Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Lloyd of Berwick Excerpts

Tuesday 20th March 2012 Lords Chamber

Moved by

[Lord Lloyd of Berwick]

153: Before Clause 116, insert the following new Clause—
“Duty to release certain prisoners serving a whole life sentence
In Chapter 2 of Part 1 of the Crime (Sentences) Act 1997 after section 28 insert—“28A Duty to release certain prisoners serving a whole life sentence
(1) In the case of a life prisoner who has been made subject to a whole life order, and has served 30 years of his sentence, it shall be the duty of the Secretary of State, after consulting the Lord Chief Justice and the trial judge if available, to refer the case to the Parole Board.
(2) If the Parole Board is satisfied—
(a) that it is no longer necessary for the protection of the public that the prisoner should be confined, and(b) that in all the circumstances the release of the prisoner on licence would be in the interests of justice,the Parole Board may direct his release under this section.(3) Where the Parole Board has directed a prisoner’s release under this section, it shall be the duty of the Secretary of State to release him on licence.””

[Lord Lloyd of Berwick]

My Lords, I start by seeking to degroup Amendment 153 from the other two amendments in the group.

Amendment 153 concerns the 41 prisoners who are currently serving whole life sentences in England and Wales. Before the Criminal Justice Act 2003, these prisoners would have had their sentences reviewed by the Home Secretary after 25 years. If they had made exceptional progress and there was no other reason for keeping them in prison, the Home Secretary would consider them for release on licence. There was never any question of automatic release. Each case was considered on its own merits. Some were released on licence; some were not.

What I have just described was the settled practice of successive Home Secretaries for many years. It was a humane practice since it gave whole life prisoners the same hope of a review as other life prisoners. When the 2003 Act was going through Parliament this settled practice was somehow overlooked. There is no evidence that it was overlooked on purpose. It was not a deliberate omission. The purpose of this amendment is to restore the position to what it was before 2003, except that the review would be carried out not by the Home Secretary but by the Parole Board. The reason for that is that the Home Secretary no longer has any function in relation to sentencing except the power to release a prisoner on compassionate grounds, a power which has never been exercised.

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[Lord Lloyd of Berwick]

My Lords, I do not find that response in any way satisfactory. What single reason has the noble Lord for supposing that the public would not accept this amendment, just as they accepted the position before 2003? There was no problem then, so why should there be a problem now, unless it is a problem that has been specifically created by two political parties, each of which is trying to be tougher on crime than the other? That is the political judgment that the noble Lord has made and it has nothing to do with the justice of this amendment or restoring to these people the expectation that they had before 2003. I have no hope of persuading the noble Lord or his party, but I intend to test the opinion of the House, because this is something that should have been accepted by both political parties.

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Moved by

[Lord Lloyd of Berwick]

154: Clause 117, leave out Clause 117

[Lord Lloyd of Berwick]

As the House will remember, Clause 117 provides that if a person has been convicted of a listed offence for which he has been sentenced to 10 years or more and then commits a further offence for which he might expect at least a 10-year sentence in prison, then he “must” be sentenced to life imprisonment unless it would be unjust to do so.

I described this clause in Committee as being pointless and indeed it is, but I now suggest that it is worse than pointless. In Committee, the Minister described the clause as introducing a new mandatory life sentence, and he placed particular emphasis on “mandatory” to show, no doubt, that the Government in this respect are being tough on crime. But a mandatory sentence is one that the court is obliged to pass, like the mandatory sentence of life imprisonment for murder. This clause is quite different from that.

Despite the use of “must”, the clause recognises that the judge will in fact pass the sentence which, in the particular circumstances, he believes to be the just sentence. That is exactly what judges always do when sentencing. Why then do the Government persist in calling it a mandatory sentence? It cannot surely be in order to create some sort of presumption that a life sentence should be passed. How would the judge begin to know what weight to give to such a presumption? Calling it a mandatory life sentence and the use of “must” in the light of the judge’s ability to pass the sentence he believes to be just is simply a contradiction in terms. To create contradictions in terms in all legislation is a mistake, particularly in legislation of a criminal kind which has to be interpreted by the courts. What the clause could have said was that the court “may” pass a life sentence in these circumstances. That would at least serve some purpose because it would cover those rare cases where the second offence does not carry with it a life sentence as its maximum. As it is, the clause is not only pointless for the reasons I have gone into but it is also ambiguous.

I have one other point. Do we want to create more life sentences? I look round to see if the noble Baroness, Lady Stern, is here and I do not thinks she is, so I will make the points which I know she would have made. She quoted what are on any view some very surprising figures that we have in England and Wales 7,663 persons serving life sentences. The figures, which have been provided by the Council of Europe, show that, whereas we have 12 lifers for 100,000 members of the population, for France the proportion is 0.85 per cent, for Germany it is 2.4 per cent, for the Netherlands it is 0.14 per cent, and for Sweden it is just over 1 per cent. The conclusion from these figures is inevitable. We have far too many prisoners serving life sentences when a long determinate sentence would do just as well. As for deterrence, it is very fanciful to suppose that a prisoner having served 10 years already would be deterred by the prospect of a life sentence rather than a long deterrent sentence and decide thereafter to go straight.

As for Amendment 157, we have a new Clause 134 which creates an offence of threatening with a knife. It too carries a mandatory sentence and, as such, suffers from all the defects which I have already mentioned in the earlier debate. It is even more pointless for the reason that we already have an offence of carrying a knife in a public place under the Criminal Justice Act 1988. It carries a maximum sentence of four years. In 2003 the Court of Appeal issued guidelines in which it said that if the knife was used to threaten, then the sentence should be towards the upper end of the scale. What, then, can be the purpose of now creating a new offence of threatening with a knife, carrying the same maximum sentence of four years? Clause 134 is exactly covered by the existing legislation. Its only purpose I can see is, as I have said before, to give the impression that the Government are doing something about knife crime. If they think that, then they deceive themselves. The only way to do anything about knife crime, as I mentioned in Committee, is to do what has been done in Glasgow and that is to get in among the gangs who use these knives. There, knife crime has been reduced by an astonishing 82 per cent. That is the way to reduce knife crime, not cluttering up the statute book with unnecessary provisions such as this. I beg to move.

[Lord McNally]

My Lords, a concern expressed by some noble Lords in Committee seemed to be that the new mandatory life sentence would be pointless—a word that the noble and learned Lord used several times—because courts will not have to apply it if it would be unjust to do so. It is right to say that the court will retain a discretion not to impose the new mandatory life sentence when the particular circumstances of the offence or the offender would make it unjust to do so. But that is very far indeed from meaning that the sentence is pointless. Save for murder, all mandatory sentence requirements on the statute book contain an exception of this kind. It is done so that mandatory sentence requirements will be compatible with human rights, and to prevent arbitrary sentencing, which cannot take any account of specific and individual circumstances. It is clearly not a permission or excuse for the court to do away with the mandatory sentence requirement. We expect that in the majority of cases the exception will not be engaged at all.

Last summer we made a commitment to introduce a tougher determinate sentencing regime to replace IPPs. A key element of that regime is mandatory life sentences for the most serious repeat offenders. The mandatory sentence requirement in Clause 117 will ensure that the worst repeat sexual and violent offenders receive a life sentence.

Amendment 157 would remove Clause 134, a new knife offence, from the Bill. The noble and learned Lord, Lord Lloyd, argued in Committee that the two new offences in Clause 134 are adequately covered by existing legislation and that, therefore, there is no reason for creating them. It is true that unlawful possession of a knife or offensive weapon is already a serious criminal offence which carries a maximum custodial sentence of four years. The intention of Clause 134 is to strengthen this existing legislative framework by targeting behaviour that amounts to more than simple possession but does not go so far as resulting in injury to the victim. The new offence will complement the existing offences of possession, which deal with those who carry offensive weapons or bladed or pointed articles in public places or schools without lawful authority, or reasonable excuse or good reason. It will do so by targeting behaviour that goes beyond possession, specifically targeting instances where an individual brandishes a knife or weapon, threatening another and placing them at immediate risk of serious physical harm. We want to send a strong message that this type of behaviour will not be tolerated. The minimum sentence attached to the new offence drives home the point that this kind of behaviour is extremely serious, even if it does not carry through into causing actual physical harm. Indeed, threatening people and placing them in fear of serious physical harm is serious enough that people should expect to face custody if they act in this way.

I know that the noble and learned Lord is particularly concerned about the minimum sentence for 16 and 17 year-olds contained in the new offences. I understand his concern, but in the other place my right honourable friend the Lord Chancellor made it clear at Third Reading that the Government had listened carefully to the arguments made in support of extending a minimum custodial sentence to all those under 18. The Government had then decided, on balance, that it would be appropriate to extend the minimum sentence to the narrower group of 16 and 17 year-olds who commit these offences. The Government have not made the decision to create these offences lightly, but consider it appropriate to have minimum sentences set out in legislation when a particular offence demands a firm and unequivocal response.

The Government cannot accept this amendment. To do so would undermine the strong message sent by this clause. We need this to complement the much wider range of initiatives we have in place to address problems posed by people who unlawfully carry or use knives in our communities. We believe that, in respect of 16 and 17 year-olds, Clause 134 strikes the right balance. I urge the noble and learned Lord to withdraw his amendment, and that this clause and Clause 134 should remain in the Bill.

[Lord Lloyd of Berwick]

My Lords, the noble Lord has not explained how a life sentence in the first amendment could in reality act as any greater deterrent than a second long determinate sentence. Nor has he dealt or attempted to deal with the astonishing figures that I mentioned, which show that we seem to have a thirst for creating life sentences that is entirely unique to the United Kingdom. It is not seen anywhere else in Europe. Nor, coming to the second amendment, has he explained why it is necessary to have another offence covering exactly the same ground as the existing offence. Of course it may be limited to handling a knife, but it is not confined to handling and clearly covers threatening, which is now given a new offence with exactly the same maximum sentence. However, I see that the Government cannot be persuaded, and therefore I must beg leave to withdraw the amendment.

Amendment 154 withdrawn.