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Noble Lords: Yes.

Lord Clinton-Davis: My Lords, so the answer is that a person who has put down their name should be present on both days throughout if possible.

The Chairman of Committees: My Lords, I shall attempt to answer some of the questions that have been put. They fall broadly into two or three categories, one of which is attendance at debates. I am most grateful for the words of support from around the House, starting with the noble Lord, Lord Carter, who, like the noble Lord, Lord Dubs, queried the use of the word "normally". In the current revision of the Companion, "normally" will be dropped, so it will read,


On the point made by the noble Earl, Lord Ferrers, the Companion clearly says that Members should be present for at least the speech before their own and that following it. That is already covered.

The noble Lord, Lord Stoddart, suggested that the notice at the top of the list of speakers should be put in bold type. I am told by the Government Chief Whip that it will be in future.

The amount of time allocated to Front Benchers and Back Benchers on Statements could be discussed at the next meeting of the Procedure Committee. I am also grateful to those who supported the proposal that interventions under the present arrangements should not be too long.

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When I was answering Parliamentary Questions, I always thought that the best answers were generally "Yes, my Lords" or "No, my Lords". It might be good if Ministers could do that more often and if noble Lords asking supplementaries could keep them as short as possible.

The noble Lord, Lord Clinton-Davis, asked about the two-day debate that we are having next week. Anyone who has their name down to speak in that debate, whether they are speaking on the first day or the second day, should definitely be present for the opening speeches on the first day and for as much as possible of the rest of the debate—certainly for the speeches around their own speech and for the winding up speeches on the second day. I hope that noble Lords will not put their name down to speak in that debate unless they are able to fulfil that commitment.

Lastly, I come to a completely different point made by the noble Lord, Lord Trefgarne. I was not aware of anything such as a confidential memo being circulated. It is quite normal for the usual channels to circulate memos among themselves, but I am not certain what it was about and what relevance it might have.

I hope that I have answered most of the questions. I am conscious that, if we go on with this debate any more, those who put their names down to speak in the debate this afternoon may find themselves running up against dinner engagements.

Lord Mishcon: My Lords, I was present at both the beginning and end of the noble Lord's speech, but I did not notice a reply to my point about the abnormal situation that can occur.

The Chairman of Committees: My Lords, I accept that there could be an abnormal situation. I am sorry that I did not reply to the noble Lord, Lord Mishcon. He spoke about receiving a phone call. I was not quite sure when that phone call would take place—whether it would be before or after he had spoken in the debate. If he had spoken, he should obviously then wait for the winding up. If the phone call comes through, he should preferably try to put off receiving it until the debate is over.

Lord Trefgarne: My Lords, I am not in the least bit satisfied with what the noble Lord has said. I am told that a private memorandum was indeed circulated by the Lord Privy Seal seeking to restrict discussion on a part of the agenda of the meeting over which he presided. I am surprised that the Chairman of Committees did not receive a copy of that memorandum, but perhaps he was thought as unreliable as I am.

The Chairman of Committees: My Lords, if there was a memorandum, I understand that it was circulated within the usual channels. I do not myself recall having received a copy of it, so I find myself in some difficulty in replying to the noble Lord's question.

On Question, Motion agreed to.

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Sentencing Policy

3.42 p.m.

Lord Henley rose to call attention to sentencing policy and, specifically, to the debate on sentencing for burglary and firearms offences; and to move for Papers.

The noble Lord said: My Lords, sentencing policy is a pretty big topic, and it is possibly not one entirely suitable for a short, time-limited debate on a Wednesday afternoon, particularly with the virtually total lack of interest shown by the press and broadcasting authorities in what happens in this House, even when a debate such as this seems to attract such a high-quality list of speakers. I am pleased to say that we have two former Lords of Appeal in Ordinary, a former Attorney-General, former Home Office Ministers, a former chairman of the Parole Board, special advisers to the Home Secretary, a chairman of the Youth Justice Board and much more. I trust that other noble Lords will not feel belittled for not being singled out, but we have a very high-quality list.

We must see the bigger picture, which is possibly overlarge for this afternoon. For that reason, I thought that I would offer some focus for the afternoon's debate by concentrating on sentencing for burglary and firearms offences. I suspect that most noble Lords will have a pretty good idea as to why I want to concentrate on those two issues. First, they have both been in the news somewhat in recent days. Secondly, there is a considerable degree of confusion in my mind and, I imagine, the minds of other noble Lords, as to what is exactly the Government's policy and intentions in this area.

There is also—dare I say it—confusion, certainly in my mind, as to who exactly in the Government has responsibility for initiating policy in this area, and who will take such policies forward. Therefore, I wish to say how grateful I am—I suspect that we all are—to the noble and learned Lord, Lord Falconer, for coming here this afternoon and offering to reply to us. I am sure that the whole House will be grateful to him when he helps to clear up the confusion—it is certainly my confusion—as to where the Government stand on the subject.

We are all rather used to mixed messages coming from the present Administration. It happens with alarming frequency. For example, it was only the other day that the noble and learned Lord the Lord Chancellor made some innocent remarks about the future of this House, only to be contradicted very soon afterwards by the Leader of the House of Commons. Recently, we heard the Foreign Secretary, preparing no doubt for a new career as a bookmaker, offering odds on a war with Iraq, only to be rapidly corrected by the combined guns of the Secretary of State for Defence and the Prime Minister's Office. It is not only the Secretary of State for Education and Skills who voices his views on top-up fees for students, as he is joined by the Chancellor of the Exchequer and the Secretary of State for Overseas Development, both of whom seem to be completely at odds with his views.

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On the euro, we seem to have been living for a long time with very mixed messages emerging from the two courts of No. 10 and No. 11.

On the two areas that I have highlighted this afternoon—sentencing for burglary and for firearms offences—we have reached new heights of confusion. At times it might seem highly comic but, as recent events have shown, they are not areas of comedy. In some cases, they are highly tragic and deeply serious. We deserve a better, more clearly thought-out response from Her Majesty's Government, and I trust that is what we will get from the noble and learned Lord, Lord Falconer, this afternoon.

I shall start with burglary. We must begin with the new guidance that was offered by the Lord Chief Justice some time in December last year. I would be the first to say that it is quite right and proper that he should issue guidance to the judges. I have no complaints about that. It might then have been misinterpreted, particularly by some in the press. One might not necessarily agree with all that he had to say. It might even be that the press did not always do justice to his words. However, it is perfectly right and proper that he should offer such guidance on sentencing to judges so that they know roughly the remit in which they ought to operate.

Many think that the approach of the Lord Chief Justice, as they understand it, could be termed as too soft on crime. We know that the Government intend to be, as they put it, tough on crime and tough on the causes of crime. His approach is thought to be too soft in that first and second-time convicted burglars should not necessarily always expect to go to gaol. I tend to favour the view that in the main they should go to gaol, but I say that merely as an aside. The point is that the Lord Chief Justice was quite entitled to make his views known, and was quite right to do so.

Some time later, in due course, the noble and learned Lord the Lord Chancellor decided that he should join in the debate. Again, I imagine that that is quite right and proper. As he offered support for the Lord Chief Justice on the "Today" programme, we heard—this is possibly the comic part—that most people were quite happy to see burglars, even if it was their second offence, kept out of gaol providing there were "no aggravating elements", whatever he meant by that. In my view, a burglary is always pretty aggravating.

I also find it extraordinary that the noble and learned Lord the Lord Chancellor thinks that most people share his view on the subject, but perhaps he and I live on different planets. Most people whom I come across certainly think that burglars should go to prison, and quite a lot of them think that they should go to prison for a very long time indeed. Of course, that does not mean that they should. That is why we have judges, why the judges do the sentencing, and why we do not have mob law. The point is that the noble and learned Lord the Lord Chancellor was, I suspect, wrong to claim that he had mass popular support for his views on sentencing policy.

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There is another party that does not seem to share the noble and learned Lord's views on sentencing for burglary, and so he would obviously think that it was not in line with "most people". That party is No. 10. As the press put it soon after he had spoken:


    "No. 10 slaps down Irvine over jail for repeat burglars".

That appeared in the Evening Standard on 8th January. On the same day, the Sun stated:


    "Blair slaps down Irvine on burglars",

and we were also assured that at Question Time the Prime Minister would want to send out a clear message that burglars, particularly second offenders, would go to prison irrespective of the effect that that might have on the prison population.

To add to the confusion, the Sunday Times contained further reports, allegedly from a senior government figure. I should be grateful if the noble and learned Lord, Lord Falconer, explained whether the quotations were made up by the Sunday Times or whether they represent the Government's views. That senior government spokesman discussed the "muddled and confused" thinking of two "old codgers". Referring to the Lord Chief Justice, the government spokesman said:


    "To do the old codger justice, I think his intention was different to his muddled and out-of-touch presentation because I don't think he meant that those who committed other forms of offences should be let off if they subsequently committed a burglary. But there is no doubt that some judges interpreted it that way".

I hope that it is clear why I am interested in hearing the comments of the noble and learned Lord. The spokesman went on to say that the intervention of the noble and learned Lord the Lord Chancellor had,


    "merely confused the issue further by backing Woolf without that proviso".

He added:


    "Neither of them are politicians. Derry has a slight requirement to be part of the government, given that he is paid as the lord chancellor and wouldn't be in this position if we hadn't been elected.


    "Woolf just doesn't understand the world he is operating in, in terms of communication. Derry is expected to, and that is why Tony was so livid with him".

I should be grateful for a further explanation from the Government about what that spokesman was on about and what exactly he meant.

I am very confused and muddled as a result. Just what exactly is government policy in this area? I hope that the noble and learned Lord will clearly tell us. Can he also assure us that his noble and learned friend is wrong, or will he try to use some Alice in Wonderland double-speak and assure us that all are right—the noble and learned Lord the Lord Chancellor and other spokesmen? I feel that I am "Confused of Carlisle" and I should like the noble and learned Lord to "unconfuse" me.

I turn briefly to gun crime. We have all known for some time of a growing gun culture in certain parts of inner cities, which is closely allied to a growing drugs trade—another area, dare I say in passing, in which we have rather mixed messages from the Government. I

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am sure that the Government have been actively considering sensible measures in this area to deal with the growing problem of gun crime. In fact, we have an assurance from the Prime Minister himself, no less, that a month ago the Government were actively considering the possibility of a mandatory five-year sentence for illegal possession of a firearm. He made that clear on 8th January this year at Prime Minister's Questions. Although they had been thinking about that—actively considering it, so we were told—they did not bother to put it into the Criminal Justice Bill, which was introduced in another place before Christmas.

Then in the early hours of 2nd January this year, we had the tragic murder of the two young girls, Latisha Shakespear and Charlene Ellis, and the wounding of two others in a dreadful incident in Birmingham. Pretty soon afterwards, in what appeared to be a classic knee-jerk reaction, a junior Home Office Minister—I believe that it was Mr John Denham—assured us on the "Today" programme that a mandatory five-year sentence for illegal possession would be introduced. He also told us that that was not a knee-jerk reaction because the Government had been considering it actively for some months but that although they had not bothered to put it in the Criminal Justice Bill they would now do so. A little later, however, they said, "Actually, the five-year sentence would not be mandatory and the judges would have some discretion". In passing, as always, the Minister received some support from Dr Kim Howells, of the Department for Culture, Media and Sport, who referred to the evils of rap music in terms of creating the gun culture. I must ask whether we are likely to see yet further powers added to the Criminal Justice Bill allowing either the Home Secretary or the Minister responsible for culture to introduce censorship of music or whatever it is that is undesirable or subversive.

I make it clear that I do not have any easy answers about how to deal with the growing problem of gun crime. I am sure that that is the case for many of us. I am sure that there is much that can and should be done and that there are no easy fixes. We are bound on a long and hard road that will be hard to follow. A five-year mandatory sentence for illegal possession—that knee-jerk reaction—could be imposed simply for an administrative error: someone might forget to renew their firearms certificate. That does not appear to be the most constructive way to go about things.

Again, I am confused about what the Government are doing and I trust that the noble and learned Lord will do his utmost to "unconfuse" me and let me know a little more so that I can see the full picture. That should not, I suspect, be too difficult. My Lords, I beg to move for Papers.

3.56 p.m.

Lord Corbett of Castle Vale: My Lords, I congratulate the noble Lord, Lord Henley, on introducing this short debate. I remind the House that I have the privilege of chairing the all-party penal affairs group.

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My view is that the newspaper headlines about the Lord Chief Justice's guidance to sentencers following convictions for burglary are mischievous, misleading and grossly inaccurate. They do not add up to what the irresponsible tabloids, such as the Daily Mail and the Daily Express—and some of the grown-up newspapers as well—have dubbed "a burglars' charter". This is a manufactured row that blithely ignores the facts and sets out to distort for narrow party-political reasons. The fact is that most burglaries are carried out to raise money to pay for drug abuse. I know of no treatment for burglary, although I do know of several successful treatments for drug addiction. That is rightly where I believe the focus should be.

In the 12 months to last September, all crime fell by 7 per cent and domestic burglary was down by the same amount. The British Crime Survey shows that since 1997 burglary is down by 39 per cent. Those are the facts that too many newspapers and other media ignore.

The second largest group of people in prison have been sentenced for burglary: a total of 9,130 men and women as at last June. The second largest group of prisoners remanded in custody are charged with burglary: 1,990 out of a total of 13,080 last June. In both cases, those totals are higher than those convicted of or awaiting trial for charges involving drugs, robbery, theft and handling and sexual offences.

The public are getting a bad and expensive deal out of sending to prison too many people whose offences do not justify that. Two out of every three people sent to prison are back inside within two years, at a cost of around 32,000 a year. There are 5,000 more people in prison now than a year ago. The public's money is also misspent because too many people are remanded in custody who later do not receive custodial sentences. In 2000, some 52 in every 100 male prisoners on remand did not get a prison sentence and two out of every three women on remand in prison did not get a custodial sentence. About one in five of male and female prisoners sent to prison on remand were subsequently acquitted. The public are being misled into believing that prison works. It does not; certainly not in terms of reconviction rates. I shall illustrate the point for noble Lords. Of every 100 people who serve a community sentence, 11 fewer are reconvicted within two years compared with those who are gaoled. The crude figures are a reconviction rate of 44 per cent for those serving community sentences against 55 per cent for those given custodial sentences, and community sentences cost one-tenth the amount of keeping someone in prison.

Of course, those convicted of serious and violent crimes belong in prison where serious work can be, and increasingly is being, done in dealing with offending behaviour, drug and alcohol abuse and basic literacy and numeracy skills. However, I have to say that none of that work is helped by overcrowding. But for many other types of offender, non-custodial community sentences are sensible and adequate where properly designed and resourced and they can and do help people to live more fulfilling lives.

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I shall take it as an unhappy slip of the tongue that, according to today's Daily Telegraph, the Home Secretary, Mr David Blunkett, regards community sentences as "simply being let off". That echoes the slipshod newspaper reporting of "people walking free", as they put it, after being convicted and given a community sentence. I am encouraged to take the generous view that it was a slip of the tongue on the part of the Home Secretary when I recall what he said in March last year:


    "If anyone . . . seriously believes that a further exponential rise in the prison population for short-term prisoners and first-time offenders is the way to ensure our safety, then they are sorely deluded".

As the Lord Chief Justice said yesterday,


    "a community sentence can provide protection for three years during which a combination of tagging and curfew orders will keep the offender off the streets".

Let us compare that with what happens over custodial sentences: three in every four sentences are for 12 months or less—that is, 80,000 a year roughly; 40,000 are for three months or less; and 14,000 are for one month or less. That gives the Prison Service no chance at all to do any serious work with prisoners in trying to address their offending behaviour.

I believe that parliamentarians and the media, as well as sentencers and the Probation Service, need to argue the merits of community sentences, where appropriate, as a more effective route to rehabilitation. It really is simple: if better and more effective ways of addressing offending behaviour and its causes are used through the range of community sentences, communities can be made safer and, in turn, our prisons more effective and less overcrowded.

4.2 p.m.

Lord Dholakia: My Lords, I add my thanks to the noble Lord, Lord Henley, for this timely debate. Looking at today's newspapers, he could not have picked a better day or a better time to discuss issues affecting sentencing policy.

We have already read press reports that the police will now give scant regard to low levels of incidents of burglary. We gave up reporting car crime some time ago; if we are not very careful, if this is the policy advocated by certain police forces, then burglary may follow the same pattern.

Firearm offences are also a matter of serious concern, particularly to the black community. Black-on-black crime and drugs feature prominently in our inner cities. All that requires not a knee-jerk reaction but evidence-based policies and practices. The current explosion in gun crime is very much a young male, inner city phenomenon. We also need to address the causes which drive young people to use guns.

Today's newspapers have extensive reports on the statement of the noble and learned Lord, Lord Woolf, on sentencing guidelines. I subscribe fully to what the noble Lord, Lord Corbett, has just said. The Lord Chief Justice is right to place emphasis on community sentences as a starting point when considering what sentences are appropriate in certain cases. To interpret this as a "burglar's charter" is mischievous.

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The noble and learned Lord has vast experience of prisons and prison conditions and he is right to point out that community sentences for less serious burglaries would "relieve the overcrowding" in prisons. I hope that there is no pressure on the judiciary from the executive to alter this very delicate balance. Of course, public confidence is shaped by the quality of service provided by the criminal justice system. But, at times, we have to lead public opinion and not simply follow it. The Government have a clear role here.

Heat has been generated by the Lord Chief Justice's recent comments on burglary but precious little light has been shed. In 1991, 28 per cent of offenders sentenced for burglary received a custodial sentence. That figure had increased to 42 per cent by 1996 and to 51 per cent by 2001. Some 40 per cent of those convicted of burglary in 2001 received a community sentence—a position unchanged from 10 years ago. The main declines in non-custodial sentences were in absolute or conditional discharges and fines.

I chair NACRO—the National Association for the Care and Resettlement of Offenders. We have examined the criminal statistics for 2001. Those demonstrate that the suggestion that the sentencing climate for burglars has become too lenient is simply not correct. The opposite is true. Guidance given by the noble and learned Lord, Lord Woolf, that most first-time burglars should not receive a custodial sentence is not a dramatic move in the direction of leniency but rather little more than a restatement of the current position. We need to reaffirm the principle that offenders should not be sent to prison except when necessary and, in those circumstances, only for as long as necessary. That will particularly be the case for those who might be engaged in burglary to fund a drug habit and for whom community-based drug treatment will be far more effective than a spell in prison.

Those who advocate an even tougher sentencing climate should explain how that would work in practice. The questions that we need to address are these. Should burglary on its own, as a first offence, have a non-custodial sentence? Should offences against the person be treated as a second, separate offence? Should more threatening burglary—for example, burglary carried out at night with firearms—be treated differently from that which involves entering empty premises during the day?

With regard to firearms, it is evident that there has been a major rise in the use of air weapons. In 1990, the use of such weapons accounted for 5,380 notifiable offences; in 1995, that figure had risen to 7,568; and, by last year, there were 12,340 such offences. The figures on robberies involving a firearm are mixed. Recorded offences of this type increased from 2,939 in 1997–98 to 5,484 in 2001–02, although some of that rise can be put down to changes in recording practices. But, taking a longer view, one can see that the 2001–02 figures show little change from 1991.

Tough sentencing is unlikely in itself to have an impact but it would be wrong to assume that it has none. Equally, drug treatment and other drug-related

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interventions may make an impact, but violent gangsters will not necessarily give up gun usage because the rich financial rewards will always be an important consideration to them. Sentencing is just one small but important aspect relating to the complex issue of drugs, guns and violence.

I want to draw the Minister's attention to the agenda which industry also needs to pursue. According to the Guardian, NCIS claims that half of all the guns recovered in London from crime scenes were converted Brocock airguns. It also points out how easy it is to convert a Brocock airgun into a live firing gun. It is still possible to buy deactivated weapons legally. Sometimes blame is attached to the influence of rap music on the gun culture, but there is little evidence that it is a strong drive in gun crime.

It would be helpful if the Minister would indicate what precise role the police have in preventing and prosecuting those who commit burglary. The conflicting messages from police forces adds to the fear of crime, which is so evident within our communities. It is also necessary to examine with our European partners the need for a Europe-wide strategy to deal with sophisticated eastern European weapons entering European countries.

Sentencing should take into account the pressure on the Prison Service. Over the past decade, we have played up the image of a disorderly and crime-ridden Britain. The solution is often seen to be not only an increase in police numbers but also the need to embark on a massive prison expansion programme. Neither will have a substantial effect on the reduction of crime. We need to move away from the saloon-bar politics of crime and establish research and evidence-based policies.

4.10 p.m.

Lord Windlesham: My Lords, every so often, usually propelled by events well covered in the press, an issue comes before Parliament which raises questions of legal or constitutional principle. I believe that today's debate is one such occasion.

Put briefly, while it is the responsibility of the legislature to define and enact what the penalties should be for criminal offences, and it is the responsibility of the police and prosecutors to detect and to charge persons believed to have committed such offences, it is the long-established role of the courts to convict and sentence offenders who are found guilty by due process of law.

The level of penalty imposed will be within a statutory maximum, taking account of precedents in similar cases as well as guidelines laid down by the Court of Appeal and the Lord Chief Justice in order to ensure consistency.

With the exception of the penalty for murder no sentences have traditionally been mandatory; they have been at the discretion of the court within certain limits. That has always been regarded as of fundamental importance. Then came the events of the late 1990s—the noble Lord, Lord Corbett, who was active in another place at the time no doubt remembers

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them well—namely, the controversy over the Crime (Sentences) Act 1997. The measure was introduced by a Conservative Home Secretary, Mr Michael Howard, and originally opposed by the Labour Front Bench. However, soon after Labour came to power in 1997, two out of three novel mandatory sentences were adopted. They were an automatic life sentence for repeat serious, violent and sexual offenders and a seven-year mandatory sentence for third-time drug traffickers. An additional category with a far greater potential impact on the prison population, namely, a three-year minimum sentence of imprisonment for third-time domestic burglars, was held over until after the general election in 1997 and was not brought into force until December 1999. The numbers affected were far larger in that category than in the other two.

Now, once again, what is interpreted by the Government as being the demands of public opinion has led to the threat of a further encroachment on the discretion, indeed on the responsibility, of the criminal courts to punish each convicted offender according to the relative harm which has been done. That is not only wrong in principle; it is likely to be ineffective in practice to attempt to send signals to burglars and other potential offenders by way of legislation. This is a curious idea but one deeply embedded in the minds of some in government and Parliament. It is, as I say, not only wrong in principle but likely to be ineffective in practice. If the intended receiver is not listening, then no message will get through.

Politics and justice have always been uncomfortable bedfellows. As I look around the House I see many who have had distinguished careers in both politics and the administration of justice. They will be aware there is little evidence that policies based on deterrence have much restraining effect on potential offenders, especially the very large number of those under the influence of drink or drugs or both at the time of the offence.

In short, the conclusion must be that the administration of justice and politically inspired initiatives should be kept separate. Each has its proper place in our parliamentary system and in the administration of justice, but to mix them raises false hopes. It also harms the relationship between the executive and the judiciary. What we have read about the clash which has occurred recently is very regrettable. It holds out little chance of producing agreed outcomes.

4.15 p.m.

Baroness Stern: My Lords, I, too, am grateful to the noble Lord, Lord Henley, for initiating this debate. I feel reasonably well qualified to talk about this subject today at least from one perspective. While away over Christmas and the New Year, my house in Lambeth in central London was burgled. It was my first experience of being burgled in 12 years in this house and it was a very mild one: there was no damage, nothing broken and only two very small things taken.

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The important issues for me as a burglary victim were the rallying round of the neighbours, who discovered it and who cleared up the house before I returned, and the Metropolitan Police, who dealt with the matter with courtesy, helpfulness and reassuring realism. They were most impressive.

It is often said that justice for victims equals seeing someone suffer for the crime. For me, and I suspect a great many people, the important aspects of being a burglary victim are not to be left feeling alone and invaded but to be supported and to receive sympathy, with an understanding response from the police and a chance to get back items of sentimental value which have been stolen.

Sentencing is a much less immediate concern. If my burglar were to be apprehended I would sincerely hope that he or she would not be sent to prison. That view arises not from a warm feeling towards the burglar, and neither from sympathy with the social conditions which might have led to the burglary, far from it—should I have been able to meet the burglar I would have made that very clear—but because a rational calculation suggests that for someone who is not deeply into serious and violent crime (my burglar seemed to be a total amateur) a prison sentence is a recipe for turning a small-time opportunist into a candidate for the proposed five-year minimum sentence for carrying a firearm. I shall have more security in future in my house in Lambeth, and more protection, with less prospect of being burgled again, if almost any other course is taken than sending the perpetrator to prison.

If I were to be given a say in sentencing my burglar I would ask, first, for a properly organised scheme of community service, with as many elements included as possible that would tend to awaken conscience and an awareness of the needs of others. Secondly, a meeting should be offered with the victim so that the burglar should hear about the impact of the burglary. I would have been very happy to have met the burglar and told him or her what it was like to be 400 miles away and to have received a phone call at six o'clock in the morning from a neighbour saying that there appeared to be strangers in my house. Thirdly, together with community service and contact with the victim, I would ask for social measures to deal with what is most likely to characterise my burglar—that is probably drug addiction, as the noble Lord, Lord Corbett, mentioned, or some other form of acute social disadvantage. That is what I would choose and, according to international research studies on attitudes to punishment, so would very many other people throughout the world.

Yet prison still carries the argument every time. Why is that? Perhaps it is because the prison sentence is very clear and predictable. The criminal is bundled into the van, unloaded at the prison, strip searched, bathed, interviewed, put into a cell and locked up. He is clearly being punished. If the prison is well resourced, he will absorb 36,539 in the next financial year.

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The alternative route is so unclear, so unpredictable. It is patchy, spongy, ill-resourced, lacking in confidence, with no clear, persuasive message for the criminals or the public. If anyone wonders what I mean by the word "spongy", the comment by the representative of the probation officers' trade union in today's Independent about the inability of the probation service to take on any more work with burglars is perhaps the best definition of the word.

Research shows that there is much support for the policy set out by the Lord Chancellor on 3rd January that prisons should be used as a last resort and for no longer than necessary. Can we do it? Can we build up ways of dealing with most offenders that are credible and as emotionally satisfying as prison? We certainly can. We could, for example, learn from the Youth Justice Board and set up adult offending teams on the model of the youth offending teams. We could relaunch the community service order as a highly credible and attractive alternative under the strong leadership of someone good at communicating with the public. We could encourage much more local community involvement in the sentencing process for less serious offenders. We could require courts to obtain a pre-sentence report before imposing a prison sentence.

I list those ideas so that I can ask the Minister to consider them and respond to them. I also make the point that we know that such measures would have an effect; we know that they would reduce the use of prison. If they are not used, that is a matter of choice. An ever-increasing prison population is not inevitable, although it will be if every time there is a scare about some type of offence a minimum sentence is proposed for it. It is difficult to see a way out unless the Government take measures radically to redress the imbalance between the credibility and delivery of alternatives to prison and prison itself.

4.21 p.m.

Lord Carlisle of Bucklow: My Lords, like other noble Lords who have already spoken, I congratulate my noble friend Lord Henley on introducing what is a topical and very important matter. The noble Baroness, Lady Stern, was able to speak with the advantage—or perhaps I should say disadvantage—of having experienced a recent burglary. I am sure that she will forgive me if, in the few minutes available to me, I take up the two points that my noble friend Lord Henley made on the issue of sentencing.

First, I turn to the matter of firearms. Clearly, the increase in the use of firearms and the carrying of firearms is grave and serious. The Government are anxious to do what they can to deal with the problem. It may be that some of the law in that area should be reconsidered. However, I believe that the Government's immediate reaction in talking about a mandatory five years in prison is a knee-jerk reaction which has not been fully thought through.

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Will such a sentence be mandatory? At first we were told that it was to be and now I understand that that has been clarified: it was to be mandatory but there will be exceptions. Then on 8th January, as has been said, the Prime Minister in answer to a question in another place said that the five-year mandatory sentence is not yet law but that the Government want it to be. Is the intention still to bring in a five-year mandatory sentence?

I remind the Minister of the present situation. If someone uses a firearm or carries a firearm intending to commit another offence, the maximum penalty is already life imprisonment. If, on the other hand, someone is charged merely with possession of a firearm or carrying a loaded firearm without intent, the punishment is a maximum of seven years or, if tried in a magistrates' court, a maximum of six months' imprisonment.

Is it seriously intended that those different penalties should be replaced by one mandatory sentence of a minimum of five years? Surely that must be wholly out of keeping with a case that is, at the moment, triable summarily in a magistrates' court. If it is intended to be limited to the use of the weapon or the weapon being carried when another offence is committed, the fact that there is a maximum of life imprisonment makes a five-year mandatory sentence of little effect. I believe, unfortunately, that it is an example of this Government speaking loud on crime, but doing very little that will be effective.

I want to make it clear that I am opposed to mandatory sentences. They do not give flexibility to the courts to take account of the different circumstances that may occur. Therefore, they are bound to lead to injustice.

As my noble friend Lord Windlesham has said, I believe that the duty of Parliament is to set the maximum sentence, but that the length of any individual sentence must be a matter for the discretion of the court that has heard the case. I believe that it is vitally important that we retain that distinction in our functions.

I turn to the issue of burglary. I want to ask the Minister whether it is the Government's wish that all those convicted of burglary, even for the first time, should serve short sentences of imprisonment, or do they accept that the Lord Chief Justice was correct to say that at first one should see whether a community sentence would be more appropriate? We know that the prisons are desperately overcrowded; we know that prison to some extent fails to deter; and, in view of the high level of re-offending to which the noble Lord, Lord Corbett of Castle Vale, referred, we know that prison certainly fails to reform.

I do not believe that sentences deter. At the end of the day it is the likelihood of conviction that deters; and the likelihood of conviction depends on the likelihood of being caught. I believe that that is a far graver deterrent than merely serving a short term of imprisonment rather than a community sentence order.

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At some stage that was the view of the Minister. Perhaps I may quote from an answer that he gave me on 17th July 2002. He said, in relation to the second point that I made in my question,


    "First, there need to be more alternatives to prison, and, secondly, sentencers need to be encouraged to consider those where appropriate. I make it clear that all too many short sentences are now passed where an alternative to custody would be better".—[Official Report, 17/7/02; col. 1254.]

Is that still the view of the Minister? When the Lord Chief Justice attempts, through judicial guidance, to give practice to that policy, it appears that the Government denounce their own policy. I hope that we shall have answers to those questions today.

4.28 p.m.

Lord Ackner: My Lords, the first principle, as I understand it, of sentencing is to ensure that the public are adequately protected. It seems to me that that is exactly what the guidelines put at the forefront. The two appellants, McInerney and Keating, received three-and-a-half years imprisonment and three years imprisonment respectively. That was considered by the Court of Appeal to be necessary for the protection of society.

The noble and learned Lord, Lord Woolf, made it clear that in his guidelines he was not dealing with second-time domestic burglars who commit one of the high level aggravating factors such as threatening a victim. He made it clear that the Court of Appeal accepted the advice of the Sentencing Advisory Panel that in such a case the starting rate should be three years; he made it clear that he was dealing with a burglar whose offence may attract up to 18 months' imprisonment. Only a quarter of that sentence would be served. With a 12 months' sentence he would be released after six months with 90 days' home curfew. The result is that the sentence would be only three months. Three months in prison is quite inadequate to enable the Prison Service to carry out any form of rehabilitation to avoid re-offending.

The noble and learned Lord, Lord Woolf, compared that with community sentencing, which can provide protection for three years, either by tagging and/or curfew orders, in order to keep the offenders off the street. He said that it is a realistic and serious restraint on the offender's freedom. It is supported by the sanction that if the offender does not comply with the terms of the order, he would be sentenced for the original offence and could expect a custodial sentence. That itself is a deterrent.

The solution produced by the noble and learned Lord in his guidelines would reduce overcrowding in prison. We all know that overcrowding makes the Prison Service quite incapable of carrying out any effective activity with a view to teaching the offender the folly of continuing in his ways.

I concede that I, too, have been the subject of two burglaries in the country. Only in one case was the burglar caught. He was a professional burglar. He was found hiding ultimately in the driveway of a grand house with maps and all kinds of detail of the area. I had the satisfaction of knowing that the burglar used

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the only escape through the back garden, which was full of stinging nettles. On the other hand, I had the dissatisfaction of learning that he was given a suspended sentence because his sister-in-law was apparently going through a difficult change of life.

I hope that that would no longer happen. I think that the lessons so emphasised by the guidelines have been learned. But, having reached the age of anecdotage, I was reminded of the clamour by some parts of the press during the well-known "Spycatcher" case some 15 years ago. I was one of the three of the majority who imposed an injunction on the media. We said at the end of the case that we could not give an immediate judgment, but we thought that the parties would like to know the result. So we announced the majority decision and said that we would give our reasons for it shortly.

There was an attack of fury from most of the press. Abuse was heaped on us, even to the extent that a picture of the three forming the majority was published upside down with the phrase, "You Fools", attached to it. In giving my judgment I said:


    "I hope that but a tithe of the publicity given to the ill-informed criticisms of the majority decision of your Lordships' House is now accorded to the basis and reasons given for that decision".

Hope springs eternal, but it was not to be.

4.34 p.m.

Lord Mackenzie of Framwellgate: My Lords, I congratulate the noble Lord, Lord Henley, on this very timely debate. I hope that I am acting correctly, but—for the first time I believe in this House—I offer condolences on behalf of the House to the family of Detective Constable Oake who was murdered in defence of the criminal justice system that we so proudly discuss today.

I was often told as a young police officer that I should not concern myself with the sentencing of convicted people; that that was a matter for the courts. That is easier said than done when one's life is devoted to apprehending criminals. It takes a very detached personality to ignore the fruits or otherwise of one's labours. Having said that, the police should not become obsessive about the disposal and sentencing of convicted prisoners, which in a liberal democracy is a matter for the courts.

We have seen in other less fortunate countries that the police, either as an instrument of government or as misguided representatives of a society racked by crime, have become the investigator, the jury and the executioner. That of course leads to gross injustice and is the reason why the crown prosecution system was established—quite rightly—independently of the police who investigate crime.

The police are the criminal justice system's interface with the public. Any dissatisfaction with any part of the system is often expressed with vigour to the front-line police officer, whether he is the officer in the case, the family liaison officer or the officer on patrol in the streets.

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So police officers quite naturally take an interest in the disposal of criminal cases, not least because they know that while professional offenders are in prison, they are not carrying on their anti-social activities.

As I have said, the debate today is timely. Many tabloid inches have been given to sentencing policy and to the guidance of recent weeks, much of it critical. But newspapers, as we know, have a great deal of power to communicate without much responsibility.

My view of sentencing is obviously coloured by 35 years of policing, much of it as a detective dealing with crime at the sharp end. So what is my view? It is that a sentence must be just. It should do justice primarily for the victim, who, incidentally, is the only participant in the criminal justice system who is not a volunteer. It should do justice to the community in that it seeks to deter the offender and others who may be similarly minded from committing further crime. I suppose that I am saying that it should have unpleasant consequences because otherwise it will be seen as a reward, and that would have the totally opposite effect to that desired.

But it should also do justice to the offender. By that I mean that it should provide him with the means of avoiding falling into the trap of criminality in the future. That may be by rehabilitation, training, education, drug treatment, counselling and so on. I do not think that there would be a great deal of disagreement between thinking people on those matters.

I was the president of the Police Superintendents' Association in the early 1990s when we campaigned vigorously for an end to "revolving door justice", as it was called, in particular with regard to juveniles who would be arrested time after time by the police and then released by the magistrates, quite simply because there were no secure places to detain them.

The streetwise youngster soon got to know that this was the name of the game. Of course he exploited the system to the full—stealing cars with impunity continually. The police were totally frustrated and the public were in despair. I take issue with the noble Lord, Lord Carlisle, because that gives the lie to the argument which is often trotted out, that the only deterrent is being caught. What follows being caught is equally important. It is the duty of the justice system to provide custodial facilities when they are needed. Otherwise, the system is skewed.

In the north-east of England, where I come from, we spawned ram-raiding, where youths would drive their car into a shop window and escape with as many goods as they could. I remember two tearaways ramming a designer closing shop in Durham and stealing about 800-worth of designer clothing. That provided money for beer and cigarettes for about two weeks. Then Geordie said to his pal, "We need to do another ram raid". His pal, Billy, looked askance and said, "Not bloody likely, last time it cost me 1,000 to get the car repaired". Fortunately, criminals are not always that bright.

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I am looking at the clock with some trepidation. In conclusion, the increase in firearms crime does not mean that the ban on handguns was not justified. It was not designed to prevent criminal use of firearms but to prevent another Dunblane or Hungerford. That has worked. Firearms offences are fuelled by the easy accessibility of guns in the market-place, mainly from former eastern bloc countries. Those who would legalise drugs that are damaging the nation would presumably argue that because there is a thriving black market in guns they should be legalised as well. That shows what nonsense that argument is.

I welcome the Government's proposals on sentencing. Obviously, the way forward is to stop weapons entering the country at source, if we can, but those found in possession of illegal firearms should be visited with long deterrent sentences. In that sense, prison does and will work.

4.41 p.m.

Lord Trefgarne: My Lords, in recording my gratitude to my noble friend Lord Henley for initiating this debate, let me say at once that I shall not detain your Lordships for long.

I listened with great care and interest to the recent radio interview given by the noble and learned Lord the Lord Chancellor on a range of subjects. I was especially struck when he said that only 25 per cent of recorded crimes are cleared up by the police and that only a small proportion of that 25 per cent result in a conviction. Against that background, the current debate on sentencing may be less relevant than some people imagine. Surely potential criminals always imagine that they will not be caught and that, even if they are, they are unlikely to be convicted. The figures offered by the noble and learned Lord appear to confirm just that. If there is no prospect or little prospect of being apprehended, the question of sentence—long, short or suspended—ceases to be an important consideration.

Perhaps the way to tackle the wholly unacceptable level of crime—especially offences associated with domestic property and motor vehicles—is to make a much greater effort to solve them. We are told that the Metropolitan Police is several thousand officers under strength. We have all heard the dreadful stories of hopelessly undermanned rural police forces where, if one rings them for assistance, one gets only an answerphone.

We should devote more attention and resources to enabling the police to achieve a much higher clear-up rate than at present. It is for chief constables to say what additional resources they need for that purpose, but I hope that the Government will respond sympathetically to those requirements. If my hypothesis is correct, we should in due course be able to make savings—or at least forgo expenditure—on new prisons, if that is needed to cover the cost.

It may be said that none of us wants to live in a society with police standing on every street corner. Of course I agree with that, but the risk of apprehension is now so low that sentences, however long or severe, do not enter the criminal calculation at all.

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The Government are fond of setting targets. Perhaps I may suggest just one more: to improve the clear-up rate from 25 per cent to, say, 50 per cent by the end of this Parliament. Nothing would do more to deter criminals and help to reduce the level of crime. Then we can truly leave the question of sentencing to the judiciary.

4.44 p.m.

The Lord Bishop of Oxford: My Lords, I am grateful to the noble Lord, Lord Henley, for initiating this timely debate. The main principles of the Halliday report, one of the most comprehensive to be carried out during the past century by the Home Office, have been widely accepted. I am glad to say that the Church of England not only submitted evidence to Halliday but a staff officer from our Board for Social Responsibility was on the external reference group.

One principle in particular is incontrovertible. Punishment should be proportionate to the seriousness of the criminal conduct. That in turn depends on the degree of harmfulness or risk of harmfulness of the criminal offence. Behind that principle lies one of the main reasons for punishment in the first place. It expresses society's moral disapproval of the crime. So my first question is: how far does a prison sentence as such still register that disapproval? It is possible that in the minds of some people prison is simply a matter of doing time. What is needed in our society is a much more widely shared disapproval of crime, leading to a stronger and more consistent sense of shame by perpetrators when a crime has been committed.

That raises the further question of whether it is possible to associate non-custodial sentences more closely with society's disapproval in a way that brings about that sense of shame in the offender. As the noble Baroness, Lady Stern, emphasised so powerfully, the message of prison is clear for all to see. The message of non-custodial sentences is at present unclear—as she put it, it is spongy.

In principle, I believe that everyone would like to reduce the prison population. Prison is expensive and crowded prisons are not a good environment in which to bring about a change in people's outlook and lifestyle and help them to take their place as respected, contributing members of the community. The problem is that the fear of crime can help to stoke up the rhetoric of punishment—usually interpreted to mean more and longer prison sentences.

So I return to the fundamental issue of how we can bring about in our society a more consistent disapproval of crime, which has the effect of bringing about a sense of shame in those who commit criminal acts. If that disapproval was more consistent in its effect, it might then be associated in a more integrated way with non-custodial sentences, and the call for more and longer prison sentences would not resonate so widely with people who have an understandable fear of crime.

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If what I am saying is true, it means that society as a whole—especially parents, schools and faith communities, but involving all of us—has a role in changing the climate of opinion so that the concept of moral responsibility is once again accepted as a foundational norm in every one of our communities. That in turn points to another issue. Fear of crime is real, but is crime in fact rising? Figures from the police indeed show such a rise, but the British Crime Survey, which records people's personal experience of crime, shows a 7 per cent drop in crime and a similar drop in the fear of crime, as the noble Lord, Lord Corbett, pointed out. I understand that it is possible to reconcile those different figures, but my point is that we need to be sparing about using such figures in a way that stokes up the rhetoric of more and more drastic punishments, whether for burglary or for any other offence.

I now turn briefly to sentences connected with the possession of guns. Home Office figures show that firearms, excluding air weapons, were used in 9,974 recorded cases in 2001–02, an increase of 35 per cent on the previous year. In 24 per cent of those offences the firearm was fired. So there is clearly a strong case for society expressing its moral disapproval of the unauthorised possession of such weapons. We certainly do not want to move in the direction of America's gang and gun culture.

However, the United States also provides some positive examples. A number of American cities have introduced successful policies to get guns off the streets. In Boston, for example, street workers—largely, ex-gang members who have gone straight and who want to stop their friends being killed—act as go-betweens between the youths on the streets and the criminal justice system. In South Carolina, guns hot-lines have been instituted. Anyone who sees a weapon being flashed around at a school or club can ring the hot-line anonymously. Police response has been quick enough to obtain the weapon, with grounds to at least convict the person for possession.

Most positively of all, in Texas they instituted a Youth Advocate Programme, which hires local people from the same patch as the offenders to supervise them for 30 hours per week—far more than any probation officer could manage. Young people who have been convicted are given an advocate at school, in the court and to help them get a job, and to enjoy themselves safely without fear of being attacked by a rival gang. The programme costs less than one-third of the cost of prison and is three times as effective in stopping the offender. This Youth Advocate Programme is now established in Britain in 11 London boroughs and is already showing good results. It is that kind of programme, together with restorative justice programmes pioneered in the Thames Valley, which can bring hope both of taking crime and the effects of crime seriously and enabling those convicted to change their behaviour.

Sentencing policy for burglary and the possession of firearms, however important, is only one aspect of the problem facing our society. Wider changes in our culture are necessary: quite simply, the acceptance that

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burglary, the possession of firearms and every other crime is wrong—morally wrong. If those changes could be introduced and non-custodial sentences could be seen more widely—not as a soft option, but as a clear expression of society's disapproval—I believe that the call that arises from time to time for harsher prison sentences would be muted. Together with that, particularly in relation to the possession of firearms, there are other innovative ideas now being put into practice which, if extended, could be really effective in tackling this disturbing phenomenon in our society at its root.

4.51 p.m.

Lord Warner: My Lords, in making my contribution I wish to declare my interest as chairman of the Youth Justice Board for England and Wales. First, I wish to make a few remarks about the crime rates. It is clear from the most recent British Crime Survey that crime in July 2002 was approximately 7 per cent lower than for the previous year. I read carefully the material presenting the crime statistics last week that was used by Professor Paul Wiles, Director of Research, Development and Statistics at the Home Office. As far as I know, no one is doubting his integrity. The material makes it clear beyond doubt that the risk of becoming a victim of crime now remains historically low—approximately the same as at the time of the first British Crime Survey in 1981.

Professor Wiles' statistical judgment on burglary is that it is currently stable. A visitor to this country last week could be forgiven for not understanding those basic facts from the misleading and mischievous media coverage. On the subject of burglary, perhaps I may give your Lordships the picture on juveniles. The data within the Youth Justice Board shows a similar position to that described more broadly by Professor Wiles. Our self-report surveys of teenagers show breaking and entering lower in 2002 than in 2000—that is the same statistic as data that we are receiving from youth offending teams. Overall, the picture set out in our annual review to Parliament is that youth crime is not spiralling out of control.

In that context, it is hard to understand rationally why so many people became so excited about the guidelines on sentencing for burglary that were issued by the Lord Chief Justice. Burglary is not spiralling out of control. The guidelines did nothing to reduce protection of the public. In suggesting that effective community penalties for unaggravated burglary by non-persistent offenders was the right starting point for sentences, it seems to me that the Lord Chief Justice said something rather unexceptional.

The emphasis in the judgment given on the McInerney and Keating appeals in December 2002, in relation to community penalties, is heavily qualified in that the sentence has to be an effective punishment and must offer action on the part of the Probation Service to tackle criminal behaviour.

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Those caveats related to adults. For juveniles the judgment endorsed the use of community penalties more strongly. It continued:


    "The Youth Justice Board is spearheading effective punishment in the community and it is important that where appropriate juvenile offenders are dealt with in the Youth Court and not the Crown Court".

That is eminently sensible now that we have effective community penalties that are robust and effective—contrary to some popular belief—and, in particular, the Intensive Surveillance and Supervision Programme. Those community penalties do change the offending patterns of many young offenders.

The critical issue here is the credibility and availability of community penalties. Certainly, as regards juveniles the community penalties are credible and being used well by the courts. For example, the Intensive Surveillance and Supervision Programme has been designed as a robust community penalty for persistent and more serious offenders. It is a six-month programme with high levels of community-based surveillance, including tagging, with a sustained focus on tackling risk factors associated with offending and individually tailored plans for changing behaviour. The costs are far less than anything offered by the Prison Service. In terms of cost effectiveness, those programmes are a far better use of public money than short periods in custody. As the noble Baroness, Lady Stern, said, there are lessons to be drawn from that experience for adult offenders.

It is easy to underestimate the pressures on the Probation Service and the resources needed to bolster the credibility of community penalties. However, it would be wise for Conservative critics of the Government to dwell a little on their own record on the Probation Service before attacking the Government. I was personally involved in helping to design the new probation qualification for the Probation Service after the 1997 election, following the effective abolition of their professional qualification by the last Conservative Home Secretary, who put nothing in its place. That was hardly a helpful contribution to the recruitment of staff to the Probation Service and for encouraging high morale.

Since the early 1990s, somehow we have placed ourselves on an escalator towards a higher and higher prison population that consumes more and more resources. We have an expanded prison estate that is struggling to maintain standards of decency and maintain regimes and resettlement programmes that offer offenders the prospect of change. Continuing to raise sentence thresholds and ceilings for whole classes of offences will not help us to get off this escalator; nor will excessive fettering of sentencer's discretion in individual cases.

The juvenile sector has shown a way of change that needs to be applied to other offenders—particularly young adults and women. While I understand the case for deterrence in sentencing for firearms, I hope that we shall not be panicked or seduced further along the path of excessive minimum sentences irrespective of individual circumstances. That is particularly important in the area of juveniles where we have long

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had a situation where the sentencing structure is very different from that for adults—and for very good reason. I hope that that will remain the case unless there is a sound evidential basis for not doing so.

4.57 p.m.

Lord Mayhew of Twysden: My Lords, it is a privilege to follow a noble Lord who holds such important responsibilities. I agree with much of what he said, though not quite with all. I join also in the expressions of gratitude for my noble friend Lord Henley that have already been made. He has allowed us to explore an area of sentencing policy that is regrettably a scene of confusion, and even of turmoil.

I am afraid that Ministers are largely responsible for the confusion. My noble friend dealt tellingly with that. For example, one day there will be a five-year mandatory sentence for burglary; the next day there will not be. A few days later, there will be again. I offer another example: the Lord Chief Justice, who has already been alluded to, has been supported by the noble and learned Lord the Lord Chancellor—quite rightly because he is head of the judiciary. But the next day the Lord Chief Justice escapes blame from the Home Secretary—if I may say, on the "Today" programme—solely on the grounds that,


    "he is not a politician".

It is fairly clear where that was intended to leave the noble and learned Lord the Lord Chancellor, even before briefing from No. 10 was brought into the equation.

That is a sorry state of affairs. After all, it is the public who suffer the crimes which are recorded in these cold statistics. As the noble Lord, Lord Mackenzie, has said, the public are the only people in the criminal justice scene who are not volunteers. It is baffling to the public and unfair to the judges who always get the blame. I do not think that we should altogether neglect the concept of justice for judges.

In the time available, I want to focus on the discretion that is vested by our system in the judges when sentencing and the use that their leader, the Lord Chief Justice, has recently guided them to make of it.

It is of course elementary that within the criminal justice system the judges are constrained by whatever parameters that Parliament sees fit to place upon their powers, even if they are as impracticable as mandatory sentences, for example.

It is no less elementary that within these parameters it is their duty to exercise their discretion. All of this has been explained better than I could hope to do by my noble friends Lord Windlesham and Lord Carlisle of Bucklow. It would not be necessary to say any of this if it were not for the hot water that the Lord Chief Justice got into for giving carefully considered guidance in the Court of Appeal on the sentencing of burglars and explaining that judgment later.

The judgment was given on 19th December in a case called McInerney, which has already been referred to. It was a long judgment which few, if any, adverse commentators seemed to have thought necessary to

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read. I hope that the Lord Chief Justice's statement yesterday will encourage them to do so. It proposed a switch away from short custodial sentences for certain categories of burglars towards punishment in the community.

To be ultra-fair, I think that the Home Secretary was as much complaining about the opportunity that the Lord Chief Justice has taken to let the public understand the court's thinking in that judgment. However, especially these days, it is important that the public should not feel excluded from the thinking of the senior judges, otherwise the judges would be criticised for Olympian arrogance. Communication is now part of the Lord Chief Justice's job.

The public are not as superficial as the editors of certain tabloids seem to suppose and certainly encourage them to be—tabloids of which No. 10 regrettably seems to be in such fear.

The judgment records a research finding—and this is interesting—by the Sentencing Advisory Panel that,


    "people think that sentences . . . are far too soft, [but] . . . when asked what sentence should be imposed (burglary scenario being used as the test), they often propose a sentence less than that actually imposed".

Absolutely central to the exercise of judicial discretion in sentencing must surely be an understanding of the overcrowded state of prisons. As the judgment itself records, it has resulted in the extensive use of executive release from prison for those sentenced to four years or less—executive, not judicial, not statutory remission for good conduct, but executive because it is convenient to let somebody out sooner than a court has said that he should be. That does not do very much for the rule of law.

It is worth considering a few statistics about overcrowding. The prison population at the end of June last year was 11 per cent higher than the certified normal accommodation. At 71,220, the excess was no less than 7,030 prisoners. Since then, it has become worse and the population is probably now around 72,500, with around 400 prisoners being held in police cells each night.

In McInerney, the court stated that as a result of the present system being so grossly overcrowded, the Prison Service could not achieve the limited assistance that could otherwise be provided during a short sentence. Meanwhile, there was positive evidence emerging as to what could be achieved by punishment in the community. It made clear, with the Lord Chief Justice giving the judgment, that its concern was to give not less, but greater protection to the public.

This has to be taken a good deal more seriously than a lot of the media comment has done. The fact of overcrowding in prisons is a perfectly proper factor for judges to take into account. I hope that the Home Secretary and his colleagues, rather than grumble about that use of their discretion, will reflect on their failure to alleviate overcrowding and that they will forbear from criticising the judges.

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5.4 p.m.

Lord Lloyd of Berwick: My Lords, I start with burglary. There are two points here. First, among all the confusing and sometimes conflicting statistics which are put before us, one thing is absolutely clear: there has been a steady, indeed dramatic, fall in all kinds of domestic burglary since 1995. The figures are set out in table 4.02 of the main crime survey volume. They were referred to as being equivalent to a decline of 39 per cent by the noble Lord.

What is the reason for this very welcome trend? In another place on Monday, it was suggested that it might have something to do with the sentencing policies pursued by the Home Secretary in a previous administration. I find that very difficult to believe. I am not a criminologist myself, but if we think that there is any direct connection between the prevalence of particular crimes and the sentencing level for those crimes, we deceive ourselves.

The causes for the rise or fall in any particular crime lie far deeper than that. Here, I find myself much nearer to the noble Lord, Lord Trefgarne, than I do to the noble Lord, Lord Mackenzie. It was thought by many that the abolition of the death penalty, for example, might lead to a large increase in murder. It did nothing of the kind.

The welcome decline in domestic burglary has nothing whatever to do with whether or not first-time or second-time burglars are sent to jail. There is not the slightest reason to believe that if we tilt the balance in favour of the community sentence, which the Lord Chief Justice tried to do, it would lead to any appreciable increase in domestic burglary.

The second point, made also very frequently today, is that prisons are grossly overcrowded—we all know that. Even if we had more prisons, so that all prisoners could be contained properly, a prison population of 72,500 is far too high. Faced with the overcrowding, we all believe that prisons should be reserved for those who commit the more serious offences of violence, sexual assault and so on. That is what we always say. However, one cannot have more serious offences unless one accepts that there are some offences which are less serious, and the generality of burglary is less serious. Of course, there are very serious crimes of burglary, but the generality of burglaries, the kind of burglaries which are dealt with by magistrates rather than on an indictment, are much less serious than that.

This was the only real distinction which the Lord Chief Justice was seeking to make. There is an important distinction. He said, as I understood it, that in the case of first-time and maybe second-time burglars, unless the burglary was so serious that there was no alternative but to send the burglar to prison, a community service order was acceptable.

Like most judges, I have spent many hours talking to groups of magistrates. I always used to say that the most important single decision that any criminal court has to make is the decision to send a man to prison for the first time. I entirely support the line which the Lord Chief Justice has taken.

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On gun crime, again, there are two points. Do we need a new initiative? I suggest not. I take it that we are dealing with the crime of carrying a loaded firearm in public under Section 19 of the Firearms Act. The maximum sentence, already pointed out by the noble Lord, Lord Carlisle, is six months in summary proceedings and seven years on indictment. It would be very odd to have a crime for which the maximum sentence was seven years and the minimum sentence was five years.

However, putting that to one side, do we need this new initiative? No. I accept that there is a serious problem of gun crime in certain parts of the country, but judges are used to dealing with problems of that kind. We all remember the sentence imposed by Mr Justice Salmon in the aftermath of the Notting Hill riots. Courts will always take into account the prevalence of a particular crime in a particular locality, and they will always take into account any concern that the public may feel on that score.

That was laid down as a principle by Lord Chief Justice Taylor in the case of Cunningham in 1993 and probably long before. It is an obvious principle and, in its light, I suggest that we should leave this matter to the judges and not let the politicians interfere.

5.11 p.m.

Lord Forsyth of Drumlean: My Lords, while I agree with the noble and learned Lord, Lord Lloyd, in his remarks about firearms, I should say a word in the defence of my old boss, the former Home Secretary, Michael Howard. If the consequence of his actions in regard to burglars was that they spent longer in prison, they would not be able to burgle people's houses while they were in prison. One would therefore expect the incidence of burglaries to fall, which is precisely what has happened.

I wish to address my remarks to the issue of firearms legislation. I have not said anything about this in public before, but I was Secretary of State at the time of the Dunblane murders, which took place in the constituency for which I was the MP. When I came to this House, a number of people indicated their disapproval of what they saw as a knee-jerk reaction to the Dunblane events in the legislation we passed which banned handguns down to .22 calibre. We tried to proceed on the basis of a political consensus but, for understandable reasons—it was an election year—the Labour Party went one step further and decided to go for a total ban. I have to say, in all honesty, that had I been re-elected I would have supported a total ban. I believe that it was the right thing to do.

When I was taken into the school gym by the police, the children were still where they had fallen. It was a scene of unbelievable carnage. I cannot describe my reactions save to say this. The man who had committed the offence was a regular attender at my constituency surgeries—he was one of my persistent correspondents—and all I could think of was the glib way in which I had denounced those who had suggested after Hungerford that we should ban handguns. I took the view that hard cases make bad

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law and that it would be unreasonable to do so, but I have no doubt whatever that had we banned handguns then, this would not have happened. I believe therefore that it was the right thing to do.

The ban caused huge offence to the shooting community and enormous cost to the taxpayer, I believe approaching 100 million. Many in the shooting community argued that it was the wrong thing to do because it did not address the problem of people who owned guns illegally. In all conscience, I have to say now that they were right. I do not say that we were wrong to impose a ban, but they were right to point out that we were not addressing the major problem.

As the right reverend Prelate the Bishop of Oxford pointed out, the figures show that the incidence of gun crime has doubled during the period the Government have been in power since 1997, with a slight dip in the years 1997 and 1998. On any given day in England and Wales there are seven offences involving the firing of guns. Weapons are fired seven days a week, seven times every day.

I look to the Government for a solution to the essential problem of the illegal use of guns. What is being proposed was on the list of suggested solutions produced by Home Office officials at the time of the Cullen report, when we looked at every aspect of the problem. They were rejected for a number of reasons, which we do not have time to discuss today.

The move towards banning replica guns may help in incidents where the police are not sure whether criminals are carrying real firearms, and may provide some degree of protection for the criminal. But if we ban replica guns on the grounds that replica guns can be converted, we will be banning something which is already illegal. A weapon which has been converted for use is already illegal. This is already happening. The problem lies in enforcement. As many noble Lords have said, this is about securing convictions and enforcement of the existing law; it is not about creating additional laws.

Equally, if there is a demand for replica weapons and we reduce the supply, are we not in danger of increasing the demand for the weapons which are coming from Eastern Europe and other countries and which are capable of doing serious and lasting damage?

As to the issue of a minimum five-year sentence—I am delighted to see the noble and learned Lord, Lord Hope, in his place—I must confess that I am a convert. When I was Secretary of State I thought mandatory sentences were a great idea because I was fed up with the way in which judges did not seem to be responding to public opinion. I was persuaded that sentencing guidelines were the appropriate way forward and that we had to have discretion. The Government seem to be making some of the same mistakes which previous governments have made and which do not deliver results.

As my noble friend Lord Trefgarne said, the issue is about bringing criminals to justice. It is not a debate about how long the sentence should be if someone is

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carrying an illegal weapon; it is a debate about how we make sure that such people are put behind bars in the first place.

I appreciate that there is not a great deal of time for this debate. I do not wish to make any party points against the Government—these are complicated issues which are particularly difficult to discuss in the context of the kind of press that we enjoy in this country—but I believe that we should be looking long and hard at the gun culture which is being created in this country. What I would describe as a "screen and rap" culture is dominating our youngsters, and we should ask ourselves why it is that so many disaffected youngsters in inner-city communities now see carrying a gun in the same way as a previous generation saw trainers and other fashion accessories—as something they had to have. There is a breakdown in respect for individuals and law and order, and a culture of violence—which is fed by many other aspects of the media—which we need to address in a sensible way. So far the proposals coming from the Government singularly fail to address the problem.

5.17 p.m.

Lord Marlesford: My Lords, I wonder how many of your Lordships have seen the brilliant new film, "God's City", about the terrifying level of gun culture in the cities of Brazil. Although in Britain we are still far from that level there is no doubt that we are moving in that direction. I certainly urge the noble and learned Lord, Lord Falconer, to see that film if he has not already done so.

The growth of a gun culture in Britain is alien to British tradition and deeply offensive to the great majority of voters. Its growth is highlighted by the growing number of armed policemen on our streets and the suspicion that in certain areas the police are reluctant to tackle the ruthless armed criminal gangs, usually referred to in the press as the "Yardies".

Indeed, the handling of the siege in Hackney is questionable. The record length of the siege is not a record of which to be proud, and the outcome can give no comfort or reassurance to anyone.

To carry an illegal firearm is a serious matter; to threaten anyone with one is doubly so; and to fire shots at public or police is wholly unacceptable. Unless there are real reasons to believe that a gunman is a certifiable lunatic, I do not believe that once a criminal shoots at anyone, showing beyond dispute that he is willing to kill, there should be inhibitions about shooting him dead. It is quite wrong that the police should put their own or anyone else's life in danger in such circumstances. I suspect that the law may need changing to give the police full cover for using lethal force in response to a criminal actually shooting at anyone.

In the matter of guns on the street, the Home Office has, in my view, been culpably dismal in failing to do what is needed. I follow the arguments advanced by the right reverend Prelate the Bishop of Oxford. What is needed is not to flood the prisons with those found carrying guns but to get guns off the streets. As the

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right reverend Prelate said, this has worked well in America. Since 1994, 90,000 guns have been seized on the streets of New York and shootings have fallen by 74 per cent. New York is now a much safer city.

On 12th March last year, in an amendment to the Police Reform Bill, I put forward a specific proposal for action to help to get guns off the streets. It would have given the police powers to seal off any area where they thought that people might be carrying guns and to sweep everyone in that area with metal detectors and body searches. The area might be a street, part of a street, a club or the area outside it, a cinema, a train or a station platform.

I received support for the idea from all sides of the House. However, the unfortunate noble Lord, Lord Bassam, was put up by the Home Office to reject it. Of course, I was not surprised. The immediate reaction of the Home Office tends to be to reject any idea which is not its own.

After all, Parliament passed Section 39 of the Firearms (Amendment) Act 1997 requiring a national register of persons who have applied for, or been granted, a shotgun or firearms certificate. Five years later, after a prolonged, and no doubt to Home Office officials an amusing, game of "Yes, Minister"—which included ignoring a severe rebuke in the year 2000 from the House of Commons Home Affairs Select Committee, then presided over by the noble Lord, Lord Corbett—we still have no register.

Indeed, only last week, on 9th January, the noble and learned Lord, Lord Falconer, signed a Written Answer to a Question from my noble friend Lady Blatch asking when the register would become fully operational. His answer was pure, bureaucratic gibberish, and the noble and learned Lord should be ashamed of signing it. Perhaps I may read one sentence:


    "The Police Information Technology Organisation (PITO) is currently considering the responses to the notice it issued seeking non-binding expressions of interest for a retender".—[Official Report, 9/1/03; col. WA 225.]

That is after five years—yes, years.

The noble Lord, Lord Bassam, was asked to say that the powers that currently existed were "effective for the purpose", and:


    "we believe we have got it about right".

Try telling that to the good citizens of Hackney or Birmingham.

The noble Lord, Lord Bassam, wrote to me on 15th April rejecting my suggestion on the basis that the police did not think it necessary. I wonder whether that is still their view. He stated:


    "The only statutory power to cordon off an area is that under section 33 of the Terrorism Act 2000 which allows an officer of at least superintendent rank to designate an area as a cordoned area where he considers it expedient for the purposes of a terrorist investigation".

The Home Office says:


    "We have serious concerns on the practicalities of sealing off an area to conduct a sweep for the illegal carrying of firearms".

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These concerns seem to be based on the resources needed, the impact on local communities and disproportionality. I suspect that the word "disproportionate" reflects the need, which of course I accept, to balance effective policing with the need to avoid inflaming race relations. All I can say is that the growth of gun warfare on the streets of our cities is one of the major poisons in race relations.

Recent events have therefore convinced me that powers, at least equivalent to those under Section 33 of the Terrorism Act, are needed. The sort of ad hoc sweeps that I propose would be very useful in reassuring the public and would result in many guns being removed. I hope that the Government will include such a provision in their forthcoming legislation.

The noble and learned Lord knows that I am in many areas a supporter of what the Government are trying to do. The Chancellor has done his best to build on the success of the Thatcherite economic revolution. The Government are standing up against the absurd wage claims of the firemen. The Prime Minister speaks loud and clear in the world for Britain's interests. The Home Secretary has many sound instincts and aspirations on law and order, as had his predecessor. But what we need now is action, not words. If the Government are judged by the electorate to have failed in these matters, they will suffer severely at the next election.

5.25 p.m.

Lord Thomas of Gresford: My Lords, in expressing gratitude to the noble Lord, Lord Henley, for introducing this debate, I agree with the noble Lord, Lord Windlesham, that it raises important constitutional considerations.

The noble Lord, Lord Marlesford, referred to the economy. Perhaps the most important decision taken by the Labour Government was to declare the Bank of England independent of political interference, thereby preventing a pre-election boom for electoral advantage. That was an innovation.

But in the field of criminal justice, sentencing has always been in the hands of independent experts, professional judges and magistrates. The function of Parliament is to set maximum sentences, and to provide the tools, the range of penalties, whether custodial or non-custodial, which an individual judge can exercise with regard to the defendant who is before him; and exercise his judgment, insulated from the popular concerns of the moment and without any interest in electoral advantage.

It need not necessarily be so. In the United States, judges in 38 states are elected; they are directly responsible to their electorate and move by public opinion. But that is not the British way. Here, we believe in judicial independence, which secures continuity, regardless of a change of Home Secretary or of a government, consistency, and proportionality.

As for continuity, I well recall a sentencing conference in Cardiff in the late 1980s, when the Home Secretary was minded to promote non-custodial

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sentences and the very gallant Lord Justice, who had a long connection with the Rugby Union addressed us, and said: "Now, listen, boys, if you think the so-and-so should go to prison, you send him there. Don't listen to this stuff from the Home Office. We'll back you in the Court of Appeal". It was an exhortation redolent of the changing-room before a match, but it emphasised the independence of the judiciary from political control.

As for consistency, judges have long experience. They have the opportunity to confer with colleagues; they have judicial guidelines; they have their "bible", Thomas on Sentencing—no relation.

When it comes to proportionality, judges have, as the noble and learned Lord, Lord Lloyd of Berwick, said, an overview of the hierarchy of crime, of placing the particular offence with which a person is charged in its proper perspective.

Victims do not have that overview. Their hurt is unique to themselves. Many victims and their families who attend the courts are later to be seen on television complaining about the leniency of the sentence that the judge has passed in a particular case. Victims always think that sentences are lenient. It was interesting to see that the noble and learned Lord, Lord Ackner, in his capacity as a victim took that view of the sentence passed in the case to which he referred.

Reports in the media foster a climate of distrust in the judicial body. Consequently, there comes about a popular demand for higher penalties. People do not appreciate the larger picture. In particular, they do not realise the value and effectiveness of community penalties, for the reasons given by the noble Lord, Lord Corbett. The effects are not properly reported.

Furthermore, people tend to believe that the deterrent benefits of prison are far greater than the statistics show to be the case. Politicians are tempted to latch on to this feeling and to announce from time to time headline grabbing initiatives. There, the party political battle begins, with each side blaming the other.

Turning to guns, the gun culture is not new. Some five or six years ago, I was engaged in a case deriving from a club in the neighbourhood where the recent tragic events in Birmingham took place. A young man trod on the foot of another young man as he went to the bar. He was challenged to a fight outside. When the challenger raised his fists, the man who had trodden on the other's toes produced a gun and casually shot him. The only witness was subsequently found shot in his flat. That happened five or six years ago. The incident barely made the national news. It was regarded as just another Yardie killing.

At that time, the Government were obsessed with "three strikes and you're out" mandatory sentencing. The history of that policy is revealing about how politics can mingle with sentencing. In 1994, a victim of crime, a photographer by occupation, placed on the ballot in California Initiative 184 for "three strikes and you're out". The Republican governor, who faced the possibility that he would not be re-elected, then introduced a Bill putting that policy forward into the

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Democrat-controlled legislature. The Democrats were not going to be less tough than the governor just before the election. So they pushed through the proposal for "three strikes and you're out". That meant that on the third conviction for an offence as minor as domestic burglary a person's sentence would range from 25 years to life, with no reduction. The governor then campaigned on the further proposal of "one strike equals life imprisonment" for sexual offences. When he was eventually re-elected, of course, the proposal was dropped. That illustrates politics using the sentencing system to try to gain electoral advantage.

A study published in 2001 by the Oxford University Press, carried out by Franklin Zimring and others, concluded that the "three strikes and you're out" proposal in California had no effect on second offending. It found no more than "weak evidence of marginal deterrence" on third offending. It was pure politics. I welcome the conversion of the noble Lord, Lord Forsyth, from mandatory sentencing to the more traditional view.

We have the highest proportion of prisoners in Europe; so there is no sign that the judiciary has failed to respond to public concern about crime. There are conflicting statistics. On the one hand, the Government use Home Office statistics showing increases in robbery, burglary, drug offences and gun crime to justify driving up sentencing levels; on the other, they quote the British Crime Survey finding of a 27 per cent decrease in crime as proof of their strategy's success. Why, if crime is decreasing, are we trying to increase the number sent to prison and sentence terms? Why is it necessary to take increasingly punitive measures?

The Criminal Justice Bill proposes a sentencing guidelines council, which would have much closer political control than the Court of Appeal in producing sentencing guidelines. Would the new council, which will be closer to politicians than the Court of Appeal, reduce sentencing norms? I very much doubt it. Mr Letwin, on behalf of the Conservative Opposition in another place, is calling for Parliament to take power to set guidelines to indicate the norm, not maximum sentences. That opens the possibility of political interference.

Noble Lords on all sides of the House have said today that the prison estate is ready to burst. There is a danger of an explosion of violence in overcrowded prison conditions. That is a concern of the noble and learned Lord, Lord Woolf, the Lord Chief Justice, who was responsible for the investigations into prison conditions in Manchester. In April last year, I was in the Royal Jail at Frederick Street, Port of Spain in Trinidad, which was built in 1860 to accommodate 250 escaped indentured labourers and now holds 800 prisoners, more than 100 of whom are on death row. The genial but very perceptive and concerned governor, Mr Roberts, said he was frustrated because the prison had good rehabilitative programmes to put into effect but could not do so because of the pressure of numbers. He reflected the precise problem we have here.

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We all agree that a core of dangerous people must be locked up. The rest are locked up for excessive periods; they are fed and clothed; they have nothing to do; they have no need to think or take a decision; their conduct is never challenged; and they are then dumped back into society. We wring our hands about the reconviction rate. We want a clear political lead from the very top. As the noble Baroness, Lady Stern, said, we need a clear persuasive message to convey to the public: confidence in judges; the advantages of non-custodial sentences; how the prison population can be reduced; the provision of programmes to prisoners within those prisons; and resources. The greatest success of this Government in criminal justice has been the Youth Justice Board under the excellent chairmanship of the noble Lord, Lord Warner. The criminal justice system requires more such properly resourced initiatives.

5.37 p.m.

Lord Roberts of Conwy: My Lords, I thank my noble friend Lord Henley for bringing his very timely Motion before the House. It occasioned some distinguished and very learned speeches, including his own. Mine is strictly a layman's viewpoint. I hope that there is still room for such views in a specialised debate such as this.

My first difficulty is with the crime figures. I am glad to see that I am not alone. The Times, too, was confused last Friday and began its first leader with this remarkable sentence:


    "The Home Office yesterday announced that in the year ending in September 2002 crime rose by . . . 9 per cent, that it rose by only 2 per cent and that it fell by 7 per cent".

It gave similarly variable figures for domestic burglary—up 5 per cent and down 7 per cent—concluding that,


    "the announcement was hopelessly and intentionally confusing".

The Sunday Times columnist Minette Marin described it as, "confusion worse confounded".

The Home Office has certainly fiddled with the way in which crime figures are calculated. I am told that recorded crime is now as defined by the victim; and if there is more than one offence, they are counted as a multiple incident. That produced the 9 per cent increase. On the same day, the British Crime Survey recorded a 7 per cent fall. But it, too, has its shortcomings. For example, it does not include crime committed on housing estates or against under 16 year-olds. Be that as it may, the Home Office pitched for the 2 per cent difference as the likely increase.

That is a meaningless indicator. We should have better and more useful means of detecting trends in criminal behaviour as they develop to assist the police in tackling crime. That seems a fundamental requirement in the battle against crime. I hope that the noble and learned Lord agrees with me.

As things stand, we are bound to accept the worst case scenario presented by these figures. The 5 per cent increase in domestic burglaries, for example, may well be the outcome of the erosion of the tougher stance

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adopted in earlier years, as described by my noble friend Lord Windlesham. The publicity surrounding the guideline judgment by the Lord Chief Justice in McInerney, with the emphasis on community sentences for first and second-time offenders in low-level burglary cases, sent the wrong message at the wrong time to would-be criminals, if they listen, and certainly to the public.

Yesterday, the Lord Chief Justice quite rightly felt obliged to revisit his guidelines and reassert the context. I have read the judgment, lengthy as it is. It states:


    "Domestic burglary is, and always has been regarded as a very serious offence".

The noble and learned Lord the Lord Chancellor appears to have overlooked that point in his much quoted saying of the week. He said that he did not,


    "accept that people are disturbed at first time burglars or even second time burglars where there are no aggravated elements in the burglary, not going to prison".

I think that he could have done with the assistance of a spin doctor in formulating that sentence.

It may be that the view of the noble and learned Lord the Lord Chancellor was supported by research into public attitudes, but I cannot find that research. I certainly could not find it in the research by the sentencing panel advising the noble and learned Lord, Lord Woolf. The final sentence of the panel's very interesting conclusion states:


    "this study has shown that burglary is regarded as a serious crime and that the public believes that sentencing should reflect this seriousness".

The resulting furore has, of course, placed a question mark over the way in which guideline judgments are prepared. Surely the Government's own proposal in the Criminal Justice Bill—that there should be a sentencing guidelines council to cover a wide range of criminal offences, and some parliamentary involvement through the Home Affairs Committee—tends to confirm that the Government share these doubts about the efficacy of the existing system. My own party is pressing for more parliamentary scrutiny. On Monday, in the other place, the Home Secretary indicated that he was mulling over the points made to him. There is clearly a need to respond to public concern. Let us not forget that the Audit Commission found that half the public are not satisfied that the criminal justice system is effective in bringing offenders to justice.

There is no disputing the fact that sentencing policy is being heavily influenced by overcrowding in the prison system and the expectation of a further increase in the prison population. The Government's own projection is that in the next six years the prison population will increase from its current 72,500 to about 100,000, and that does not even take into account the effect of the Bills currently before Parliament. I think that the Lord Chief Justice was absolutely right to say that overcrowding,


    "is a cancer eating at the ability of the Prison Service to deliver".

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The reconviction rate among released prisoners—58 per cent within two years; and 72 per cent among 18 to 20-year-old male prisoners—confirms the view of the noble and learned Lord, Lord Woolf.

Whether it is right that sentencing policy should be dictated to the extent that it is by prison overcrowding is highly debatable. Prison does appear to have a deterrent effect, particularly on first-timers, compared with community sentences. As I understand it, however, there are some doubts about that. I should be very grateful if the Minister would clear that up. Does prison have that deterrent effect on first-timers?

I recognise the practical imperatives of the present prison overcrowding. However, more consideration could be given to the new prison building alternative. I understand that the Government are building two new prisons. I would rather see that than a softer approach to crime and punishment which only encourages crime and may prove more costly over time.

With regard to community-based sentences, I agree with the view expressed by the Metropolitan Police in their response to the White Paper Justice for All—that unless these,


    "sentences have credibility and authority, then the entire system may fail in its stated purpose and the needs of communities and those who require rehabilitation will not be met".

I think that that was the point made also by the noble Baroness, Lady Stern.

The police are at the sharp end and facing a situation in which substantial numbers of people,


    "fail to answer summons, fail to attend court, do not pay their fines, do not complete community service orders or drug testing orders".

That is the daily reality confronting them. To complicate the situation further, I am told that there is a strike brewing, if not threatening in the probation service. Costly as prison may be to the taxpayer, I am not at all certain that a properly supervised and truly effective community sentencing system would be cheaper in the long run.

The alarming 35 per cent increase in gun crime in one year, the 46 per cent increase in handgun crime, and the recent gang shooting of four young women in Birmingham have certainly roused the nation to a high pitch of awareness of the dangers of a gun culture that appears to be the offshoot of a drug culture of which we are already painfully aware. Did the Government not see that coming? There were plenty of warnings early last year and, as we have heard today, gun crime has been increasing for some time. The announcement of a mandatory five-year sentence for illegal possession has quickly and rightly been made subject to judges' discretion. Again, however, the impression is of a hasty and ill thought out reaction by the Government.

What really worries me is that we seem to be in danger of going off at a tangent. We talk about rap music, air guns, replicas and an amnesty when we should be more concerned with vicious and violent drug gangs, Uzi submachine guns and firearms smuggled from the Balkans and elsewhere to a comparatively low-price and easily accessible market.

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Air pistols can, of course, be adapted to shoot bullets, replicas can be reactivated, and so on. What I am saying is that the whole issue needs a considered and comprehensive rather than a knee-jerk approach. We should learn a lesson from the legislation that followed Dunblane, which, as my noble friend Lord Forsyth said, has done nothing to reduce the trade in illegal weapons.

Crime and the causes of crime continue to cause the public grave concern, as does the Government's apparent inability to provide a strong, coherent strategy to alleviate these problems. I have seen the noble and learned Lord, Lord Falconer, on various television programmes and heard him on radio. He seems to pursue a more robust line than some of his colleagues. I hope that he will give a robust answer to this debate.

5.48 p.m.

The Minister of State, Home Office (Lord Falconer of Thoroton): My Lords, I join other noble Lords in congratulating the noble Lord, Lord Henley, on procuring this topical debate, and I welcome the opportunity to set out the Government's position on sentencing. I also join my noble friend Lord Mackenzie in sending most sincere condolences to the family of Detective Constable Oake, who died yesterday in Manchester. I express my strong support for the Greater Manchester police. The trauma which they endured yesterday demonstrates to the whole House the dangers that police officers such as Detective Constable Oake face in fighting dangerous criminals and crime.

I should like to make three preliminary points. First, there are inevitably difficult issues in relation to crime. For example, as everyone knows, it is difficult to measure the precise level of crime. People should not, as some noble Lords have, confuse the difficulty of identifying the precise level of crime with confusion itself. One cannot make difficult issues go away. One has to face up to the difficulty of some of those issues.

Secondly, on the question of who is in charge of sentencing policy, the Government are clear that it is a matter for the Home Office, as it has always been. Judges are a matter for the Lord Chancellor, in so far as anybody is responsible for them—because they are, of course, independent. The two departments must work closely together in formulating policy.

Thirdly, I strongly repudiate the idea that there have been mixed messages about the position on these matters. I am grateful to the noble Lord, Lord Henley, for giving me the opportunity to mention that point. As an influential member of his party, I hope that he will speak to his right honourable friend Mr Oliver Letwin, who in an interview with the Independent on 10th December or thereabouts expressed his strong support for the judgment on guidelines issued by the Lord Chief Justice. A few days ago, he said that his support has now been withdrawn from the Lord Chief Justice's guidelines judgment. He said that he was wrong when he gave the Lord Chief Justice support and that a tougher line was required. Therefore, as far

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as mixed messages are concerned, the noble Lord, Lord Henley, might look to his own home first before making the points that he made about us.

I strongly endorse the comments of those noble Lords who say that sentencing must be considered on a long-term and well thought-out basis. It is important that any changes made to sentencing are made after proper consultation and after the ability has been given to consider the issue overall. As the right reverend Prelate the Bishop of Oxford said in his telling remarks, Mr Halliday, formerly a senior civil servant in the Home Office, produced a report during last year that made radical well thought-out proposals on the reform of sentencing. Those proposals were not produced in the heat of the moment but were well researched and prepared and widely consulted on.

The Government have broadly adopted those principles of sentencing in the White Paper produced in July 2002, and reflected in the Criminal Justice Bill published in the earlier part of last autumn. We are dealing with a series of well thought-out proposals, which are not remotely knee-jerk and do not consider only one bit of the situation but look right across the piece.

I also make clear that the proposals do not for a moment undermine the basic principle that a judge must act independently on individual cases to decide what an appropriate sentence would be, based on the facts. Nobody would dispute the proposition advanced on all sides of this House that the range of offenders and offences is wide and each case must be considered on its individual facts.

Having said all that, it is plain that guidelines are essential, as the judiciary has accepted for many years. Guidelines are important for ensuring consistency, proportionality and fairness in the passing of sentences. As Mr Halliday suggested, and the Government have accepted, there should be a process whereby guidelines can be promulgated. That should be based not only on argument in an individual case by counsel and decided on by judges without further assistance. I know that judges share that view.

As an approach to preparing guidelines, the sentencing advisory panel has been established. It gives advice regularly on various types of offences and offender situations. As noble Lords have said, the sentencing advisory panel gave extensive, well thought-out and well consulted advice to the Court of Appeal Criminal Division before it gave guidelines on burglary. We wish to expand on that, to continue the role of the sentencing advisory panel, and for a sentencing guidelines council to produce guidelines. We want those guidelines to be widely consulted on and published in draft. We want Parliament and the Secretary of State to have a role in determining the guidelines. There must be a combination of Parliament and judges setting the guidelines, with the judges ultimately deciding, entirely independently, on individual cases.

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That is the correct approach, and it is the approach reflected in the Criminal Justice Bill that is currently passing through the Commons. It represents no infringement of the individual judge's right to decide on the appropriate decision in the individual case.

When the sentencing guidelines council is up and running, it will produce guidelines covering all the significant offences. It will also deal with the principles that will apply on sentencing. The Bill sets out what the principles of sentencing should be: punishment, crime reduction, protection of the public and reparation by offenders to victims. For the first time, a statutory purpose is being defined in relation to sentencing.

We have rightly focused on sentencing in this debate, because that is the issue on which the noble Lord, Lord Henley, quite properly focused. However, one should not regard the issue of dealing with crime as an either/or. One should plainly address the causes of crime by addressing issues such as health, education and the culture of particular communities in which crime thrives. We must support families and ensure that jobs are available for those who might otherwise go into crime. As the noble Lord, Lord Trefgarne, said, we must also address the issue of how to bring more cases to justice. That means more arrests and more convictions of the guilty through the criminal justice system.

One should address the question of sentencing as well. Sentencing that is effective in dealing with crime, in relation to punishment, reparation, reducing reoffending and providing public protection, is one part of the picture. However, with the greatest respect, noble Lords are wrong to treat the situation as either/or. We need to address the causes of crime, make the criminal justice system better and improve on the numbers of people arrested. We also need an effective sentencing system.

It is dangerous to set out comprehensive principles in relation to sentencing, but one can see the approach that we have taken in the Criminal Justice Bill.

I turn to other important points. First, offenders who have been given every opportunity to get away from crime but who seriously persist in crime should expect custody. For dangerous sexual and violent offenders, the first priority must be public protection. That means that dangerous sexual and violent offenders should be in custody for as long as public protection requires. The changes to sentencing in the Bill reflect that. As for drug-fuelled offending, every opportunity should be taken to get the offender off drugs. He should if necessary be offered the opportunity of treatment but, if he does not take that offer, he should expect the worst consequences of the law, which will frequently mean custody.

As for the type of sentence, heavy regard should be given to reducing reoffending. Again, noble Lords have sought to put the debate in the context of community sentences versus custody. That is not the right way in which to consider the matter. Every sentence must have in mind what would be the most effective way of reducing reoffending. That means effective community sentences when appropriate. We

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should consider what can be done to reduce reoffending when a defendant is in custody, and we should ensure that there is support for him when he comes out of prison so that he is less likely to reoffend. That is reflected in the Criminal Justice Bill and in the Social Exclusion Unit's report on effective ways of reducing reoffending. Again, it is not an either/or. The purposes must be clear. We are not arguing that one approach is always better than another. The approach taken must have public support, must effectively provide public protection, must reduce crime and must provide reparation by offenders to victims.


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