are less likely to offend—because of the sword of Damocles effect, as I have called it—than those who serve short custodial sentences. Of course I will look at the data, and I would be grateful for my hon. Friend’s assistance in doing so.
Sir Robert Neill (Bromley and Chislehurst) (Con)
I shall be supporting the Bill without hesitation tonight, and I hope to do so without indulging in some of the party political knockabout that has bedevilled debate around sentencing and prisons for too long. Frankly, our political system has failed the justice system over many decades, so let us try to step back and put the Bill into context, because context is sometimes lacking in these debates.
For the first time ever, the Criminal Justice Act 2003 set down five statutory purposes of sentencing: the punishment of offenders, the reduction of crime, the reform and rehabilitation of offenders, the protection of the public and the making of reparation to victims. There will always be a balancing act between those statutory purposes, and the way in which the balance falls will vary, perfectly properly, according to the nature of the offence and the circumstances of the offender. As with all sentencing, that must ultimately be decided by our independent judiciary. It is perfectly proper that Parliament sets the legal framework within which the judiciary operate—that is a matter of public policy—but the application of those balances to an individual case will ultimately be decided by the judge or the magistrate, and we have a highly experienced Court of Appeal to put the judge right if he or she gets it wrong in a very small minority of cases. That is part of the checks and balances of our system.
It is equally clear to those of us who serve on the Justice Committee and those of us who, like the Lord Chancellor, have spent the whole of our working lives in the criminal justice system and the criminal courts of this country—both prosecuting and defending—that courts do not, and do not pretend to, sentence in a vacuum. Of course judges are aware of public opinion, so engaging in debate about sentencing policy is legitimate and justified, but we also owe it to the public to do that in a temperate, considered and evidence-based fashion. All too often, I am afraid, we get a bidding war as to who can have the toughest rhetoric around sentencing policy, but toughness has very little to do with delivering impacts on the ground. It is against that background that I think the proposals in the Bill are a sensible package.
Let us look at what the Bill does and does not achieve. The Justice Committee carried out a very detailed piece of scrutiny, and we have published a report, “Public opinion and understanding of sentencing”. In seeking to put some context into the debate around sentencing, we did not just leave it to the views of expert witnesses or our own views as politicians; we made a more extensive effort at public engagement than any Select Committee before us. For example, we commissioned a public polling exercise. Some 2,057 adults in England and Wales were asked about their knowledge of, and views on, sentencing. We also used Involve, a well-established participation charity, to facilitate a deliberate engagement exercise, and we had some 25 adults in England and Wales meet over three half-day sessions to discuss the aims and objectives of sentencing.
The public—perhaps no one can blame them—get very little information about how sentencing works and how the justice system works, so their information is very patchy. As an example, only 22% of respondents were aware that Parliament is responsible for setting the maximum sentence in law for a criminal offence. So if we are to have a proper debate about sentencing, that must be done from a properly informed basis.
We found that the public’s opinions, although sometimes having that lack of information about how sentencing works, showed a certain degree of consistency and common sense about what the objectives of it were. People certainly wanted to see the public protected. They also wanted to see justice done to the victim, and reoffending prevented. Those, again, are all parts of the balance.
It is interesting that when members of the public were asked in the abstract about sentencing, their views on sentencing were much harsher than when they were asked about the facts of an individual case. Some time ago—some Members may remember this—the Ministry of Justice had an online tool called “You be the Judge”. That consistently showed that when people were asked in the abstract what they thought a sentence should be, they would say, “Whack—go hard!” But when the facts of the case and circumstances of the offender were put to them—the very balance that the sentencer must always use—they adopted a much more nuanced approach. Once the public have the proper information, they are not simplistic in their views in the way that some politicians and some of the media like to suggest, so we owe them that proper and informed debate.
The other interesting point that arose was that the public think that prison sentences are much softer than they actually are. A majority of the people we spoke to actually thought that those sentences had got softer or lighter in recent years, whereas the evidence clearly demonstrates that exactly the reverse is true. Sentences for indictable offences have grown significantly over the last 10 to 15 years. We actually imprison more people as a percentage of those convicted of serious offences, and we imprison them for longer. That places very real pressures on our prison system. We must therefore be honest with the public about what the trade-offs are in this regard.
As the former Lord Chief Justice, Lord Burnett of Maldon, said when he gave evidence to our inquiry, judges are aware that public opinion has hardened in relation to offences of a sexual nature and violence. That is reflected in what the Lord Chancellor and Secretary of State is proposing to do in the Bill. The public expect that those who are dangerous will get longer sentences. I have no trouble with that at all, but, equally, £47,000 a year is an expensive amount to be spending. It is money well spent on the dangerous people—as the Lord Chancellor may have once said, imprisonment is really for those we are rightly frightened of; those who are a threat to us. But, as my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) said, many of the people we have in prison at the moment are there because of many failures in their lives. Those are sometimes self-inflicted, or sometimes a result of circumstances beyond their control that have led to poor mental health, illiteracy, poor education, alcohol and drug addiction, break-up in family relationships early in their lives and chaotic lives. All those things lead many of the people in prison—perhaps the majority—into prison.
That chimes with my own experience in 30 years at the Bar. I prosecuted and defended in serious criminal cases, as the Lord Chancellor has, and I have met some thoroughly evil people in my time; so, I suspect, has the Lord Chancellor—[Interruption.] I hasten to add that that is purely at the Bar and in the courts. I have also met an awful lot of people who came into that category of mixed-up people with failures in their lives. We need to be more nuanced, and in fact I think the public recognise that, when it comes to a sensible approach to sentencing.
I am a little surprised that some colleagues in the House have accused us of being a bit soft in relation to some of these matters. There is nothing soft about the Lord Chancellor’s experience. Dare I say to some of my right hon. and hon. Friends and other Members that the Lord Chancellor has locked up more dangerous criminals, or had a hand in doing so, than anybody else in the House? He need take no lessons from anybody about being tough on criminals. He has done it every working day of his life and has the greater credibility for it. [Interruption.] Terrorists, murderers—you name it. He has actually done the job, rather than pontificate about it from the green leather Benches. Against that background, we ought to give credibility to the proposals.
What, then, do we need to do? It is not a question of harsher sentencing or softer sentencing. That is a sterile debate. What we really ought to be talking about is smarter sentencing. That means locking up dangerous people for as long as necessary and being honest with the public about the cost, but it also means finding better and cleverer ways to deal with those who can be rehabilitated. Not everyone can be, but the majority probably can be. Given how overcrowded our prisons are at the moment—old, Victorian and with too many people in them—it is impossible to do the rehabilitative work necessary to turn lives around. We simply cannot get the education done, and we cannot get the drug and alcohol treatment courses done sufficiently to get people clean. We cannot enable them to come out and get a job, because we simply have too many people in there at the moment. That is not serving the purpose of imprisonment very well at all.
I might make one point in passing to the Lord Chancellor. I referred to the statutory purposes of sentencing at the beginning of my speech. Interestingly, there are no statutory definitions of the purpose of prison. Perhaps we should look at that as the Bill progresses. It might concentrate the mind as to what Governments and Oppositions constructively want to do and what we want as a society from the prison system that costs us so much. We might take that forward constructively—I hope on a cross-party basis—as the Bill goes forward.
Against that background, I want to turn very briefly to the measures in the Bill. Whole-life orders have been discussed. There is a balance to be struck, but my one concern—the Lord Chancellor will know it—is what is the incentive now for a person charged with murder, who is going to get a whole-life order, to plead guilty? That is a trouble because we all know that for a victim to relive an experience in court, or for a family to have the death of their loved one relived in court, eked out over many days, is a real trauma. Therefore, the discount for a guilty plea is an important part in the justice system. It not only speeds up the trial, but above all it relieves victims and their families of a trauma. I would be concerned if we inadvertently created a reduction in the number of people pleading guilty. It is not a high number for offences of this kind compared with other types of offence, but we should bear in mind any unintended consequences.
It seems eminently sensible to extend the home detention curfew arrangements, not least because when they were brought in they related to four years’ imprisonment. Because of sentence inflation—sentences have got longer—the percentage of the prison population sentenced to imprisonment of four years or less and qualifying for early release has diminished. What we are doing, in effect, is catching up with sentence inflation by making release on home detention available, which is eminently sensible. The truth is that if people can make it work earlier, it is all the better. The sooner we can get people reintegrated into society, the easier that will be. Our reports in the past have urged that more be done to ensure that people come out of prison with a place to live and an opportunity to get work. Release on home detention will ease that transition. At the moment, there can be something of a cliff edge. People come out with their discharge grant and very little else—they are on their own. That is why periods of post-sentence release are very valuable, and this is a sensible way to do that.
Finally, let me turn to the presumption in favour of suspending sentences of less than 12 months. The first thing to say is that it is a presumption. Ultimately, it will still be for the judge or magistrate to decide. It is perfectly reasonable as a matter of public policy to say that unless there are exceptional circumstances, short sentences shall be suspended. Ultimately, though, there will be cases in which the judge will, perfectly properly, decide that that is not appropriate.
Let me give one example. References were made to cases of domestic violence; clearly that is something we can look at. A very different case that is often raised with me is that of perverting the course of justice, when someone, for example, tells a lie about who was driving a car when they got a speeding ticket—something not wholly unknown even in this place. The person who gives the lying evidence to the court about that undermines the justice system, and it has been felt that the clang of the prison gates is necessary in those circumstances. There are not many of them, but that is exactly the sort of circumstance in which the presumption would not be used, as well as the other ones that are set out. The provision in the Bill does not change that, but it does mean that generally people would not be sentenced immediately.
The other important difference, to which the Lord Chancellor referred, is that we now have far better control over people when they are on suspended sentences than we did in the old days. The use of suspended sentences has dropped off greatly: I think that now only about 4% of sentences of imprisonment are suspended; it used to be much more. Now that we have much more effective tagging, curfews and alcohol treatment orders, I think we could use them more effectively, because they are a better means of control. So I think the approach is sensible.
On the reoffending statistics, I have to say that I understand the point made by my hon. Friend the Member for Harborough (Neil O’Brien) in his intervention, but when I looked at the stats it was pretty clear that they consistently show that there is a lower level, by about four percentage points at the very least, and that that applies whether the sentence is three months, six months or nine months.
Neil O’Brien
Just to clarify the point, the statistics that my hon. Friend cites show that for those who were given a short prison sentence, the reoffending rate after they left prison was 75.6%, compared with 71.5% for those on a suspended sentence, but for somebody who has been in prison for, say, one year, their reoffending rate over that year while they are in prison is zero, so the right comparison is between zero and 71%. If we include the effect of the prison sentence rather than ignoring it, as the Ministry of Justice’s 2019 research does, there is an astronomical difference between the reoffending rate in toto over one year for those who were given a short prison sentence versus those who were not. There is a complete misunderstanding of what the statistics show us.
Sir Robert Neill
I am sorry to have to say that my hon. Friend is just plain wrong on that, because that assumes that there is an incapacitation effect, as is sometimes said—
Sir Robert Neill
But equally, there is perfectly good evidence to suggest that there is an incapacitation effect of properly worked through and imposed sentences in the community as well, so it is not a zero incapacitation effect the other way round. Plus, there are the other damaging things that are done in prison in terms of the inability to turn lives around, and the majority of people are going to be released.
The other problem, which is not picked up in my hon. Friend’s stats—I do not criticise him for it, but it is a fact—is that short sentences are clearly demonstrated to disrupt community ties. That is important because the three things that are generally said to be best to prevent reoffending are a steady relationship, a home or roof over your head, and a job. If anyone has those and they get a short sentence of imprisonment, the likelihood is that they will lose their flat and their job, and it is much more likely that the relationship will break up, and they then come out in a worse place to avoid reoffending than they started in.
There is, then, good sense in the policy. Of course, we can always examine the stats, but there is a good public policy reason for the change, because it actually reduces reoffending, and if it reduces reoffending, that is in the public good, because fewer people reoffending means fewer victims of crime, and fewer victims of crime is in the public interest and is a sensible use of money. I say that as somebody who has never been a soft touch when it comes to these matters in my professional life. I say it in a hard-headed fashion as somebody who spent their life doing this, and I know that the Lord Chancellor has come to the same conclusion.
I urge Members to support the Bill. It strikes the right balance. These issues are always difficult and sometimes emotive, but I hope that I have demonstrated that balance on the basis of the evidence that I have picked up as Chair of the Select Committee, and I hope we can find common ground on which to take the Bill forward. We have had a very piecemeal approach to sentencing policy over the years, under Governments of all persuasions; we probably need a more holistic approach. The Bill does sensible things and I hope the House will support it.
Neil O’Brien (Harborough) (Con)
I strongly welcome many aspects of the Bill, particularly the whole-life orders. They would have completely changed the treatment of Colin Pitchfork, who is widely remembered by my constituents for the rape and murder of two children. The reforms in the Bill will ensure that such people never see daylight again, and quite rightly too.
I strongly support the measures in the Bill to toughen up on sexual offences. They are long overdue and reflect the public mood to which my right hon. Friend the Member for Witham (Priti Patel) referred. The reforms in the Bill build on successive waves of reform over recent years, including the very welcome move to end early release at the halfway point. There is much to welcome in the Bill, and I admire much of the work of our brilliant and learned Lord Chancellor, one of the most learned people to have occupied that role.
However, there is one aspect of the Bill with which I have a serious problem. I will, of course, vote with the Government this evening—I have always voted with the Government to date, and I hope that I never find myself doing anything other than that. The issue that I am concerned about is the presumption against sentences of a year or less. There is a pragmatic argument that I am ready to hear on this measure, which says that we must do this simply because we need the places. The argument that I cannot accept is that this can make the public safer.
Let me walk hon. Members through the logic. The Ministry of Justice has conducted a study and has matched different offenders into two cohorts. They are like-for-like: people with a similar background who have done similar things. The claim that there is 4% less offending comes from looking at those two cohorts: those who have had a sentence of less than 12 months in prison and those who have had a suspended sentence. It is claimed that there is 4% more offending from those who have had the prison sentence. However, that looks at one year from the start of the suspended sentence, but from the end of the prison sentence.
If we take an offender who has a one-year prison sentence and if, instead of looking at it from the end of that year, we look at it from the start, the comparison is with someone who cannot harm the public because they are in prison. Therefore, instead of comparing the 75.6% reoffending rate after those offenders leave jail with the 71.5% reoffending rate from the start of community sentences, we should—I heard the promise of the Lord Chancellor that he would do this analysis for us, and that is very welcome—compare that 71% reoffending rate of those on suspended sentences with the zero reoffending rate of those who are locked up for a whole year, or the much lower rate of those who are locked up for part of the year. Most normal members of the public would think, “It is very surprising that we would be safer if people who commit serious crimes are out there wandering around in the community, rather than if they were in jail.” Of course it is not intuitive because it is wrong. I am prepared to hear a pragmatic argument, but this junk analysis cannot stand. It is utterly bogus and an abuse of the statistics. It is unbelievably unacceptable.
I am ready to hear a pragmatic argument about prison places. As my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) said, sentences of less than one year are not for trivial offences. These days, a person has to go some distance to get sent to jail. Many of those offenders, as my hon. Friend the Member for Bury North (James Daly) said, will have had many previous cautions, suspended sentences and community sentences. In a published paper on super-prolific offenders that I wrote a few years back, I laid out the staggering number of community sentences and suspended sentences. People were getting their 50th and 51st community sentences. This is soft justice, and it does not work. It is a danger to the public. Sometimes a short prison sentence is the right thing.
To rehearse what these people have done: 17% are in prison for violence against the person, 2% for sexual offences, 2% for robbery, 20% for theft, 9% for drug offences, 7% for possession of weapons and 9% for public order offences. These are really serious crimes, and the public do not think we are being too harsh; they think we are being too soft.
Let us put the saving on jail places—the one argument for this that I can accept—into context. Short sentences are absolutely not driving the upward pressure on prison places, quite the reverse. The proportion of people in jail on a tariff of one year or less has fallen from 13% in 2008 to just 6% now. It has halved, so the increasing number of people not getting short sentences has been driving down the prison population.
The estimate in the Government’s impact assessment is that this measure will save, in the central scenario, 600 prison places. Let us compare that with some of the other factors in play. Since 2019, the number of people on remand has risen by about 6,600 prison places, which is 10 or 11 times larger than the saving we are making, and that is because of delays in the courts. I hope we will look at that again.
To put it in further context, the number of foreign national offenders in our jails—foreign national offenders comprise about one in eight of all the people in our jails—has risen by about 1,200 prison places since 2019, which is twice as large as the saving we are making through this measure. In fact, the saving of 600 prison places is much smaller than the 1,900 additional places that the Ministry of Justice brilliantly created between last autumn and this summer through things like the rapid deployment cells.
If we look at it in that context, it cannot be impossible for us to find a better alternative to this measure. I understand that there are exemptions, and that those on orders will not be subject to this measure, but the problem is that many people with many previous convictions are not on an order.
By reading between the lines of the Lord Chancellor’s statement, I detect a willingness to look at this again for knife crime offences, and I hope we will have a much more wide-ranging review of the policy because, ultimately, I do not believe for one second that it can make the public safer, that it is what the public want or that there is no alternative. We have already shown that we can move quickly to increase the number of prison places.
We could look quite radically at things like jury trials to speed up our courts and the archaic practices that are causing the huge growth in remand that is driving us towards these decisions. We could look again at what we can do with rapid deployment cells to get more capacity. I am happy to look at anything, whatever it takes, but I do not believe this measure is at all desirable, even though it is part of a Bill that contains many things that are desirable.
I hope that the Lord Chancellor and the Government will look at this again and that, by Third Reading, we will have a better Bill that every Conservative Member can wholeheartedly and proudly support.
James Daly
Frankly, it allows our independent judiciary and magistrates, sitting throughout the country, to make decisions based on the individual circumstances of the case. I think it still allows them to impose an immediate custodial sentence in the vast majority of circumstances. I have read out the legal test, which can be applied any which way we want.
Neil O’Brien
Does my hon. Friend agree that it would be wrong to steer our independent judiciary away from this? Many people in the judiciary complain like mad if we suggest higher sentences or greater automaticity. They say, “No, we must have judicial freedom and independence.” Should we not be giving them the same for short sentences? Also, does he agree that sometimes a short prison sentence—say, a year—can give a community great respite from an individual who often causes huge terror and misery in that community?
James Daly
I agree. That is why such sentences exist and have been used for the past 30, 40 or 50 years. Since the ’90s onwards, prison sentences have gone up on a steep curve, but what can we do if someone shoplifts repeatedly? This is the other fantasy about people in the grip of drug addiction who are shoplifters. There is a common sense approach: “Let’s put in place a rehabilitative order.” But they are not in any position to apply for that rehabilitative order. If we let that person out of custody, they will commit a criminal offence.
The Minister wants to wind up, so I will bring my remarks to a close. The only point I am trying to make is that, for me, the legal test that goes along with the suspension allows the courts in 99% of cases to still impose the sentence they think is appropriate.