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Clause 10 — Abolition of suspended sentences for summary offences

Orders of the Day – in the House of Commons at 3:34 pm on 6th May 2008.

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Votes in this debate

Lords amendment : No. 9 .

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice 3:35 pm, 6th May 2008

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

With this we may discuss Government amendment (a) to the words so restored to the Bill, Lords amendment No. 301, Government motion to disagree thereto, Government amendment (a) to the words so restored to the Bill, Lords amendment No. 327, Government motion to disagree thereto and Government amendment (a) to the words so restored to the Bill.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

Thank you, Mr. Speaker. I was listening so intently that I almost forgot my part in the script.

May I say what a pleasure it is to return once again to the Criminal Justice and Immigration Bill? I am pleased to see in their places both Mr. Garnier and Mr. Burrowes. Today provides an opportunity to return to the discussions we have had on this important Bill since the beginning of the parliamentary Session—discussions that are now reaching their denouement. I should also like to welcome Chris Huhne to his Front-Bench position for the later stages of our proceedings on the Bill.

Having noticed Mr. Heath in his place, I want to pay tribute to him. When we started our consideration of the Bill in Committee, the hon. Gentleman and David Howarth were the Liberal Democrat Front-Bench spokesmen. Since then, there has been a change in Front-Bench responsibilities, but I wanted to put on record at this late stage my thanks to the hon. Member for Somerton and Frome for his consideration in Committee and on the Floor of the House. I hope that he will recognise that although there were major disagreements between us, some movement has taken place on some issues, and indeed that I have been able to accept some of his positive suggestions. I hope that the hon. and learned Member for Harborough and the hon. Member for Enfield, Southgate will also recognise that changes have been made in response to some of their suggestions.

That brings us up to today, when we will have a full debate on a number of key issues. The amendments before us return us to the matter of ending suspended sentence orders for summary-only offences. As you are aware, Mr. Speaker, I am inviting the House to disagree with the Lords amendment, which would altogether remove from the Bill the proposals in clause 10. On reflection—I know that there was an ordered and considered debate in the other place—I believe that that legislation is necessary, for reasons that I hope briefly to set out.

There is an honest disagreement between the hon. and learned Member for Harborough and myself—and, indeed, between the other place and myself—in respect of the use of suspended sentence orders for summary-only offences. On reflection, I think that it is an inescapable conclusion, on the basis of sentencing figures, that the courts are now using the new suspended sentence orders for substantial numbers of cases that would previously have received non-custodial sentences.

As you will be aware, Mr. Speaker, I am very much in favour of non-custodial sentences when appropriate. I hope shortly to introduce a campaign to support greater use of such sentences in the community at large, because they have a place in our society and are an important part of the overall armoury of sentences. However, if we look carefully at the use of the new suspended sentence orders, we see that a substantial number of cases are now being drawn into the framework that would previously have involved non-custodial sentences. That is important, and although it has already been considered in another place, I think we should reflect on it closely here today.

Let me take the hon. and learned Member for Harborough and the hon. Member for Enfield, Southgate back a few years. As they will observe, there has been a huge growth in the use of suspended sentence orders by the courts since their introduction in April 2005. However, I am sorry to say that there will be no equivalent drop in the use of immediate custodial sentences. I conclude that whatever changes were intended in April 2005, suspended sentence orders are not, in most cases, being imposed instead of sentences to immediate custody.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

The Minister said that there had been no equivalent drop in immediate imprisonment, but does he not agree that in the case of summary offences there has been a drop?

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I am grateful to the hon. Gentleman for his intervention. Let us look at the figures for magistrates courts alone. The immediate custody rate remained stable, at about 4 per cent., between 2005 and 2006. However, the use of suspended sentence orders increased from just under 0.5 per cent. in 2005 to 1.7 per cent. in 2006. Some 7,081 suspended sentence orders were made in 2005, compared with 23,274 in 2006, 12,397 of which—this returns me to the point made by the hon. Member for Cambridge—were for summary offences, compared with 4,007 in 2005. According to my ready reckoning, that amounts to an increase of some 8,300 over the period, and indicates some difficulty over the way in which suspended sentence orders have operated. If we examine particular offences, we see that such orders are gaining ground at the expense of non-custodial outcomes.

In the context of people who may face a prison sentence as a result of the Bill, we should consider, in broad terms, whether a community-based non-custodial sentence is more effective than a custodial sentence in helping to prevent reoffending in the long term. We must inevitably conclude that whatever the original motivation for the introduction of suspended sentence orders in April 2005, they are leading to greater use of custody at the expense of non-custodial outcomes. That is clear from a comparison between the figures for 2004, before the new suspended sentences were available, and the 2006 data.

Let me give two examples of summary offences that have given rise to a substantial number of suspended sentences. The first is common assault. Suspended sentence orders accounted for 7 per cent. of all sentences in 2006, compared to fewer than 2 per cent. in 2005. Over that period, community sentences and immediate custody remained stable. Fine, we may say; I very much encourage greater use of community sentences where appropriate. However—this is a key issue for us today—fines also fell by two percentage points, as did conditional discharges. That is for the offence of common assault.

An equally serious offence that I know causes hon. Members a great deal of concern is drink-driving, a summary motoring offence. When I look at the 2006 figures in detail, I see that suspended sentence orders accounted for 3 per cent. of all sentences, compared with 1 per cent. in 2005; the difference, of two percentage points, is a considerable number of cases. Over this period, community sentences fell by two percentage points and immediate custody fell by one percentage point. Fines and conditional discharges on both issues remained stable.

If those involved at the time recall the debates on the Criminal Justice Act 2003, they will know that the Act, quite rightly, treats the suspended sentence order as a custodial sentence. The courts must believe that there is an offence that justifies a custodial sentence before they can give a suspended sentence. Indeed, I recall having a discussion about that issue in Committee prior to Christmas. On any reading of the situation, it is clear that something has changed, or the figures would not show that movement from community disposals to suspended sentence orders.

There have been arguments that offences coming before the courts are now more serious, thereby lifting substantial numbers of offences into the custody bracket. I do not believe that changes to the seriousness of offences have caused that. I am not aware of any evidence that would show that that has occurred and it seems very unlikely that such a change would coincide exactly with the availability of the new suspended sentence. More tellingly, the use of immediate custody for summary-only offences in the magistrates courts has been stable at around 2 per cent. for the past 10 years up to and including 2006. That argues against a change in seriousness. It seems implausible that a change in seriousness would result in offences moving from community disposals to suspended sentence orders, but not in offences moving to immediate custody. It is much more likely that, faced with a new range of sentencing options, courts have not maintained the previous custody threshold.

There may well be training issues that are important in this sphere. I know that the Magistrates Association, including in submissions in our initial hearings—they now seem like 1,000 light years ago, but they were actually in October—spoke about the need for examination of further training and support for magistrates. We should be able to look at that. Training will be important, but it boils down to the fact that courts have not maintained the previous custody threshold. It is easy to say that courts should go through a simple process where they label an offence as being on one side or the other of the custodial threshold in complete isolation from consideration of sentencing options. In practice, as every hon. Member will know, this is a grey area where a prison sentence might or might not be appropriate for an offender. With such offenders, it is hard for the courts to consider the question in isolation from the available options.

It is important that we have pre-sentence reports, which can influence a sentencing decision by suggesting whether particularly suitable community punishments are available in a particular case. I have been keen to look at strengthening that area, including through the announcement recently of an additional £40 million for probation services to look at how they can support pre-sentence reports for sentencing decisions. I hope hon. Members will recall that the £40 million was money that we were able to secure from the Treasury to help to give strength to probation areas to look at how we can influence the greater use of community penalties in our communities and our courts. Even with that extra resource, however, and taking into account the issues mentioned and the discussions we will shortly have on the strengthening of the community sentence, it is still important that the pre-sentence report can influence a sentencing decision.

Handing down a suspended sentence must, intuitively, differ from handing down an immediate custodial sentence, where the offender has no chance to avoid prison. I consider that introducing a freely available suspended sentence, which was intended to be a useful tool to the courts as an alternative to custody, has had the effect of blurring the level of the custodial threshold. We had that debate in Committee, and it was also discussed in another place. Let me be honest about this: perhaps I and my colleagues in Government could and should have foreseen that, and maybe we should have considered it when the measures were previously before the House.

I have looked at the statistics over the past two years—I have given them to the House this afternoon, and the 2005-06 figures show that the immediate custody rate has remained stable at 4 per cent. but the use of suspended sentence orders has increased by 7,000 to 23,274 over the same period—and they tell me that there is a difficulty that we need to address. I hope that the proposed legislation before us addresses it, which is why I am arguing against the suggestion from another place to remove the measures altogether.

In any event, we believe that if suspended sentences are no longer available for summary offences, courts will impose immediate custodial sentences in those cases where they are clear that they have no alternative, and in other cases they will use community disposals. I believe that if they do not have the option of passing a suspended sentence, but instead have to choose between sending somebody to prison—with all the difficulties there will be for their family, their employment, their housing and their potential drug or alcohol behaviour—or finding a suitable alternative community sentence, magistrates and sentencers will look to use community disposals in a more productive manner. Under those circumstances, I believe that the custodial threshold is likely to revert to somewhere close to its previous level. Again, let me be honest: I might be wrong, and we might need to reflect upon this. That is why we have considered an amendment of our own to assist another place in the examination of these issues, in the event that what I have said proves not to be the case.

However, I simply put myself in the position of a magistrate or sentencer who is faced with the possibility of sending an individual to jail, rather than giving them the suspended sentence order. At a time when, admittedly, we have crowded prisons with difficult conditions, sentencers will be faced with a choice of putting somebody in prison—for, perhaps, a short period—when deep down they will know that a custodial sentence will potentially be more detrimental than a community sentence.

We plan to increase discussion on these matters shortly, and to promote the use of community sentences. There are a number of available options to help support the greater use of community sentencing. With proper support from probation, greater help with pre-sentence reports and effective focus on what works for the individual to help prevent reoffending, a sentencer choosing between a marginal custody threshold and a community sentence would rather give the individual concerned the benefit of the doubt by giving them a strong community sentence aimed at dealing with their offending behaviour.

There is unanimity between the major parties on this; the hon. and learned Member for Harborough has shared my views on the matter. We need to look at what works in preventing reoffending. In the circumstances under discussion, the sentencer examining the options is not going to be able to use the suspended sentence order, and the choice between custodial sentence and community sentence has very real consequences for the future reoffending rate of the individual before the court, because short custodial sentences ultimately lead to a greater reoffending rate than short community sentences. There is a clear correlation. I know the hon. and learned Gentleman supports that view, as we have debated this matter on many occasions.

The fears that have been expressed in another place about raising the custody threshold will not be met with the stark reality of individuals facing a court decision and the difference between prison and a community sentence. That is my firm belief, and I am of the view that if I do not restore clause 10 to the Bill as proposed, the courts will continue to impose suspended sentence orders where they would previously have used community orders.

The challenge for the official Opposition—I know that there is a debate on this issue with my colleagues in the Liberal Democrats—is to make the judgment, which is a very fine one, as to whether we follow the use of suspended sentence orders, as previously planned, or whether we make the change today. I hope and believe that colleagues in the Liberal Democrats will reflect carefully on this issue. I came to know the hon. Members for Somerton and Frome and for Cambridge during consideration of the Bill in Committee—I am sure that the hon. Member for Eastleigh, who is also on the Liberal Democrat Front Bench today, will reflect on these matters, too—and they have discussed this issue and pressed me, the Under-Secretary of State for Justice, my hon. Friend Maria Eagle, and my right hon. Friend the Secretary of State for Justice, the Lord Chancellor, to look at greater use of community sentences for short sentences.

I am of the firm view that if we delete clause 10 today, it will lead to greater use of custody sentences, rather than community sentences. Again, there is a fine judgment to be made, and we are willing to reflect on it, as the later amendments will show. However, and without wishing to pre-empt what the hon. and learned Member for Harborough and the hon. Member for Cambridge, who leads for the Liberal Democrats, will say, I believe that they have some sympathy with this point; they know that the community sentence is a positive and a difficult sentence—one that will still be difficult for the offender.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

My hon. Friend makes a very valid point. In some cases, it is more difficult for the offender, because they have to come to terms not just with their behaviour but with some of the demons that may well have driven them to it, whether they be drugs or alcohol. They may have to come to terms with doing pay-back work in the communities that they live in or perhaps with providing reparations to people whom they have worked with. There could also be a range of other options that constitute difficult sentences for them to undertake, but which may well—this is the key point, which I ask Members to bear in mind when they vote on the motion—mean that they keep their job or may keep their family together, in due course; help them get off the drugs or alcohol that caused them that difficulty in the first place; or help them to come to terms with their offending behaviour in a much more enlightened way than a short custodial prison sentence would. I say that with all due respect to my colleagues in the Prison Service, for which I am also responsible.

That is a debate that we must have across the board. Today's proposed change regarding suspended sentence orders is about whether we look at the facts—the facts are that custody remains stable and the use of community sentences and fines has dropped—and whether or not we support another place in removing this provision from the legislation.

Let me be open and honest—I always try to be honest in these matters, as you know, Mr. Deputy Speaker—and say that the proposals before the House today will, in the longer term, save 400 prison places. There are two key related issues. It is no secret in this House that the prison population has been under pressure for some weeks and months, or that we are undertaking a massive £2.5 billion building programme over the next five to six years. It is no secret that we are going to increase the number of prison places to 96,000 by 2012-13, or that we are looking at trying to support community sentences in a much more effective way. However, it is also no secret that the next few months will be challenging, and that we have predicated our projected figures for the use of prison places on the fact that clause 10 will be in the Bill, and that those 400 prison places will be saved over the next couple of years by the actions taken through clause 10.

I know that the hon. and learned Member for Harborough may well say that we should have built earlier, and that we should have done this and done that, and I know that there will be lots of arguments about those issues

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

You will probably agree with me.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice 4:00 pm, 6th May 2008

That is for another day, dare I say it. The key point is that however we have reached where we are—this week marks the first anniversary of the Ministry of Justice—throughout the planning that we have undertaken since June last year, from the publication of this legislation, through its Commons Committee stage and its passage through another place and back into the House of Commons, there has been discussion about those 400 people who would not go to prison if this clause is in place.

May I welcome you to the Chair, Mr. Deputy Speaker? You will know that if we were to remove clause 10, 400 people who are not in prison could be in prison over the next couple of years. I believe that we will have to face that problem. We would have to build a whole prison for those additional places. We would be talking about an additional 400 places, additional costs, prison officers, support staff and a prison-building programme if we were to remove clause 10.

Irrespective of the case that I am making, the facts show that, to date, the suspended sentence order has not worked in the way in which we intended it to do, the use of custodial sentences as opposed to community sentences is more detrimental in short-term cases and an additional 400 people will be in prison as a result of the removal of this measure from the Bill. All that drives me to believe that it should be kept in the Bill, as proposed.

Let it not be said that I am somebody who will not listen on behalf of the Government, because some very valid points have been made in the debate to date —[Interruption.] I missed that.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I shall not say that I do not intend to listen.

I began my introduction to this group of amendments by saying that I believe that a strong case has been made and that it can be proved by the facts, the general direction of Government policy and the impact on prison places. However, I recognise that discussion has taken place in another place about the clause's impact and that both there and in Committee there was debate as to whether what I say will happen will happen. I do not base that only on what has been said in another place; I have to listen to the evidence brought forward by the magistrates courts and the Magistrates Association, which have again said that they believe that they may well up-tariff rather than down-tariff if this measure goes ahead.

I believe that I am on strong ground and that we have a good case to make, but I am also aware that doubts have been expressed as to the precise impact of the clause and I want, as far I am able, to acknowledge those concerns in a real and positive way. If hon. Members were to look at the Order Paper, they would see that in the light of those concerns, I have proposed amendments that provide for a power to suspend the amendments to section 189 of the Criminal Justice Act 2003 made by the clause; that is to say, it would restore the power to impose a suspended sentence order in summary-only cases if it should appear necessary to do so. Again, I hope that that is helpful.

If I did decide to bring forward an order in circumstances that allowed me to impose suspended sentence orders in summary-only cases again, such an order would be made by an affirmative procedure and would also allow the clause to be reactivated in due course. I hope that the power in the Government amendments will give us the opportunity to take forward what will be a useful measure; it will test whether my contentions work and it will give the Government the power to put down an affirmative procedure and allow the clause to be reactivated in due course if that were not to prove the case. Again, I cannot envisage such a situation, but I need to reflect upon whether or not the clause would have unanticipated consequences.

The amendments that I have tabled would provide a swift response, should those unanticipated consequences arise, and would introduce the affirmative procedure, so it would not simply be a question of the Minister making a decision and hon. Members having to pray against the clause. The affirmative order-making power would allow both the removal of the suspended sentence order policy, which we have already debated, and reactivation in due course, if that were required.

The amendments are not a concession but a clarification, and I hope that they will give sufficient comfort to the hon. and learned Member for Harborough and to the hon. Members for Cambridge and for Eastleigh. In the event of the consequences predicted in Committee, we could take swift action to rectify the situation. The Government's second amendment has the same purpose and is aimed at enabling service courts to keep in step with the policy applicable in magistrates courts.

I have spoken for more than half an hour to ensure that I make the case for the original change in clause 10. I have backed my case up with figures that show that sentencing over the past three years has been as I have described. We need to examine in detail the possible consequences of removing the clause, not just for prison places—a key factor—but the impact on the 400 individuals who might be sent to prison instead of receiving a community sentence, or on reoffending.

I hope that I have also shown that we recognise the concerns expressed in the other place. We have empathised with those concerns and tabled amendments accordingly. If the action that I have outlined does not turn out to be satisfactory, the amendments will allow us to make changes. I look forward to hearing from the hon. and learned Gentleman. I hope that he reflects on what I have said and I hope that his party and the Liberal Democrats will support the amendments that I have tabled.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

The Minister is nothing if not disarming. During the course of his 36-minute speech, he told us on three occasions that he was honest—even that he was open and honest. I have never suggested—or even thought—that he was anything other than honest. It may be that the instructions he receives from his masters cause him to say things that he would prefer not to say, but I salute him for the way he performs sometimes disagreeable duties. This must be one of those difficult occasions.

It is necessary to deal with the substantive issues before us and to respond to the Government's invitation to disagree with the other place. We wish to sustain the objection to clause 10 and to retain the power of magistrates courts in summary cases to impose a suspended sentence if appropriate. It is not always appropriate to order that a defendant be given a suspended sentence. Sometimes it is more appropriate to impose an immediate custodial sentence although, on most occasions for summary offences, it is most appropriate to impose a community sentence or an even lighter sentence. I am afraid that the Government are in something of a muddle, not least because they are seeking to undo something that they put into law only with the Criminal Justice Act 2003.

If you had plenty of spare time, Mr. Deputy Speaker—and I do not think that you have—you would be able to look at the 2003 Act and see how little has remained on the statute book in the way promised by the then Home Secretary, Mr. Blunkett. My memory may be defective, but I suspect that about half that legislation is either not in force any more or has never been implemented. Other parts have been amended, so the Government's approach to the 2003 Act, which was said to be the best thing since sliced bread for the courts service and the criminal justice system, has been somewhat chaotic.

Right at the end of 2005, the Government implemented the power in the 2003 Act enabling magistrates to give suspended sentences in summary-only cases. The criminal courts could not use the power until 2006, and the fact that this Bill was introduced into the House in the autumn of 2007 means that the system had been in operation for barely a year before the Minister wanted to change it.

I am not sure that I am convinced by the evidence that the Minister produced. Even if his figures are correct, I am not sure that they help his argument. It may be true that common assault cases have led to more suspended sentences in the magistrates courts, and that the numbers of fines and conditional discharges for such cases have fallen. It may also be true that the proportion of suspended sentences handed down in drink-driving cases may have risen from 1 per cent. in 2005 to 3 per cent. in 2006, but I am not at all sure that any of that helps the Minister's case.

Suspended sentences are either a useful weapon in the sentencer's armoury, or they are not. I plead guilty to being a sentencer. I have been a Crown Court recorder for the past 10 years or so, and in appropriate cases I frequently make use of suspended sentence orders. They are an especially useful weapon: the sword of Damocles hangs over the defendant, keeping him out of prison in the immediate term and allowing him to continue to support family and dependants—and, with any luck, to keep his job. One benefit of the 2003 Act was that it allowed a court to attach to the suspended sentence order requirements that are akin to those attached to community sentences. That combination is very useful, as it can act as both spur and deterrent to the defendant.

Photo of Andrew Miller Andrew Miller Chair, Regulatory Reform Committee

I have been listening carefully to the hon. and learned Gentleman. He spoke of weapons in the armoury, but does he accept that magistrates courts would benefit from having that armoury broadened?

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice) 4:15 pm, 6th May 2008

Yes, I think I do. I am not sure which part of my remarks that intervention touches on. No doubt the hon. Gentleman will help us further later. There is a confusion in the Government's case, and I am not entirely sure whether the hon. Gentleman shares that confusion.

The suspended sentence will still be available to magistrates in either-way cases. Let us say that someone is charged with aggravated vehicle-taking—that is to say, with taking a vehicle without consent and causing criminal damage. If the value of the damage is more than £5,000—if the car is damaged to the tune of £5,001—that is an either-way matter. In that case, the magistrates can give a suspended sentence. However, if by some chance the defendant causes less than £5,000 of damage, the magistrates cannot give him a suspended sentence, although to all intents and purposes the nature of the offences and the effect of the damage on the victim are pretty much the same. An arbitrary number decides whether or not the magistrates have the power that the Government wish to take away from them.

We need to be pretty clear on that point. Suspended sentences are to be removed simply for summary-only offences; as I understand it, they are being left in place for either-way offences and for the Crown courts. Why are suspended sentences being taken away only for summary-only offences? The Government's argument was set out fairly concisely in the letter from the Minister, which I received by e-mail this afternoon—I am grateful to him for that. I would be the first to admit that the letter does not contain a single factual inaccuracy, but it does not quite deal with the whole story. The whole story began to be revealed, at least in part, towards the end of the Minister's remarks today—in about the 28th, 29th or 30th minute of his speech—when he mentioned prison figures. Of course, the basis of the Government's argument has nothing whatever to do with wanting to improve the justice system and everything to do with wanting to prevent further chaos within the prison estate.

It is very nearly a year since the Department was set up and since the new Lord Chancellor took office. Since then, there have been any number of quick fixes designed to reduce the prison population, including early release from custody under the ECL, or end of custody licence, scheme. At some stage—I cannot remember whether it was before or after the Department was set up—there was the introduction of home detention curfew, and the Criminal Justice Act 2003 introduced automatic release at the halfway point in a custodial sentence. Despite all those measures, panic or otherwise, the prison population has gone up and up. It now stands at a record. When the Government came to office, the prison population was about 61,000; it is now 82,500.

You will remember, Mr. Deputy Speaker, that when ECL was introduced at the end of June last year the Government promised that they would release 25,500 prisoners early in order to reduce the overall prison population. I do not know how they managed it, but as a consequence of what they have done, the prison population has gone up.

We are now considering another measure, introduced in the Bill last year in spite of all the evidence from practitioners, sentencers and others who take an interest in and have knowledge of the subject, that the Government think will free 400 prison places. I am willing to make a small wager that even if the measure passes into law and magistrates are denied the power to give suspended sentences for summary-only offences the prison population will not decrease, and those 400 prison places will soon be filled by other people. I advise the House not to put much faith in the Minister's suggestion that the measure is a good idea because it will free up 400 prison places.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

The point that I am making is that whatever the rights and wrongs of the decision and whether or not it is linked to prison places, the consequence of removing clause 10, as proposed in another place and supported, I understand, by the hon. and learned Gentleman, is that those extra 400 prison places will be required in the next 12 to 18 months. That will add pressures to the prison population rather than alleviate them, whether as a deliberate policy or simply as a consequence.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I am grateful for the Minister's intervention. It cannot be gainsaid that whatever the Government do in relation to sentencing and in attempting to relieve the overcrowding in prisons, which is at an all-time high, nothing seems to relieve the problem, and the measure will not do so, either. The Government have been hoist by their own petard. They wish to look tough in the eyes of the British public and to look capable of dealing in a hard way with those who commit crimes, but they are not. All they have done is fill the prisons, and the offending and reoffending percentage rates continue to be in the high 70s and 80s, whether those are custodial or community sentences.

In order to convince us, the Government—at the same time as removing the power of magistrates in summary cases to award suspended sentences—would have had to propose a much more robust and respectable community sentence system. They have not done so. There is no point in their dismantling one part of the system if they do not replace it with something better in the community sentence system.

It is a mistake to confuse a suspended sentence and a community sentence. The two are entirely different, although they may have certain elements in common. As the Minister has candidly, openly and honestly accepted, the suspended sentence is part of the custodial regime. It is not the equivalent of a community sentence and one should not be given a suspended sentence unless one has crossed the custody threshold.

If the Minister says that magistrates are passing sentences of suspended custody for offences which in the past would have attracted a community sentence, the answer, as he half-admitted in his remarks, is not to throw away the suspended sentence power but to improve the training of magistrates. The Government should pass fewer Bills and devote their time and energy to making existing legislation work, not least because the thing that they now seek to destroy has been in force only since 2006.

If we are not careful, we shall be able to describe the Bill as a piece of order, counter-order and disorder. In the light of the Bill, the poor old Criminal Justice Act 2003 will look even more ridiculous and abused than it is already. The Government need to be more confident in the ability of magistrates to use their discretion properly and to deliver the appropriate sentence in relation to the facts of the case, in relation to the offender, in relation to the victim and in relation to the wider needs of the public to see justice done.

Simply getting rid of the power of magistrates to award a suspended sentence in summary-only cases is not the answer; it is the result of a panic decision. Having made a bad decision, the Government do not have the self-confidence to realise that they have made a mistake and to stop. They should not reinforce failure but move on, in their new, post-Thursday listening mode. I know the Minister enjoys everything that I say, although he does not always remember it the following day. Even if the Government do not listen to what I say, I suggest with the greatest diffidence that they listen carefully to what the other place has said. They should have a think about it, rather than box themselves into a corner. At this early stage of the implementation of the 2003 Act, they should permit magistrates to continue to give, in the appropriate cases, suspended sentences of imprisonment for summary-only offences. I make that suggestion candidly, with honesty and openly. I hope that the Minister's mind is sufficiently open to listen to my helpful suggestion, which I present to him with much respect but little hope—

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

If the Under-Secretary demonstrated her point by leaping to the Dispatch Box and saying, "Goodness me! I wish that I'd thought of that before. If only I had not wasted parliamentary time by trying to get clause 10 in the Bill and keep it there," we would all be much happier. However, I suspect that whether I have spoiled the consensus or not, the Minister and the Under-Secretary will be nailed to this particularly feeble tree. I rather wish that they were not.

Photo of Andrew Miller Andrew Miller Chair, Regulatory Reform Committee

I start by referring to the issue on which Mr. Garnier touched. Let us all be open and honest: I should say that I agree with him. He was absolutely right to say that we need greater resources for the training of magistrates. One of the things I have detected from the regular reports I get from the bench on which my wife has served for many years is the huge variability of the training and the inconsistent messages coming from the trainers. I certainly agree with the hon. and learned Gentleman that one tool at the Government's disposal is to improve the training of magistrates. It is critical that we create an environment in which the appropriate community sentences, with the proper pre-sentencing reports, can be applied. I am thinking especially of the type of cases about which many of us hear regularly in our constituencies.

Only last week, I saw a photograph of the new Mayor of London watching two young men scrubbing walls as part of a community sentence, although I cannot remember the details. If a magistrates bench determines that such a punishment is appropriate—not to humiliate, but to deal with the issue of reparation, which has an influence on young people in respect of how they respond to society's penalties—then there is merit in that.

I want greater examination of the results of any studies by the House of the changes, to ensure—if the theory is correct—that we see some positive results. The issue is not simply the number of prison places, although I understand why the hon. and learned Gentleman might perceive that to be in the Government's mind. At the end of the day, our task here is to create an environment that helps in the overall campaign to reduce crime in our society. All the evidence that I have seen suggests that the extended use of community sentences has its place. It is not an appropriate tool to apply universally, but where it is applied, particularly in the case of some young people, it can have the desired effect.

If I may go off at a slight tangent, the other day I came across a case involving an attempt to apply universally a community penalty by a chief constable through a response to a fixed penalty notice. I have to tell my right hon. Friend the Minister that it happened to be the chief constable in his area, who has a notorious view of some motoring offences. He was dealing with a mature gentleman who was deeply offended by the fact that for going a couple of miles an hour over the speed limit he was being treated in the same way as some young people who had been committing offences that could have had far more serious consequences. In all cases, whoever is issuing the penalty needs carefully to consider the particular circumstances around the case. As my right hon. Friend knows, I have always taken a much tougher line than the Government on drink-driving issues, and I would caution against taking what might be perceived as a more lenient approach. In some areas of the country, there has been a steady move towards winning the battle of hearts and minds over drink-driving, and we need to ensure that we are not perceived to be taking a softer line in that respect.

I have discussed reparation with a number of young people in my constituency from different parts of society, in organised youth groups and in informal environments. We can undoubtedly learn a lot more by engaging with young people about how they respond to community sentences involving a degree of reparation, and I commend that to the Government.

As for the removal of clause 10, I recognise that this debate is being conducted, on all sides, in an honest and open manner that is helpful in this area of law-making, where nobody can claim to have 100 per cent. of the answers. As my right hon. Friend explained, the sentencing statistics show an unexpectedly heavy use of the suspended sentence but no commensurate drop in the use of the immediate custodial sentence, which implies that the courts are regarding the new suspended sentence as a heavy community sentence and therefore as an attractive sentencing option. It should not be seen in those simplistic terms. We should ensure, by improving the training of our magistracy and broadening the range of tools in their armoury, that the downward pressure on crime is continued. I would urge that, with the constraints that my right hon. Friend has described, we seek to move the Bill forward with clause 10 intact.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice 4:30 pm, 6th May 2008

This is one of those debates where nearly everyone agrees about the objectives but disagrees about how to get there. As I understand it, the objective is to ensure that magistrates use community sentences to the maximum degree appropriate and that people are not sent to prison as the consequence of breaching a suspended sentence. First, the question is whether the Government are right in their prediction of what would happen were clause 10 to be implemented. Secondly, even if they are right in predicting the direction in which the prison population goes as a result of clause 10, have they chosen the best possible way of achieving that end?

The sentencing guidelines for magistrates courts included in the Judicial Studies Board publication on this matter are very clear. Perhaps I should declare an interest; my wife is a magistrate, so I get to read such books more often than hon. Members may think. Suspending a sentence is done after a decision has been taken to impose a custodial sentence, and the process has to work in that order. If the guidelines are followed, it would not be possible for a court to do what the Minister said that it would eventually do, which is to compare the effects of a custodial sentence and a community one. According to the guidelines, courts should not do that. First, they have to decide whether the offence is so serious that only imprisonment is appropriate. Only after that can they decide whether to suspend the sentence or not.

To the extent that courts are following the guidelines, it follows that clause 10 and the abolition of the right to suspend sentences on summary conviction will have the effect of raising the rate of imprisonment. If a decision has been made to imprison and a suspension of sentence is not available, the sentence will be immediate imprisonment. The Government's case is that magistrates are not following the guidelines, or that they are changing the threshold at which they decide that people should be imprisoned as a result of the Criminal Justice Act 2003. The Government assert that if the position established by the 2003 Act, which came into force in 2005, is changed back, the situation will reverse. The question is whether that is right, and I am not entirely convinced that it is.

Consistency is an important matter for legal decision makers; they do not like doing inconsistent things. Sentences are influenced not just by the case in question, but by a sense of fairness with regard to the run of cases that have been considered. Magistrates sit for a day a fortnight and they do not consider dozens of cases per week. They look back over a large chunk of time when comparing their current decisions with previous ones. When trying to be fair about in-out decisions, and in maintaining consistency over the previous year, there is a severe risk that removal of the power to suspend prison sentences for summary cases will mean an increase in immediate imprisonment. It will not result in the change in the other direction that the Minister predicted. That is a matter of judgment and no one can be sure about the effects—the Minister is right about that—but I fear that the risk exists.

The Government have issued the Opposition with the challenge, today and in the House of Lords, to explain the figures that the Minister presented. How is it that, on summary conviction in the magistrates court, the introduction of the new suspended sentence order has not resulted in a commensurate drop in immediate imprisonment? There are many possible explanations, and not all are excluded by the evidence before us. We are making the decision quickly, on the basis of one year's figures.

What other possible explanations exist? We have heard one, which is that the seriousness of offences has increased. That is unlikely and not the only possible explanation. Another explanation is that prosecutors are raising the level at which they charge—"up-charging" in the ugly jargon of the profession. That is possible in driving cases—for example, moving up from careless driving to more serious offences. However, we do not know whether that is the case.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

What the hon. Gentleman suggests is unlikely to be the case. Prosecutors often reduce the charge to be more sure of a guilty plea rather than go to the expense, time and trouble of a contested trial on a more serious charge.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

As the hon. and learned Gentleman says, that happens most of the time, but we do not know whether that effect has been reversed or whether the normal pressure to do what he outlines has been lessened.

It is also possible that general public concern about violent crime has caused a change in sentencing behaviour. Recorded crime is falling—and has been falling for the past 15 years—but violent crime has not reduced commensurately. Indeed, sometimes violent crime increases—certainly anxiety about violent crime is growing.

Let me propose a third explanation, which the Government should consider. The use of the suspended sentence is concentrated on re-sentencing for community orders. What happens when an offender is given a community order, a programme to attend, unpaid work to complete and supervision to undergo but fails to fulfil the conditions? The offender returns to the magistrates court to be re-sentenced. In the past, magistrates have had little choice; they have re-sentenced with a different community order and sometimes a fine, which is difficult, but now they have the option of a suspended sentence.

If that explanation is correct, the problem is concentrated in one area and does not apply across the range in all summary cases. Magistrates may not be concentrating sufficiently closely on the tariff argument in that specific matter. When re-sentencing, a court does not pay as much attention as it does when originally sentencing on the structured approach that the Judicial Studies Board recommends. I would like the Government to consider whether that is the explanation, and if so, to examine whether their approach is right.

My other point follows from something that Andrew Miller said about what is happening in the Crown court and the magistrates courts when sentencing for indictable offences, rather than summary-only offences. The same figures that the Minister cited on summary offences show an ever bigger increase—indeed, an enormous increase—in the use of suspended sentences in magistrates courts for indictable offences from 2005-06. Such cases are not ones for which suspended sentences were previously unavailable. The explanation is not that courts are using a sentence that they could not use before—they could—but there has been an enormous increase, of three to four times. There has been an even bigger proportional increase—indeed, a massive increase—in the use of suspended sentences on indictment in the Crown court. In the Crown court, that increase has come at the expense of community orders, whereas in the magistrates courts, it has come at the expense of fines.

The explanation for what is happening cannot have anything to do with the availability of suspension, so it must be about something else. One possibility is to do with the new form of the suspended sentence order that was introduced under the Criminal Justice Act 2003. The 2003 Act allowed far more flexibility to order something else in addition to a suspended sentence, which was agreed on all sides to be a good thing. The whole panoply of sentencing options that a court has under a community order—the supervision, work, curfews, restrictions and so on—are, under the 2003 Act, also available to a court on a suspended sentence.

The Government might have created too attractive a sentencing option. Courts say to themselves, "This is a good thing that we haven't been able to do in the past on a suspended sentence"—it used to be a bare suspended sentence, with little additional action. However, under the 2003 Act, the suspended sentence, with all the other things happening, has become more attractive. In addition, a suspended sentence looks like a good way of getting an offender to do what they are supposed to do. Instead of just saying, "You've got a community order—you've got to turn up for this and that," there is also the threat of imprisonment hanging over the offender's head. That makes a suspended sentence more attractive.

That is more likely to be what is happening than simply something to do with summary offences. If that is the case, the remedy cannot just be the abolition of the power on summary offences, nor can it be to remove the power of suspension or all the other attractive options that go with it under the 2003 Act, which would be a retrograde step. The only option that covers all the ground is training and the reiteration of guidance, to ensure that judges are aware of the problem caused if they ignore the structured approach to sentencing that has been agreed by the Judicial Studies Board, under which they should use the suspended sentence order, attractive though it is, only in cases where they have decided to imprison.

There is also a strange psychological problem, in that all the other, community order-type options do not seem to go naturally with a suspended sentence, which is a sentence that says, "Go to jail." When people are in jail, they do not normally get all the other options. There is a problem with how courts are thinking about suspended sentence orders as a whole.

Another reason why the better option is guidance and training is related to the Government's policy towards the moving of the tariff. It is possible to say that the tariff has moved in the wrong direction on summary convictions and that we want to move it back—I am not too sure that it will, however—by removing the option. However, by maintaining the current position for magistrates courts sentencing on indictable offences and for Crown courts sentencing on indictment, the Government appear to be saying that it is fine in those circumstances for the change in the tariff to continue in the wrong direction. I do not think that can be right. Magistrates courts are being sent two conflicting messages: that in summary cases the tariff has moved the wrong way, but that in indictable cases it has not. That does not make sense. For that reason, and in order to have a coherent approach to the whole problem, which has arisen because of the success of the new suspended sentence order, the only way to deal with the issue is through training and guidance.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice) 4:45 pm, 6th May 2008

Is there not another way of looking at the matter? The hon. Gentleman and I have both mentioned the sensible aspect of the 2003 Act that allowed requirements to be added to the suspended sentence as though it were a community sentence, although it is not. The reason why those on suspended sentences end up going to prison is, as often as not, because they breach or fail to comply with the requirements of the probation aspect of the suspended sentence, not because they commit a further offence. However, that is also a problem with community sentences. We need to see from the Government a real earnest to ensure that those who are subject to requirements will be properly supervised and monitored. That is where the breakdown comes; it is not in the sentencing process, but in the monitoring of requirements.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

There are always challenges in that area. One difficulty with the new suspended sentence order is that when a case comes back, when someone has not fulfilled their requirements, they are already seen as being over the threshold for imprisonment. There is then a kind of automatic idea that the next step should be imprisonment rather than a repeat order or other sentence. For all those reasons, the Government might not be right in their prediction of what will happen if clause 10 is reinstated. Even if they are right, to some extent, they are not dealing with the problem in the best possible way. Given the risk that things might go into reverse in the wrong conditions, I prefer the Lords' approach to the Minister's.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I am grateful for our short debate, and I must respond to the point that David Howarth has just made. I am genuinely disappointed that he takes that view, because his colleague, Mr. Heath, said on Second Reading:

"I welcome clause 10 on the abolition of suspended sentences for summary crimes. I understand that I differ from Conservative Front Benchers in that respect, but it seems quite wrong that suspended sentences are used in the magistrates courts as a substitute for immediate sentences of a different kind, which was certainly not the Government's intention."—[ Hansard, 8 October 2007; Vol. 464, c. 88.]

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

I thank the Minister for giving way. This is an instance in which the new procedure, in Committee, of having a kind of Select Committee investigation before going into the Bill, has proven valuable, because it was only at that stage, when we listened to the concerns of the Magistrates Association, that we started to wonder whether the measure was wise. This is about judgment and prediction. The difference is not one of values, between the parties, but one of prediction.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I am grateful for the hon. Gentleman's intervention. I simply felt that a wider audience was needed for the initial comments, from the Front Bench, of the hon. Member for Somerton and Frome.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

They are all listening to us now.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice


I remind the House that clause 10 amends section 189 of the 2003 Act so as to abolish the power of the court to suspend a custodial sentence when it is passing a sentence of imprisonment for a summary-only offence. Our contention is that since the introduction of suspended sentence orders, in 2003, the courts have been using the new suspended sentence in substantial numbers of cases in which non-custodial sentences would previously have been given. Once the option of passing such sentences for summary offences has been abolished, the courts will, by and large, revert to giving community penalties.

I accept that the other place will disagree with our view—indeed, it voted to remove the clause from the Bill on Report—but I still believe that the Government are correct in their contention. But, as I have mentioned, it is important that we create an opportunity to test the water on this matter, which is why I have tabled an amendment that will allow Ministers to reflect on what happens and to assess the contention of the Opposition, and of the hon. Member for Cambridge, that the trend in the use of suspended sentence orders will continue. If that happens, we need to have the power to make amendments accordingly.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I can see what the Minister is trying to do, in having one more shot in relation to the lifting of the order, but why will he not accept the logic of his own suggestion and simply listen to the evidence that has gone before? Why will he not allow the suspended sentence on summary-only cases to continue for a while? That practice has only been in place since 2006, which hardly gives it enough time to be properly assessed. I would suggest that, rather than trying his reverse procedure, he should leave things as they are and let us all assess the position in a couple of years' time.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

As I said to the hon. and learned Gentleman in my opening remarks, we have had some time to assess the situation to date. That assessment shows that the immediate custody rate remains stable at 4 per cent., whereas the usage of suspended sentences increased from 0.5 per cent. in 2005 to 1.7 per cent. in 2006—an increase in actual sentences from 7,081 to 23,274. That big rise has coloured the Government's opinion on the operation of those sentences.

My contention all along has been that the evidence base is there for us to consider and that we need to take action on it. I have said to the hon. and learned Gentleman openly, honestly and candidly that the impact of the Bill not being amended in the way that I am seeking to do today would involve an additional 400 places. I remind him, if I need to do so, that that is the equivalent of a small prison and would involve considerable expenditure and staffing costs, at a time when there are prison pressures that are being considered and examined.

The hon. and learned Gentleman mentioned the 2003 Act, and I should like to point out that 92 per cent. of the 329 substantive sections of the Act are now either wholly or partly enforced. So, while I am amending the 2003 Act through clause 10 of the Bill, this is not the widespread massacre that he initially suggested. We are doing this having considered the number of suspended sentence orders passed and the impact of the original proposals from 2003 on prison population issues, yes, and on the individuals concerned, who might well face prison rather than an alternative sentence. The honest debate that we have had today relates to up-tariffing.

The Earl of Onslow has said that there could be an explanation of the use of suspended sentences, in that there was an increase in the seriousness of the mix of cases before magistrates courts. I am not aware of that, and I do not believe it to be the case. It seems implausible to me that any such increase in seriousness would coincide solely with the availability of the new order. In my consideration, the new order is the key to this deliberation. As I have said, however, I am willing to consider reviewing this matter if the pressures prove to be wrong.

In support of clause 10, I pray in aid not only the original Second Reading speech by the hon. Member for Somerton and Frome but the chief executive of the National Association for the Care and Resettlement of Offenders, Paul Cavadino, who has said that

"restricting suspended sentences to more serious offences should help to avoid the 'boomerang' effect of these sentences which is boosting the prison population."

There are, without a shadow of a doubt, challenges with the prison population, but our prime focus today is to make more effective use of the sentencing options by removing this measure from magistrates courts.

My hon. Friend Andrew Miller, whom I thank for his contribution, spoke on a range of issues in support of the community sentence. He also mentioned the question of training, and of support for magistrates to help them understand the sentences more fully. There is merit in that suggestion, but I am sure my hon. Friend will recognise that the Sentencing Guidelines Council already sets out clear guidelines on custodial thresholds, and it would be a vast job to train a large number of men and women from the magistracy to take that matter forward. I am happy to look further into that, but our clear objective is to get this legislation through, monitor its progress and allow the Government to have the mechanisms they wish. If the case put by the hon. Member for Cambridge, the hon. and learned Member for Harborough and the other place comes to pass, the Government can review the matter in due course.

With that, I commend the Government's position to the House.

Question put, That this House disagrees with the Lords in the said amendment:—

The House proceeded to a Division.

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

I ask the Serjeant at Arms to investigate the delay in the Aye Lobby.

The House having divided: Ayes 282, Noes 216.

Division number 166 Orders of the Day — Clause 10 — Abolition of suspended sentences for summary offences

Aye: 282 MPs

No: 216 MPs

Ayes: A-Z by last name


Nos: A-Z by last name


Question accordingly agreed to.

It being more than one and a half hours after the commencement of proceedings on consideration of Lords amendments , Mr. Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that hour , pursuant to Order [this day] .

Government amendment (a) to the words so restored to the Bill agreed to.

Lords amendment No. 301 disagreed to.

Government amendment (a) to the words so restored to the Bill agreed to.

Lords amendment No. 327 disagreed to.

Government amendment (a) to the words so restored to the Bill agreed to.