Police, Crime, Sentencing and Courts Bill

Viscount Hailsham Excerpts

Lords Hansard - part two & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I have to agree with the three Members of the Committee who have just spoken. I will deal with the two proposals in turn, first that relating to children and their convictions being spent when they turn 18. That is absolutely compelling as an argument. I have just one thing to add: there is a huge differential in the experiences of different children in our communities. For example, there are looked-after children—the state not being the best parent—who will be prosecuted and will attract convictions, before their majority, for bad behaviour that simply does not get prosecuted when a child behaves in that way in the family home. This could be common assault or criminal damage. It is common practice for looked-after children to be in the criminal justice system in circumstances where their peers elsewhere would not. To not to get a second chance on turning 18 is a terrible indictment on our society.

I encourage the Minister to take the expert advice from the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Carlile, with all his experience of penal reform, and to do something about this. Things are compounded still by there being no right to be forgotten when it comes to the internet. The law has to push back even harder to try to rehabilitate people, particularly children, in the light of so much of our lives and our histories being on the internet.

I shall respond briefly to the noble Lord, Lord Paddick. A non-court disposal administered initially by a police officer should be immediately spent, as a matter of good practice but also as a matter of principle. If someone has given up the opportunity to have the matter dealt with in court, that should happen in many cases. However, there should be a benefit, and that should be that the disposal is immediately spent. It is an incentive to engage with it, but it is also right in principle. The Rehabilitation of Offenders Act 1974 was a wonderful thing, but we are a long way from its ethos and principles. It has been undermined by an exemption order that has grown, in my experience, every year and it has been undermined by the growth and rise of the internet. This Committee really needs to listen to the noble Lords, Lord Carlile and Lord Paddick, in their proposals, and push back very hard in the opposite direction.

[Viscount Hailsham (Con)]

My Lords, I will make a very brief point in support of what has just been said by the noble Baroness and the noble and learned Baroness. There are a number of professions where you have to establish that you are a fit and proper person. I act as a legal assessor to the Nursing and Midwifery Council, and I am aware of the registration process: you have to assert that you are a fit and proper person. I can see that a caution of the kind that we have been discussing might stand in the way of a registration being effective, and that would be a great tragedy.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Lord, Lord Paddick, for tabling his amendment. As we have seen through this debate, it has inspired many contributions on a wide range of points about whether and when a caution should be spent: after three months or immediately when the caution is given.

I remember sitting on the Michael Sieff Foundation report, and our discussions about whether all youths should effectively have their criminal records expunged unless there were particularly serious matters in there. I also remember debating that point very well, because I was sceptical about it at the time. The argument that I found most convincing was from the lady who was an academic helping us. It was based on the inadequacy of the record-keeping system for having any sort of differentiated approach for expunging a criminal record. It is really much better and more reliable to expunge the lot unless there are extreme reasons not to. That way gave young people the best chance of getting a good job and starting their career.

All noble Lords who spoke in this debate made interesting points. My noble friend Lady Chakrabarti made one particular point about the record-keeping of the internet. This is a huge issue; the internet does not forget. Of course, employers make their own checks through the internet, whether or not they have been given permission to. In my experience, young people are conscious of this and spend a certain amount of time editing their internet history to make sure they get any job they are offered. That is a flippant point. Nevertheless, this was an interesting debate and I would be interested to hear the Minister’s reason for why a caution should not be spent at the time it is given, rather than after three months or whatever period it was. I too had the briefing from Transform Justice, which made a good case, so I look forward to the Minister’s response.

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[Lord Wolfson of Tredegar (Con)]

My Lords, these amendments, which I am grateful to the noble Baroness, Lady Massey, for putting down, all relate to custodial sentences for children. There were one or two points that she made that I shall perhaps respond to when we get to group 9, because there is a little bit of an overlap with some of the points there. I hope that she will forgive me if I respond to some of the points then, but I shall seek to respond to the majority now.

As the Committee will be aware, there is a separate and distinct sentencing framework for children. When sentencing children, the courts have to take into account two statutory considerations: the principal aim of the youth justice system, which is to prevent offending by children and young people, and the welfare of the child. I hope that overlaps with some of the points made by the noble Lord, Lord German, emanating from the Sentencing Council.

Although, therefore, custody should always be a last resort for children, there will be some cases where it is necessary, and we believe that the court is best placed to determine the appropriate sentence. But those who commit the most serious offences, and who pose a risk to the public, should serve an amount of time in custody which reflects the seriousness of their offending.

Against that background, let me go through the relevant clauses and amendments. Clause 101 relates to—and I underline this point—minimum sentences. The noble Baroness, Lady Jones of Moulsecoomb, on a few occasions referred to “mandatory” sentences. The clause is not headed “mandatory sentences”; the words “mandatory sentence” do not appear in this Bill, except in one place, Clause 101(8), which refers back—it is a pity that the noble Lord, Lord Paddick, is not in his place, because we have a nice piece of parliamentary drafting here—to Section 399(c) of the Sentencing Code “(mandatory sentence requirements)”, but that refers to a minimum sentence where the conditions set out in the clause do not apply.

I have two points to make in this regard. First, minimum sentences are not mandatory in the sense that they must be imposed. They are a mandatory consideration that the court must make before passing a sentence unless the provision in the sentence is met. Secondly, the Bill does not introduce minimum sentences for under-18s for the first time. Offenders aged 16 or 17 are already subject to minimum sentencing provisions if convicted of threatening with a weapon or bladed article, or a repeat offence involving a weapon or bladed article.

The threshold for courts to depart from imposing a minimum sentence is open to them, the question being whether the test is met. This amendment aims to ensure that the change in the threshold will not apply to offenders aged 16 and 17 who are convicted of these two offences. In Clause 101 we seek to ensure that courts depart from the minimum sentence only in exceptional circumstances.

[Viscount Hailsham (Con)]

My noble friend clearly is right when he says that this is not a mandatory sentence, but does he accept that the purpose of this clause is to ensure that in the generality of cases, a custodial sentence is imposed?

[Lord Wolfson of Tredegar (Con)]

The purpose of a minimum sentence is that unless the threshold is met—we will debate in another group what that threshold should be—the minimum sentence is imposed. There is nothing between us on how it works; there obviously is on whether it is a good idea. I hope that is fair.

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[Lord Wolfson of Tredegar (Con)]

The point I am making is very important and we will get to it in another group. I absolutely accept that people use “mandatory sentence” in a common parlance way, but when we get to a later group, we will discuss what the test should be. I will not delay the Committee now, but the figures for when the minimum sentence is not actually imposed are surprising. People using the phrase “mandatory sentence” would be surprised to hear that in a third and sometimes nearly half of cases, the minimum sentence is not given. If “mandatory” does not apply in a third of cases, I question whether it is the appropriate word. Therefore, we must bear in mind that we are dealing with a minimum sentence with a provision, whether that is “exceptional” or some other test. I certainly do not seek to criticise the noble Baroness, Lady Jones, for using the shorthand. I wanted to point out that it is a shorthand which can be misleading when one looks at the facts as to how such sentences are imposed.

[Viscount Hailsham (Con)]

What is the essential difference in my noble friend’s mind between exceptional and particular circumstances? Is not the truth of the matter that he wants the default position to be a custodial sentence, whereas there was greater discretion to the judge when the particular circumstances were what the law was to consider?

[Lord Wolfson of Tredegar (Con)]

As I say, there is a specific amendment on that point, so I will come to this in more detail then, if I may. The question is about when you depart from the minimum sentence. We are dealing here with the scope of the exception—that might be an unfortunate word, because one of the words we are using to qualify the exception is “exceptional”—and whether the exception is in circumstances which are just in the case, which I think is the gist of one of the amendments in a later group, or exceptional circumstances. I absolutely accept that one has a minimum sentence, which we can call the default, with an exception. It is always for the judge to decide, looking at the offence and the offender, whether the test is met. I will come in a moment to the words “exceptional circumstances” in particular.

What we want to do, to underline the point, is to ensure that courts depart from the minimum sentence only in exceptional circumstances. That reflects the seriousness of the offences and the risks posed to others. We believe that will create greater consistency in the statutory provisions on minimum sentences which apply to other offences. This change does not mean—

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[Lord Wolfson of Tredegar (Con)]

I am really not sure that we are saying anything different. As I said, we will come in a later group to how many offenders do not get the minimum sentence with some sentences. There must come a point at which so many offenders do not get it that using the word “mandatory” to describe it is itself misleading. I suggest we are better off sticking to the terms used in the Bill, which are both accurate and appropriate.

I underline the point that the change we are proposing does not mean that all 16 and 17 year-olds will receive the minimum sentence. The courts will retain the discretion not to apply the minimum where there are exceptional circumstances which relate to either the offender or the offence and which would justify doing so.

[Viscount Hailsham (Con)]

That is out of the ordinary. It is a high threshold.

[Lord Wolfson of Tredegar]

I will come in a moment to the word “exceptional” as I think that was the point made by the noble Lord, Lord German. I have been a little diverted on the way, but we will get there.

What the courts will therefore do is to continue to take the child’s welfare needs into consideration. I also point out, of course, that the actual minimum sentence for 16 and 17 year-olds, when given, is shorter than that for over-18s when given: four months as opposed to six months. Applying minimum sentences to 16 and 17 year-olds—the older cohort of under-18s—recognises the increased maturity and development of this age group compared with younger children. Any custodial sentence is given as a last resort, but we believe that for older children who commit these particular offences, it should be mandatory for the court to consider carefully whether a custodial sentence is appropriate.

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[Lord German (LD)]

Can the noble Lord tell me the difference, then, between the current words, which are “particular circumstances”, and those that the Bill is proposing—“exceptional circumstances”? What is the difference between “particular” and “exceptional” to the fraternity of judges and lawyers who do not need it written down because they all understand it? For those of us who are non-lawyers, some definition would be helpful.

[Viscount Hailsham (Con)]

It is a higher bar.

[Lord Wolfson of Tredegar (Con)]

I hear the words, “higher bar”. I do not disagree that “exceptional circumstances” is a stricter test. There is case law on that, although the name of the case has slipped my mind, but I am happy to write to the noble Lord, Lord German. I see that the noble and learned Lord, Lord Judge, who may remember, is here. I am sorry to give him exam questions. “Exceptional” is a word that has been passed and interpreted by the courts at a high level. It is proper to leave it to them to decide what “exceptional circumstances” means. However, I will write to the noble Lord with the case law, once my memory comes back to me.

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[Lord Judge (CB)]

My Lords, I sometimes wonder when I read statutes that make provision for sentencing whether those who are responsible for the ideas behind them or those responsible within the department have any idea how difficult it is to pass a sentence. It is easy in a debate like this to talk about two years, three years, seven years, probation or whatever it might be, but it is not like that in the real world. When we have to consider minimum sentences—and I love the semantics about whether we are talking about an obligatory minimum sentence or mandatory sentence subject to exceptions—the ultimate requirement for a sentencing judge is to pass a just sentence. That is why I support the amendment in the name of the noble Lord, Lord Marks.

I am sorry that I am going to take time about this, but there are perhaps four ingredients of a sentence that we now have to consider. One is societal attitude to the crime. Judges get that from what Parliament says that the maximum sentence must be. Dangerous driving causing death, in my lifetime, has gone from two years to five years, 10 years, 14 years and now life. That is Parliament reflecting the seriousness with which society, reflected by Parliament, sees the crime. That always works in the sentencing process. On the rare occasions when a maximum sentence is reduced, as it was with theft, from seven years to five, that too is reflected in the sentencing requirements. However—and although I am used to it, it is no less pernicious—there is the minimum-term idea. Parliament has willed it to be so, and a judge has to be loyal to the Act of Parliament and the oath that he has taken. There it is: forget the semantics, but the starting point is X, and you can move from X only if circumstances permit it, which are now being elevated into “exceptional”.

But that is only the starting point. There is the actual crime itself. Is it a very bad case of its kind or not? This is of particular importance when using “exceptional”. There are many cases where more than one defendant is involved, and sometimes the sentencing judge has in front of him a gang. One member of the gang is a gullible gopher, the person chosen because he is a bit thick, who goes along with it. Do we start with him, with the same minimum sentence as all the others in the same gang? Yes, says this provision, unless it is exceptional. Then we have to remember the victim—the impact on the victim, how it has affected him or her, how long the awful or relatively minor effects will affect that person and how strong, weak, troubled or so on the victim may be. Then there is the defendant. Every single defendant is an individual. On one hand you have the gopher, while on the other you have the sophisticated criminal who does these crimes as a matter of ordinary employment.

My goodness, I could give noble Lords a lecture on this issue, I am not going to because I do not lecture the House, but I am looking at the Minister and members of his department when I use that word. All those ingredients go into making a sentencing decision, and the sentencing judge struggles to balance all of them, because there is a huge conflict on every occasion. If you introduce a minimum term, you have changed the nature of the exercise, which is not to decide in the light of all the ingredients of the defendant, the victim and the crime itself, because you have added a minimum term. The possibility that a judge should be required to pass a sentence that he or she regards as an unjust sentence on a particular individual in a particular case for a particular crime is really rather—I must moderate my language—appalling. A judge should never have to pass a sentence that he or she conscientiously regards as unjust. That is what is wrong with this provision.

[Viscount Hailsham (Con)]

I support the amendment proposed by the noble Lord, Lord Marks, for very much the same reasons advanced by the noble and learned Lord, Lord Judge. I very much favour the preservation of a judicial discretion; it is absolutely essential.

I worry very much indeed about sentencing inflation. When I was at the Home Office working as a Parliamentary Under-Secretary at the back end of the 1980s, I was a Prisons Minister. At that time, the prison population was around 40,000; it has now doubled—it is well into the 80,000s. Are the streets any safer? Does the community feel safer? The answer to that is manifestly that no, it does not.

The noble Lord, Lord Marks, is utterly right when he says that longer sentences mean more people in custody. What is the consequence of that? If you pack people into prison, there is overcrowding and the chances for rehabilitation and retraining are greatly diminished. I know that from my personal experience: for three years or so, I was on the monitoring board of a local prison near me in Lincolnshire—actually, it was just over the border—and the chances of prisoners getting proper courses were very small, so the chances of rehabilitation were thereby much diminished.

The purpose of this clause is to ensure that, in the generality of cases, a prison sentence is the starting point. That is what is intended by using the phrase “exceptional circumstances” as the proviso. That is to say that it will be disapplied in a small minority of cases. The noble and learned Lord, Lord Judge, made a very important point that we need to keep a grip on: exceptional circumstances may not exist, but the sentence could be unjust. So the noble and learned Lord is in fact saying to this Committee—and he is absolutely right—that the impact of the Government’s proposals is to drive the judiciary in particular cases to impose a sentence that they know to be unjust, because they cannot find exceptional circumstances. I find that wholly deplorable.

The amendment from the noble Lord, Lord Marks, enlarges judicial discretion to make it more in accordance with the principles of natural justice. I very much favour that, and I hope that the Committee will do so as well.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, in the light of what my predecessor as Lord Chief Justice, the noble and learned Lord, Lord Judge, has said, I can be very brief.

First, I wholeheartedly agree with him. Secondly, I do not think that we should beat about the bush at all about the change to the word “exceptional”. Any lawyer knows that the intention is to raise the bar significantly. You use that word only when you want to try to minimise the discretion or ambit of when it is to happen. I hope that the Minister will accept the clear intention of the change and answer the question posed in the earlier debate by the noble Lord, Lord German, about the difference. There is a clear and obvious difference.

Thirdly, having had a little less time as a judge and coming to the job a bit later, I can see an argument, which one has to accept, for saying that, by setting a minimum term, Parliament is giving an indication of what it thinks is appropriate. Perhaps that was not the right road to go down, but we have gone down it. But where this Government are wholly wrong—I do not think that we should mince our words about that—is in saying that a judge should impose a sentence that is not just. In refusing this amendment, the Government are saying, “We don’t care if injustice results: you must look at the circumstances, and if they are not exceptional” —a high bar—“you must impose an unjust sentence”. Have we really sunk so low as to require our judges not to do justice?

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The fourth thing in the group is whether Clause 103 should stand part. Clause 103 would make it possible for judges to impose a whole life order on offenders aged 18 to 20. We have touched on this in previous groups. We think a whole life term should be imposed only on somebody who is 21 or over—somebody unequivocally an adult—for all the reasons that have been debated before. We have very considerable doubts about that clause. I was going to say that I would wait for the noble Baroness, Lady Massey, and the right reverend Prelate the Bishop of Derby to talk about it, but I will be waiting for a very long time, so I have made clear my position in relation to it.

[Viscount Hailsham (Con)]

My Lords, I have a feeling I am going to be in a minority in this Committee. As much as I like and admire the noble and learned Lord who has just spoken, I disagree with at least two of his amendments. I disagree with Amendment 195 on the minimum sentence for rape, partly because of the general point that I have made about judicial discretion already, which I am not going to repeat, and partly because—I draw now on my own experience as a criminal barrister; perhaps not a very distinguished one, but I was a genuine lawyer for quite a long time —rape is a broad spectrum of offence, from ones which one can comprehend to the truly awful. There is a spectrum here, and it is wrong to fetter the judicial discretion to the point envisaged by this amendment.

The other amendment I do not agree with would make the murder cases of the class described by the noble and learned Lord in Amendment 197 a whole life offence. I personally shrink from whole life sentences if they are mandatory. There are many cases where they are proper, but I would leave it to the judge. I very much dislike the concept of sending lots of people to mandatory whole life sentences with no prospect of rehabilitation.

[Lord Falconer of Thoroton (Lab)]

The noble Viscount may be assuaged by the fact that what I am talking about is the starting point. Therefore, it is not a mandatory whole life term, it is a mandatory life sentence, and it is for the judge to indicate what the position is. The effect of my amendment is to say that the starting point is a whole life term.

[Viscount Hailsham (Con)]

We have been here before in previous debates. The effect is to make it mandatory unless there are some very powerful arguments against. If the noble and learned Lord will forgive me, having read his Amendment 197, I recognise that in many cases falling within that classification a whole life sentence would be appropriate: abduction, yes, murder, of course, but sexual assault? One needs to keep in mind that is a fairly broad offence from the relatively trivial to the very serious. I am not at all happy about including that as a triggering element which makes the whole life sentence the starting point. But I know I am in the minority on this point and the Committee will doubtless take a different view.

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[Viscount Hailsham (Con)]

My Lords, I support the purpose of this proposed new clause. It is highly desirable that there should be a judicial intervention in the process. The arguments of principle have been articulated by the noble Lords, Lord Carlile and Lord German, and so I will not repeat them, but I will make one or two points about the provision in the Bill and the proposed new clause.

First, the noble Lord, Lord Carlile, expressed concern about the circumstances in which the Home Secretary might form the requisite opinion, and set out his reasons; and he was right to. If I may, I will share with the Committee my experience when I was at the Home Office at the back end of the 1980s. I am well aware that the procedure is wholly different, but I have a fear that it will be replicated in this instance.

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[Lord Wolfson of Tredegar (Con)]

I do not want to give an incorrect answer to the noble Lord. I know that there are different codes of practice and different sets of procedures in various parts of the Bill. Can I get back to him in writing on that point, so that the Committee knows where it is before Report?

[Viscount Hailsham (Con)]

On a related point—the obligation on the Secretary of State to give reasons—how detailed should those reasons be? Will there be some published code which ensures that the Secretary of State complies?

[Lord Wolfson of Tredegar (Con)]

I have said that we will publish the principles which underpin the Secretary of State’s decision. The other point that I make in this regard, which goes to the adequacy of reasons point—it was touched on by the noble and learned Lord, Lord Falconer, with his experience—is that judicial review of the Secretary of State’s decision would be available. My noble friend will be aware from the case law as to the relevance of reasons in a case where the decision can be challenged by way of judicial review.

In light of what I have said, I hope that the Committee will appreciate that this mechanism, which we expect to be used only in rare instances, will prevent the automatic release of offenders whose risk becomes apparent only after they have been sentenced.

Let me make one point. I apprehended at certain points in the discussion that there was perhaps a misapprehension, which I should clear up: that one could detain the prisoner beyond the end of the sentence as handed down by the court. We are not talking about that. To be clear, we are talking about the period between the automatic release point and the end of the sentence.