Transparency and Consistency of Sentencing

Stephen Phillips Excerpts

Thursday 2nd February 2012 Commons Chamber

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

Will the Secretary of State give way?

[Mr Clarke]

If my hon. and learned Friend will forgive me, I ought to get on or else I will be running a seminar for a large part of the afternoon, which would not satisfy all my hon. Friends.

The Sentencing Council adds stronger checks and balances to the tradition. It does so, first, through its 13-strong membership. The majority of its members are judges and magistrates, but it also includes the Director of Public Prosecutions, the former acting Metropolitan Police Commissioner and the former chief executive of Victim Support. The council has not yet produced guidelines for any category of offences that have not received the support of the Association of Chief Police Officers. These are not simply judge-made guidelines for the courts; a range of backgrounds are represented on the council.

Secondly, the guidelines are determined independently and transparently, but with extensive public consultation. The consultations for recent guidelines have happened over 12 weeks and have elicited thousands of responses. Thirdly, the guidelines enjoy a proper level of parliamentary scrutiny. The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) and his colleagues on the Select Committee on Justice consider every draft guideline in detail, taking extensive written and oral evidence from a wide range of experts, including the chairman of the council. The Select Committee’s work ensures that there is meaningful democratic engagement in sentencing guidelines, without compromising the crucial principle of judicial independence.

Over the past 18 months, the council has published guidelines on a number of areas, on occasion attracting lurid headlines about excessive leniency and so-called soft judges. Let me address that directly. Our judges are far from overly lenient. The average length of prison sentences has increased by 20% over the past 10 years. I do not have proper figures but, having practised myself 30 years ago, I think that the increase has been even greater. We now send many more people to prison and impose longer sentences than was ever the norm until the past four years. As my hon. Friend the Member for Gillingham and Rainham (Rehman Chishti) pointed out, judges can still respond to things such as the riots in an appropriate way.

The guidelines are concerned centrally with ensuring that sentences properly reflect the seriousness of an offence. They are statutorily required to have regard to the impact of sentencing on victims and public confidence in the criminal justice system. Naturally, people seize on isolated parts of the guidelines and quote them out of context. However, when set against the cases that courts see every day, they are well-thought-out, carefully considered, serious pieces of work. For example, the guideline on burglary concludes that domestic burglary should habitually attract a custodial sentence, that the sentimental value of any goods taken must be considered alongside their financial value, and that the presence of children when a burglary is taking place will significantly aggravate its seriousness.

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[Mr Slaughter]

I am glad the hon. Gentleman is listening, and I will direct my words more to him. He put that question twice to the Lord Chancellor, who made a very reasonable point: the purpose of sentencing guidelines is to identify a framework in which judicial discretion can progress. The question is therefore somewhat nonsensical. There are starting points for sentences, and there are recommended sentences; there are aggravating and mitigating factors, and there is a range of sentences that can be brought in. The Lord Chancellor talks about us commenting on sentences, but the hon. Gentleman seems to want the House to make sentences in individual cases, which is simply not possible.

[Stephen Phillips]

The point my hon. Friend the Member for Gainsborough (Mr Leigh) is driving at is Labour party policy on this issue. The Sentencing Council says domestic burglars should ordinarily go to jail. If the Labour party disagrees, why does it do so? Will the hon. Gentleman tell us?

[Mr Slaughter]

No, the Labour party does not disagree. As I said a moment ago, the Labour party set up the Sentencing Council and believes that thus far—we do not always necessarily agree with everything it does—it has done a good job. I do not see the point of the hon. Gentleman’s comment.

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[Stephen Phillips (Sleaford and North Hykeham) (Con)]

It is a real honour and a great pleasure to follow my hon. Friend the Member for Stroud (Neil Carmichael), who gave a powerful speech.

I hesitated to rise to speak on a subject on which I know so little—a fact of which I am particularly conscious in the light of the extraordinarily powerful remarks made by my hon. Friend the Member for Broxtowe (Anna Soubry); she talked about my hon. and learned Friend the Solicitor-General, who will wind up for the Government, and his appointment as a criminal recorder even though he had no knowledge of criminal law. The right hon. Member for Blackburn (Mr Straw) thought that my hon. and learned Friend did so well that he subsequently gave me the same honour.

When my right hon. and learned Friend the Lord Chancellor opened the debate for the Government, he referred to the critical importance of the independence of the judiciary, and precisely what it has delivered, in proper sentencing, proper trials in the criminal courts, and public confidence in the criminal justice system.

I pay tribute to the hon. Member for Hammersmith (Mr Slaughter), who opened the debate for the Opposition. He, too, recognised the quality of this country’s judiciary and what it has meant for the United Kingdom and our citizens in the delivery of proper justice. However, such judicial independence inevitably means that from time to time we in this House, as we are entitled to do, have to consider the sentences handed down, because our constituents rightly raise concerns about them, just as they raise many other concerns about the criminal justice system and other matters.

When the House discusses sentencing, certain tensions manifest themselves as a result of the doctrine of the separation of powers that is rightly in place in this, as in all democratic countries. There are the public expectations—or perceptions, at least—of the sentences that courts hand down, fuelled from time to time, as a number of Members have said, by journalists picking up on sentences that appear not to reflect the severity of the crimes of which a jury has found a defendant guilty. Those public expectations need to be recognised and met, and it is the function of this House and the Government in part to do that in setting the guidelines and framework within which the sentencing operation must take place.

However, in tension with that is the role of the judges. My right hon. and learned Friend the Lord Chancellor rightly recognised that it is a judge in a criminal court who hears the entirety of the evidence against a defendant when presiding over a trial, and such a judge is therefore best placed to determine the appropriate sentence to pass on someone convicted of a crime by a jury of his peers. My right hon. and learned Friend did say, however, that in all such cases the judge will oversee the entire case, but that is not always so. In many instances, a conviction is obtained by the Crown and the case is adjourned for sentencing; indeed, that is the usual practice. As a result, the sentencing judge often has to be re-educated about the precise circumstances in which the offence took place, in order that an appropriate sentence can be imposed. I encourage my right hon. and learned Friend—as I would encourage any Minister—to consider whether it is appropriate in most cases, if not all, to reserve sentencing to the judge who actually heard all the evidence. That would engender better respect for, and greater public confidence in, sentencing.

[Anna Soubry]

It is very rare that the judge who conducted the trial in a given case does then not make sure that they pass sentence, for precisely the reasons that my hon. and learned Friend has identified. However, my hon. and learned Friend makes the powerful point that, if at all possible, it would be much better if they retained sentence, even where pleas have been taken by judges, which is usually because they have read the papers the night before. Actually, it just makes things a lot simpler and easier all round, which must be to the benefit of justice and is much more cost-efficient.

[Stephen Phillips]

My hon. Friend makes an important point about cost-effectiveness. If a different judge has to sentence, the papers have to be read and more work is done in court, thereby taking up court time, while the case is explained by the advocates for the Crown before the plea in mitigation is taken. Then, there is generally a further adjournment—certainly when I sentence, and no doubt when my hon. Friend the Member for South Swindon (Mr Buckland) sentences—when the judge retires to consider precisely what he is going to do. All of that could be avoided.

In my experience as a recorder—a role I continue to carry out for a few weeks a year—sentencing lists often include trials where there has been a conviction, and the case is not always reserved to the judge who heard the evidence. In my view, it certainly should be, and I hope that my right hon. and learned Friend the Lord Chancellor and his Front-Bench colleagues will look at that issue.

The first tension for the House when it considers such matters, therefore, is that between public expectation or perception on the one hand and the necessity for judges who hear cases to deal with sentences and impose them appropriately on the other. There is another tension, however, between the discretion of the judiciary to impose the appropriate sentence and the expectations of the public that sentences will reflect the gravity of the crime. That, of course, is a tension that manifests itself most clearly in the discretion afforded to judges in passing the sentences they impose for which they are criticised, from time to time, both in this House and in the press.

Let me echo some of the comments of other Members about the wisdom of this House second-guessing the judiciary in sentencing exercises. If we are to stand behind the independence of the judiciary, as I know my right hon. and learned Friend and other Ministers do, and to insist that the judiciary are responsible for sentencing and not the court of public opinion—as we have seen from time to time—we must be robust and stand up and say here that which is right. That which is right is that there must always remain a certain element of discretion in the sentencing exercise, notwithstanding the frameworks that this House establishes, within which the exercise itself must take place, and the guidance laid down by the Sentencing Council.

The debate therefore takes place in the context of those tensions. Any Member who thought that the tensions were unreal and that the public did not have such perceptions or, indeed, criticise judges from time to time, will find when they return to their offices and read their e-mails an e-mail from our frequent correspondent—by which I mean that of all Members of the House—who goes by the name of UK Patriot. Many Members might delete his e-mails, but I read them. He has sent us all an e-mail today about the “Big Ben bomb gang” who are, he says, apparently out in six years. He says:

“The fact that this has happened is outrageous!”

He tells us that they appear to have been treated by the courts as though

“they were naughty boys owning up to scrumping apples.”

He goes on in the same vein.

There is a common public perception that the judiciary are not imposing proper sentences. It is therefore important, in the terms of the motion today, that we consider both consistency and transparency and that the Government push that agenda as they carry forward their work on sentencing and consider reform of the criminal justice system.

I openly acknowledge that the advent of the Sentencing Council, formerly the Sentencing Guidelines Council, has ensured greater consistency in sentencing. Like the hon. Member for Hammersmith, I am pleased that the Government have not decided that, because of the current financial crisis—we will not touch today on who is responsible for that, although the hon. Gentleman knows my views—this body should be abolished.

[Mr Buckland]

I think that my hon. and learned Friend is grappling with the same issue as regards the Sentencing Council as many of us have in recent months. Does he think that there is a case for the Court of Appeal doing the job of the council with an additional resource function to carry out the research that I referred to in my speech?

[Stephen Phillips]

This is a rare area in which I might disagree with my hon. Friend. Before the Sentencing Guidelines Council was established, as my hon. Friend will know and as the House heard in the Front-Bench speeches, the Court of Appeal used to issue guidance in the form of judgments in particular cases on how judges should proceed in sentencing. That was worth while, and, as my right hon. and learned Friend the Secretary of State made clear in his speech, the Court of Appeal retains that role. We saw it, as an intervention revealed earlier in the debate, in the riots last year. The Court of Appeal, essentially, was able to establish that as a matter of English law the context in which otherwise minor offences had taken place required much stiffer sentences to be imposed than would otherwise have been required either by previous guidance from the Court of Appeal or by guidance from the Sentencing Guidelines Council.

I can agree with my hon. Friend the Member for South Swindon to the extent that it does seem important that the Court of Appeal should retain that overarching ability to exercise its right to indicate to lower court judges what would be an appropriate sentence in particular circumstances. What the Court of Appeal never had and still does not have the opportunity to do is consult more widely, whereas the Sentencing Guidelines Council did have that opportunity, as does the Sentencing Council, which consults much more widely than the Court of Appeal ever could in a criminal case. In any case in which the Court of Appeal was handing down guidelines, it would receive submissions only from the parties to the case—and perhaps from the Attorney-General; I know not—but it would not be able to consult extensively with the public as the Sentencing Council can and does. If we are to encourage public confidence in the sentencing regime, it is very important that the public are consulted.

The only respect in which I might criticise the Sentencing Council—perhaps I am going slightly off the topic here—is in relation to its consultations on mandatory or discretionary guidelines on sentencing, which are not well publicised or well known. The representations it receives usually come from the Criminal Bar Association, other specialist associations and those who are particularly interested in the criminal justice system.

[The Solicitor-General]

Is there not another point to bear in mind? The Court of Appeal’s criminal division can look only at past cases and must have cases brought to its attention either singly or in groups in order to introduce thematic judgments on particular areas of criminal activity. The Sentencing Council, however, can proactively look at burglary, sexual assault and other areas of crime and give forward, rather than retrospective, guidance.

[Stephen Phillips]

My hon. and learned Friend makes an excellent point, as usual, which I had not thought of. No doubt that is why he is the Solicitor-General and I am two Benches behind him. He is absolutely right and I entirely agree with him.

I differ from my hon. Friend the Member for South Swindon only inasmuch as although I think the Court of Appeal should indeed retain the overarching ability to indicate to lower court judges the framework within which sentencing must take place, I also consider the existence of the Sentencing Council to be important for the reasons I have indicated. The council’s guidelines ensure a large measure of consistency between sentences that are handed down for similar, if not identical, crimes across the entirety of England and Wales. For that reason, although I understand that there is a cost implication with the maintenance of that body and that it can be described, as it always is, as a quango—indeed, some would say it is a quango we should dispense with—it is a body that should continue to exist if we are to encourage confidence in the sentencing regime in England and Wales.

I hesitate, particularly given the time, to say very much about the hon. Member for Hammersmith’s spirited defence from the Front Bench of the sentencing regime and the way in which sentencing was treated by the previous Government, but it is right to point out that a large number of criminal justice Acts were passed under the previous Administration. If he were to go, as I recommend he should—perhaps he already has—and talk to those who had to use that legislation and were bound by it in their sentencing exercises, he would find a universal, or near-universal, level of criticism, particularly regarding the Criminal Justice Act 2003. Many of the measures that the previous Government introduced, such as custody plus, which was the example given by my hon. Friend the Member for South Swindon, were never brought into being or had to be changed in subsequent Acts. The difficulty with the previous Government’s approach was that it sought to micro-manage the judiciary and to remove large elements of discretion so that the sentences that were passed did not necessarily reflect the offences of which the accused had been convicted or for which a guilty plea had been entered. Sentencing became, to a large extent, a tick-box exercise, which as the hon. Gentleman acknowledged, at least by implication, and as other Members acknowledged, is a most unsatisfactory way of proceeding. I listened to the spirited defence from the Opposition Front Bench, although I sought not to intervene, but I have to tell the hon. Gentleman that the approach the Government are taking in their reforms is the right one and I commend it to the House, as indeed I commend the motion.

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[The Solicitor-General]

I am sure my hon. Friend is right about that—he will know that from his experience both as an advocate and as a sentencer. It is utterly frustrating to have to analyse sentencing remarks that are based if not on conjecture, then on a total lack of knowledge of the facts. Advocates—those who appear for the Crown and the defendant—have a duty to ensure that the court is given the facts.

Advocates also have a duty to ensure that the court is advised about the relevant sentencing law and powers. One of the problems, or unintended consequences, of the raft—I was going to say the flood—of legislation passed by the Labour Government was that those Acts had something to do with amending the criminal justice system. The previous Government were not so silly as to call every one of those 64 Acts of Parliament a criminal justice Act, but I can assure the hon. Member for Hammersmith that 64 pieces of legislation passed between 1997 and 2010 affected the way the criminal justice system worked. It is completely—I will not use an unparliamentary expression—confusing to have to sit there and try to work out which piece of legislation deals with which type of offence and whether that legislation is in force, not yet in force or out of force.

Let me take the example of the Criminal Justice Act 2003, which is almost as thick as this great tome—the wonderful “Vacher’s Parliamentary Companion”—in my hand. Before this Government came into office, I asked a parliamentary question of the previous Government, and it was quite clear that they had simply mismanaged the conduct of that piece of legislation. About a third of it was repealed before it even came into force. Another third was not in force by the time the previous Government left office. Individual bits of the remaining third were brought into effect, and we are now having to repeal them—I am talking, for example, about the IPP legislation. Other bits were also brought into force by the previous Government, but they then realised they needed to repeal them.

What we require from the House, therefore, is an understanding that legislation needs to be thought about. We need, of course, to consult—this is what the Sentencing Council does—the people who have to apply it and the people it will affect. We need to work out what we will get if we pass what I call early-day motion legislation—expensive appeals; judges telling my right hon. and learned Friend the Lord Chancellor that statutory construction is hell; and a huge lack of public confidence and satisfaction in the justice system.

[Stephen Phillips]

My hon. and learned Friend may remember—I wonder whether he agrees with this—that, in March 2006, Lord Justice Rose, speaking of the 2003 Act, which most of the judiciary consider to be the worst criminal justice Act of all time, said:

“Time and again during the last 14 months, this Court has striven to give sensible practical effect to provisions of the Criminal Justice Act 2003, a considerable number of which are, at best, obscure and, at worst, impenetrable.”

Does my hon. and learned Friend agree that it was not the high point of Labour’s justice policy?

[The Solicitor-General]

My hon. and learned Friend is too kind. I will also say this: Lord Justice Rose is a very great man.