Police, Crime, Sentencing and Courts Bill

Lord Hope of Craighead Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

I do not want to re-enter an old argument but, in Committee, I was almost embarrassed when the Minister pointed out that I was completely wrong about mandatory minimum sentences. Not being a lawyer, I thought that I had made some sort of legal error, but apparently not. Clause 102 will lead to gross injustice for anyone who is convicted of these offences, except in exceptional circumstances. That is revealed by the very clever wording of the amendments tabled by the noble Lord, Lord Marks of Henley-on-Thames, which contrasts those exceptional circumstances with a much preferable

“contrary to the interests of justice”.

These amendments bring justice into play rather than pure, unmetered punishment. I and my noble friend will be supporting the amendments.

The deterrent effect of these minimum sentences would still be in play, but there would also be the freedom that, when justice requires, a person is not given one of these mandatory sentences—so the Government can still hold their “tough on crime” stance and even call this “crime fortnight” while justice is still served—although it would be good if they could admit their own crimes sometimes.

[Lord Hope of Craighead (CB)]

My Lords, I will say a few words in support of Amendment 82A dealing with short custodial sentences. The value of this amendment is that it places greater emphasis on alternative disposals, which fits in with what I thought was the Government’s policy of trying to rehabilitate offenders. Sending people to prison for a short period is counter- productive. One knows what happens in prisons. To send people for a short sentence is wasteful of public money. If there is an alternative to a custodial sentence, then it should be adopted. The proposal made in this amendment has a great deal behind it.

As for the other issues, speaking as a former judge I tend to support what the noble Lord, Lord Faulks, has said. If I was faced with the choice of words, I would find it easier to work with the Government’s wording than the wording proposed in the amendments.

[The Lord Bishop of Gloucester]

My Lords, I agree with much of what has been said. On Amendment 82A I reiterate what has been said, and I hope will be said later, about primary carers. We know the damage short sentences do to families. We also know that close to half of those leaving custody go on to reoffend within a year of their release, but two-thirds of those sentenced to less than 12 months go on to reoffend.

This is not pie in the sky; if we look at Germany, which performs better on virtually every metric including reoffending, they imprison a far smaller proportion of the population and sentencers have to make two assessments before sentencing. First, they have to show that a community sentence is inappropriate and, secondly, they have to say that a short sentence will suit the need better. I commend Amendment 82A.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I am very grateful for the support that I have had for my Amendments 71 to 78 from Members of the House and for all the contributions to this important debate. I am also grateful to the Minister for his response. However, when one analyses it, what he was saying about discretion cannot survive a proper reading of what is meant by “exceptional circumstances”. Certainly, it is the case that authorities have analysed exceptional circumstances, including the Court of Appeal authority of Nancarrow that he mentioned.

Nevertheless, the nub of it is that “exceptional circumstances” means circumstances that are very unusual, and what the Minister did not address was my point that there are many situations which in general experience are commonplace, and the circumstances are common- place, but where it would nevertheless be unjust—contrary both to the judges and to any normal sense of justice—to impose the minimum sentence. Because the circumstances are not exceptional, the judge would be bound to impose that sentence.

In answer to the points of the noble Lord, Lord Faulks, of course it is the case that judges are daily addressed on the basis that they should take an exceptional course of leniency, and it is not surprising that, as a recorder, he has been asked to take that course many times. However, that does not mean that he has been asked to find that circumstances are exceptional. It is interesting that the test for the sentencing guidelines and departing from them is “contrary to the interests of justice”, and not a requirement that there should be exceptional circumstances.

On the matter of policy, I respectfully suggest that the answer to the Minister’s point was comprehensively expressed by the noble and learned Lord, Lord Garnier. He used the word “wise”. It may be that the Government are entitled to legislate in this way, but is it wise? The Minister said that there was a difference between “wise” and “constitutionally proper”. The point I am making is simply that, although it may be a matter of policy in the sense that the Government can have the policy and can legislate—as the noble and learned Lord, Lord Garnier, said, Parliament can do what it likes—the question is: is it bad policy? We say that it is bad policy because it forces judges to do what they would not otherwise do, having regard to the interests of justice.

In respect of the point made by the noble and learned Lord, Lord Hope, of course it is right that it may be easier to apply a test of exceptional circumstances, because the authorities are so clear, but the point about the interests of justice, as the noble and learned Lord, Lord Judge, picked up in Committee, is that sentencing decisions are difficult.

[Lord Hope of Craighead (CB)]

I am grateful to the noble Lord for giving way. My point is that I would be drawn into arguments with myself about policy in deciding whether to do what Parliament has asked me to do. I am afraid that, as a judge, the constitutional position is that I have to accept what Parliament has laid down. I do not like minimum sentences; they are a very blunt instrument, and I can think of cases where I would not want to be driven down that road. But that is not my position as a judge. I have to follow what Parliament has said, but I have leeway with the phrase which has been inserted in the Bill. That is my point.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I understand that point. It is very rare that I disagree with the noble and learned Lord, but it is still the fact that what Parliament decides, judges must implement. If they decide that there is an exceptional circumstances test, that is far more limiting than an interests of justice test. That is my point and I will close on it—except to say that the default position under my amendment is to accept minimum sentences and simply to allow the judges to depart from those sentences where it is just to do so, having regard to all the circumstances. I do not believe that there has been any answer presented to that central position, on which I therefore wish to test the opinion of the House.