I beg to move amendment 20, page 61, line 37, at end insert—
'(za) the relative effectiveness of sentences in preventing re-offending;'.
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With this it will be convenient to discuss the following:
Amendment 21, page 61, leave out lines 41 and 42 and insert—
'(d) the relative cost-effectiveness of different sentences in relation to preventing re-offending;'.
Government amendment 143.
'( ) The guidelines must state the appropriateness of imposing different types of sentence for the offence with reference to characteristics of the offender and to characteristics of the offence, including the seriousness of the offence in terms of its effects on victims and the impact different sentences would have on victims.'.
Government amendments 144 to 146.
Amendment 43, clause 108, page 65, line 12, leave out 'follow' and insert 'have regard to'.
Amendment 74, page 65, line 12, leave out 'follow' and insert 'take account of'.
Amendment 75, page 65, line 15, leave out 'follow' and insert 'take account of'.
Amendment 73, page 65, line 17, leave out from 'court' to end of line 18 and insert
'is of the opinion that it would be unfair to the offender to do so.'.
Government amendments 147 and 148.
Amendment 76, clause 110, page 67, line 14, leave out 'must' and insert 'may'.
Amendment 77, page 67, line 17, at end insert—
'(aa) the number of places available and unfilled in the prison system at the date of the assessment,'.
Amendment 44, page 67, line 28, at end insert—
'(6) Whilst the courts may have regard to the availability of correctional resources, for the avoidance of doubt the courts must not pass a sentence that is wholly determined by resource assessments which are expressly intended for the guidance of the Secretary of State in planning for and providing such custodial or community sentences as he advises Parliament, and it considers, necessary in the light of such assessments.'.
Amendment 161, page 67, line 28, at end insert—
'(6) The Secretary of State must monitor any resource assessment published under this section and must ensure that, so far as reasonably practicable, adequate resources as determined by the resource assessment are made available for the implementation of the guidelines.'.
Government amendments 149 and 150.
We now deal with the provisions on sentencing, especially on the Sentencing Council and sentencing guidelines. I support the basic idea in the Bill. It has been a long time coming and various methods and versions were proposed, but the underlying idea was always the same: we should provide for strengthened national powers for a body that includes judges and non-judges and lays down guidelines for sentencing. The underlying idea all along has been more consistency in sentencing and more understanding of the sentences that are passed. So far, so good. I believe that hon. Members of all parties accept that.
The difficulty has always arisen with going beyond the simple aim of extra consistency with extra understanding. The Government have got into trouble by trying to make one of the leading goals of the Sentencing Council and sentencing guidelines simply to save money by various means, including the fairly laudable one of making the criminal justice system more predictable. The problem is that that creates an incentive to make the guidelines far too rigid, to the extent that one could end up with the position in some United States jurisdictions, where the guidelines are so rigid that there is no judicial discretion. The Government have rightly moved from the rigid model, but also have to admit that the benefits that it would have brought in financial predictability have been somewhat compromised.
I am not against going beyond aiming for consistency in the sentencing guidelines. My overriding concern is not the total amount that the Government spend on sentencing, but the direction of the criminal justice system. I especially want the guidelines to help further the aim of turning the criminal justice system around so that its main purpose is to reduce reoffending by imposing sentences that work, as opposed to those that simply sound tough.
I am fortified in my view by not only members of my party, but members of other parties in the House and members of the Justice Committee. Reducing reoffending should become a central aim of sentencing. Other matters cannot be ignored, but when reducing reoffending is ignored, the result is inevitably that crime is higher. There are more victims. The Government are right that victims and concern for them should be at the heart of the criminal justice system, but that must include potential victims. Only by reducing reoffending—most offending is committed by those who have done things in the past—do we genuinely put victims, especially potential victims, at the heart of the system.
I endorse the hon. Gentleman's comments. I signed amendments 20 and 21 because it is a weakness not to specify the purpose of the Sentencing Council. I agree that, if it is about anything, it must be about reducing reoffending. Does the hon. Gentleman recall that, when we took evidence about what victims want, we were told that, other than wanting the offence that victimised them not to have happened, they wanted it not to happen again? Not only potential victims, but those who are already victims would therefore endorse the view that the priority should be reducing reoffending.
I thank the right hon. Gentleman for that important point. Sometimes, we in politics misunderstand what the public tell us about crime. We often think that they are telling us to be tougher and harder for the sake of it, but I do not believe that they are. When the public demand tougher sentencing, they want it to produce the result that the right hon. Gentleman outlined: to reduce reoffending. We must ask ourselves whether tougher sentences would achieve that. If the evidence shows that they would not, our duty is to ensure the imposition of sentences that do. We are perfectly capable of making those decisions, but bound to take into account what the public want from sentencing. As the right hon. Gentleman said, they want to reduce the risk of becoming a victim of crime in future. That is the point of amendments 20 and 21.
We know more about what works and what does not in sentencing than might be supposed from reading the newspapers. Sentencers should therefore be encouraged to use the knowledge that has been accumulated and is accumulating about what works. The best way of achieving that is not through individual sentencers learning more about the evidence, but through the guidelines.
For example, we know that short prison sentences do not work in reducing reoffending. On the other hand, restorative justice works—it is approximately a quarter more effective than other sentences. We know that from randomised controlled trials—the best evidence that one can collect. We know that short, sharp shocks and scaring-people-straight programmes—taking youngsters to jail and saying, "Look, here's a prisoner, this will happen to you"—do not work. Indeed, in the "Scared Straight!" case, such a programme made things worse. The evidence shows that they increase crime.
Surely the hon. Gentleman's point is rather less absolute and is, in fact, a relative one. The point is not that short sentences never work nor that effective community sentences always work. There is no doubt—the reoffending data are made public—that offenders are less likely to reoffend if they have received an effective community punishment than they are if they have served a short sentence. However, offenders are also less likely to reoffend if they have served a very long sentence—not that I am recommending that. My last point, which is about the dilemma facing the courts and policy makers, is that in almost every case where a short sentence is given out by the courts, it is given because the offender is one of those who has been given a community sentence and has failed to stop his reoffending. That is the dilemma for the courts and that is why they are bound to resort to short sentences.
I agree with the Secretary of State that the debate is not about absolutes; it is about tendencies and risks. However, the rational approach to sentencing must always be to use all the information that we have. All I am saying is that that information should be built into the sentencing guidelines.
The Secretary of State is right in his analysis of the effect of some short sentences and the effect of longer sentences, but we also need to bear in mind something that might be missed if one takes what he said at face value. Those who get longer sentences tend not to be the chaotic characters who get short sentences; rather, they tend to be armed robbers or professional criminals. They are therefore altogether better able to look after themselves in prison and outside it, subject to being caught, whereas short-term repeat offenders are, by and large, chaotic characters who commit crimes to fuel a drug habit. By their very nature, they are less susceptible to the injunctions of the criminal justice system. The Secretary of State's facts were correct, but the inferences that we draw from them need to be carefully studied.
That is an important point. In cases of domestic murder, for example, the chances of reoffending are usually very low, which will skew the statistics that the Secretary of State used.
We know that for the type of offender that the Secretary of State was talking about—those with chaotic lives who sometimes find that they are sent to prison because the courts lose patience and cannot think of anything else to do with them—drug and alcohol treatment programmes are more effective, although not always effective, when delivered in the community than they are when delivered in prison. The reasons are obvious. Alcohol treatment, for example, is clearly the best way of dealing with violent offenders, even though some would say that all violent offenders must always be sent to prison. Alcohol and drug treatment programmes are far cheaper when delivered in the community than they are when delivered in prison. We could run more of them, and therefore prevent more crime, if we allocated our resources properly.
We know that what works best for those whom we have to put in prison—the Justice Secretary is right: there are some people whom we have to put in prison—in reducing reoffending are training, education and work programmes. In fact, it turns out that those programmes are cheaper and more effective in prison than they are outside it, for various reasons. That tells us the direction in which prison policy should go, not just the direction in which sentencing should go.
All I am saying is that we need a dynamic system in which whatever we know from the results of research is built into the process of drawing up the sentencing guidelines. That is all that amendment 20 aims to achieve.
One issue in this debate is costs and the extent to which they should be a relevant consideration in criminal justice policy. Let me make it plain that I have absolutely no objection to considering the relative costs of sentences in deciding what should be in the guidelines. It seems obvious that if two sentences are equally effective in reducing reoffending, we should use the cheaper one, because we can do more of it and prevent more crime in the long term. However, I hope that the Government will make it clear that that is the not the same as making sentences in individual cases respond solely to cost, because not only individual cases would be affected. In fact, given the disparate nature of sentencing, doing that would probably not be cost-effective, either.
It is also important to distinguish between the total resources available to the criminal justice system and the relative costs of different sentences. Sentencing guidelines should take into account relative costs, but that does not mean that they should take into account the total resources available to the system. That is the Government's business. It is for the Government to ensure that the resources are available to make sentencing in the criminal justice system work. As I understand it, that is the spirit of amendment 44, which has been tabled by Government Back Benchers.
I am sorry. There are a number of amendments to a similar effect.
Overall, there has always been a tension between the courts on the one side, asserting their independence to pass sentences that they think are just, and the Government on the other side, trying to have a criminal justice policy. The methods that we have used so far to try to bring the two together have inherent problems of their own. Sentencing guidelines cause the problem, which I am sure Mr. Garnier will highlight, of reducing the discretion available to judges. Judges will plainly resent that. On the other hand, if we have only unguided judicial discretion, people in the Secretary of State's position will have to make resource provision for a vast number of sentences that are never used. That would massively increase the cost in the system and mean that resources were not being put to their best use for reducing crime.
There might be an even better way forward than the Bill, which is for the evidence that I suggest should be built into the sentencing guidelines process to be built into the Department's policy-making process, too. If the Sentencing Council and the Department were working from the same evidence about what worked and if they had the same goal of putting what works to reduce reoffending at the heart of the system, the co-ordination of what sentencers do with what the Government do would be more automatic than it is in a system in which one side tries to tell the other what to do.
However, perhaps that is a counsel of perfection. I concede that the Bill is, on the whole, a step forward, but I ask the Government to reconsider in detail how what works to reduce reoffending can be built into the system.
I want the Sentencing Council to be a success and I want it to be effective, and I know that my right hon. Friend the Lord Chancellor wants that, too. My concern is that the Bill as drafted does not offer any certainty that the Sentencing Council will be effective. There is no certainty that it will address in sentencing guidelines the need to reduce reoffending or to change the attitudes of courts by ensuring that that is at the front of their minds.
I am not so concerned about the courts' ability to deal with the very serious cases of murder or with criminal gangs and so forth—those matters can be left for judges to decide—but I do not think that judges have demonstrated an ability to understand the need to intervene on prolific low-level offenders or the need to nip offenders in the bud. There is considerable amount of evidence, in work funded by the Esmée Fairbairn Foundation, that taking judges out to see the work of community sentences can be very effective in improving the standard of sentencing.
In the Public Bill Committee I offered three propositions and I very much hope that my right hon. Friend the Secretary of State will take them seriously. If he does not accept the two amendments proposed by David Howarth, I hope that he will think further and perhaps introduce amending provisions in the other place.
The first of my three propositions is that people should be appointed to the Sentencing Council on the basis of their capacity to evaluate evidence on the effectiveness of sentences. I suggested amendments in Committee to put that directly into the Bill. At the moment, the council looks too much like a comfortable judges' club. The question of effectiveness that the hon. Member for Cambridge underlined in moving the amendments is absolutely critical to whether the Sentencing Council is going to be a valuable addition or not.
Secondly, I believe that the Sentencing Council should be given a clear purpose, which is absent from the Bill. We discussed that in a very good debate in Committee and I hope that my right hon. Friend will take it on board and set out what the Sentencing Council is for in a new clause in the other place.
My final point is the need to clarify clause 103, which specifies five principles to which the council must have regard. The reference to
"their relative effectiveness in preventing re-offending" appears only in the second half of the fourth of those items. That would be made more explicit if we lifted it up the agenda by accepting amendments 20 and 21. If my right hon. Friend will not accept those propositions today, I urge him to make it absolutely clear in the Bill that this place expects the Sentencing Council to add value to the work of the courts and to attach great priority to advising the courts on what works in reducing reoffending.
I want briefly, if I may, to discuss some of the amendments tabled by the Government and by the Liberal Democrats, but also to concentrate on my own amendments 43 and 44, which, to my mind at least, describe the difference between us and the Government in a fairly effective way. Amendment 43 deals with whether the sentencer should "follow" or "have regard to"—or as my right hon. and learned Friend Mr. Hogg would prefer, "take account of"—the directions of the Sentencing Council.
As my right hon. and learned Friend says truthfully and entirely sensibly, there is absolutely no difference between what lies behind his amendments and mine. Amendment 44 deals with the resource implications of resource assessments and how they should affect the discretion of sentencers—a point brought out by David Howarth.
Let me deal briefly with the other amendments and then come back to my own. Just before doing so, however, I declare an interest in that as a recorder, I will have to be guided by the Sentencing Council, just as I am already guided by the Sentencing Guidelines Council at the moment. I have some understanding in a practical sense of the effect of these types of arrangements— [Interruption.] It looks like the hon. Member for Cambridge is laughing at one of his own jokes.
I do not think that there is much difference between us about the importance of the need to reduce reoffending. Both in Committee and this evening, we have all suggested that reduction of reoffending is a highly important aim of the criminal justice system, and it has to be a priority. In our paper published last March—it was written by my hon. Friend Nick Herbert and me and was entitled "Prisons with a Purpose"—we outlined our plans for the reform of the prison system and of the non-custodial sentencing system. At the heart of our paper was a section dealing with what we called "the rehabilitation revolution". We wanted to see far greater emphasis placed in the prison and non-custodial sentencing system on the rehabilitation of offenders—so that they do not reoffend. This is now largely uncontroversial— [Interruption.] The Minister of State, Ministry of Justice, Mr. Hanson, says that it was before; it is just a question of getting on and doing it. He and his hon. Friends have had 10 years to do their best; we look forward to having an opportunity, if the electorate so decides.
I gave evidence to the investigation called by the Centre for Social Justice, which is chaired by my right hon. Friend Mr. Duncan Smith, who asked Jonathan Aitken to produce a report on the current state of our prisons and what needs to be done to improve them. That report was published, Mr. Deputy Speaker, as you may know, earlier this week or over the weekend. I am happy to say that a good deal of what is in the document coincides with or is drawn from my own evidence to the investigation and from our document "Prisons with a Purpose".
The document produced by the Centre for Social Justice is a very big document, but it is worth reading. I am sure that both the Secretary of State and the Ministers of State have it on their reading list. [Interruption.] I am grateful to the Secretary of State. Irrespective of our party differences, there is a mine of information in it. Some of the conclusions arrived at will not surprise Ministers, but I hope that some of them perhaps will. The Conservative party's attitude to the criminal justice system has, if I may say so, taken—
That is the expression used by my hon. Friend, and I would say that the truth that was always there has simply been revealed—but perhaps this is a distinction without a difference.
On judicial discretion, I am not asking for a judicial free-for-all. I have a proper understanding, I hope, of the sentencing exercise. I said it before in Committee and I will say it again now: sentencing is probably the most difficult thing that a judge has to do in the criminal justice system. Yes, judges—and magistrates, such as Alun Michael—have to consider issues of fact and of law, but I would suggest that the sentencing is the most difficult and complicated aspect of the work of the criminal courts. Yes, guidance from the Court of Appeal criminal division and from the Sentencing Guidelines Council, or the Sentencing Council, and indeed from Parliament is always helpful—indeed, more than helpful; it is very useful.
We accept that judges have to sentence within a range of sentences laid down by statute or by the guidance of the higher courts and by the Sentencing Guidelines Council. Where I think we—that is to say, the Government and the Conservative party—differ is on the tightness of the link between the sentencing guidelines and the independence of the judge or the magistrate to apply the sentence that is just in the case before him.
The right hon. Member for Cardiff, South and Penarth said today and in Committee that he was not so much worried by the sentencing of serious criminals who get the longer sentences; he was more concerned about the way in which low-level persistent offenders are dealt with. I think that he is right to have that worry, because unless we stop such people reoffending, they constitute a continual public nuisance. They are an expense, and they cause untold misery to the householders, owners of businesses, shopkeepers and so forth who are predominantly the victims of acquisitive crime committed with the aim of feeding a drug habit.
It seems to me—and I do not think that this is a novel opinion—that drug addicts commit crimes rather than criminals' becoming drug addicts, although my view is changing somewhat following the report on Wellingborough prison which was published this morning. Unfortunately, the findings in that report are not peculiar to Wellingborough. What Dame Anne Owers, the chief inspector of prisons, discovered about the incidence of drug taking, drug dealing and drug use in prisons is not restricted to that particular prison. There is not a single prison in England and Wales that does not have a drug problem to a greater or lesser extent.
Let us all agree that we want to reduce the incidence of reoffending. Let us all agree that Parliament has a perfect right, and indeed a duty, to set out the ranges of sentences for particular offences. Let us all agree that the Court of Appeal criminal division has a role to play, and that magistrates and judges should be given sufficient independence and discretion to enable them to do justice in the cases before them.
Although I understand what amendments 20 and 21 are about, I suggest that it is already covered by clause 103(11), and in particular by paragraph (d), which deals with
"the cost of different sentences and their relative effectiveness in preventing re-offending".
Although I listened with interest to what the hon. Member for Cambridge had to say, I am not sure that his concerns need to be translated into the Bill. However, Government amendments 143, 144, 146 and 148 move us into more interesting territory. Of itself, amendment 143 does not strike me as objectionable. It seems to say, while using slightly different words, what is currently said in subsections (1) to (4) of clause 104, which the Government intend to delete. Amendment 146, of itself, is not objectionable; on the face of it, the provisions that would replace clause 104(8) appear to be common sense. Amendment 148 simply refers to the offence range rather than the category of case, and is not of itself objectionable. Government amendments 149 and 150 follow on from the earlier amendments, and they, too, are not of themselves objectionable.
Nevertheless, I ask the Government to accept that without amendment 44—tabled by, among others, my hon. and learned Friend Mr. Grieve and me—there is at least the possibility of an improper connection between money and justice. The amendment states
"Whilst the courts may have regard to the availability of correctional resources"
—that is the jargon—
"for the avoidance of doubt the courts must not pass a sentence that is wholly determined by resource assessments which are expressly intended for the guidance of the Secretary of State in planning for and providing such custodial or community sentences as he advises Parliament, and it"
—Parliament, that is—
"considers, necessary in the light of such assessments."
When deciding what should be the maximum sentence for robbery, burglary, murder, rape or any other criminal offence, Parliament will need to understand that increasing the maximum sentence or providing a minimum sentence will cost a certain amount of money, and will require additional prison places, probation officers or other facilities to deal with the offenders concerned. Having understood that, however, and having decided on the basis of that information and advice what the appropriate maximum sentence, minimum sentence or range of sentences should be, Parliament should not descend into the courtroom, either directly or via the Sentencing Council, to tell judges precisely what to do. I believe that without amendment 44 or a similar provision, we shall be in danger of moving Parliament and the Executive into the courtroom in an improper constitutional fashion.
Amendment 43 is also connected with my fear that we are in danger of intruding in the courtroom in a way that I find wholly objectionable. It deals with what I call the "follow" or "have regard to" argument. As the law stands, sentencers are obliged to "have regard to" guidance from the Sentencing Guidelines Council, but are not obliged to follow it slavishly. That works well. While I accept that sentencers, be they magistrates or Crown court judges, must explain their reasons for acting outside a particular guideline in a particular case, I do not think that anyone has been surprised by, or unjustly dealt with by, judges having regard to or taking account of the guidance as opposed to following it. The Government, however, require judges and magistrates to follow the sentence advice in the guidelines—indeed, almost to cut and paste it into their sentences.
As I have said before, only the judge or magistrate has the facts of the case before him—the facts relating to the victim, and the facts or the local knowledge in relation to the effect of the crime on the local community; that is particularly true of magistrates—along with some understanding of the antecedents and the earlier life of the defendant or defendants before him or her. That, I suggest, renders the judge or magistrate best placed to deal with the sentence.
Are not the local circumstances one of the most important considerations for a sentencing judge to take into account? A particular class of crime often becomes prevalent locally. In such circumstances, a sentencing judge may well consider it necessary to propose a sentence that is different from, and perhaps more severe than, the general category or bracket specified in the sentencing guidelines.
We all know from what happens in our constituencies, be they urban or rural, that certain crimes become fashionable from time to time. There may be an epidemic of house burglaries, of car crime or of drug retailing on the streets. The courts need to be able to deal with that in the way that is most appropriate to the locality concerned. The advantage of the administration of local justice through magistrates courts and Crown courts is that those courts can respond directly and immediately to local circumstances. It seems to me that, while the Sentencing Guidelines Council—and the Sentencing Council, as it will become following the Bill's enactment—have a role to play, they should not be allowed to overplay it, and to inhibit the sort of activities that my right hon. and learned Friend has described.
There is a danger in the approach implied in both the question and the answer. It is a twofold danger. First, in order to demonstrate that society will not put up with whatever may be happening in a locality, excessive reliance may be placed on the theory of deterrence and a sentence may be passed that does not have the deterrent effect that it was assumed it would have. Secondly, the process of signalling to society that the courts are not going to put up with the offence may draw them into prison sentences that are themselves ineffective. We should look for ways of making that sort of declaration that do not involve us in impractical sentences.
I am grateful to the right hon. Gentleman for his intervention, but it is not a question of either/or—it is both/and. Local judges and magistrates should be able to take account of local conditions and from time to time deal with criminal campaigns through exemplary or extended sentences, but of course they want to be effective. Judges are not in the business of passing sentences that either are not obeyed, if they are community sentences, or that do not help to reduce reoffending. Unfortunately, some defendants are beyond education and understanding the effect of their offences. I say in parenthesis that I happen to be a great supporter of restorative justice, which the hon. Member for Cambridge mentioned, but it is vital that judges and magistrates should be allowed within a wide remit to conduct this most difficult exercise, which is to do justice to the defendant, society as a whole, the victim and the victim's family, and to play their part in the reduction of reoffending.
While I dare say the Government see themselves as entirely well motivated, they are being too dirigiste, statist and centralist in this aspect of criminal justice policy. Therefore, I urge them, even if they do not accept my amendments 43 and 44 today, to think rather more carefully. In any event, I will ask at the appropriate time, if I catch your eye, Mr. Deputy Speaker, to test the opinion of the House on amendment 43.
I shall address my remarks to amendment 161. They follow on to some extent from some of the remarks made by Mr. Garnier. He said that the measure includes the requirement that the guidance of the Sentencing Council be followed. On amendment 44, he talked about not wishing to allow resources to determine the sentence, but resources are key to what is happening.
Amendment 161 would amend clause 110. That clause requires the Sentencing Council to publish resource assessments in respect of its guidelines. In those resource assessments, the council will be expected to say what it thinks the guidelines will do in respect of the demand for prison places, the resources that are required for probation provision and for the provision of youth justice services. The question is: once the Sentencing Council has produced those reports about resource assessments, what happens to them? There is nothing whatever in the Bill to indicate that the Government will have to pay any particular attention to them, yet they are key if the recommendations of the Sentencing Council on sentences are to be put into effect. Amendment 161 therefore says that the Secretary of State must monitor those resource assessments and, as far as he practically can, ensure that there are adequate resources to ensure that the guidelines produced by the Sentencing Council can be put into practice.
The concept of the Sentencing Council has been widely welcomed. I do not have any difficulties with it. Many people outside this place have welcomed it, but what will happen if the recommendations from the Sentencing Council go in a particular direction that the council itself says will impact on prison places and probation services? As the Minister knows, some of us have already told him we have concerns about the resources that are available now and will be available in the next two or three years to, for example, the probation service. Probation representatives are telling us that they are concerned about the effects of their current budgets on front-line services.
I give just one example. The special domestic violence courts were introduced in 2005-06. A domestic violence programme is focused on changing attitudes and the behaviour of participants in that programme. It teaches people non-controlling behaviour. Courses run for a few months and involve individual sessions, group sessions and relapse-prevention meetings. They seem to be the sort of courses that we want to support, but we hear that there are considerable waiting lists for people to get on them: the waiting times vary from 13 to 42 weeks, depending on the area. The maximum wait for getting on a course varies from 33 to 208 weeks. If we are saying that we expect a course to be effective, but there is a waiting time of four years for someone to get on it, that hardly suggests that we are matching the resources to the programme we believe would be effective. Those are the issues that need to be considered in bringing the new regime into effect.
I am not suggesting for one moment that it will be a simplistic exercise; it obviously is not going to be easy always to do this, but if we do not look at what the Sentencing Council has to say about the resource requirements, and we do not consider what can be done to provide those resources, we will end up with more examples like the one I have just cited. There will be recommendations to the courts about what they should do in respect of sentencing, and the court will follow those recommendations, but then we will find gaps in, say, the probation provision to make those sentences work. I hope that when he replies to the debate the Minister will address that point and look at what might be done to make that link between the recommendations and the resources that are needed to put them into effect.
I rise merely to express my anxiety about this House creating a regime that is unduly prescriptive. I agree with my hon. and learned Friend Mr. Garnier that sentencing is one of the most difficult functions of the judiciary and it has been enormously complicated by the volume of legislation that we have passed over the past 10 years and, if one is honest, many years before that. For example, indeterminate sentences of imprisonment for public protection and extended sentences of various kinds are extraordinarily difficult for the judges to determine. My own feeling is that they are also largely unjust in their implication and I dislike them very much. I also feel that Parliament needs to be—
I do not think there has been sufficient time for a full evaluation of the effectiveness of IPPs, but I can say that, when I go around prisons, which I do regularly, I am struck by the difference in attitude between those prisoners who are on determinate sentences and those on IPP sentences. Those on IPP sentences have now got the message that they will not come out and they will be on a long licence unless they stop their propensity to offend. That must be a good thing for the public and a good thing for them.
That is a fair point, but there is another way of looking at this. When there is an indeterminate sentence and the release date is ultimately dependent not on the trial judge but on those who are assessing whether the person constitutes a risk, the natural attitude of those who make that decision is to guard their own back, and the result can be that many people are held in prison much longer than the index for offences justifies and much longer than a proper assessment of the risk would also justify.
I do not know how many prisons the Justice Secretary has been to since he took up this new post, but it is my experience from having been to about 50 prisons in the last three years that IPP prisoners are the most difficult for the Prison Service to manage. They remember the tariff, but they find it difficult to comprehend that they have an unending or an indefinite sentence. That is why they become fractious and that is why prison governors tell me—whether they tell the Secretary of State this, I do not know—that they are very concerned about the management of such prisoners. I appreciate that the Criminal Justice and Immigration Act 2008 adjusted the IPP minimum tariff, but it is a very troublesome sentence.
I agree with that. Many years ago, when I was an Under-Secretary at the Home Office, I was responsible for trying to determine when it was proper to release people from the special hospitals. We used to get advice from doctors and others on the safety—or otherwise—of the particular prisoner or patient, and no doubt that is still the norm. It was extraordinarily difficult to make that judgment, and I am sure that many officials—and, I suspect, clinicians—were guarding their back, thinking of the criticism that would come in the national press were they to recommend the release of somebody who went on to commit a crime. I think this is true of IPPs and extended sentences, and I fear that lots of characters are being held in our prisons now because people are unwilling to take that chance. I think we have to take that chance, unless we are going to detain people for unconscionably long periods of time.
There is a further reason why some IPP prisoners are in prison for longer than they ought to be, which is that they cannot get on the necessary course to satisfy the conditions that would enable them to be released. That problem too tends to make them fractious, because they nurse a sense of grievance that the prison is preventing them from fulfilling those conditions.
I think that that, too, is an important point, and I entirely agree with it. However, I shall move on from what is a somewhat narrow point—it might not even be within the scope of the amendment, but thank you, Mr. Deputy Speaker, for permitting that brief digression—and say that of course I accept that this House has to establish the appropriate brackets of the sentence. That is right; we have always done that, and we should continue to do so. However, my own view is that the imposition of sentences is very much a matter for the trial judge, guided by the appellate court. I think it is difficult to do justice unless we accept that the trial judge or trial magistrate is the person best placed to determine a sentence within the brackets established by Parliament. I therefore agree with my hon. and learned Friend the Member for Harborough that we should not put in statute the requirement that a judge should follow the guidelines set out by the council, hence my amendments. I believe the requirement should be that the judge take account of, but not feel obliged to follow, the prescriptive guidelines.
I accept that the council guidelines can bring about greater consistency. That is important, and to that extent I welcome the Bill's proposals. It is true that the council's guidelines—this is one of the points made by David Howarth—can bring to the notice of the judiciary sentences and alternatives that work, because not all judges go to all courses as assiduously as they should, and I have no doubt that the guidelines, the annual reports and the other material published by the council can inform the courts of what is available and what works.
I think, too, that it would be appropriate for the council's guidelines and other published material to set out the cost implications of various sentence options; that seems to me to be entirely right. I also think that the council guidelines should stress the importance of non-custodial sentences. Whenever I have been to prisons—like my hon. and learned Friend the Member for Harborough, I have been to a large number of them in my life, both as a barrister representing defendants and as Prisons Minister—I have been conscious of the very many people who are in prison largely because of their own inadequacy or an addiction, and who could probably be dealt with other than by being kept in custody.
Confidence in the penal system is important. Confidence should be not just national but local, hence the intervention of my hon. and learned Friend, who said that areas often suffer an epidemic of certain classes of crime, and a local judge may well form the view that a particular approach to sentencing is right given the particular local circumstances. I shall be very sorry indeed if the guidelines regime precludes a judge taking that local approach.
May I make one further point, which will be deeply unpopular, especially to the hon. Member for Cambridge, and which will probably nowadays be regarded as deeply politically incorrect? I do not believe that the criminal justice system should be primarily focused on the victim. I get very concerned when I hear people say that the victim's interests are paramount. I do not believe that. I think that the purpose of the criminal law is to do justice, and that does not necessarily mean following either the wishes or the interests of the victim. The interests, or at least the plight, of the victim must be taken into account; the victim is very often a witness and needs to be treated with great courtesy, be kept fully informed and be made aware of all relevant decisions. But actually the criminal law is seeking to create a system of punishment, deterrence, retribution and ways and methods of avoiding the repetition of crime. That is not about the victim, and the anxieties and distress of the victim can often cause judges to do things that are not right. When there are victim statements and so forth in court, I personally regard that as an irrelevance. That is not a popular view, and it is probably not shared by many Members. However, I strongly feel that we need to distinguish between the courtesies and respect that one owes to the victim and the fundamental purpose of the criminal law, which is to administer the interests of the state, and not necessarily to reflect the interests of the victim.
I rise to support amendment 161, which stands in the name of my hon. Friend Mr. Gerrard and which I have also signed. Let me explain the background to this amendment, because I know that some Members have argued it may be irrelevant.
Amendment 161 arises out of discussions with the trade union group that brings together the various trade unions representing workers in the justice field. The issue that arose time and again is that when Government wields the end, they should also wield the means. The amendment is in some respects intended to assist the Secretary of State in arguments with other Departments, and possibly the Treasury itself, because there has been a consistent pattern in the justice sector in this House: many Members have welcomed various approaches by the Government, particularly the development of sentencing policy—and innovative sentencing policy—but we have had difficulty extracting additional resources. Although there has been a significant increase in resources in this field, it has not matched the level of demand. That was demonstrated in the report by the Centre for Crime and Justice Studies published in December, which showed an increase in resources, but also a massive increase in demand and work loads. This legislation will develop the Sentencing Council and enable it to set out various guidelines, but unless the resources are made available we will pass legislation that will have limited effect—in fact, it could cause more frustrations within the justice system and therefore be less beneficial.
I shall give one example, which has become crucial in recent months. We have met the Secretary of State, and the National Association of Probation Officers, the trade union representing probation officers, has undertaken a survey. It demonstrates that as a result of a reductions exercise—a savings exercise—that is going on, a large number of staff are losing their jobs. We were hoping that this would not involve front-line staff, but it looks as though it will. The situation means that probation officers are having to ponder a quandary when they go before a court and recommend, as a part of their report, a particular approach on sentencing, be it a community sentence, a prison sentence or a particular innovative sentence—I am thinking particularly of sentences associated with restorative justice. They are having to consider whether they should be advising the court, in their professional capacity, that although a given approach might be the best course of action, the resources are not available, particularly within their locality, to implement the sentence. That puts an onus on the probation officer that causes them a considerable dilemma.
Amendment 161 seeks to remind the rest of government, as much as this Secretary of State, that if we are to develop the Sentencing Council and it is to be effective, we must ensure, as the amendment says, that as "far as reasonably practicable" the resources "are made available". If we do not do that, we will undermine the credibility of this part of this Bill, which we, across the House, have supported. Even if we do not press the amendment to a vote, I urge the Government at least to take the spirit of the amendment back in their discussions with other Departments, in particular the Treasury. If we will the ends, we must will the means, and if we do not do so in this instance, we will undermine the credibility of this legislation.
This debate has been very interesting and well informed, and I shall try to conclude it in that spirit. It might be helpful if I were first to give some background to the proposals in the Bill for a Sentencing Council—I claim some authorship for those. In the mid-1990s, there was, as those of us who were in the House at the time will recall—a number are present on the Labour Benches—concern about the unrelenting rise in crime that had taken place under the Conservatives. Hon. Members may recall that recorded crime doubled between 1980 and 1995. The Conservative campaign guide of 1994 sought to point out that although recorded crime had risen, crime as calculated by the chosen measure of the Conservative Government—the British crime survey, which they had established—had risen by "only 50 per cent." Both sets of data were true, but even a 50 per cent. rise was alarming.
Thus, following the appointment of Mr. Howard as Home Secretary in 1993, there was a big shift in the penal policy of the Conservative Government against what he regarded as the liberal and wet approach conducted by all his Conservative predecessors with, probably, the single exception of Lord Waddington; there was great concern about increasing the number of prison places and much else besides.
One of the things that I examined at the time was the question of consistency in sentencing. With great assistance from the statisticians in the House of Commons Library, I published a paper in 1996 called "Honesty, Consistency and Progression in Sentencing", and its conclusions found their way into the Labour manifesto and then into the Crime and Disorder Act 1998, which was piloted through this House by my right hon. Friend Alun Michael. I proposed a modest change: that a sentencing advisory panel should be established. He will recall how tentative we were about moving into territory that previously had been within the exclusive ambit of the judiciary.
What the data that the House of Commons Library statisticians had produced and that I had published showed was that there was no necessary connection between crime levels—or the rates of growth or decline in crime—and local sentencing rates, be they the custody levels, the proportion of offenders sentenced to custody, or average sentence lengths. Of course I accept what both Mr. Garnier and Mr. Hogg said about the fact that the court has to have discretion for all sorts of reasons, not the least of which is that there may be what the hon. and learned Gentleman has described as a local "epidemic" of crime and the court may wish to set out imperatives as to why that is not acceptable locally—no one argues about that. The argument is about areas where there are apparently random differences in sentencing that bear no direct relationship either to local crime levels or to reoffending rates.
What I was seeking to do was better to inform the sentencing process, without encroaching on the necessary independence and discretion of sentencers, so we established the Sentencing Advisory Panel. As a result of a major study into sentencing, which I got going towards the end of my period as Home Secretary, which my right hon. Friend Mr. Blunkett continued and which reported in 2001-02, we then had the Criminal Justice Act 2003—it established the Sentencing Guidelines Council. More recently, in the light, not least, of the pressure on prison places, the Carter inquiry was established and it reported in early December 2007.
Alongside Lord Carter's report was published further statistical evidence called "Local Variation in Sentencing in England and Wales". It was produced by my Department, but it never got quite the attention that it deserved—I say that because it contains extremely interesting data. It looks at the variations in custody rates, average sentence lengths and the use of determinate and indeterminate sentences. It showed that all those things varied "significantly" across the 42 criminal justice areas in England and Wales. It also suggested:
"The range in custody rates in magistrates' courts and ACSLs"— average custodial sentence lengths—
"in the Crown Court narrowed between 2003 and 2006, suggesting that sentencing practice became more consistent across the CJAs over this period."
I suggest that that was partly as a result of the work of the Sentencing Guidelines Council.
The document also suggested that there was little in the way of linkage, stating:
"Variation in sentencing amongst the CJAs was not well explained by local crime rates, although there was a weak relationship between recorded crime rates and magistrates' court custody rates for theft and handling stolen goods offences."
"No statistically significant relationships existed between changes over time of recorded crime and sentencing in magistrates' courts and Crown Court centres by CJA."
Against the background of the relative partial success of the Sentencing Advisory Panel and the Sentencing Guidelines Council, Lord Carter recommended that I should establish a judicially led working group to look more closely at whether we could have better machinery for advising and guiding the judiciary on sentencing. Lord Justice Gage kindly accepted the invitation to chair this sentencing commission working group, and his report was produced late last year.
What I sought to do is to replicate, of course in more detail, the key recommendations of his report. I note what the hon. and learned Member for Harborough said about the need for proper judicial independence, but he also said that we had to avoid a judicial free-for-all. I have said very much the same thing and I made it clear in my statement on
We have tabled amendments 143 to 146 to clause 104 and amendment 148 to clause 108 because those provisions were criticised in Committee— [ Interruption. ] I welcome Mr. Soames to the Opposition Front Bench. It is good to have him here to listen to this important debate. We have responded to the criticism that was made on both sides in Committee that the original provisions were too dirigiste. Therefore, clause 104 will no longer make it a requirement on the Sentencing Council to subdivide all offences into categories of offence, but it will have the discretion to do so. If it does, we invite it to subdivide the offence categories in much the same way as they are currently subdivided. We also make it clear that aggravating and mitigating factors can be related to the offender as well as to the offence, and that is the important effect of amendment 144.
Clause 108 sets out the duties of the court in respect of the sentencing guidelines to be found in clauses 103 and 104. Here, too, we have sought to add greater flexibility to the system. Generic offences such as burglary, robbery and theft cover a range of behaviours and, therefore, the Sentencing Guidelines Council has subdivided them into categories. Where they are divided and there are aggravating or mitigating factors, they can be within the overall range of the guidance for the offence and not just in that particular category of offence. I suggest to the hon. and learned Member for Harborough that that will give sentences a considerable degree of flexibility.
The hon. and learned Gentleman suggested that he would divide the House on amendment 43. Currently, the council will be asked to follow sentencing guidance and he suggests that instead it should "have regard" to it. Those words are in the 2003 Act. I was abroad at the time, so I claim no authorship and I cannot remember whether the Opposition thought that it was wonderful. In any event, especially in the area of the law, we have to learn from experience. The hon. and learned Gentleman would not suggest that the criminal justice process or law is fixed in the concrete in which it was embedded back in 1997—at least I hope not.
Of course not. Lord Justice Gage very kindly invited me and Mr. Howarth—who was also a member of the working party—to a briefing by him last summer, just before publication of his report. He made it clear that he was not producing a grid, or Minneapolis, system, and it was clear that he intended there to be a fair degree of discretion. However, what he told us then is not exactly replicated in the word "follow".
It is common ground that none of us wants a Minneapolis system or any other kind of American grid system, and that is not proposed. The Gage report said:
"recommends that the test for departures from the guidelines be made more robust by providing that the court may only pass a sentence outwith the guidelines if it is of the opinion that it is in the interests of justice to do so. A minority of the Working Group recommends that there should be no amendment to the statutory tests contained in the Criminal Justice Act 2003."
Earlier in the report, the working group considered the responsibilities that should be imposed on the Sentencing Council, but—critically—the reader is referred to annexe C where the working group proposes a change to sections 172 and 174 of the 2003 Act. The working group suggests the wording:
"Every court must...in sentencing an offender, apply any guidelines which are relevant to the offender's case unless it is of the opinion that it would be contrary to the interests of justice to do so".
The draftsman of the Bill has, as faithfully as possible, replicated that recommendation, so clause 108(1)(a) states:
"Every court must...in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case unless...the court is satisfied that it would be contrary to the interests of justice to do so".
There are better lawyers than me here, but I defy anybody to explain what is the difference between "must apply" and "must follow".
What the courts have been doing since the 2003 Act is apply the guidelines by taking account or having regard to them. If the Secretary of State is reducing this debate to a semantic discussion about the meaning of the word "follow", we have been wasting our time. I have a suspicion that "follow" means something more directional than "take account of".
It is the hon. and learned Gentleman who has made it a semantic debate, because he tabled amendment 43, which proposes that "follow" be replaced by "have regard to". There is a difference, and although I am not in favour of casuistry, I am in favour of semantics, because words are all we have, and they have meaning. There is a difference between "have regard to" and "follow" or "apply". My point is that in clause 108(1)(a) we are seeking to apply or to follow—not have regard to—what Lord Justice Gage and his colleagues explicitly recommended.
They wanted a closer connection between the guidelines and what the courts were doing.
I remind the hon. and learned Member for Harborough and the right hon. and learned Member for Sleaford and North Hykeham of two things. First, the changes proposed in the other Government amendments that I moved offer considerably more flexibility than the arrangements in the original Bill, as the hon. and learned Gentleman correctly suggested in Committee. Secondly, there is a very clear exception for the courts. Judges in court have great flexibility to refer to the whole of the sentencing guidelines when they judge that aggravating and mitigating factors make that appropriate. If they think that a sentence is outwith those guidelines, they are entitled to pass it if they believe that it would be contrary to the interests of justice to stay within the guidelines.
Does the Secretary of State accept that, when he advocates the use of the word "follow", he is giving judges less discretion than they would have if the amendments tabled by my hon. and learned Friend Mr. Garnier and me were accepted?
I accept that to a degree, although there is not much difference. I am seeking to implement what Lord Justice Gage recommended when he pointed out that most of the working group had said that the test for departing from the guidelines should be made "more robust". The people making that recommendation are not inexperienced in these matters.
The hon. Member for Cambridge says that that is not "follow", but something different. I say to him that it is "follow", but the suggested alteration to the current section 172 of the Criminal Justice Act 2003 uses the verb "apply" rather than "follow". I am perfectly happy to trade "follow" for "apply" because I do not know what the difference between those words is. I believe that they amount to the same thing.
First, and above all, the Government are trying to ensure respect and proper protection for the independence and autonomy of sentencers when they pass their sentences. That is critical: we need to provide considerable discretion, but we must also ensure that that discretion is exercised in a structured way that the public and other sentencers can understand. We are not fettering the judiciary, but we are saying that there should be a carefully moderated body of guidance. That guidance will be moderated by the process of drafting by the Sentencing Council and by the consideration that it will be given—not in the partisan bear pit of the House of Commons but in the more bipartisan Justice Committee.
When the guidance is finally endorsed by the Sentencing Council, perhaps following amendment, it will become the framework that sentencing judges and magistrates will be expected to follow. It will give them a great deal of flexibility, although they will have to make judgments about the starting point. For example, the existing robbery matrix offers considerable flexibility. Judges and magistrates have to make judgments about additional aggravating and mitigating factors—they can decide that those factors cover the whole of the range laid down for a sentence and not just one category of case within an offence range—and they can depart from the whole thing, if they consider that to be necessary and in the interests of justice. My hope is that we shall end up with greater consistency, which would be in the interests of justice, and of the public.
The right hon. and learned Member for Sleaford and North Hykeham made an interesting point about whether victims—and, by implication and to a degree, the public— had a role in the criminal justice system. I have great respect for the right hon. and learned Gentleman, who paid me the honour yesterday of supporting—
He was not quite my only friend, but they were few and far between. I was very grateful for his support, not least for where it came from and the level of information that lay behind it.
The right hon. and learned Gentleman's view that victims do not have a proper role in the criminal justice system is, however, one that I respect but disagree with profoundly. One reason for our success in raising the confidence of those who experience the criminal justice system very considerably over the past dozen or so years—and it is also a factor in ensuring that, far from rising by 50 per cent., the level of crime as measured by the British crime survey actually went down by 39 per cent.—is the fact that we have sought to place the victim at the heart of the system. I am unapologetic about that.
My hon. Friends the Members for Hayes and Harlington (John McDonnell) and for Walthamstow (Mr. Gerrard) mentioned resources. If I may, I invite them not to press their amendment to a vote, but I accept the burden of the argument—that on a number of occasions Parliament has been invited to endorse new approaches to sentencing, only to find that the resources have not been made immediately available.
As a response, the Government have inserted proposals in the Bill that amount to virtually the same thing as amendment 161. Clauses 110 to 115—but, in this respect, clause 115 is the most important—contain duties placed on the Sentencing Council to assess the
"impact of policy and legislative proposals"
I accept that when enthusiastic Ministers—and I can claim to have been one on a number of occasions—have bright ideas about new sentences, those bright ideas need to be checked for their effectiveness and for their cost. When we seek to translate those ideas into legislative form, we must also be able to tell Parliament where the money will come from.
The hon. and learned Member for Harborough says that we are suffering from them, but I was about to say that my mistakes pale into insignificance when compared with the triumphs of this Administration, of whom I have been an adornment.
Another hon. Gentleman on the Opposition Front Bench asks me to name the triumphs. I could name a number of them, but I shall name just one. According to the Conservative campaign guide of 1994, crime rose by 50 per cent. between 1979 and 1994. Under this Labour Government, crime has fallen by 39 per cent., which makes this the first Government since the war to achieve a fall in crime.
Will my right hon. Friend bear it in mind that part of that success was due to giving the youth justice system a clear purpose to reduce offending and reoffending? Will he deal with the amendments suggesting that the Sentencing Council should be given similar clarity of purpose?
I am glad that my right hon. Friend intervened with that remark, because it brings me to my last point. This is a parliamentary debate, and it is a good process. When I looked at the provisions on the Sentencing Council, I was a little surprised—even though I claim authorship of them—to find that although the purpose of the Sentencing Council was embedded in the clauses, it was not explicitly stated. Its purpose is to issue sentencing guidelines. I am happy to consider what my right hon. Friend has suggested, and to consider whether it would not be appropriate specifically to mention the importance of victims in clause 103(11), where we set out the matters to which the council must have regard. At the moment, we mention in subsection (11)(c)
"the need to promote public confidence in the criminal justice system"; by implication, that includes victims, but they are not mentioned explicitly. I promise my right hon. Friend that I will examine both those matters before, and during, the Bill's passage through the other place.
I absolutely do. I hope that I have satisfied the hon. and learned Member for Harborough in respect of amendment 43. If he reads Gage, he will see that what we are doing is entirely consistent with that report.
I will be brief, but perhaps I should first gently point out to the Secretary of State that crime has fallen in every western European country since 1995, except Belgium, so his claims for the unique success of his policy are a little odd.
I draw the Secretary of State's attention to what the hon. Members for Hayes and Harlington (John McDonnell) and for Walthamstow (Mr. Gerrard) said about the problems in the probation service, which mean that no matter what is said in this place, certain sentences will not be available to the courts. Probation officers will have to tell the courts that some sentences are not available in the area. The ideal is what is proposed by the Conservatives in amendment 44, which deals with the relationship between total resources and sentences. However, in reality, if the resources are not provided, we end up with the position that the hon. Member for Hayes and Harlington talked about.
I am in a bit of a dilemma on amendment 43, although the discussion between Labour and Conservative Front Benchers about the meaning of "apply", as opposed to "follow", helped me to conclude that there is not much difference between what they said. However, to the extent that Mr. Hogg is correct, and that what the Government propose is meant to be slightly more restrictive than what the Conservatives propose, I come down, in the end, on the Government's side. That is not because I agree with what they are doing in the Bill, which is to say that we should follow guidelines that are mainly still about punition and the seriousness of the offence.
In an ideal world, the guidelines would say more about reducing reoffending and would be properly designed to draw the courts' attention to sentences that they would otherwise probably not impose. The right hon. and learned Member for Sleaford and North Hykeham is absolutely right: judges are not fantastically well informed about criminology, although perhaps they ought to be. In that ideal world, the guidelines should be followed, because it would mean that judges had to think about other sentences, and would have to give reasons before moving from them towards a more traditional, comfort-zone sentence.
On the amendments that I tabled, I was glad to hear what the Secretary of State said right at the end of his remarks; I take what he said to Alun Michael to have been said to me, too, because we signed the same amendments. On the basis that the Secretary of State will consider what we said, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.