Clause 25 - Penalties etc. for offence under s.24
Violent Crime Reduction Bill
3:15 pm
Jonathan Djanogly (Shadow Solicitor General (Also Assists Shadow Secretary of State for Constitutional Affairs), (Assist the Home Affairs Team); Huntingdon, Conservative)
The clause relates to the imposition of new-length mandatory sentences that relate to the crime of using someone to mind a weapon. Although it is obvious that sentences should be severe and certain enough to act as a deterrent, we have several reservations about the clause. First, there is no evidence to support the increases and no evidence to justify the imposition of mandatory sentences. The second reservation relates to the imposition of mandatory sentences themselves from a conceptual point of a view.
On amendment No. 299, from the Liberals, we see no evidential justification for increasing the sentence to 10 years. If we were talking about judicial discretion coming into play, we might have some more sympathy, but, on the basis of mandatory sentences, I am afraid that we will not support that amendment.
However, the position changes with Liberal amendment No. 151 and our amendments Nos. 204 to 214. We have a lot of sympathy with what the hon. Lady has just been saying. The purpose of our amendments and amendment No. 151, which basically has the same effect, is to remove mandatory sentencing and leave room for judicial discretion. Our amendments do that by removing the word “must” and replacing it with “may” and by removing the word “exceptional” in line 11. I note also that new clause 19, which the Government recently produced—I have not had the opportunity of reviewing all the implications, because it cuts across other pieces of legislation—seems to extend the minimum sentences to a whole range of offences under firearms legislation. Although I applaud the Government’s intention in moving towards some kind of consistency in the legislation, that should not be done at the expense of justice. I shall explain why.
First, where is the evidence to show that the imposition of long mandatory sentences will have an effect on violent crime reduction? That is one of our concerns. I will not outline to the Committee the well-established arguments relating to mandatory sentences and judicial discretion. However, we must remain vigilant about mandatory custodial sentences where it is preferable to allow judges discretion. In the Bill, it must be prudent, and infinitely more desirable, to allow judges discretion in order to avoid the unintended ramifications that may arise. Mandatory minimum sentences can result in disproportionate sentences, which could be in contravention of article 49(3) of the EU charter of fundamental rights. That provides that the severity of penalties must not be disproportionate to the criminal offence. For starters, surely it is not intended that the mandatory minimum sentences should apply to children. I should be grateful if the Minister would confirm that that is the case.
The mandatory minimum of five years’ imprisonment in clause 25(4) seems to echo the provision in section 51A of the Firearms Act 1968, which was inserted by section 287 of the Criminal Justice Act 2003. Both those sections make provision for exceptional circumstances. In the recent case of Rehman, which concerned section 51A, it was held that exceptional circumstances existed if
“to impose five years’ imprisonment would result in an arbitrary and disproportionate sentence.”
The court said that the
“purpose of the provision is to ensure that absent exceptional circumstances the courts will always impose deterrent sentences”.
Despite that judgment, there remain concerns about the proportionality of sentencing under these provisions because the result might be, in cases where exceptional circumstances cannot be made out, sentences that would not otherwise be justified. It is notable that in the case of the second appellant in Rehman, whose mandatory minimum sentence was upheld, both the sentencing judge and the Court of Appeal expressed regret or reluctance at coming to the conclusion that there were no exceptional circumstances in his case. In the case of Jordan, Alleyne, and Redfern in 2004, the Court of Appeal said that cases of “exceptional circumstances” will be rare, and that they arise only where there are real exceptional circumstances.
That strict approach has been confirmed in a number of cases. In the case of Evans in 2005, the Court of Appeal decided that “real exceptional circumstances” had not arisen. The offender, a civilian station reception officer at Dagenham police station, had a considerable collection of guns and ammunition at his home and in the boot of his car. He was a gun enthusiast aged 55 who enjoyed shooting at a rifle range and had never been in trouble before. His gun club supplied a reference. Other referees spoke of him as a good neighbour, family man and citizen. There was also a psychological report that stated that the offender had a severe level of obsessive compulsive disorder and clinically significant levels of anxiety and depression. The Court of Appeal rejected the submission of “exceptional circumstances”. For those reasons, we propose to remove the word “exceptional” from clause 25.
The knock-on effects of this type of clause should also be borne in mind. Courts may be obliged to pass minimum sentences even though an offence of equivalent seriousness would not attract such a sentence. This clause imposes mandatory minimum sentences of five years and three years. In the case of Grainger in 1997—a manslaughter case, originally charged as murder—the victim started chanting football slogans of a team other than his, then obtained a knife and superficially stabbed himself in the chest. The offender then retrieved a kitchen knife and plunged it into the chest of the victim. The sentence given was three years’ imprisonment. Having killed someone with a knife, the offender received a sentence of only three years. How can it be fair, therefore, that for just giving someone the knife to carry he could get a mandatory minimum sentence of five years?
Again, in the case of Kitchener in 1999, the offender arrived home to discover a group of neighbours protesting about his dog and its continuous barking. The offender left his partner and children at a friend’s house, armed himself with a knife and returned home. A fight broke out in which the victim was stabbed and died. The sentence given in that case was five years’ imprisonment.
Another way of demonstrating that this clause could result in disproportionately long sentences is by comparing it to sentencing for death by dangerous driving. The guideline case—