Clause 100

– in a Public Bill Committee at 12:30 pm on 10 March 2009.

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Sentencing Council for England and Wales

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth

I beg to move amendment 150, in clause 100, page 60, line 17, at end insert—

‘(1A) The purpose of the Council shall be to issue guidance to sentencers, having particular regard to the effectiveness of each form of sentence in reducing re-offending.’.

Photo of Frank Cook Frank Cook Labour, Stockton North

With this it will be convenient to discuss the following: clause stand part.

Amendment 160, in schedule 13, page 148, line 20, at end insert—

‘(c) 6 members appointed by resolution of the House of Commons.’.

Amendment 161, in schedule 13, page 148, line 20, at end insert—

‘(c) 6 members appointed by the Prime Minister (“independent members”).’.

Amendment 158, in schedule 13, page 149, line 2, after ‘to’, insert

‘their experience and capacity for evaluating evidence on the effectiveness of different sentences, and to’.

Amendment 162, in schedule 13, page 149, line 7, at end insert—

‘(5) When appointing independent members, the Prime Minister shall have regard to their experience of and capacity for assessing evidence especially in relation to the effectiveness of sentences in terms of reducing re-offending.’.

That schedule 13 be the Thirteenth schedule to the Bill.

Clause 101 stand part.

Amendment 153, in clause 102, page 60, line 33, at end insert—

‘(1A) In proposing sentencing guidelines the Sentencing Council must have specific regard to the comparative effectiveness of different sentence options and indicate the data, research findings or other evidence on which the Council has relied in preparing its guidance.’.

Amendment 151, in clause 102, page 61, line 25, at end insert—

‘(aa) The relative effectiveness of different sentences in preventing re-offending;’.

Amendment 152, in clause 102, page 61, line 28, leave out ‘and their relative effectiveness in preventing re-offending.’.

Clauses 102 to 118 stand part.

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth

It is my pleasure to have tabled amendment 150, which introduces a group of amendments that I am sure Ministers will find constructive and helpful. My amendments are intended to provide clarity and focus in the work of the sentencing council, whose establishment under the Bill I welcome and applaud. All that I will say about the Opposition amendments that would prevent the establishment of the sentencing council is that I disagree profoundly with that approach. I agree with the Government that there should be a sentencing council and that sentencers should not only hear a case objectively and fairly before reaching a judgment, but have a good idea of the outcome that will follow from the sentence that they give. That is the fundamental reason for having a sentencing council, but if that is to work, the council needs to be genuinely objective and focus its work on real, hard evidence. The Bill as it stands does not achieve that sort of clarity or give that sort of role to the sentencing council.

I suspect that Ministers will share my general frustration that the so-called explanatory notes that accompany any Bill are rarely clearer than the Bill itself: they rarely provide any explanation and contribute only to the recycling targets in this House—indeed, they ought to be recycled as opaque and unhelpful notes. That is not the fault of the officials who draft them, but there is a degree of paranoia about saying anything useful that might affect the interpretation of the Bill itself.

Although the notes on this clause are as useless as ever, they unintentionally reveal a defect in the Bill. Paragraph 528 says:

“When it draws up guidelines, the Council must have regard to current sentencing practice, the need to promote consistency in sentencing, the need to promote public confidence in the criminal justice system, the cost of different sentences, their effectiveness in reducing re-offending and the Council’s monitoring of the application of its guidelines.”

The problem is that we get to item five of six before we find a reference to the effectiveness of “reducing re-offending”. The order of priorities is wrong. Even if it is argued that each of the six items is of equal importance, the effectiveness of sentencing in reducing reoffending is not given the high priority that it needs. Such an item is essential and should be the focus of the sentencing council.

My amendments are intended to address two key questions, which are not answered by the Bill as it is drafted. First, what is the sentencing council for, and what is it meant to achieve? That is not dealt with in the Bill as it stands. Amendment 150 provides clear purpose for the Bill. It states:

“The purpose of the Council shall be to issue guidance to sentencers, having particular regard to the effectiveness of each form of sentence in reducing re-offending.”

That means not that other considerations must be cast to one side, but that effectiveness must be the clear first focus, the first thing that enters the mind of members of the sentencing council when they reach their conclusions.

The second big question is who should be on the council and why? I have made two contributions in that regard. Amendments 160 and 161 propose that there should be additional members. Either amendment would improve considerably the membership of the sentencing council. Amendment 160 proposes:

“6 members appointed by resolution of the House of Commons.”

Amendment 161 proposes an alternative or complementary approach. It says:

“6 members appointed by the Prime Minister (‘independent members’).”

I then address the issue of who such people should be. Amendment 158 would insert the words

“their experience and capacity for evaluating evidence on the effectiveness of different sentences”.

That is important because judges, who are to be members of the sentencing council, bring experience of the courts and of judgments. They do not bring experience of the effectiveness of sentences once they are passed.

I wanted to clarify the purpose of members appointed by the Prime Minister, so in amendment 162, I propose the following:

“When appointing independent members, the Prime Minister shall have regard to their experience of and capacity for assessing evidence especially in relation to the effectiveness of sentences in terms of reducing re-offending.”

That is to ensure that the people appointed are capable of addressing the key question of how to reduce reoffending, which has to be at the core of what the criminal justice system is about, but is currently not at the heart of what the criminal justice system thinks it is about—if I can address such a complex organisation in that way.

Amendment 153 places a similar responsibility on the sentencing council itself. It says:

“In proposing sentencing guidelines the Sentencing Council must have specific regard to the comparative effectiveness of different sentence options and indicate the data, research findings or other evidence on which the Council has relied in preparing its guidance.”

I will touch on the Carter review in a moment, but there is a case for arguing that a link between the evidence and the conclusions is something that should be made compulsory. My point is that we should ensure not only that the right people are on the sentencing councils and that they have the right skills but that they are told what their priority is with regard to reducing reoffending.

Amendments 151 and 152 would, by deletion, extract

“and their relative effectiveness in preventing re-offending,” from low down the list of priorities and make the provision the first priority on the list of elements that the sentencing council would take into account when making its recommendations.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice) 12:45, 10 March 2009

Judges have some experience of the effectiveness of their sentences, because, all too often, they see offenders again and again. Judges therefore takes a close interest in the effectiveness of their sentence, for fear that it will not prevent, or help to prevent, reoffending.

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth

I understand the hon. and learned Gentleman’s point and respect his belief in judges’ capacity to evaluate the impact of sentencing. However, his belief is not well placed. The problem is that, in  seeing before them people who constantly reoffend, judges see the outcome of failure, not of effectiveness. I shall give an example of that in a few moments.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

On drug treatment and testing orders, judges review the individual, who comes back at two to four-week intervals, and one can often see the progression from drug addiction to health. It is one of the few occasions on which a relationship builds up between the judge as a human being and the defendant as a human being, rather than a statistic flowing down the criminal justice stream. That is something from which we can really benefit.

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth

I am happy to agree with the hon. and learned Gentleman, but he makes my case for me, because that, in his own words, is the exception when it comes to sentencing. It is a valuable and useful one, not only for the person who undertakes the rehabilitation and whose situation the judge reviews, but for the judge, who can see its progression.

I used to chair the youth court—then the juvenile bench—in Cardiff, and I felt that the engagement of the sentencer with what happened after the sentence was particularly useful. My experience was informed by the fact that I was a youth worker with young offenders, and those whom I had sentenced often appeared on projects I ran. It was a salutary experience, because I thought that when I had told youngsters precisely why a particular sentence had been decided upon, they would understand every word; by and large, however, they had either not understood or not heard a word in the court situation.

The link between the sentence and what happens afterwards is often not available to sentencers—I hasten to add that I never sat on a case involving a youngster about whom I had prior knowledge, because that would not have been right. On occasions, however, I saw the consequences of the sentencing process and its limitations, and that has encouraged me in the approach I propose.

In response to the hon. and learned Gentleman’s interventions, my point is that the relevant experience of judges, to which he referred, is already available to the sentencing council. At present, judges are to be on the council and in the majority, which is fundamentally wrong. Their experience should form a part of the council’s deliberations, but not the whole of it; there is more to it than that. My basic belief is that the sentencing council should be about evidence, evidence, evidence. I do not mean court evidence or evidence heard in court, or evidence about the nature and seriousness of a specific offence; I mean evidence of what works.

Judges are influenced by the media and by political debate in the media, as they acknowledge. They tell us so, and sentences demonstrate that they are influenced by the wider media debate. I am thinking of, for instance, the increase in prison numbers. The public think that courts are extremely lenient, yet in fact the evidence is that by and large courts take the decisions that the public would take if they were passing the sentence. The reality is closer to what the public think is just and right.

The sentencing council needs to balance the tendency to be influenced by wider public and media debate, by having the guiding principle that it is informed by what actually happens as a consequence of different sentencing options.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

I agree with every word that the right hon. Gentleman has said, as other Committee members will be able to tell from the fact that I have signed nearly all his amendments. I would like to illustrate the point about judges not knowing. I once had a conversation with a High Court judge—I will not name them—who said to me, “We should go back to the short sharp shock. People come before my court and I see them not responding, so a short sharp shock would work.” The evidence shows that short sharp shocks do not work. The social science evidence on that is very clear, but eminent judges have never been exposed to that sort of evidence and they need to be.

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth

The hon. Gentleman has made a good point, and I am grateful for his support for my argument. In the course of visiting a number of penal institutions in America, I found attending a boot camp a salutary experience. For the first half-hour that I was there, I thought I was seeing all the characteristics associated with a short sharp shock. The young men in the boot camp were being marched around, barked at, made to smarten themselves up and all the rest of it. However, I thought that something different was going on when I saw the number of people, including volunteers, who were engaged with those young men when they went into the educational part of the establishment. There, they were made to pay attention, but they were, in effect, being dragooned into learning to read and write.

The headline “Short Sharp Shock” had the subscript of “Let’s make sure that these young men go from this place with the ability to read and write, because then there is a chance of them becoming useful members of society.” That is why it is very important to get under the headlines of what sentencing is about, into the detail, and in understanding that detail, to understand that sometimes a headline can be combined with something that works, and sometimes something that works can be combined with a headline that reassures the public.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

The more I listen to the right hon. Gentleman, the more I think that he must have read our paper “Prisons with a Purpose”, published last March. I want to make a helpful intervention in relation to the point made by the hon. Member for Cambridge. I am sure that what the High Court judge said was what he thought was right, but by and large High Court judges tend to try the most serious criminal cases and therefore they do not deal with the sentencing options that the right hon. Member for Cardiff, South and Penarth as a magistrate or I as a recorder have to deal with. For what we are talking about, the evidence will most usefully come from the general infantry of Crown court judges and magistrates, rather than from the High Court.

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth

Listening to the hon. and learned Gentleman, I think that his contribution is informed by his experience as a defence barrister, rather than a recorder—I am sure that the judges will be very pleased with their advocate here. I am not talking against judges; I am merely trying to define the limitation on the sentencing council if only judges bring their issues to bear. At the top end of danger—the most dangerous criminals—I am not too bothered about that, because that is where the public need to be protected and where the focus of the court system is quite good. It is the  generality that I am concerned about. We have ended up with numbers of people who do not need to be in the criminal justice system or do not need to be in it in the long term and who could be taken out of it by interventions at the right stage.

The Chairman adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Four o’clock.