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

Lord Judge Excerpts

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

[Lord Judge (CB)]

My Lords, this process has been moving at a speed that would attract the unrestrained admiration of an indolent sloth—and an indolent sloth has no interest in the administration of justice in England and Wales.

As the Minister set out, this process began in 2014. In fact, even before that judges had been trying to persuade the ministry to let a code be created. The final report on the draft code became available in November 2018. As the Minister has said, it has been a work of astonishing complexity—a prodigious effort by the Law Commission, led for this work by Professor David Ormerod. Unsurprisingly, it has been greeted enthusiastically, rightly, by anyone with any real experience of the problems, not of sentencing decisions as such—although any judge who passes sentence will tell you that those decisions are difficult enough—but of sentencing technicalities; statutory pitfalls; optimistically drafted regulations; regulations that are drafted, come into force and disappear after three or four months; and, with no disrespect to Parliament, general parliamentary tinkering with the sentencing processes. This has resulted in a morass of confusion.

Every Government, of all colours, going back years, have added their own ingredients and then left it to the courts to sort out the puzzle. Sentencing decision is, however, not a game. Every single case involves a defendant, and from time to time people forget that every case involves a victim. The sentence matters to the victim, too, and it should be right. In every sentencing decision—of which there are tens of thousands every year—the first question is: “What are the powers of the court?” The second question that should be asked is: “What are the legislative requirements and constraints that apply to this case?” The decision of the court should always be lawful, but too often, because the relevant law is obscured by technicalities and legislative confusion, it is not. This is unacceptable, it is inconsistent with the rule of law and it has been besmirching our system for years. A remedy is urgently needed and this sentencing code, the Bill and the processes that we are now reviewing will provide the desperately needed remedy—not because it is needed by lawyers but because there are daily miscarriages of justice. It is a miscarriage of justice for a court to pass a sentence that is unlawful. Those miscarriages result directly from the chronic state of our legislation.

I will make two further points. First, the code and Bill simultaneously avoid any retrospective increase in sentencing: the date of the commission of the offence is the starting point for the sentence. Secondly, it provides for a degree of flexibility, so that as new legislation creates further crimes—as happens constantly —it can all be worked into the code, so that we do not have to come back in 10 years’ time and say, “Ten years have gone by and we need another code”. We shall soon be looking at the counterterrorism Bill. That can be fitted into this code. If I were in charge—and I am not—I would get this done first and then look at the sentencing decisions which will arise when we consider that Bill.

The committee of the House which I had the honour to chair examined the proposed Bill and was enthusiastically in support of it. Members of that committee are here to speak, and those who for different reasons cannot be here have asked me to convey on their behalf their continuing support. What is surprising and disappointing is that the proposal has received the wholehearted support of Parliament, yet we have had to wait. I am not blaming anybody for this, but here is the fact: the Bill was introduced into this House on 22 May. It completed all its stages up to Report. It was ready to go, and it was lost when Parliament was prorogued. There were more significant consequences of the Prorogation of Parliament, but this was one of them. Then the process started in the next Session, and again the Bill was taken forward. Everything was in sight, the cup about to be grasped. A number of small amendments were introduced by the Government at that stage which were sensible, so that the Bill would be ready for enactment, but it was torpedoed by Dissolution—again, the Dissolution process had rather greater consequences than this.

Now we are here a third time. The amendments suggested by the Government again make good sense; they serve to improve the Bill. I did my own cross-check, but I ran out of energy just because we need a sentencing code. So I sought the advice of Professor Ormerod, who was able to assure me that he was prepared to give his blessing. If he had not, I would have complained—not to him but to the Government. A particular point to raise is that amendments should be commenced which, whenever possible, follow the “clean sweep” model and, again, reduce to extinction the risk of retrospectivity. A second is that any new legislation can be made compatible with the code. That, I earnestly urge should happen.

There is a solitary advantage in us having to address these issues again: it will give the House the opportunity to hear from my noble and learned friend Lady Hallett, who will be making her maiden speech. She is a very long-standing friend. There are many things that could be said, but I want to highlight this: she was the judge to whom I turned to conduct the harrowing inquest into the tragic consequences of the murderous terrorist attack in London in July 2005. We will all remember the transport disaster which resulted in so many deaths. I know her well enough; I have heard her say that she would be the first to extol the fortitude and courage of the families of the victims and the survivors who appeared before her at that inquest. But she will not say it, so I will. The sensitivity of her approach to each individual human tragedy encompassed in that long, sad catalogue of murder can, even at the risk of embarrassing her, be highlighted.

More to the present point, she was until a few months ago the vice-president of the Court of Appeal Criminal Division, much of whose work involves dealing with appeals against sentence which would have been quite unnecessary if the legislation had not been impenetrable and the proposed code in force.

This is the third time in a few months that this issue has been addressed. Even the journey of an indolent sloth eventually reaches a sluggish conclusion. Can we not have any more sloth-like behaviour? Can we have urgent attention so that, third time lucky, we will be quick?