Sentencing Bill

Lord Hogan-Howe Excerpts

Wednesday 26th November 2025 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, if I might, I will make a brief comment. I have a lot of sympathy with what the noble Baroness has just said. I share many of the reservations expressed by the noble and learned Lord, Lord Keen, but I wonder whether trying to identify a whole range of offences that fall outside the suspended sentence regime is helpful. It raises the question of what has not been included. My own feeling is that if we could get some generic language which encapsulates the thinking expressed by my noble and learned friend, we would be doing well, rather than to have a list of offences, which runs the risk of omitting others and perhaps including some that we should not.

[Lord Hogan-Howe (CB)]

I understand why we have all got a problem with the size of the prison population. Generally, we could be safer if there were fewer people in prison. Many of them have probably been there too long and not had an awful lot done to help them. But as I have tried to understand the Government’s proposals and public spending generally, I have a growing concern about how they might be improved.

The proposals rely on the fact that, as people are released early or do not go to prison, they are tagged. I generally agree with tagging and think that we could do far more with it. At the moment, we do not do much with geofencing, with which we can stop a person going where a victim of domestic violence might be. There is sobriety tagging—where alcohol is the cause of somebody’s offending, you can check whether they are abiding by a court order not to drink or not to take drugs. These are positive developments. I am told that about 30% of the people leaving prison who should be tagged are not getting tagged because of administrative issues. That is a significant number of those who are leaving prison who should have some form of restraint or monitoring. If that is not happening, it needs to be sorted before we start allowing people out at a quicker rate.

The other opportunity with tagging which we are not currently taking—Ministers have been kind enough to find some time to talk with me about this—is how we might proactively use it better in the future. The data that comes from the tags goes to the commercial operators of the tagging system. I am not sure whether it is G4S, but it is a commercial operator. I have no problem with that. The problem is that the data goes into its control room and the police do not see it. It tells us where the offenders are; we might be able to check, for example, whether there is a rapist nearby to a rape or a burglar nearby to a burglary—real-time data sharing. At the moment, that is not happening, but it is an opportunity that could be taken with this new experiment. It would not take an awful lot of investment or time to get this running.

Further, as one or two people have said already, we could probably have fewer short sentences on the whole but I am not sure that they should be removed, as it appears the assumption is here, from the armoury of the judge. The particular group I would consider are those repeat offenders who commit low-level offending, but if you live next door to them it is not very good. Such cases are perceived as minor cases, but they often impact on their neighbours and the community where they live—they do not impact on people who live 20 miles away. The opportunity for a judge to intervene in those cases ought to remain. I worry that, with the assumption based on the Government’s proposal, that group, for example, would not get caught.

I agree with the noble Viscount, Lord Hailsham, that the list offered by the Opposition is entirely the right one. It would force the Government to address what should be on the list, or, if not a list, what should be the principle to guide such action by a judge. I worry that, at the moment, judges may feel constrained not to give short sentences in circumstances where they are the only method. It is no good giving a fine to somebody who has repeatedly been given fines and does not pay them, as an example. I think we need to retain that in the armoury.

[Lord Jackson of Peterborough (Con)]

Is not the corollary of the noble Lord’s argument that, as it stands, if the Government were to reject these amendments, in cases of serious and egregious crime the judge may be fully cognisant of the fact that they cannot give a custodial sentence to someone who is deserving of one, and therefore will give a higher sentence than 12 months, with the result that prison overcrowding will be made worse? That is a risk if these amendments are not supported.

[Lord Hogan-Howe (CB)]

The noble Lord, Lord Jackson, is quite right. In fact, that is one thing I would mention to the Minister about the risk, because judges will try to do what is best. They are not trying to subvert the law, but they will try to do what is best in the case before them.

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[Lord Sentamu (CB)]

The noble Lord recalled what the noble Viscount, Lord Hailsham, said about having a list of crimes to which this will apply, but the moment you do that you have fettered the discretion of a judge. It must be left open for the judge to determine. If it is not, and you list the crimes to which this applies, when he or she listens to the evidence, it will be absolutely clear that the person must be sent to prison. But you have fettered the judge’s authority and power. I would not go for a list. Certainly, I support the noble Lord’s suggestions around tagging and the last question he raised, but I am not so sure that the Government can say to the judge, “You’ve got discretion but, by the way, over this you don’t”.

[Lord Hogan-Howe (CB)]

That is probably for the Minister. I say only that I fundamentally agree with the noble and right reverend Lord, but discretion for judges has of course been limited in some ways. For example, there are minimum sentences: of five years if you carry a firearm and of six months on second conviction if you carry a knife after the age of 18. There are occasions when their discretion is fettered, and the Sentencing Council does that anyway with a list of a type.

I am with the noble Viscount, Lord Hailsham. The Government offer one broad principle, but I do not think it is sufficient to deal with some of my concerns. It may be improved. It may be that there should be a list—I would not argue that—but, personally, I am not reassured by the Government’s approach to what I take to be the broad assumption that people will not go to prison for a 12-month sentence. There could be some horrible cases and somebody might get hurt. That is what worries me.

[Lord Foster of Bath (LD)]

My Lords, I will briefly challenge some of what has been said. The noble Lord, Lord Hogan-Howe, rather implied that it was his belief that the Bill intends to remove all short sentences. From the Minister’s opening remarks and those of others, that is clearly not the case. There is, however, very good reason for reducing the number.

The Minister pointed out that there is a significant reduction in the level of reoffending. He has not given the figures, so I will share them with the Committee, as a result of the work of your Lordships’ Justice and Home Affairs Committee, which I chair, in a report that was done during the chairmanship of my noble friend Lady Hamwee. It showed the figures then—they have been replicated by more recent research—that, of offenders who are put in prison for short sentences and are released, 60% reoffend, whereas the average reoffending rate for those on custodial sentences is only 24%. As that report said, and as we will discuss in future amendments, there are very good ways in which we can improve non-custodial sentences to reduce the rate of reoffending even more.

I am going to disagree during our deliberations over the three sessions that we will have on the Bill—maybe more—with a lot of what the noble and learned Lord, Lord Keen, says, but I entirely agree with him, and it has been reflected by the noble Lord, Lord Hogan-Howe, and my noble friend, that none of these measures we are talking about will succeed unless we have the resources to do the job. Again, I say to the noble Lord, Lord Hogan-Howe, and others that there are amendments coming later where we can address the need for more probation officers and more people in our prisons. There is not currently, as far as I am aware, an amendment on police numbers, but there would be time to put one down.

The only other thing I want to say is how much I agree with the noble Viscount, Lord Hailsham, about getting rid of the list argument, which has also been picked up. I hope the Government will listen to his proposal about finding language that can be used about those people we know we would not want to put on short sentences, but not necessarily have the sentence inflation that has, sadly, caused a problem for us and is one reason we have so many prisoners in our prisons today.

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[Baroness Butler-Sloss (CB)]

My Lords, as a judge who did not sit very often in crime but had to do it from time to time, I have been listening with increasing dismay to what has been discussed in these increasingly elaborate proposals. I hope that the Minister will listen to the noble and learned Lord, Lord Thomas, because that was the first bit of absolute good sense, whether we need to call it Victorian or just remind ourselves that the Victorians did a lot of things extremely well. At the end of this discussion and throughout this Bill, could we not do three things: simplify, trust the judges, and trust the Sentencing Council to do a lot of what is going to be, at the moment, in primary legislation?

[Lord Hogan-Howe (CB)]

My Lords, I want to reassure the noble Lord, Lord Foster, that I was not a co-author of this Bill; it is entirely the responsibility of the Government. I was merely saying I had a similar view: that prison numbers could come down and we could be safer. That was the discussion I had with the noble Lord, Lord Timpson, after the Bill was announced. If it had been my Bill, there would have been something in it about a 10% or 20% reduction in the Sentencing Council guideline targets for maximum or minimum sentences. In my view, there have been two causes of prison numbers going up: the lack of the ability to get parole, which has been addressed by the Bill, and the grade inflation in sentences, which has had nothing done to it. Unless someone would like to correct me, no political party has gone into any election promising lower sentences. Has anybody ever said that?

[Lord Foster of Bath (LD)]

Without wishing to delay our deliberations, I point out to the noble Lord that if he feels passionately about it, there is still time for him to draft and put down amendments on the issues he raises. He may well find support from these Benches.