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Why do I say that? First, these summary-only offences are the least serious offences in our criminal law. We should be attempting most strongly to mitigate the concern about what is rather unattractively called up-tariffing. Secondly, the ratio of increase is greater with summary-only offences. Immediate custody has dropped by about 0.1 per cent. The rise in suspended sentence orders is around six times greater than that fall in immediate custody. For indictable offences in the Crown Court, the drop in immediate custody is 3 per cent, while the rise in suspended sentence orders is 10 per cent—about four times greater. I have given the figures. Although I am conscious of having poured figures on the House this afternoon, this is an important issue in terms of figures and numbers if we are deciding the right thing to do.
The counter-argument is that strict operation of the sentencing guidelines and the custodial threshold precludes magistrates from operating in this way and that the inevitable effect of this clause will be the precise opposite of what the Government contend; namely, there will be an increase—not a decrease—in custody rates.
I could not fault that logic if the operation of the custody threshold was an exact science. The truth of the matter is, as all noble Lords know, that it is not. There is necessarily an element of judgment. That inevitably leads, as the Lord Chief Justice put it, to a borderline area where the decision might go either way. As we have repeatedly made clear, our contention, based on the available evidence, is that, in the absence of a power to pass a suspended sentence, magistrates would, when dealing with these borderline cases, by and large opt for a community sentence rather than immediate custody. I pray in aid of our case Paul Cavadino, the chief executive of Nacro, who said:
“Restricting suspended sentences to more serious offences should help to avoid the ‘boomerang’ effect of these sentences which is boosting the prison population. This happens when courts pass suspended prison sentences on offenders who would not otherwise have been jailed and then activate them on top of a new penalty if the offender returns to court”.
I have had the benefit of listening to the debates in this House, both in Committee and on Report; I have also had the benefit of reading what was said in another place yesterday. We are ready to concede that we cannot be 100 per cent certain of the impact of Clause 10. We believe that it will increase the prison
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As I have said, we stand by the view that the provision will lead to more community sentences being passed and not to an increased use of custody. If we are wrong, the amendment passed by the other place yesterday deals with that possibility. If the clause does not have the effect that we believe it will, the amendment enables us, with the agreement of both Houses, to suspend the operation of the clause. Such a suspension would restore the option of a suspended sentence order for a summary-only offence and allow a breathing space to re-examine the impact of the clause.
The Government are not saying that they are necessarily 100 per cent right here. We think that we are, the figures suggest that we are and our experts tell us that we are right, but we may not be. The compromise that we are offering this afternoon is the possibility to revoke the change in the law by order with no need for primary legislation. I am advised that it should be possible to tell whether any untoward trend is taking place within 18 months of commencement. Given that the elected House has shown its views on this matter on two occasions, I very much hope that this House will agree that the compromise that the Government are putting forward is both sensible and proportionate.
Moved, That the House do not insist on its Amendments Nos. 9, 301 and 327, to which the Commons have disagreed, and do agree to Amendments Nos. 9A, 301A and 327A proposed by the Commons to the words restored to the Bill.—(Lord Bach.)
Lord Kingsland rose to move Motion A1, as an amendment to Motion A, to leave out from “House” to end and insert “do insist on its Amendments Nos. 9, 301 and 327.”
The noble Lord said: My Lords, Clause 10 amends Section 189 of the Criminal Justice Act 2003. It removes the recently granted power to magistrates to make suspended sentence orders in summary cases. As many of your Lordships will be aware, this matter was debated at length both in Committee and on Report and I have no intention whatever of rehearsing in any detail the arguments that were advanced. For those of you who were present at those debates it would be an irritant because you are already extremely well versed. Those of you who were not there might be a little better informed at the end of what I would have to say but, to adapt the famous words of Mr F E Smith, I am almost certain that you would be none the wiser. Suffice it to say that at the end of Report the Government were defeated by a majority which I think I can fairly describe as very substantial.
Why do the Government want to do this? This power was introduced in the 2003 Act. Its implementation was delayed to right until the end of 2005. It was allowed then—
Lord Bach: My Lords, I am sorry to interrupt but the date on which this became active was 4 April 2005.
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Lord Kingsland: My Lords, I am most grateful to the Minister for giving me the formal date but I am reliably informed that the practice was not in operation until the end of 2005; otherwise, why would the Minister place such emphasis on the comparative statistics between 2005 and 2006? The comparative statistics that he advanced would be absolutely valueless if the suspended sentence power was fully in operation between April 2005 and December 2005.
Having had one year of operation—2006—the Government then introduced their Criminal Justice and Immigration Bill now before your Lordships' House in 2007, revoking the provision in the 2003 Act. We all know that much of the content of the Criminal Justice Act 2003 has either not been implemented or already been revoked; so in a sense what the Government are doing here is very much in the tradition of what they have done with a whole range of provisions under the Criminal Justice Act 2003.
But our main concern about this proposal is that in our view the Government’s position is entirely irrational. A suspended sentence can be used only if the custodial threshold has been reached and the magistrate in question has concluded that imprisonment is the correct sentence. It is only at that point that he is entitled to consider whether, in the particular circumstances of the prisoner concerned, the conditions are present whereby a suspended sentence is appropriate. In other circumstances, a magistrate is prohibited from doing so by the appropriate guidelines.
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The Government’s view is that a magistrate has complete discretion to move between a suspended sentence order and a community order without any guideline constraint. That is simply not true. The picture that the noble Lord portrays of a magistrate being able so to act, in my submission, is a false one, however admirable the Minister’s motives might have been in bringing it forward.
The Minister talked about the Government’s amendment—I think he used the word “concession”—in another place. The problem that the Opposition have with that concession is that the Government are judge and jury in their own cause. The appropriate affirmative order would be brought forward by the Government only if, in their opinion, they had been mistaken about the matter before your Lordships’ House today; not in anyone else’s opinion at all. So it is entirely within the Government’s power whether they bring forward this order. In our view—again I am not calling into question the good intentions of the Minister—this is a bankrupt concession.
Let us be absolutely clear that the real motive for the Government bringing this matter before your Lordships’ House this afternoon is that they are desperately seeking ways in which to take pressure off overcrowded prisons. They believe—in my submission wholly wrongly—that one of the ways of doing so is to revoke this provision in the 2003 Act. A great deal has been said in Committee and on Report about how the Government have totally failed to match the vast increase in new offences that have been introduced over the past 10 years with the availability of prison
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Moved, Motion A1, as an amendment to Motion A, to leave out from “House” to end and insert “do insist on its Amendments Nos. 9, 301 and 327—(Lord Kingsland.)
Lord Thomas of Gresford: My Lords, these proposals represent incoherence and dither on the part of the Government. In 2003, they brought into place legislation that extended suspended sentences to include the possibility of the provision of conditions similar to a community order. That received considerable support from all parties. That was not brought into being, we are told, until April 2005; although the noble Lord, Lord Kingsland, thinks that it started later, towards the end of 2005. After barely a year in practice, the Government then introduced this Bill to remove from the magistrates the power to suspend sentences. Whoops, they made a mistake; whoops, the number has gone up and as the Bill goes through Parliament—whoops, they might be wrong again, so they are now proposing to have the power to revoke this provision. That is not the way that legislation should be dealt with. So much of the Bill has been concerned with piecemeal alterations to the law without any real coherent approach. That is what we on these Benches have said from the very beginning.
I made the point—my honourable friend Mr David Howarth in the other place made it far better than I could—that it deals only with suspended sentences in magistrates’ courts. We are told that they have gone up 8 per cent in magistrates’ courts and 10 per cent in the Crown Court. Nothing is said about the power of suspension in the Crown Court. In other words, to use phrase of the noble and learned Baroness, Lady Scotland, there is no “holistic” approach to this issue of suspended sentences. That is unacceptable and we support the Motion of the noble Lord, Lord Kingsland.
Lord Elystan-Morgan: My Lords, with respect, I do not regard the Government’s situation in such ungenerous terms as the noble Lords, Lord Thomas of Gresford and Lord Kingsland. It would be churlish of me not to accept that the Government have come quite some distance in their attempt to cure what may well have been an indiscretion on their part in the first instance. I said “indiscretion” because, for all the evidence that exists—empirical and anecdotal—in this context, it is extremely difficult to say exactly what the consequence of a change of policy and rules on suspended sentences would be. Even if the Government are exactly right in their analysis of what has gone wrong, they will never be able to say with any certitude or confidence exactly what the consequences of Clause 10 will be.
There has been a problem for a long time, which is, in many respects, an understandable jurisprudential problem in relation to the suspension of a sentence. In the Criminal Justice Act 1967, which brought in the concept of a suspended sentence, there was no spelling out of exactly how the sentencer—whether
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By and large, sentences were looked on in this way: “We have sentenced this person to imprisonment because we are satisfied in all the circumstances that that is the proper sentence. Ten seconds later we constitute a parole board and ask, what do we do with this person who is already incarcerated? In his or her circumstances we do not think it is necessary that the sentence should be served”. That was, to an extent, understandable, although it involved an element of mental gymnastics, but there was nothing improper or illogical in that approach. But there was a much more complicated situation when, some time later, in the 1980s, if I remember rightly, a custody threshold was introduced to determine whether the circumstances of the offence, and one other offence taken with it, brought that case across the line. Then, after considering all other circumstances, it was determined whether the sentence should be moved back to the other side of that line. It was no longer a concept of a parole board, but the concept of the court itself having to say, “The threshold has been crossed and, according to all general considerations, this case should remain a custodial matter—but, nevertheless, the person should not go to prison”. That is the difficulty.
I appreciate that the Government have not approached the stool of penitence and said, “We have sinned and we undertake never to do so again”. Governments do not do that and they would not last very long if they did that in any country. But I accept that the Government have thought deeply and sincerely about the problem and I am very grateful to the noble Lord, Lord Bach, for the thoughtful and careful way in which he put his case.
It seems to me that the case against the Government’s line is this: their intentions are good; the intentions of seeking to reduce the prison population are honourable and practical; but there is no way at all of guaranteeing that their proposals will have the desired result. They may easily have the equally opposite result. That is what happened in 1967 when suspended sentences took the place of fines. The evidence seems to be that that is what has happened in the past two or three years. There is now no guarantee at all that magistrates, confronted with this situation, will not act in a way in which the Government would not wish them to act and did not foresee that they would act. In other words, there is no guarantee that they would not say, “Very well. We’ll send the person immediately to prison”. That can easily happen.
Perhaps I may suggest with very great respect—and, I hope, without any impression of impudence—that there is a much better course that the Government can take. The ideal course would have been never to have passed Clause 10 at all, but an equally meritorious course would be to ignore it for a short period. Section 201, which concerns timing, is divided into a number of subsections and brings different parts of the Act into force at different dates and according to different formulae. Subsection (6) deals with all the matters that
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There may be one crumb of comfort to be derived from the way that the Government have approached this question. They envisaged that the matter should be dealt with by subordinate legislation rather than primary legislation; in other words, perhaps they do not anticipate bringing about yet another criminal justice Bill for the next year or two. I believe we all deserve a respite: judges, counsel and solicitors deserve a respite and—God bless them—even criminals deserve a respite.
The Earl of Onslow: My Lords, the noble Lord, Lord Elystan-Morgan, has produced the most marvellous comment on the Bill. He said that he wishes that Clause 10 had not been put in the Bill. He half agrees with the Government’s amendment but says that Clause 10 should not be brought in anyway because the Secretary of State has the power to do so later. If he does bring it in, he then has the power to take it away again afterwards. With respect, that is a dotty way to produce legislation. It is not dithering; it is ducking, diving, weaving, wobbling all over the place and playing a bending-pole race. That is not how legislation should be handled.
I wish to say one other thing en passant. The Government say that the number of people being given suspended sentences is very much higher than it was before. I understood from the noble Lord, Lord Bach, that the Government’s contention was that magistrates are being a bit iffy over the threshold. Let us assume for the sake of argument that they get 50 per cent of the thresholds right and not, as could be assumed, 100 per cent. That would still produce an enormous increase in the number of people being sent to prison if the ability to give suspended sentences was taken away. We have far too many people in prison. It must be more sensible for there to be a power to give suspended sentences and for the magistrates to do it. It seems to me a very weak excuse to say that magistrates have not taken any notice of the threshold test. I think that we must assume at the very least that they have at least 50 per cent of the thresholds right and, if that is the case, there will be an enormous increase in the number of people going to prison for relatively small offences. That cannot be the right thing to do.
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Baroness Butler-Sloss: My Lords, the noble Earl has been somewhat unjust to the noble Lord, Lord Elystan-Morgan. I do not think that his proposal,
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The Minister carefully and helpfully explained the purpose of what he wishes us to do today, but I could not entirely follow—I hope it is not my foolishness—how it was expected to work on the ground under Amendment No. 9A. I ask that we do not accept this amendment.
Lord Lloyd of Berwick: My Lords, I hope the House will forgive another lawyer from the Cross Benches having his say. I agree very much with what my noble friend Lord Elystan-Morgan said, but I am not sure that I agree with his conclusion, as I am not sure that I understood what it was.
Noble Lords on the Government Front Bench will know that I have supported them in their proper attempts to reduce the pressure on prison places brought about by the Criminal Justice Act 2003. For example, in the case of indeterminate sentences I did not think that the Government went far enough. It would have been better to raise the threshold for indeterminate sentences from two years to three or perhaps four years. I did not persuade the Government of that, and I certainly did not persuade the Conservative Party, which was in favour of quite the opposite course of reducing two years—back to where it is currently.
Clause 10 is another clause that is aimed in the same direction—to reduce the pressure on prison places. Therefore, I strongly support the objective. The noble Lord has produced some figures which, on the face of it, are persuasive, but they do not persuade me sufficiently strongly that we should in the mean time deprive magistrates of a sentence that they obviously find of the greatest utility in dealing with the cases before them. Although the Government may be right on this, based on their figures, I would prefer to back the opposite horse and will vote for the amendment of the noble Lord, Lord Kingsland.
Lord Mackay of Clashfern: My Lords, I wish to take a moment to say that I did not find the solution of the noble Lord, Lord Elystan-Morgan, in any way complicated. All he is saying is: if Clause 10 is left in the Bill it need not be activated until some time much later. Therefore, we could have more evidence than has been produced in the short period in which the 2003 Act has been operating. That seems to be perfectly simple and what I understood the noble Lord to say. It is certainly an option.
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Lord Bach: My Lords, it is an option, and I am grateful to all noble Lords who have spoken. But if it is an option, Clause 10 must stay in the Bill. I understand that the attempt is to take Clause 10 out.
Lord Elystan-Morgan: My Lords, I apologise for the convoluted way in which I put the argument. The point that I am seeking to make is that different parts of the Bill will come into force on different dates. The Secretary of State can delay certain parts of the Bill that are not specifically referred to in Clause 201(1) to (5) for as long as he or she likes. They could be kept in the fridge for some years. That was the point that I was making.
Lord Thomas of Gresford: My Lords, does the noble Lord agree that that is the problem with the 2003 Act? Great parts of it have not been brought in to effect and many of them have been abolished.
Lord Elystan-Morgan: My Lords, that is a proper political point to make but I do not think that it affects the argument in any way. This part of the Bill need not be brought into active force for many years. During that period, a close study could be made of what other avenues are explored—for example, stern evidence and advice being given to the Magistrates’ Association on the exact way in which magistrates should approach the problem of suspended sentences, if the problem is the same as the Government see it to be.
Lord Bach: My Lords, I am grateful to the noble Lord, but I would like to consider further what he has said. However, if the opposition amendment is successful, Clause 10 will be removed from the Bill; that is it, it is not there. There is no chance of any Secretary of State bringing it in, because it will not exist. That is why I ask the House not to vote for the amendment of the noble Lord, Lord Kingsland, but to vote to keep Clause 10 in the Bill.
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