Criminal Justice Bill [back to previous text]

Mr. David Kidney (Stafford): The hon. Gentleman will remember that this morning I raised a question about statutory sentencing purposes to which judges, but not the Sentencing Guidelines Council, will have regard. Is he aware that one of the matters to which the Sentencing Guidelines Council will have regard is the promotion of public confidence? I am still unsure about the relationship between the two matters. Mr. Malins: I take the hon. Gentleman's point, but in a sense he is returning to the issue that we discussed this morning on a different group of amendments: should a list of the purposes of sentencing in the clause Column Number: 726 be longer or shorter, and has everything been included? The last example of a prevalent offence is retail crime—theft from shops—which is dramatically increasing in many parts of the country. I hope that I have given the Minister food for thought. My amendments are intended to be no more than probing amendments. Simon Hughes (Southwark, North and Bermondsey): I will speak mainly about amendments Nos. 532 and 667. The first has been touched on. We had a debate this morning about whether we should have purposes or principles or both. If we are seeking to have a definition of purposes, a couple of the examples given this morning—vandalism to a statue, the theft of an osprey egg—offer good illustrations that the case for having restoration to communities is well made: people would frequently understand that something was being done for the community or the neighbourhood, such as putting money back into the kitty. Amendment No. 603 proposes that reparation should be financial. There is a case for that, but we now accept that there are wider ways of offering reparation than merely the financial way. There is a debate to be had about that. Many of us believe that because the fine system has been inadequately followed up it is now inadequately used. We often do not use financial penalties when we should—that applies to financial reparation, among other things. However, there are things that are not financial, such as the community activity that has been mentioned, and I support that as a way forward. The hon. Member for Nottingham, North properly sought to have part 2 of the debate that we had this morning about the definition. It was suggested that if we are to have a purposes list, the first four purposes of sentencing should be punishment, reduction of crime, protection of the public and making of reparation, and that reform and rehabilitation of offenders and public confidence should be added at the end. I prefer the wider list to the shorter one: it is clearer to move that long grouping of things under paragraph (b), and to break that up as we discussed earlier. Amendment No. 667 is a variation on the same theme. It offers an alternative way to assist with the treatment, reintegration and rehabilitation of offenders. I wish to refer again to the work of Mr. Halliday, because there are a couple of interesting points to be made about why the Government did not accept his recommendations in an area where they would have done better to do so. In the section on the case for change, Halliday refers to the fact that the law was amended in 1991 in legislation setting out sentencing principles—and, therefore, sometimes sentencing frameworks, although on the whole I prefer principles. Mr. Halliday and others sometimes talk about the goals for sentencing, and now we have moved on to purposes, but we should try to keep the concepts clear. I do not pretend to be an expert about this; I am merely retailing the common view that emerges from everything that I have read, which is that the 1991 Column Number: 727 legislation did not achieve its objective. It intended to set out a framework that would produce more alternatives to imprisonment as sentencing outcomes. However, chapter 1.34 of the ''case for change'' section of the Halliday report states: ''The Criminal Justice Act 1991 was interpreted by the courts in ways that had not been predicted or expected. In fact, the 'just deserts' approach failed to take root, because deterrence was soon reinstated as an aim of sentencing. This was compounded by the Act's failure to deal satisfactorily with the relevance of previous convictions.'' Chapter 1.36 states: ''An attempt in the early 1990s to construct a new framework for sentencing failed, rapidly, to achieve its purpose. Substantial further erosion has taken place since, yet no new vision has been put in place of the original. The result is a muddle, which is not good for consistency, public understanding, or a sense of common purpose amongst the various agencies involved in sentencing. Practitioners complain bitterly about the consequent complexities and inconsistencies, which they feel are a drag on efficiency as well as effectiveness. It is only because of their ingenuity and application that the results are not worse.'' If anyone asked how sentencing was supposed to work, they would be pointed in the direction of a massive volume of statutes, most of which amend each other, and to an equally large volume of case law that is conveniently set out in the three-volume encyclopaedia edited by Dr. David Thomas. In addition, the inquirer would be directed to the magistrates court sentencing guidelines. Nevertheless, the framework is still relatively inaccessible. If we are trying to get purposes, principles and guidelines sorted, I would make a plea for that to be done in one piece of legislation that refers to how guidelines will be used. The hon. Member for Nottingham, North and the Liberal Democrats believe that the list should be amended. We should, however, be clear about whether we are setting out goals, purposes or principles, or—as I suggested and think is right—whether we could have all of those. If we talk about sentencing principles in respect of subsequent clauses, or about practice or framework—call it what one will, although I believe that the word ''principles'' is better—we should say that that is what we are doing and we should set them up clearly, so that we know where we are going. Stephen Hesford (Wirral, West): Does the hon. Gentleman not accept that deterrence is a proper part of the framework? Simon Hughes: That is one of the proper purposes of sentencing. In their judgments and in sentencing, judges—including district judges—will often say things like, ''We are going to give you a particularly high penalty because we are determined to try to stop other people doing this and to stamp it out.'' Further to that, I refer the hon. Gentleman to the case made by the hon. Member for Woking (Mr. Malins). Deterrence is perfectly proper when it is used in the hope that the message gets out to the community that gun crime, prostitution, or whatever is not attractive an proposition in that part of the world. Deterrence may not solve the problem nationally—in fact, the problem may move somewhere else—but it is perfectly proper. Column Number: 728 The current list refers to punishment, reduction of crime, protection of the public and the making of reparation, all of which are proper purposes. Amendment No. 602 would add public confidence and the prevalence of the offence, and amendment No. 667 would add treatment, reintegration and rehabilitation. Those are all perfectly proper purposes for sentencing. We must consider carefully the rest of Mr. Halliday's analysis and his conclusion. He discussed whether the guidelines having been changed had resulted in different behaviour. I will not read out the report in detail, because people can read it for themselves, and I refer hon. Members back to the document, as the Minister did earlier. Mr. Halliday sets out clearly the evidence that he collected, which shows that frameworks do not necessarily produce the outcomes for which people would wish. I shall cite two examples from Professor Ashworth's advice on behalf of Justice, in which he puts his case clearly. He says: ''In the White Paper and on second reading much praise was lavished on the Halliday report for preparing the ground for these major sentencing reforms. The government has failed to explain why it diverged from Halliday's proposal that the primary rationale for sentencing should be proportionality to the seriousness of the crime, which is a modified version of that stated in the current law (but never applied faithfully by the courts).'' Thus, Halliday argued for the 1991 Act to be clarified and for that to be applied in the courts. Professor Ashworth then says: ''This Government has often trumpeted the importance of evidence-led penal policies, but the evidence for the effectiveness''— this relates to the question asked by the hon. Member for Wirral, West (Stephen Hesford)— ''of general deterrent sentencing was examined by a team from Cambridge University at the instigation of the Home Office, and it found insufficient evidence that increases in the severity of sentences (as distinct from the risk of detection) had a significant effect on law-breaking.'' That research—not mine—showed that increasing risk of being caught was more important than increasing severity of sentences. Stephen Hesford: That is why I raised the question a few moments ago. I am unsure where this line of argument goes. With respect, the hon. Gentleman seems to be arguing against deterrence. Simon Hughes: I argued that the purpose of deterrence was fine, but making it into a principle is no good if it does not work. I argued this morning that we should separate the two ideas. It is perfectly proper to view the purpose of sentencing as deterring crime, but going through the mechanism of working out what sentence to pass with deterrence in mind may not be effective. Guidance about priorities is necessary and I refer the hon. Gentleman to the work done in response to the Bill, which appears to back that up. The Halliday report noted various findings and pointed to the weakness of the evidence in favour of the incapacitative effect of sentencing. Halliday proposed that neither deterrence nor incapacitation should be relied on as a justification for sentencing. [Interruption.] If the hon. Gentleman will bear with me, before we put certain components in or out of the list, Column Number: 729 we must be clear about their purpose and sure that they will work. If we are going to apply principles of sentencing, we must analyse the evidence that they will work in practice. Deterrence may be a good purpose, but not necessarily a good sentencing principle, because it may not work well in practice.

©Parliamentary copyright 2003	Prepared 30 January 2003