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Lord Carlile of Berriew: I am grateful for the Minister's response. I certainly exclude her from the St Sebastian category.

We are reassured to an extent by the Minister's expectation of what the council will take into account. Of course, the proof of the pudding will be in the eating. We have reasonable confidence in the membership of the council to take those matters into account, certainly as it will be constituted initially. We are disappointed that the have regard provisions are not more extensive. I say frankly that we would have preferred them to be more extensive. We believe that it would have done no harm to the integrity or content of the Bill, but in the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 172LB to 172N not moved.]

[Amendment No. 172P had been withdrawn from the Marshalled List.]

Clause 163 agreed to.

Clause 164 agreed to.

Clause 165 [Duty of court to have regard to sentencing guidelines]:

[Amendments Nos. 173 to 173B not moved.]

Clause 165 agreed to.

Clause 166 agreed to.

Clause 167 [Duty to give reasons for, and explain effect of, sentence]:

Baroness Anelay of St Johns moved Amendment No. 173C:


The noble Baroness said: In moving Amendment No. 173C, I wish to speak also to Amendments Nos. 173D, 173E and 173F, all of which stand in my name.

Clause 167 would place a statutory duty on sentencers to explain the reasons for deciding to pass a particular sentence and also the practical effect of the sentence on the offender. The amendments relate to the second of these duties, which would effectively replace the similar duty contained in the consolidated criminal practice direction issued by the noble and learned Lord the Lord Chief Justice and first introduced by the noble and learned Lord's predecessor in 1998.

Amendment No. 173C would require the explanation of the practical effect of the sentence to be made in open court. I have tabled it to highlight what appears to be a defect in the present system and ensure that it is not replicated under the new arrangements in the Bill. As I understand the position at present, most sentencers make a full explanation of the effect in open court, as required by the practice direction. However,

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I am told that some simply say words to the effect that defence counsel will explain the sentence to the offender in the cells after he or she has been taken down.

The latter approach clearly does not reflect the intention behind the duty, which is that the offender, the victim if present in court, and the wider public should have the greatest possible understanding of the practical effect of a sentence that has been passed. In a nutshell, they all want to know, if a sentence of imprisonment has been passed, how long someone will actually serve. If those matters are not mentioned in open court but only explained to the offender in the cells by counsel, the victim and the public may be under a serious misapprehension as to release date, parole, the nature of licence conditions and so forth. Explanation of those should help public confidence in the sentencing system.

The amendment would prevent such occurrences under the new statutory arrangements by requiring the explanation to be made in open court. I have no intention of pressing it or the other amendments; they simply probe the Government's intention on how explanation of sentences shall be made. In particular, an offender sentenced after the Bill can expect that he may well be at some loss as to know the real effect of the sentence on him. We are trying to help that realisation.

Amendment No. 173D relates to the explanation of early release arrangements. Amendment No. 173E seeks to probe how the new statutory arrangements will operate. At present, the model wording that suggests how sentencers should explain the practical effect of a sentence is provided in the practice direction, but Clause 167 gives no indication of whether sentencers will be expected to use words entirely of their own choosing—I very much doubt it—under the new statutory arrangements, or whether the consistency provided for by the existing model will continue. I hope that the Minister will say that the current practice will be continued on that. I beg to move.

Lord Carlisle of Bucklow: In view of the Minister's comments about my criticisms of verbosity in the Bill, she will appreciate that I do not feel that I can totally support my noble friend in adding the words in Amendment No. 173D to the Bill, as that would extend it by three lines. However, I strongly support my noble friend on the principle, purpose and importance of the amendments in reminding the judiciary what is meant by,


    "the effect of the sentence".

I do so for a reason. The noble Lord, Lord Dholakia, will remember a situation that the Parole Review Committee faced. One reason why we were set up was a lack of confidence in the parole system. An indication of that was that people seemed to come out of prison at dates that appeared to have no relationship to the sentences that had been passed and probably published in the local paper, so people said, "He got 18 months and was walking past my doorstep six months later".

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As I am sure the Minister knows, in our recommendations we unanimously put forward the scheme then implemented by the government of the day whereby, for sentences of up to four years, half should be served in custody and half under supervision in the community, subject to the supervision of those sentences under 12 months. We said very firmly that we believed it important that the judge at the trial, in sentencing a person to prison, set out in clear terms what the sentence meant by saying, for example, "I am giving you a sentence of three years' imprisonment. That means that you will spend 18 months in prison. If you behave yourself, you will come out at that stage. For the next nine months you will be under supervision, and for the whole of the further 18 months you will be at risk of recall if you commit a further offence".

The sadly missed, late Lord Chief Justice, Lord Taylor, in a case that I am sure that the Minister has in her brief but of which I cannot now remember the name, specifically gave guidance to judges that they should, in sentencing someone to imprisonment, indicate how much of that period should be in prison and how much out of it. It is a very important matter. As I said, it is not necessary to write it into the Bill, but to emphasise it in Committee, as my noble friend Lady Anelay has, is of great importance.

6.15 p.m.

Lord Renton: Before commenting on each amendment tabled by my noble friend Lady Anelay, I want to make the general point that when the clause refers to,


    "the effect of the sentence",

I should have thought that that envisaged the impossible. How can the courts forecast the effects of the sentence on the offender? He may be a persistent offender who will go on committing crimes, or a first offender in which case the sentence may be all right. The court cannot publicly explain, either to the offender or in open court, the effect of the sentence. It is unpredictable. Having said that, I agree very much with the first amendment. The reasons must be given not only to the offender, by passing a note to him or something like that, but in open court.

I have a slight doubt about Amendment No. 173D. I hope that my noble friend Lady Anelay, whose efforts we greatly admire, will forgive me for mentioning it. I should have thought that, when sentencing offenders, the judge must not be too involved in the future. To draw the attention of the offender to a power or duty of the Secretary of State to release him might unjustifiably raise his hopes of an earlier release. We must avoid saying that.

Amendments Nos. 173E and 173F are very valuable, and I hope that the Government will seriously consider accepting them as well as Amendment No. 173C.

Baroness Scotland of Asthal: I regret that I will have to disappoint the noble Lord, Lord Renton, because

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we cannot accept the amendments. That is for the good reason that we believe that their purport is already met in the framework that we have provided in Clause 167. I very much agree with what was said by the noble Lord, Lord Carlisle of Bucklow, about the importance of the court indicating to the offender the precise effect and what it means—the consequence of how the sentence will operate. That is critical.

We believe that "effect of the sentence" in Clause 167 is crafted in a way to elicit that result. The noble Lord, Lord Carlisle, and the noble Baroness, Lady Anelay, both prayed in aid the benefit of the practice directions issued to assist judges, when they come to sentencing, to express themselves with accuracy and clarity. We would certainly expect those practices to continue. The Lord Chief Justice is already able to issue practice directions with suggested formulations for the giving of reasons and we do not need an addition such as that suggested by the noble Baroness in Amendment No. 173E to allow him to do so. I happily give her the reassurance that she seeks in relation to those matters.

Amendments Nos. 173C and 173F would remove the discretion currently contained within the clause either to prescribe cases where the duty does not apply or to allow reasons to be given in the absence of the offender or to be provided in a written form. We have specifically provided for that in order to cater for the situation in which persons other than the court can provide the necessary explanation; for example, the offender's own legal representative or an officer of the court, with the possibility of the explanation being given orally or in writing where the offender is not at court.

There may also be cases in which the court does not consider it to be appropriate to give reasons; for example, if an offender has pleaded guilty by post to a very minor traffic offence and is not present in court. In most cases, it will be appropriate to give reasons, but a full explanation of the sentence may nevertheless be thought to be inappropriate; for example, if the offender is deeply traumatised by the sentence. The clause provides the Secretary of State with an order-making power to prescribe such cases.

However, the norm will be that the court should state reasons in open court. In most cases, the offender will be present in order to have the effect of the sentence explained to him. We agree with the comments made about the importance of that taking place and it being done in an appropriate and proper way.

I hope that with those reassurances, the noble Baroness will be content—particularly if she still sits as a magistrate. She will not in open court have to give reasons to defendants who have transgressed the traffic offences but are not present to hear her wonderful words.


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