Criminal Justice and Courts Bill

Lord Mackay of Clashfern Excerpts

Monday 21st July 2014 Lords Chamber

[Lord Blair of Boughton (CB)]

My Lords, I strongly oppose the proposal that Clause 25 should not stand part of the Bill and it appears that commissioners may think in the same way, according to the noble Lord, Lord Paddick. Since the early 19th century, it has been the received wisdom that people are deterred from committing crime by the likelihood of detection rather than the length of sentence. I agree with that in general.

As a former Metropolitan Police commissioner and deputy-commissioner, I have experience of two categories of crime that proved the rule by being exceptions to it. The first is the one that Sir Bernard Hogan-Howe has apparently already mentioned: that is, the reduction in shootings that occurred in London after a five-year mandatory sentence was announced. That occurred because communication among the criminal fraternity is good. It is particularly good among the women of that group, who stopped carrying the guns in their handbags. Therefore the guns are not as much in evidence as they were.

I imagine that many noble Lords will recall my second example, which was a response to the marked rise in fatal and near fatal stabbings of teenagers in London a few years ago. The most important factor in reducing that was the issue of a practice direction from the noble and learned Lord, Lord Judge—I do not think that he is in his place—when he was Lord Chief Justice, that a first offence of unlawful possession of a knife should normally be considered for a custodial sentence. Knife crime started to fall and I believe that is because people knew that that message was passing around the streets of London.

I believe that, with knife crime falling, a custodial sentence for a second offence of carrying these weapons makes much better sense than for a first offence. The reason for that is it provides people with a chance. A sentencer now sentencing someone for a first offence can give them a very simple message which is very easy to understand—“Don’t do this again or you will go to jail”. Normally, I am in favour of leaving judges and magistrates free to exercise their judgment but this crime has an additional catastrophe attached to it. It ruins the life not only of the person who is seriously injured or killed but also the life of the offender in those circumstances.

I had to talk to the families of people who had been murdered in these circumstances. We have not heard enough from those who oppose the clause or, with respect, from the noble Lord, Lord Deben, about the victims of knife crime. Knife crime can change lives catastrophically. One of the awful things about that period when teenagers were killing each other in London was how often there was only one knife wound. A single blow had caused these deaths, as if these young people had no idea that that action would kill someone. It seems to me sensible to pass a message to stop the thing happening that will then allow someone to be murdered. One cannot murder someone very easily if one does not have a knife or a gun. I strongly oppose the proposal.

[Lord Mackay of Clashfern (Con)]

My Lords, judicial discretion is a very important aspect of the judicial process. However, embedded in judicial discretion is the fact that you cannot know in advance with precision how that discretion will be exercised. If you have studied the sentencing guidelines you may know roughly the areas in which the discretion will operate, but having a fixed penalty as a minimum means that it is known in advance that unless there is a particular circumstance to take you out of the situation a fixed penalty will happen. You know that in advance.

I have heard what has been said in support of this clause and also the other point of view from a very experienced police officer. I know a case of knife-carrying that was enough to kill somebody and give the carrier a life sentence. I found that a very traumatic experience. Telling people in advance what the sentence will be is an extremely important deterrent. It has been done in various parts of our judicial system. Therefore I do not regard the principle on which this is based as one that can apply in all circumstances. In a second offence for knife crime it is reasonable for a statement to be made about precisely what the sentence as a minimum will be unless there are circumstances that take it out of the ordinary.

My noble friend Lord Marks has commented on the nature of the exception. If he wishes to improve on that, there is the option of an amendment to that effect. So far, none is forthcoming. I shall take it that the exception, in so far as it is stated, is a reasonable exception in the circumstances of this case. Of course the idea is not to put more people in prison; it is to prevent people from going to prison by knowing that if they do this particular thing for a second time that is where they will go. On the whole, one hopes that that has a deterrent effect.

Information about this will quickly get around among the people who are affected by it. One can understand the idea of discrimination but of course it depends on the way in which the power to stop and search is used. As far as I am concerned, this power must be used in accordance with the best discretion of the police officers on the street. However this amendment has come about—it was made in the other place—the Government have decided in the light of their experience and of their policy as a whole that it should be adhered to and given effect.

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[Lord Woolf (CB)]

My Lords, it is with some considerable hesitation that I speak now, with two views having been expressed—one by those who support this measure and one by those opposing it. It is only right, however, having heard what my noble and learned Scottish friends have had to say about this that I should mention my experience. I have the greatest respect for the noble and learned Lord, Lord Mackay, whom I was glad to serve under when he was Lord Chancellor, and for the noble and learned Lord, Lord Hope, as well, who is a colleague in the House. With great respect to them, though, neither of them, if I may say so with all due deference, were judges who were sentencing in courts at first instance.

[Lord Mackay of Clashfern]

That is not correct. The case that I referred to was at first instance in a trial in the High Court in Glasgow.

[Lord Woolf]

I stand corrected on that but again, if I may say so, their experience was not, because of the way in which their careers developed, in accord with mine. I sat as a judge in the higher courts at every level, first as a High Court judge, then as a Court of Appeal judge, then as a House of Lords judge and finally as the Lord Chief Justice, in relation to these matters.

The one thing that I want to emphasise is that the right way of sentencing in the ordinary way is not for Parliament to lay down what the fixed sentence should be; rather, it is for Parliament to set out the framework and for the judges, within that framework, to deal with matters specifically. Four-month and six-month fixed sentences amount to tinkering. To think that that sort of sentence is going to be of any significance—again, I speak with great respect for the noble Lord, Lord Blair, whom I know and respect—is not right. Four-month and six-month sentences, as has been said already, just do not work as far as either the authorities or offenders are concerned. If someone is the sort of person that this provision is aimed at, who caused someone’s death by the carrying of a knife, I am afraid I cannot begin to believe that their conduct will be influenced by this. That is contrary to the experience of the great majority of judges and, as I have said, amounts to tinkering. That is what we should not do.

We have powers in the court to deal with these matters. Both the noble Lord, Lord Blair, and the noble and learned Lord, Lord Hope, put their finger on the point when they said that the courts can send messages in the same way that Parliament can send messages. However, there are situations where it is appropriate for Parliament to send a message, but there are situations where it is much better done otherwise, although I do not say that it has to be the judiciary. We have heard in this field that both the noble and learned Lord, Lord Hope, and Lord Justice Judge sent messages and were indicating. Although it is right, as the noble and learned Lord, Lord Mackay, says, that if you have a fixed sentence there is more of a likelihood that someone might know what the fixed sentence is, it is also more likely that injustice will be caused by the fixed sentence.

When we legislate, we have to hold the balance between doing justice and ensuring that people are safe so that we do not get into a situation where a court finds that its hands are tied and it is forced to give a sentence that it would prefer not to. The provision that is a safeguard in this case is based on one that is well known to courts south of the border and, I suspect, north of the border. The difficulty with this provision has already been indicated by the noble Lord, Lord Mallalieu. What does it mean? It is a matter that I do not mind saying—[Interruption.] I am sorry, the noble Baroness, Lady Mallalieu. I apologise to the noble Baroness and I know that she will forgive me for that discourtesy.

The position is this: Lord Bingham took one view of what a provision of this sort made, and I took a different view. I said, and you can find this in the Law Lord reports, that the only way you can make sense of this provision is to say that the right way of interpreting it is that a judge’s hands are not tied if that would cause injustice, because it is obviously not the intention of Parliament that judges should impose an unjust sentence. Lord Bingham said that that made this provision a non-entity. I realise that and I agree, and if that is so then we are better off without it.

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[Baroness Butler-Sloss]

My Lords, this is an extremely sensible amendment. I rise on behalf of Barnardo’s to express its very real thanks, which I share, for the amendment that the Government are putting forward.

[Lord Mackay of Clashfern]

My Lords, as a member of Barnardo’s, I am delighted on this occasion to be able to agree with my noble and learned friend.

[Baroness Thornton (Lab)]

My Lords, we on these Benches welcome the amendment. I welcome it personally because I took part in the debates in 2003 on the Sexual Offences Act and argued this case on behalf of Barnardo’s, Action for Children, the NSPCC and ECPAT. All the voluntary organisations concerned with child safety had already realised that the law would increasingly not cover the issue of the threat to children through new media. I thank Barnardo’s for its excellent briefing on this, my honourable friend Sarah Champion for leading such an excellent review of the law and the Government for bringing forward the amendment.