Criminal Justice and Immigration Bill

Part of the debate – in the House of Lords at 4:00 pm on 30 April 2008.

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Photo of Lord Bach Lord Bach Government Whip, Government Whip 4:00, 30 April 2008

My Lords, I am of course not saying that. I know that learned judges do that up and down the country. Perhaps the noble Lord, Lord Thomas, will hear me out before interrupting. In passing the Criminal Justice Act 2003, Parliament created a specific task for courts of assessing the dangerousness of sexual and violent offenders. The decision on risk would be made in the context of a new sentencing regime—one that has particularly serious ramifications for offenders who fall into its scope. I think we agree that those ramifications can be extremely severe. We believe that it was important to have clarity, from the beginning, on the breadth of information and evidence that a court can consider in assessing dangerousness in this new context.

On Report, I referred to the case of Considine, and the noble and learned Lord, Lord Berwick, has made his analysis of it. That will perhaps teach me better, as a mere ex-junior member of the Bar, about trying to cross swords with the noble and learned Lord. If I were to have appeared before him in days gone by, the thought of that would have terrified me for the weekend before, but in what I hope is the safety of the House of Lords I will make my point on Considine.

The noble and learned Lord asked whether we agreed that the Considine judgment showed that the new Section 229 would add nothing to the factors that a court would normally consider. The answer to that, to be absolutely blunt with the House, is that I do not think that it is particularly relevant to the issue that the House may have to decide in a few minutes whether we agree to that or not.

As I explained, it would have been an omission for the Government to have failed to cover that point of the legislative scheme when we set up the legislation in 2003. The alternative would have been to trust the case law developed in other contexts in which dangerousness needed to be assessed and that that would be assessed and applied in the new context. We did not want to do that at the time because we wanted the new system to be clear from the very beginning, in view of the novelty and seriousness of the new sentencing proposals. As the noble and learned Lord told the House this afternoon, the courts did, in fact, by a process of case law development, confirm subsequently that the statute reflecting case law, derived in other contexts as to assessing dangerousness, is helpful. But does it follow that, because that is what the cases have decided, the statute is dispensable? We argue not. We do not believe that it is right to repeal the statute on the basis that subsequent case law would give courts the guidance that they need.

It is, we think, particularly the case—although I think that the noble and learned Lord disagrees with us on this point—that a repeal of Section 229 would imply an intention to alter the law substantively. It has not been suggested that there is any need to change the position regarding the breadth of information that may be considered in the changes that we have made in this Bill. Indeed, we would argue that, given the wider changes that we are making to the public protection legislation, it is more important than ever that it remains in place. We think that repeal of Section 229 would therefore create a doubt where currently there is none. It is there in statute.

For whose benefit will that be done? It is not necessarily for that of the learned judges who will of course have to pass sentences. However, I remind noble Lords that soundings that we have made suggest that a number of very senior judges who work in the criminal field are of the view that it would be helpful to keep this section in. We think that there are also significant presentational advantages in making it clear to criminal justice agencies and, perhaps, even to the general public, that previous convictions and the other kind of information that is relevant and lawful to be taken into account by a sentencing judge are very relevant to the assessment of risk. We believe that it is transparent—it is there in the statute—and we believe that it encourages confidence.

Those are the arguments that the Government put in suggesting that, on balance, it would be advisable to keep this part of Section 229 on the statute book.