Clause 10
Criminal Justice and Immigration Bill
10:30 am
David Burrowes (Shadow Minister, Justice; Enfield, Southgate, Conservative)
I am grateful to you, Mr. Cook. As a solicitor, I should know that I should address the chairman of the magistrates. I would not want to get on the wrong side of the person judging.
Let us try to be charitable to the Government. Perhaps they will argue that the problem is that too many suspended sentence orders have been made with too rigorous requirements, which have been breached and have led to custodial sentences inevitably being imposed. But I again refer to the Sentencing Guidelines Council publication “New Sentences: Criminal Justice Act 2003”, which says on page 25 that
“Because of the very clear deterrent threat involved in a suspended sentence, the requirements imposed should generally be less onerous than those imposed as part of a community sentence. A court wishing to impose onerous or intensive requirements on an offender should reconsider its decision to suspend sentence and consider whether a community sentence might be more appropriate.”
We, therefore, have guidance already; we do not need additional legislation to try to circumvent magistrates or judges. They have the discretion to decide when more rigorous requirements of supervision are needed than could be dealt with by way of a community penalty.
The first problem with the clause is that when the custody threshold has been reached, a custodial sentence will follow without suspension. The other point made quite properly by the Magistrates Association is that the proposal seems to be one of the first to differentiate
“so radically in sentencing disposals between summary and either-way matters.”
That would lead to an anomaly, one that Cindy Barnett, the chairman of the Magistrates Association, referred to in an evidence-taking session. It occurs when one is dealing with a summary only case and an either way case. I will take the example of a defendant charged with joyriding or aggravated vehicle taking, which could be an either way case. However, this particular defendant ended up smashing his vehicle into another vehicle, resulting in damage worth less than £5,000—£4,999 to be exact. The case therefore had to be determined as a summary only, magistrates only case. The defendant also drove while disqualified and was driving under the influence of excess alcohol, at three times the limit. All of those factors together place him above the custody threshold; the offence is so serious as to merit custody.
At the same court on the same day, another joyrider appears, again charged with aggravated vehicle taking, driving while disqualified and driving under the influence of excess alcohol. That defendant was involved in smashing up his own vehicle and another vehicle, causing damage worth £5,000—£1 more than the other defendant at the same court caused. Under the proposed legislation, the latter case would be dealt with as an either way offence. The two cases would come before the same magistrates court and the magistrate would deal with those two defendants differently, but both cases exceed the custody threshold and a custodial sentence would be inevitable. However, let us suppose that the magistrate was also told that both defendants, for example, suffered from a terminal illness—that there were mitigating circumstances to merit the magistrate deciding to suspend the sentence.
In the case of the defendant who caused damage worth less than £5,000, the court would have its hands tied; it would be unable to suspend the sentence for that defendant. As the defendant was suffering from a terminal illness, a community penalty would not be suitable, so the court would be left with two options: a conditional discharge or a custodial sentence. Given the severity of the case, the court would be hard pushed not to impose a custodial sentence. In the case of the defendant who caused damage that amounted to £1 more in costs, under the proposals the court would have discretion to impose a suspended sentence. What an anomaly. The chairman of the Magistrates Association said of such cases:
“I think that the bench involved would follow the law absolutely in both cases in relation to sentencing, but would be very aware of the anomaly caused by the legislation. As a general rule, as has been said, we would prefer more rather than less discretion.”——[Official Report, Criminal Justice and Immigration Public Bill Committee, 16 October 2007; c. 37, Q78.]
The Minister must tell the Committee what evidence there is just justify for creating such an anomaly and disparity.
Continuing to deal with those two examples, the disparity is made worse if the joyriders had gone into a shop and stolen a Mars bar. The defendants would be charged with theft and their cases would be treated as either way offences. The magistrates would then have powers to suspend the sentence because an either way offence is included in the summary only offences. Nevertheless, that would be a convoluted way to sentence. The magistrates would have to rely upon the relatively less serious offence of theft of a Mars bar to put the defendant into the category of cases that can receive suspended sentences. That does not make sense, and the Government have not laid out evidence that they need to reduce the discretion of magistrates courts.
It is worth us spending some time on the clause because it is an example of many clauses that have not been properly thought through. Such clauses are a response to the Government’s concerns about prison overpopulation, but they seek to deal with the problem in the wrong way and in a way that has not properly taken account of or listened to the people in the field—practitioners, magistrates and police—who wish to persuade the Government not to follow a course of action for the sake of over-legislating. I therefore want the Committee to vote against the clause standing part.