Clause 146 — General Limit on Magistrates' Court's Power to Impose Imprisonment

Criminal Justice Bill – in the House of Commons at 7:01 pm on 18th November 2003.

Alert me about debates like this

Votes in this debate

Lords amendment: No. 138.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I beg to move, That this House
disagrees with the Lords in the said amendment.

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission

With this it will be convenient to take the following: Lords amendment No. 139 and the Government motion to disagree thereto; Lords amendment No. 167 and the Government motion to disagree thereto; Lords amendment No. 173 and the Government motion to disagree thereto; and Lords amendment No. 235 and the Government motion to disagree thereto.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

When it left this House the Bill did not impose any restrictions on the timing of the increase in magistrates' sentencing powers, which allowed a flexible approach to implementation. The Lords have taken away that flexibility. Lords amendments Nos. 138 and 139 would prevent the increase of magistrates' sentencing powers from coming into effect before the custody-plus provisions, thus blocking the transfer of business from the Crown court to the magistrates courts.

Because custody-plus will replace current sentences of up to 12 months, it will enable magistrates to deal with a substantial number of cases in which they would currently refuse jurisdiction. It is generally agreed that that would be a positive move. Dealing with such cases in the magistrates court rather than the Crown court would constitute a more efficient use of resources, and would reduce delays, as well as benefiting victims and witnesses.

The Government are committed to implementing custody-plus as soon as possible, but before we do so we will have to be sure that the National Probation Service has the capacity to fulfil the supervisory function that forms an important part of this disposal so that the new sentence can have the anticipated effect on prisoners' rehabilitation and resettlement. That means that the new sentences should not be implemented immediately. We do not, however, see why the greater sentencing powers should be curtailed, given the immediate benefits to the administration of justice.

Members of the other House argued that increasing magistrates' sentencing powers in advance of custody-plus would sharply increase the severity of custodial sentences passed in magistrates courts. Let me reassure the House that there is no conclusive evidence to support that theory. Any increase in powers would be accompanied by a thorough training programme to ensure that magistrates used their new powers appropriately. On the basis of that evidence, I urge the House to reject the amendment.

Let me now deal with Lords amendment No. 167. As originally drafted, the Bill provided for an indeterminate sentence to be passed if the offender was convicted of a trigger offence carrying a maximum penalty of 10 years or more, and if the court believed that

"there was a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences".

As we have said in both Houses, the purpose of the test is to establish whether an offender is dangerous. In making that judgment, the court must focus primarily on the degree of risk of harm that any future offending may pose. It was decided in the other place, however, that our definition of dangerousness set too low a threshold, and suggested that the court should believe there was a "substantial" rather than a significant risk. While the definitions may appear similar, I want to persuade the House that in the interests of public safety the original definition is preferable.

There are two difficulties with the alternative test proposed in the other place. First, it requires the court to find that there is a substantial risk of reoffending, and also that such further offending involves a significant risk of harm to the public. The original test is more flexible, in that the risk of reoffending must be present, but consideration of that risk is part of the overall "dangerousness" assessment that the court will carry out. The second difficulty is that the alternative test requires both a substantial risk of reoffending and a significant risk of harm. We think that that confusion could over-complicate the assessment by unhelpfully using terms that may be difficult for the court to distinguish, when in reality the assessment is a single exercise.

We fear that the combined effect of these changes will be that certain offenders who pose a significant risk of serious harm to the public may not come within the remit of the definition, because they are not found to pose a substantial risk of reoffending. As a result they will not be eligible for the new sentences for dangerous offenders, and will serve a determinate sentence, release from which is automatic, regardless of the risks that they pose to the public. I urge the House to reject the amendment.

I now turn to Lords amendment No. 173. As originally drafted, the Bill provided for the automatic release of non-dangerous offenders serving sentences of 12 months or more at the halfway point of their sentences. The Lords, however, decided that when the sentence was of four years or more, automatic release could not occur before the offender had served two thirds of his sentence in prison.

Under the current sentencing provisions, those serving short custodial sentences and those serving longer sentences of four years or more are subject to different release provisions. That is justifiable on grounds of public protection, ensuring that potentially dangerous offenders serving sentences of four years or more can only be released between the halfway and the two-thirds point, subject to thorough risk assessments.

Of course public protection remains a priority for the Government, and we would not wish to release any dangerous offender automatically when he had served only half a custodial sentence. For that reason offenders who are assessed as dangerous will not be eligible for the new custodial sentence of 12 months or more, but will be subject to one of the new sentences for dangerous offenders or to a discretionary life sentence.

The introduction of a single simple structure for all custodial sentences of 12 months or more for non-dangerous offenders, with automatic release at the halfway point, will have many benefits. It will make the sentencing framework more transparent and easier for the public to understand, providing more certainty in regard to release dates. It will enable the correctional services to plan the post-release packages much more effectively, and to establish a coherent package of interventions for the entire second half of the sentence. It will also give offenders a longer period under supervision in the community, during which they can address their rehabilitation needs and reduce their propensity to reoffend. I hope that, given those assurances, Members will be persuaded to reject the amendment.

The Lords have added a new clause to give chief officers of each probation area a duty to establish consultation arrangements with local magistrates court committees and local communities. The Government agree with the sentiment of the amendment and acknowledge the importance of encouraging joint working, but I hope to reassure the House that such a statutory duty is not necessary in the light of existing arrangements.

Current guidance promotes communication, understanding and mutual confidence between the courts and the probation service, and emphasises that joint working imposes a number of obligations on sentencers and probation staff to achieve those ends. The new local criminal justice boards bring together the criminal justice agencies to work towards meeting the public service agreement targets for narrowing the justice gap and increasing confidence in the criminal justice system. Furthermore, the national probation directorate has agreed with the Magistrates Association to establish a new national consultative group, which will help to give magistrates and other sentencers a clear, strong voice in the development of policy and practice.

The probation service has also developed closer links with local communities, and the new local probation boards have a more diverse membership and are more responsive to local needs than ever before. The involvement of the probation service in crime and disorder reduction partnerships allows it to tap into the concerns of the local community.

On the basis of that evidence showing the amount of work already under way to promote joint working, I encourage Members to reject Lords amendment No. 235.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I want to say something about the last two matters raised by the Minister, relating to probation officers' duty to establish a consultation process with courts.

The Minister, like me, will know from practical experience that probation officers generally have a close relationship with courts. They do in my county of Surrey, anyway. The main problem for the probation service in carrying out its work is funding, and many head probation officers would be ambivalent about whether the measure should be introduced, as it would not affect their daily lives. However, the issue of funding is important, and I shall return to it in a moment.

Let me turn to release halfway or two thirds of the way through a sentence. Our system is rather complicated, and magistrates and judges have to use a particular formula when they sentence someone, saying that the defendant will be released after a certain period on licence, and if they reoffend during licence they will be recalled. However, as the Minister will know, that depends on the length of sentence. In our short debate, I should like to make a simple point. The Minister will agree that the critical issue is not whether someone is released halfway or two thirds of the way through their sentence but whether they are released only when they are fit to be released. Much more importantly, huge emphasis should be placed on the follow-up, which is absolutely essential. Far too many offenders are released from prison without that follow-up, which is critical to reoffending rates, not whether offenders come out after two years or two thirds of a four-year sentence.

Turning to Lords amendments Nos. 138 and 139, as we know, a new sentencing power for magistrates is introduced in clause 146, and custody-plus is introduced elsewhere in the Bill. The Minister will recall that, in Committee, custody-plus was generally thought to be a sensible development, but their Lordships have hit on the important issue of the order in which the sentencing power and custody-plus are introduced. The Minister will know that I serve as a part-time deputy district judge in stipendiary magistrates courts around London. The average defendant has 10 or 15 previous convictions, often low-level offences, perhaps including eight thefts in the past couple of years. How are they to be sentenced? I am sure that he will accept that clause 146, which provides the power to impose imprisonment for up to 12 months, will result in practice in much longer sentences being passed in magistrates courts. Very often, a district judge or magistrate sentencing somebody who they believe should get seven to 10 months in prison on a guilty plea or conviction will pass a sentence of four months. If, for example, there is a guilty plea, one has to give a discount, so a sentence of four or five months will be the maximum.

Under the clause, perhaps rightly—although this is not the point of our debate—a magistrate may say that the defendant has a rotten record and give them nine or 10 months, which I am sure will lead to a dramatic increase in the prison population. Most custodial sentences are passed in magistrates courts, day after day. At Camberwell Green, for example, sentences totalling 40 or 50 years can be passed in one morning in five different custody courts. Once the extra powers are used, there will be 30 per cent. on top of that total, so there will be a problem, to which Simon Hughes alluded in Committee.

If that proves to be the case, the Minister needs to deal with the worrying issue of prison numbers. Does he think that the provision, once implemented, will have an impact on prison numbers? I believe that it will, and our prisons are currently dangerously overcrowded. Later in the Bill, there is a clause on custody-plus. There is something to be said for custody-plus, which is a relatively short custodial sentence followed by an intense supervision period. Again, a lot of money is involved. Too often, intense supervision is missing, and people come out of prison without follow-up, which is essential if they are to have genuine discipline and find a home and job. Instead, they are simply left alone.

It is odd to introduce a provision under which magistrates can pass a sentence of up to 12 months before the national roll-out—I do not like the phrase, but the Minister knows what I mean—of custody-plus, which is a big change. I am happy to be corrected, but it is likely that defendants on their fifth, sixth or seventh charge of shoplifting will get a sentence of eight to 10 months. However, in a county where the custody-plus pilot is being rolled out, they would receive a much lower sentence. Their Lordships were right to want to introduce the custody-plus provision first. We should get it working across the country, then introduce the other provision. That view is shared by Opposition parties—we are worried about high prison numbers, and I think that the Government are right.

In conclusion, Lords amendment No. 167 would change the wording of clause 216. Their Lordships have again got it right. In Committee, we had a debate in February about the correct wording of the provision. Currently, clause 216(1)(b) states that the provision applies where

"the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences."

The Minister told me that under the Government proposal a significant risk has to be present. However, if one reads their wording carefully, the provision plainly means that the court will think that any further specified offences committed by the offender will cause a significant risk to members of the public of course. The significant risk to the public of a certain course of action is not set out clearly in the Bill, as the present wording implies that if further offences are committed, there would be a significant risk of serious harm to the public as a result.

I hope that the Minister and hon. Members understand the fine distinction that I am making. The significant risk of further offending does not have to be present under the provision as drafted, and their Lordships have the wording right. In February, I outlined that argument in Committee, and it has been repeated by their Lordships, who have introduced a much tidier wording.

To conclude, we shall not force a Division. In some ways, their Lordships have it right. We are concerned about the timing of custody-plus and maximum sentences. The Minister is a good man, so I know that he will focus on my two main pleas. First, the probation service needs to be properly funded to carry out all its work and, secondly, the Government and the rest of us must concentrate on what happens to prisoners when they come out of prison rather than the length of the sentence that they serve.

Photo of Simon Hughes Simon Hughes Liberal Democrat, North Southwark and Bermondsey 7:30 pm, 18th November 2003

We have six minutes left, which again shows how frustrating the guillotine is.

My hon. Friends and I will seek to divide the House on Lords amendments Nos. 138 and 167. If time permitted, we would seek to support Lords amendments Nos. 173 and 235 too, but we have to select, otherwise there would not be any debate on the next set of proposals.

On the first substantive point, Mr. Malins set out the view of the Lords. The Bill has some very good proposals, as the Minister knows, in terms of custody-plus and custody-minus. Put simply, the custody-plus proposal is meant to deal with the fact that, at the moment, if people get sent to prison for less than a year, the Prison Service is not able to do anything useful with them; that is the general view of prison governors and the Prison Service.

The measure says that the sentence will be in two parts: first, custody, and then rehabilitation and punishment in the community. That is a good proposal but, when my hon. Friend Mr. Oaten asked when the Minister expected to implement custody-plus, the Home Secretary said

"Final decisions . . . have not been made".—[Hansard, 10 November 2003; Vol. 413, c. 98W.]

The reality is, as he knows, I know and everyone knows, that the money is not available. Therefore, we are about to allow magistrates courts to have increased maximum sentencing powers, doubling their current sentencing powers. At the same time, we will not be able to implement the proposal on custody-plus.

Had custody-plus been in operation, the maximum 12-month sentence would have meant three months inside and nine months outside, and that would have been acceptable. Our belief that the magistrates will use those powers—Ministers say they do not believe it—is borne out by all sorts of facts. First, the figures show that magistrates are now twice as likely to send an offender to prison than they were 10 years ago: 13 per cent. of all cases now go to prison from a magistrates court compared with 6 per cent. in 1992, and twice as many people are imprisoned each year for short sentences as were imprisoned 10 years ago. Given that we have the highest prison population ever; given that prisons are hugely overcrowded; given that there are more than 70,000 people in prison; and given that we have more people in prison than any other comparable country in western Europe, we should not be giving that opportunity.

The second reason, based on the evidence, why the proposal is a bad idea is that there is no argument to show that, as the Minister asserted in the Lords, people are not sentenced more severely as compared with the Crown court. Professor Lee Bridges, whom the Minister respects and who is a widely respected authority, has made it clear that the majority of cases sent by the magistrates courts to the Crown court on the basis that the magistrates think that they do not have sufficient powers to sentence result in the sentence being one that it was within the magistrates' power to give. The magistrates courts often think that they do not have the power to give the appropriate sentence, and that suggests that they will give a higher sentence. Professor Lee Bridges makes the strongest case—I refer colleagues to it. He says that the increase in magistrates' sentencing powers will

"send entirely the wrong message from the Government to magistrates."

We fear, as the hon. Member for Woking does, that the proposal will increase the population in prison and increase the average sentence.

Another proposal is a significant proposal about life sentence prisoners. Basically, the Government have not followed the clear view of the Lord Chief Justice. The Lords sought to limit the circumstances in which people could be given much higher tariffs—the starting points. The Lord Chief Justice—I put it on the record—wrote in a memorandum that he put in the Libraries of both Houses on 16 June that he had given advice on the matter to the Home Secretary, which became a practice note in May 2002, in which he made it clear that the average sentence was of the order of between 12 and 16 years—12 years for the normal case, in practice, for someone who is given a life sentence, and 16 years for the most serious case. What these proposals will do, effectively, is significantly increase the time for which the people on the most serious charges are sent to prison. Again, as colleagues in the House of Lords made clear, this country puts far more of its sentenced prisoners in prison for life than any other comparable country. There were 5,352 prisoners serving life sentences in February 2003, a higher proportion than the whole of western Europe combined.

7.45 pm

We are walking into a new sentencing regime that is not justified on the basis of what all the judges have done and what the Home Secretary accepted only a year and a half ago. We should be particularly careful to ensure that we do not go down this road, and that young people—although the Government have made a small concession—do not have such a high minimum sentence.

The Liberal Democrats believe that it should not be for Parliament to set minimum sentences. That is why we set up the Sentencing Guidelines Council. We believe that advice should be given and respected. We are going down the wrong road if we set minimum sentences here.

It being five and a quarter hours after the commencement of proceedings, Mr. Deputy Speaker proceeded to put forthwith the Question already proposed from the Chair, pursuant to Order [this day].

The House divided: Ayes 336, Noes 50.

Division number 377 Criminal Justice Bill — Clause 146 — General Limit on Magistrates' Court's Power to Impose Imprisonment

Aye: 336 MPs

No: 50 MPs

Ayes: A-Z by last name


Nos: A-Z by last name


Question accordingly agreed to.

Lords amendment disagreed to.

Mr. Deputy Speaker then proceeded to put the Questions necessary for the disposal of the business to be concluded at that hour, pursuant to Order [this day].

Lords amendment No. 139 disagreed to.