Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Phillips of Sudbury Excerpts

Tuesday 7th February 2012 Lords Chamber

[Lord Thomas of Gresford]

I shall add that he was saying it in the context of a married woman, who had no separate identity in those days. She was regarded as a part of her husband.

[Lord Phillips of Sudbury]

Hear, hear!

[Lord Thomas of Gresford]

I do not know if my noble friend is agreeing with the proposition, but in these more enlightened days we would all agree that the law on that particular aspect was an ass.

--- Later in debate ---

Like many noble Lords, I came to this issue initially with great suspicion of short sentences because of the inability to build into them any kind of rehabilitation content. However, it has been put to me on my travels and in this House that a short sentence sometimes gives a community respite from somebody who is making their life hell, and the clang of the prison door, referred to by the noble Lord, Lord Faulks, may just straighten that person out. It has also been put to me that, in certain cases of persistent domestic violence, a custodial sentence may give a wife—usually—the chance to rebuild and reorganise her life. Therefore, although the case against short sentences is strong, we intend to retain them.

[Lord Phillips of Sudbury]

I do not quite follow my noble friend’s reasoned argumentation, because Amendment 176ZB, put forward by my noble friend Lady Linklater, does not prohibit short sentences but states that if a short sentence is imposed a court must give reasons. That seems in line with what the Minister was saying previously.

[Lord McNally]

That is why the amendment is not necessary. Since a number of noble Lords had referred to the damaging elements of short sentences, I thought that it was worth putting on the record that, as a lay man in all this, I have had pointed out to me by people with considerable experience areas where the short sentence is effective. I certainly acknowledge that my noble friend said as much in her introduction. Her amendment is not an attempt to prohibit short custodial sentences; rather it seeks to create a kind of presumption that a short custodial sentence will not be imposed unless the alternatives are considered and found to be inappropriate. Such a statutory provision already exists. Section 152 of the Criminal Justice Act 2003 places restrictions on imposing discretionary custodial sentences. Section 152(2) sets out what is sometimes called the “custodial threshold”, the test that has to be met before a custodial sentence can be imposed:

“The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone or a community sentence can be justified for the offence”.

That is the current situation. I suggest to my noble friend that the current requirement is stronger and more wide-ranging than that proposed in this amendment.

I welcome a reminder of the importance of imposing short custodial sentences in essence as a last resort. I see, as I have always done, the full importance of rehabilitation. However, I do not think that this amendment adds significantly to the current law. I hope that the noble Baroness will feel able to withdraw her amendment.