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Criminal Justice Bill

9.16 p.m.

House again in Committee.

Clause 254 [Determination of minimum term in relation to mandatory life sentence]:

Baroness Anelay of St Johns moved Amendment No. 209A:

The noble Baroness said: Here we are again. We have debated 10 groups so far and we have only another 20 to go before we are allowed to go to bed by the Government Chief Whip.

In moving Amendment No. 209A, I shall speak also to Amendments Nos. 210A and 210B. For the avoidance of doubt, I make it clear from the beginning that these amendments and those which follow in the next group to Schedule 17 are today all probing amendments. I am trying to clarify some of the details of the Government's proposals on the new statutory minimum term for murderers.

Amendment No. 209A would make it clear on the face of the Bill that the new sentencing regime for murder contained in Chapter 7 of Part 12 would apply to offences that have been committed before as well as after commencement. Clause 254(1) provides that the new system will apply when the court passes a life sentence after the commencement date. But of course the murder could have been committed many months or years before that date. The clause is silent on whether it will apply to offences committed before commencement. No provision similar to that is present in Clause 270(5), which states that the penalty of 14 years for causing death by dangerous driving will apply only to offences committed after the commencement date. Amendment No. 209A therefore gives the Government the opportunity to make clear how the new system is intended to work in such cases.

Amendments Nos. 210A and 210B seek to probe the wording of Clause 254(5). That subsection specifies that when considering the seriousness of an offence of murder, the court must have regard not only to what is set out in Schedule 17 but also to,

    "any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 17".

The amendments seek clarification of what kinds of guidelines issued by the Sentencing Guidelines Council the Government may have in mind. When the Government state that the court must have regard to

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guidelines relating to "offences in general", do they mean that the court will have to consider a single set of generic guidelines relating to the general arrangements for the sentencing of all offences? Or do they mean that the courts will have to consider a number of guidelines each relating to a particular type of offence? What is meant by "offences in general"?

In what circumstances do the Government envisage that the guidelines issued by the Sentencing Guidelines Council in respect of offences in general will be incompatible with what is set out in Schedule 17? Those are the matters on which I should be grateful for some clarification.

In addition, what appears to be an error in the Explanatory Notes has been brought to my notice. It may simply be an omission from the Bill or it may be the way that the Explanatory Notes have been written. Paragraph 560 of the notes states that subsection (5), to which I have just referred, will enable the court to take into account,

    "any additional guidelines that may be issued by the Lord Chief Justice or by the Sentencing Guidelines Council".

But, of course, Clause 262 states that the definition of "guidelines" in Chapter 7 of Part 12 is the same as in Clause 165(1)—namely, guidelines issued by the Sentencing Guidelines Council. Therefore, what is the purpose of that reference to the Lord Chief Justice? Was it simply a googly thrown in in error and not expunged later or is there something really relevant in that? I beg to move.

Baroness Scotland of Asthal: I hope that I shall be able to give the noble Baroness the assistance that she seeks. I shall not recite what each amendment says because I understand that they are all probing.

I believe that the concern raised in Amendment No. 209A is already provided for in the Bill. The issues of retrospectivity and the compatibility of transitional cases with convention rights were considered in the drafting of these provisions. Paragraphs 9 and 10 of Schedule 18 provide for judicial determination of tariffs under Clause 254 where the offence was committed prior to the commencement. But they stipulate that the court may not set a minimum term higher than it believes the Secretary of State would have set under the former arrangements. We believe that that is compatible with Article 7 of the convention. I hope that that sets the noble Baroness's mind at rest in relation to that amendment.

Amendments Nos. 210A and 210B would alter Clause 254(5)(b) to provide that the court, in setting a minimum term, must have regard to the general principles and any guidelines. The amendments would allow courts, in setting tariffs, to follow principles set out in general guidelines which were not compatible with Schedule 17. I understand that that is not what the noble Baroness wants, but she does want an answer. Therefore, the current drafting seeks to achieve clarity. It is not probable that the Sentencing Guidelines Council will wish to issue guidelines that are counter to legislation. Therefore, we do not anticipate a direct conflict between the mandatory life principles and any guidelines issued by the council.

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However, the council will, on occasion, want to issue guidelines which cut across a range of criminal offences. In some cases, those might be properly applicable to murder tariffs; for example, the council might issue guidance on guilty pleas. Schedule 17 provides that the court may take into account guilty pleas when setting minimum terms. In other cases, the position might be more confusing; for example, the council might issue guidance on mitigating factors in criminal cases generally. It is possible that some of the content of such guidance would cut across the Schedule 17 principles were they to be applied to murder. Therefore, while the council might well never intend the guidelines to apply to murder, we wish to make it absolutely clear on the face of the Bill that courts should consider the Schedule 17 principles as paramount should there be any confusion.

Our intention is that Schedule 17 principles must be the overriding principles in setting minimum terms for murder cases. Therefore, I am unable to accept the amendment. I hope that the noble Baroness will see how the two fit together and why we have set out the provision in the way that we have.

Amendment No. 252ZA would remove the provisions allowing for the commencement of the new minimum term arrangements two weeks after Royal Assent. That would result in Chapter 7 becoming subject to Clause 305(3), which states:

    "The remaining provisions of this Act come into force in accordance with provision made by the Secretary of State by order".

The introduction of the new arrangements would be delayed. That means that in the interim there would be no provision for adults convicted of murder to have their tariffs determined in a manner compatible with their convention rights.

That is the reason why we think that the amendment is not necessary. There are about 600 prisoners who have been convicted but have not yet received a tariff, so as a result of the Anderson judgment, this substantial number must be dealt with quickly and efficiently out of consideration for the human rights of the offender and to bring some closure for the family and friends of the victim. The longer we wait to bring in compatible arrangements for tariff setting the greater the number of those awaiting tariffs will grow. That will also increase the burden to be placed on the court system, which is substantial in any event.

I am grateful to the noble Baroness for bringing to my attention what is stated at present in guidelines. There may be a historical reference to the Lord Chief Justice not being superseded. I need to check that because I am also not clear as to whether they anticipate the position on the transitional arrangements where the Lord Chief Justice may have guidelines which would bite unless and until the new provisions come in. So, there may be that lacuna. However, it seems that it is one of the two. I shall certainly clarify that and write to the noble Baroness.

Baroness Anelay of St Johns: I am grateful to the noble Baroness. She has given clarity. Even though there may not be agreement among the Committee on

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the Government's objective or on how they are trying to achieve it, as she knows, we agree with much of what the Government are trying to do, but unfortunately—for them not for us—just not all of it. I am grateful to the noble Baroness for taking us further forward. I accept entirely what she said with regard to Amendment No. 209A and indicate now that I shall not return to that on Report. The noble Baroness has given assurances on compatibility with Article 7, which I accept.

I am intrigued by her explanation about the way in which the SGC guidelines indeed cut across Schedule 17 when they are not specifically aimed at it, but that Schedule 17 would override those issues. Again, I give notice that I shall not return to that on Report. I am grateful to the noble Baroness for saying that she will look at the reference to the Lord Chief Justice to see whether it is necessary for transitional purposes or whether it is just hors de combat. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments No. 210 to 210B not moved.]

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