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The Earl of Listowel: I am concerned about the popular response. If the media see someone receiving a sentence below the minimum, they will catch on to it and say, "The judge had a minimum sentence, and he went well below that". They will not listen to the fact that the judge gave his reasons, which would be wholly acceptable to all of us. Does the Minister have that concern?

Baroness Scotland of Asthal: I understand the noble Earl's concern. I know that there are people outside the House who would like the policy to be driven by the media, but it is not. It is driven by the needs of the individuals who come before the courts seeking justice—the victims, the witnesses and the defendants. Each needs a clear, acknowledged, known system that is fairly applied.

In the provisions are the tools that can be used by sentencers to make clear the reasons for their judgments and the basis on which they have been made. The guidelines that the sentencers will have observed will be written in statute. They will start from the minimum position but will be able to say precisely what mitigating factors have been taken into account and what features caused an offence to be aggravated, so that they can distinguish between such offences.

The noble Earl, Lord Listowel, is right to say that, often, there is ill-formed criticism of the exercise of a judge's discretion, whether the judge be lay or professional. The Bill will give the sentencer the tools to make the explanation clear. Discretion will be better understood for that.

The right reverend Prelate the Bishop of Worcester said that we were giving out different messages. We are not. From the Dispatch Box, I have sought to give out a consistent message.

Lord Ackner: Does the noble Baroness accept that the genesis of Schedule 17 was the Home Secretary's reaction

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to the application by the House of Lords of the human rights legislation to the effect that the Home Secretary no longer had a part to play in deciding how long someone guilty of murder should stay in prison? He threatened to respond, and, in another place, he indicated that this was his response. Some of us have received letters from the noble Baroness's department explaining why it took so long for Schedule 17 to be provided, given that the decision of the House of Lords to apply the European legislation and jurisprudence occurred way back in 2002.

Baroness Scotland of Asthal: That would not be a fair assessment. The noble and learned Lord will concede that there is, and has been for some time, a vigorous debate about the proper role that the legislature and the executive should play in determining sentence and the proper role and parameters for the judiciary. Of course, it is right that our constitutional arrangements, prior to the decision made by the Judicial Committee of this House, were such that the political—as, I believe, the noble and learned Lord, Lord Mayhew, expressed it—voice in sentencing could clearly be heard and exercised through the expression of the Home Secretary in being.

Therefore, the constitutional arrangement that prevailed hitherto was that, through the Secretary of State, Parliament had an opportunity to be heard. Once those arrangements were changed—the noble and learned Lord will know that many have cried out for such a change for a long time—it was proper for the Government, in looking at this Bill, to seek alternative arrangements if Parliament deemed it appropriate. We are now engaged in that. It is a proper discussion, which we should be having, about where the boundaries are. Parliament has had an opportunity to speak through the other place and it will have an opportunity to speak here.

We should not fool ourselves that outside Parliament in the general population there is clarity and understanding of how conclusions are reached by our judiciary. It is incumbent on us to seek to bring that clarity. If we succeed, it is to be hoped that we shall engender a greater degree of confidence in our judicial process than, lamentably, there appears to be now. It is a sad fact that although crime is dropping at significant rates, confidence levels are not rising at a commensurate level. Therefore, we must do something. Here, we seek to put matters in balance.

I hope that I have answered the question posed by the noble Lord, Lord Kingsland. It is right that this is a probing amendment. We will have an opportunity to discuss in detail the individual clauses as they arise in their proper place.

5.15 p.m.

Lord Kingsland: I am most grateful to the noble Baroness for giving such a full reply. I hope that Members of the Committee will agree that the debate has provided an important degree of clarification at the beginning of our consideration of the detailed

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amendments under Part 12. Perhaps I may make just one or two observations before I withdraw the amendment.

I was pleased to hear the noble Baroness say that she had complete confidence in Her Majesty's judges; and that she also had complete confidence in the Attorney-General. Since the Attorney-General has rarely found it necessary to use his powers to question sentences laid down by trial judges, that might suggest to Members of the Committee that, broadly speaking, the system is working extremely well.

The Minister said that the motive for the changes that the Government seek to introduce is to provide a starting point for the trial judges sentencing exercise. The starting point is the minimum sentence. That is then adapted by a process of taking into account aggravating and mitigating factors.

I ask myself: is that any different from what happens now? A trial judge considers a starting point, which is a spectrum—a range from zero to the maximum sentence. Somewhere along that spectrum, the trial judge will determine the particular sentence in the particular circumstances of the case. He or she will be assisted by the guidelines laid down by the Criminal Division of the Court of Appeal. As far as I am aware, no dissatisfaction has been expressed by the noble Baroness with respect to those guidelines. Therefore, where is the advantage of the new system that the Government are proposing?

I confess that I cannot see any advantage. Indeed, I would go further: I can see at least one disadvantage. Setting out a minimum sentence will put pressure on the trial judge to go in one direction rather than another in setting his or her sentence. The trial judge will be aware that, in circumstances where he sets a sentence below the minimum, he is likely to receive considerable criticism in the press.

When we consider the many amendments tabled to the particular clauses in Part 12, we should bear in mind today's general debate. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 135 [Purposes of sentencing]:

[Amendments Nos. 160BB and 160BC had been withdrawn from the Marshalled List.]

Baroness Anelay of St Johns moved Amendment No. 160BCA:


    Page 84, line 10, leave out subsection (1) and insert—


"(1) When a court determines the sentence that shall be imposed on an offender, it shall take into consideration the following purposes of sentencing—
(a) the punishment of offenders;
(b) the reduction of crime (including its reduction by deterrence);
(c) the reform and rehabilitation of offenders;
(d) the protection of the public;
(e) the making of reparation by offenders to the community and persons affected by their offences;
(f) the maintenance of public confidence and the prevalence of the offence in question in the locality; and

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(g) ensuring offenders' awareness of the effects of crime on the victims of crime and the public."

The noble Baroness said: In moving Amendment No. 160BCA, I speak also to Amendment No. 160BH with which it is grouped. As my noble friend Lord Kingsland said, we have just debated the significant matters of principle that underlie Part 10. We turn now to matters of detail. The Minister said that we now have a raft of amendments which go step-by-step towards investigating what the Government are trying to achieve and determining whether this is the appropriate way forward.

It is right that we should do so because so little of this part was considered in another place. If it was, it was considered at a very late stage. For example, Clauses 165 to 214 inclusive were not debated in Committee because of a timetable Motion. Clauses 218 to 227 inclusive were not debated similarly. Government amendments to Schedules 7, 8 and 9 were never debated. Therefore, we felt it necessary to table a significant number of mostly probing amendments because it is the only opportunity in either House to consider the detail of some of these clauses.

Therefore, in the spirit of achieving the passage of the Bill in the limited time now available, I agreed to a significant number of very large groups. I apologise to all Back-Bench Members of the Committee for so doing. I appreciate that it makes debate more difficult. I tried to do it only where I could see that there is a unifying argument. I appreciate, too, that, understandably, there has been some difficulty in drawing up the lists at the Home Office.

Therefore, for the convenience of the Committee, I shall do a little caretaking. First, Members of the Committee will be relieved to hear that I shall not move Amendments Nos. 160BT and 161E. I feel that the Public Bill Office has had enough of withdrawing amendments, so I shall not add any more. I understand also that the Liberal Democrat question about whether Clause 143 should stand part, currently grouped with Amendment No. 160BK and others, has been put in that place incorrectly. I give notice therefore that it will be taken in its proper place with Amendments Nos. 161C and 161D.

Given how the groupings list has been typed, it may not be immediately obvious to noble Lords that the group to which I am speaking comprises 10 amendments, up to and including Amendment No. 160BJD. The next grouping, beginning with Amendment No. 160BK, comprises 13 amendments up to Amendment No. 160BSA. That marks the end of my sermon on these groups of amendments.

I turn now to the detail of the amendments. Clause 135 sets out in statute the five purposes of sentencing to which the courts shall have regard when passing sentence on offenders. At Second Reading, the noble and learned Lord the Lord Chancellor set out the purposes and went on state that:


    "Those purposes are complementary. It will be up to sentencers to determine what weight to accord to each in a particular case".—[Official Report, 16/6/03; col. 561.]

That was a helpful statement, but it does not appear on the face of the Bill. Between now and Report stage, perhaps the Government will consider whether the

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words of the Lord Chancellor should be incorporated into Clause 135 in some form for the avoidance of any doubt in the future.

Amendment No. 160BCA rewrites Clause 135(1). I have sought to present a keeling schedule of my own to enable other noble Lords to make sense of the various amendments that I had put down earlier. The subsection was then littered with amendments; consolidation has made more sense of them. The objective of the amendment is to add to the list of principles of sentencing currently listed in the subsection.

First, my proposed new subsection (1)(e) ensures that reparation by offenders, one of the aims of sentencing, should be directed to the community as a whole. At present the paragraph proposed by the Government refers to offenders making reparation only to "persons" affected by their offences. I ask, therefore, whether such reparation would include reparation made to the wider community as well as to the direct victims of the particular offence. When I first read the paragraph, I had thought that that was what the Government meant, and I see that the noble Baroness is nodding her head. I shall not pursue that in the hope that she will clarify the issue.

Secondly, my proposed new subsection (1)(f) sets out an additional purpose in that there should be a restoration of public confidence and that the prevalence of the offence in the local area should be taken into account. In Standing Committee in another place, my honourable friend Mr Humfrey Malins asked whether courts might need the flexibility to deal more severely with offences that are particularly prevalent in a certain area. The Minister, Mr Hilary Benn, rejected my honourable friend's argument but went on to say that, even under the Bill, there could be,


    "well-justified local variation [in sentencing arrangements]".—[Official Report, Commons Standing Committee B, 30/1/03; col. 733.]

Given our previous debate, and considering in particular the contribution made by the noble Lord, Lord Goodhart, concerning consistency and the response of the Minister on that point, I should be grateful if she would expand on this. What degree of, "well-justified local variation" in sentencing does the Bill allow? What role will ensuring public confidence in the system play in the sentencing framework once the Bill has been enacted? That is not mentioned in Clause 135 and I would welcome the Minister's comments.

The third proposed new sub-paragraph (g) would make it a principle of sentencing to make offenders aware,


    "of the effects of crime on the victims of crime and the public".

That wording is specific. It replicates Section 2(2)(d) of the Criminal Justice and Court Services Act 2000. I am sure that the Minister's briefing will point out that the section sets out one of the statutory aims of the National Probation Service. Noble Lords who took part in the debates on that Bill—I did not do so, but I

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have read the reports—will recall that the words were inserted after the House divided on an amendment proposed by my noble friend Lady Blatch.

The purpose of the amendment is to elicit a response from the Government as regards what consideration they have given, when looking at the purposes of sentencing, to ensuring that offenders are made aware of the effects of crime on victims and the public. In the 2000 Act Parliament recognised that this is an important issue as regards offenders being supervised by the probation service. Why is it not included here? All the other statutory aims of the Probation Service have been set out; why not this one? Why has it slipped from the list?

I turn finally to Amendment No. 160BH, concerning the role of the sentencing guidelines council, to be established by the Bill. I move from the general comments made in the previous debate to the particular and ask the following questions. Will the council have any role in formulating guidance for sentencers on the relative weight to be given to each of the priorities in particular cases, as listed in Clause 135(1)? I notice that Clause 163(1)(a), dealing with the remit of the council, states that guidance issued by it "may be general in nature". Does that include guidance on the relative weight to be given to the statutory purposes set out in Clause 135(1) and the mechanism for resolving any conflicts or tensions between them? I ask that because conflicts and tensions there are bound to be. It would be helpful if the noble Baroness could explain at this stage the Government's thinking in this regard.

It would also be helpful if she would respond to the point that has been made by Justice in its helpful briefing to noble Lords, which is as follows:


    "There will be many occasions when a court needs to make a choice. Clause 135 gives no clue as to how that choice should be made, and establishes no order of priority among the various aims".

I shall not speak at greater length in putting forward these detailed questions. It is difficult to do justice to such a large group of amendments without speaking for too long. I hope that I have done them a little justice. I beg to move.


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