Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Carlile of Berriew Excerpts

Thursday 9th February 2012 Lords Chamber

Sentencing must always in the end depend on the view taken by the individual trial judge, which is why it is such an anxious process. In my view, the more we can leave it to the judge, subject to guidance by the Sentencing Council and with as little interference from Parliament as possible, the better. We can make a start by repealing Schedule 21. I beg to move.

[Lord Carlile of Berriew]

My Lords, as has already been said by others, this House should always listen with great respect and interest to the noble and learned Lord. I agree with him to an extent in relation to a number of the issues that he has raised. I agree with him entirely that the sentence for public protection, the IPP, has become extremely undesirable and has resulted in a very large number of people remaining in prison for far longer than is necessary or even proper. I think that he would agree with me in the criticism I have made consistently with others over the years about the mandatory life sentence for murder.

However, I am bound to say that I would urge the Minister of State not to accept this amendment for a number of reasons which I at least regard as cogent and also hope that the House would. The first is that although the noble and learned Lord is absolutely right that sentencing is for the judges, as successive Home Secretaries have emphasised—I am pleased to see a very distinguished former Labour Home Secretary in his place during this short debate—sentencing policy is not for the judges. It is for the Government.

Part of sentencing policy legitimately, I would suggest to your Lordships, is setting the framework in which sentences for murder are imposed. The provision that the noble and learned Lord wishes to have repealed has had two practical effects, apart from setting clear, public and consistent sentencing policy, which is well understood by all the judges who apply it. The first is that in reality, it has diluted, although not completely removed, the offensive consequences of the mandatory life sentence. Those of us who have appeared as counsel for the prosecution and for the defence in many murder cases know that the effect of the provisions that the noble and learned Lord criticises has been to enable those who advise people charged with murder to give a tariff before the judge gives his or her tariff at the end of the case. In reality, people charged with murder are able to be advised as to their likely sentence beyond its being a mandatory life sentence.

The second consequence has been an exponential increase in the number of guilty pleas in murder cases. Lawyers are able to advise the accused person—sometimes with the help of the judge based on these clear statutory guidelines—as to the sentence that he or she is likely to face. With that knowledge—I speak from experience as a criminal barrister—I have seen a number of people charged with murder plead guilty after it has been made clear where on the statutory tariff they lie. Certainly, in my early years in practice, it was almost unheard of for anyone to plead guilty to murder.

An obvious effect of that consequence is that witnesses who may have suffered extremely traumatic events—sometimes the children of the murder victim—do not have to give evidence in court. Surely, that is an advantage. My view is that the current provisions provide for fairness to victims, fairness to defendants and apply a degree of predictability. In my view, they increase, rather than decrease, public confidence in the system.

It is a very nice view, and I wish we could say it with complete confidence, that we should simply leave murder sentencing to the judges, with some guidance from the Sentencing Council. But that does not go far enough. It is the specificity of the statutory provisions that makes the real difference day by day in criminal courts up and down the country, where murder cases are tried these days in most instances not by High Court judges but by circuit judges, with what is rather unhappily called a murder ticket.

In conclusion, my advice to my noble friend—for what little it is worth—would be to leave well alone, albeit with the option, of course, of changing the guidelines from time to time to meet circumstances.

[Lord Blair of Boughton]

My Lords, I am probably the only person currently in the House who has actually carried out murder investigations. When you knock on the door and say you are investigating a burglary, nobody takes much interest. When you knock on the door and say you are investigating a murder, the reaction is very different. I am fully in support of the noble Lord, Lord Carlile, because murder is different. It is not just any other crime. In my opinion, it is actually the crime by which the public judge the criminal justice system.

I find myself somewhat surprised to be arguing against the noble and learned Lord, Lord Lloyd, but I think that the combination he used of sentences for murder and indeterminate sentences does not, in this argument, add up, because this is about murder. I am fully in support of almost everything the noble Lord, Lord Carlile, has said. I had expected to speak for longer; I came to the House to speak to this amendment. In fact, the noble Lord, Lord Carlile, has said almost everything that needs to be said—except for this emphasis that I would place before your Lordships’ House that murder is different. I believe that Parliament has a right—indeed, a duty—to set the tariffs from which judges then make their decisions about sentencing.

--- Later in debate ---

[Lord Carlile of Berriew]

My Lords, I, too, support what has been said by the noble and learned Lord, Lord Lloyd, and I agree entirely with the noble Baroness, Lady Mallalieu, that this kind of provision is ill understood by those who have everyday contact with sentencing provisions and looks more like political posturing than legislation based on merit.

This provision is strangely contradictory within itself. It seeks to introduce mandatory life sentences for people aged 18 or over convicted of a specified offence that is serious enough to justify a sentence of imprisonment of 10 years or more who have previously been convicted of a specified offence for which they were sentenced to imprisonment for life or for a period of 10 years or more, yet it raises the possibility of situations in which defendants who commit two wholly different scheduled offences separated by many years, or even decades, receive mandatory life sentences. On the face of it, it looks tough and even unfair. Yet new Section 224A(2) of the Criminal Justice Act 2003 as set out in the Bill provides for a series of exceptions that seem to negate the provision in its entirety. So what is all this about? If there is a mandatory life sentence, but the judge thinks it would unjust to impose one, he has the discretion not to do so. I welcome that but, if that is the provision, why bother?

[Lord Clinton-Davis]

I find myself in complete agreement with the noble and learned Lord, Lord Lloyd. As far as this clause is concerned, the onus rests firmly with the Government. Nobody around this Chamber—Labour, Conservative, Cross-Bench or Liberal—disagrees. It is vital for the Government to prove that this clause is relevant. So far, they have not done that. There has been a chorus of disapproval surrounding this clause from all Members who have spoken, and it is virtually impossible for the Minister to be able to convince us that this clause is relevant. I will listen with bated breath, as I always do, to what he has to say, but I have dismissed it already.

--- Later in debate ---

[Lord McNally]

I asked for the House of Commons Hansard for 1 November. I could have picked quite a few but I shall pick one for the House to catch the flavour. As I have said, I have been faced with such unanimity today. Mr Sadiq Khan said:

“No amount of smoke and mirrors can disguise the fact that, by abolishing indeterminate sentences, he”—

the Lord Chancellor—

“is risking the safety of communities in each and every constituency”.—[Official Report, Commons, 1/11/11; col. 793.]

You can imagine him banging the Dispatch Box and a growl of “Hear, hear” coming from behind him. That is the difficulty we have in this. Quite frankly, if the noble Baroness, Lady Mallalieu, or perhaps my noble friend, was dishing out awards for political posturing, it would not be to only one side of the House or to this end of the corridor. I am also a little—

[Lord Carlile of Berriew]

I hesitate to interrupt my noble friend who I know will say that in the spirit of what he said earlier he regards all his Liberal Democrat colleagues in this House as entirely reasonable. But this is a bicameral Parliament. What are we to read into the fact that, as it happens in this House as we debate this important matter, there are seven Liberal Democrats on the Government side of the House and one Conservative Peer, who deserves credit for being here. If the Conservative Party is really committed in the way in which he has explained from that quotation, should its Peers not be here to say so?

[Lord McNally]

That perhaps is why my noble friend is on the Back Benches rather than enjoying the pleasures of coalition government. He will also know that—

[Lord Carlile of Berriew]

What is that supposed to mean?