Clause 10
Criminal Justice and Immigration Bill
10:30 am
David Burrowes (Shadow Minister, Justice; Enfield, Southgate, Conservative)
Welcome to the Chair, Mr. Cook. I welcome everyone back to the Committee. I have been away from its rigours having an operation on my hand, facing my own particular torture in trying to straighten my finger, so it is nice to be back facing a different sort of torture now. We shall see how we progress.
While I have been on the operating table at my fine local North Middlesex hospital, the Ministers have been drafting several amendments to keep us all busy, but has the Minister of State had the opportunity to look at the Prison Reform Trust leaflet, as I encouraged him to do as part of his recess reading? It goes through the sentencing process in detail and makes particular reference to policy developments. As I said at a previous sitting, we are especially concerned about the interference in sentencing jurisdiction and the discretion that has been circumvented by legislation, which has caused the judges’ concern that their hands were being tied. I drew attention to the florid, pejorative and perhaps unparliamentary comment by one judge, when he said how judges look so—expletive—
“silly in court, when we can’t sentence properly because some civil servant has second-guessed us.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 25 October 2007; c. 257.]
Clause 10 is very much in the realm of s. It restricts the use of suspended sentence orders to indictable and either way offences, and to remove suspended sentence jurisdiction when dealing with summary only offences. When giving evidence, concern was expressed by the Magistrates Association and the Police Federation, which opposed the clause. The Magistrates Association said that it
“can see no logical or good reason for this proposal”.
The Police Federation does not support the abolition of suspended sentences, and says that it supports the
“greater use of community sentences”,
and believes that
“suspended sentences provide magistrates with an additional sentencing incentive which can effectively act as a deterrent.”
It therefore recommends that the proposal to remove the option be reconsidered. I endorse the Police Federation’s view.
The Magistrates Association opposes the clause for two particular reasons. The obvious reason is that when dealing with a suspended sentence, one is dealing with an offence that has passed the custody threshold. As the Committee will be aware from the evidence sessions, the Government’s case is that research has shown that suspended sentence orders have been overused and have led to an increase in the prison population. However, in clause 10 and others, the Government are dealing in the wrong way with the problem of prisons being full to capacity. The Magistrates Association says that the jury is very much still out on the research, and questions whether it is sufficiently robust to show that suspended sentence orders have or will have a significant impact on the prison population. It makes the point that a suspended sentence order is imposed when the custody threshold has been reached.
Indeed, the Sentencing Guidelines Council makes it clear on page 24 of its guidance that a suspended sentence is a sentence of imprisonment, imposed when that threshold has been passed—when an offence is so serious that it merits a custodial sentence. The guidelines go on to give helpful recommendations on what magistrates and judges should do when they are dealing with such offences. They make the point that, in those cases,
“requirements can be imposed during the supervision period and the court can respond to breach by sending the offender to custody. The crucial difference is that the suspended sentence is a prison sentence and is appropriate only for an offence that passes the custody threshold and for which imprisonment is the only option.”
The relevant questions to ask, the guidance states, are
“(a) has the custody threshold been passed?
(b) if so, is it unavoidable that a custodial sentence be imposed?
(c) if so, can that sentence be suspended? (sentencers should be clear that they would have imposed a custodial sentence if the power to suspend had not been available)”.
That is the position we are in. The clause is designed not to allow the power to suspend to be available. That will lead any sentencer to deal with the three questions within the guidance. Has the custody threshold been passed? Yes. Is it unavoidable that a custodial sentence be imposed? Yes. If so, can that sentence be suspended? They would have to answer, because of this clause: no, the sentence cannot be suspended. So, inevitably, to be true to the guidance from the Sentencing Guidelines Council and the statutory provisions, they would have to send the defendant to prison. Therefore, the argument that the clause would lead to a reduction in the prison population is not properly made out.