Sentencing (Pre-consolidation Amendments) Bill [HL] (Law Commission Bill)

Lord Falconer of Thoroton Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Tuesday 11th February 2020 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

I speak for the whole House in congratulating the noble and learned Baroness, Lady Hallett, on her absolutely excellent maiden speech. The House has got a taste of what is to come. For me it is a huge personal pleasure to follow her in this debate. I have known her for very many years. She is one of quite a small number of people who have been profound change-makers in the law, and without any fuss. As she said, she was an advocate for 27 years; she did not mention that she was the chair of the Bar. As it happens, she was the first woman chair of the Bar, but that makes no difference to the fact that she was among the best of them. She was a judge who was in effect in charge of criminal sentencing for a long period of time in the Court of Appeal. She is testament to the stupidity of the judicial service arrangements that forced her to retire too young, and testament to the inadequacy of the judicial appointments arrangements in that she did not become the Lord Chief Justice. One of the things about the noble and learned Baroness is that she knows just as much about human beings as she does about the law. I am absolutely sure that the best is yet to come.

I move to the Bill. I, like all other noble Lords who have spoken in this debate, commend this short but important paving Bill towards a sentencing code. The effect of this Bill and the Bill it paves the way for will be very significant to the performance of the criminal justice system. The noble and learned Lord, Lord Judge, and the noble and learned Baroness, Lady Hallett, have explained the current position. As a result of a random test in 2012, the Law Commission made available to us the statistic that 36% of sentences are unlawful. That does not mean that they were just too long as judgments, but that they were passed contrary to the terms of the statute allowing them. We are a country that prides itself on the rule of law. If over a third of the sentences that are passed are unlawful, there is something wrong with the law and we need to change it.

There is unanimity among those who practise in the criminal justice system, whether advocates, prosecutors or judges, that there should be change. As the noble and learned Lord, Lord Judge, has pointed out, this Bill and that which it paves the way for has been, as the Prime Minister would say, oven-ready since May 2019. Some time will pass before this paving Bill gets through and thereafter—and only thereafter—does the sentencing code come. I strongly urge the Government, as the noble and learned Lord, Lord Judge, has done, to deal with this as quickly as possible. It is something on which Parliament agrees; there is no reason for delay.

I will mention three specific points. First, I congratulate the Law Commission on its work, particularly the clean sweep principle, which allows the courts to adjudicate what the right sentence is based on one statute only, in effect the sentencing code when it comes. I congratulate the Law Commission on coming up with a principle as sensible and simple as the clean sweep.

Secondly, I agree with the Law Commission that it has to protect the principle of retrospectivity and particularly that you cannot be sentenced at a higher level than the sentence that applied at the time you committed the offence. It preserves that in the Bill and it is right to. The House is going to come back to that issue in the Terrorist Offenders (Restriction of Early Release) Bill that was published today. The effect of that Bill is, for no doubt good policy reasons, to transform the time before release for terrorist offenders on determinate sentences from half way through the sentence and automatically to two-thirds of the way through, and then with the approval of the Parole Board only.

A question arises as to whether that changes a sentence after the commission of the offences. I am aware of cases, particularly that of Uttley in the House of Lords in 2004, which suggest that it is relevant to focus on the maximum in the sentence, and only if the new sentence is higher than the maximum would it be retrospective. I have anxieties about that, because a statute is being passed that will unquestionably increase significantly the time that people spend in prison. The principle of preventing retrospectivity is that you should not, after the event—maybe by a statute driven by public opinion—change somebody’s sentence for the worse. It should be the courts, in accordance with law, that fix the sentence, not public opinion subsequently. But that is a debate for another day.

My third point is again one that the noble and learned Lord, Lord Judge, has already made. The intention of the sentencing code is that it is to be one statute to which judges can refer in order to determine what the sentence is. That works only if in years to come, amendments to sentencing abide by the principle of the sentencing code. It is worth drawing attention to the fact that substantial changes were made to sentencing in 1991, 1993, 1997, 1998, 2000, 2002, 2003, 2005, 2007, 2008, 2009, 2012, 2014, 2015, 2018 and 2019. I say in parenthesis that even Brexit did not stop the change in sentencing. It is extremely unlikely that that pattern will not continue after the sentencing code is passed.

In order for the code’s principles to be given effect, four principles need to be adhered to. First, any changes in sentencing should be made by changing the terms of the sentencing code, not in a new document. Secondly, if any changes do not come into force straightaway, they should be put into Schedule 22 to the sentencing code so that people can see that it is one which has not come into force straightaway. Thirdly, any new arrangements should maintain the principle of the clean sweep, and fourthly, any commencement information should be included in the Bill. Only if the principles of the sentencing code are adhered to as we go forward will the very brilliant work of Professor Ormerod and his team take us through into the future.

I strongly support this Bill and I hope that it becomes law, and that the sentencing code which is to follow it becomes law as quickly as possible.