Criminal Justice Bill
Baroness Scotland of Asthal (Minister of State, Home Office; Labour)
My Lords, I am obviously tempted by the noble Lord's invitation, but he will know that the Judicial Studies Board would probably be very alarmed if I took it up. The Judicial Studies Board is independent and crafts its own guidance, and what goes into the Bench Book is not something on which we mere Ministers would ever attempt to trespass.
The principle of judicial independence is one of great importance and one that the Government have sought to protect in the provisions. The Government recognise that issues concerning sentences are very important to society as a whole, which is why we have built on the success of the Sentencing Advisory Panel by creating a process for formalising sentencing guidelines, which brings in a wide range of views but continues to leave the final decision with the Sentencing Guidelines Council, which is independent and will have a majority of judicial members.
The noble Lord, Lord Carlisle of Bucklow, is absolutely right in saying that guidelines have been with us for a very long time and have been issued by various different bodies or parties—if one wants to refer to the Lord Chief Justice or the Court of Appeal, or any of the others that went before. On each occasion when the guidelines have been issued, they have been considered with seriousness and propriety by the judiciary in seeking to do justice in individual cases. They have been taken into account, but they have not provided a straitjacket out of which a judge cannot go in order to do justice on the merits of the case in point.
A guideline will be issued after extensive consultation and thought and will reflect a considered view of the right level at which to start thinking about a sentence in particular circumstances. Guidelines exist to help a court to develop a consistent approach to crime and to make clear to offenders, their advisers and the public the important factors in dealing with particular types of cases. The current provision, that a court shall "have regard to" a relevant guideline, emphasises that guidelines are important. However, as has always been the case, it is for the court to make the decision on the sentence in the light of the circumstances before it.
It is right that a court should have regard to those guidelines, and that is what is expected now. The provision in the Bill is complemented, as the noble Lords know, by Clause 156, which requires a court, in explaining its sentence, to give relevant reasons when the sentence passed is of a different kind or outside the range contained in the guidelines. The provision will help to ensure not only that a guideline has been properly considered, but that anyone with an interest in a case can understand the line of thought that has led to a decision different from that which might have been expected.
Every case is different, and no guideline can cover every eventuality, but it is crucial for confidence in the sentencing system that it is clear why a decision has been made—particularly when, at first blush, it may seem a little unusual. It is right that a court that passes a sentence should explain why it has reached its decision. That approach is already regarded as good practice, and the best of our judges do it anyway. Doing so by reference to guidelines will assist clarity and understanding by providing a common and easily accessible point of reference. Your Lordships will know that we have had difficulties with widely varying regional approaches to some issues, which does not give confidence.
The amendment states something that is already self-evident—that a court passing a sentence must make up its own mind about the appropriate sentence. Those decisions are not, and never have been, subject to unlimited discretion. There is always the maximum sentence passed by Parliament, as part of the Act creating the offence, or statutory limitations on the availability of a particular penalty, which may set limits on the type of sentence available or the circumstances in which it can be passed. Justice requires a consistent approach and clarity about what circumstances will make an offence of a particular type more or less serious. For many years, guidelines have been issued by the Court of Appeal or the Magistrates' Association, all of which came through other decisions of the Court of Appeal or the Divisional—now Administrative—Court. All courts have recognised the authority of decisions coming from the two courts and have recognised that they are bound to apply the guidance that has come through them.
The creation of the council builds on that approach, removes some of the practical problems of the present system and enables wider guidance to be given. It is important to remember that in Committee it was emphasised by some of the judicial Members that often the Court of Appeal has felt constrained. It has not given guidelines about everything, but now the Sentencing Guidelines Council has the opportunity to do so. It is simply not possible to say that nothing in guidance shall fetter a court's discretion.
Judges have never been able to go on frolics of their own, and we do not propose that they should start now. It is clear that there is an obligation on a court to have regard to the guidelines and, in giving reasons for a sentence, to use the guidelines as a point of reference. However, it will continue to be the court's responsibility to decide sentences, and it will continue to be the case that any concerns over any sentence can be resolved only through the Court of Appeal.
Amendment No. 226 would remove the word "detailed" from the deliberation that the court must make of aggravating and mitigating factors. The effect of the amendment is not entirely clear, but I know why the noble Baroness has tabled it. I shall not deal with that amendment specifically, unless the noble Baroness wants me to—which she indicates that she does not. For that, I give her many thanks.
I hope that I have dealt with the points made by the noble and learned Lord, Lord Ackner. We believe that the framework as drafted strikes a balance between promoting consistency and clarity in tariff setting while protecting the discretion of the judge to pass a tariff suitable to the particulars of each case. I hope that noble Lords, and the noble and learned Lord in particular, will find that I have said enough to make it plain that, while discretion will remain, it will be exercised with propriety within the guidelines, as it has always been.
I hope that on that basis the noble Baroness will not move her amendment and that the noble and learned Lord will feel a modicum of satisfaction, although I do not expect him to be content.