Previous Section Back to Table of Contents Lords Hansard Home Page


Baroness Scotland of Asthal moved Amendments Nos. 214A and 214B:



    Page 90, line 9, leave out from "crime" to end of line 10.

On Question, amendments agreed to.

[Amendment No. 215 not moved.]

Baroness Scotland of Asthal moved Amendment No. 215A:


    Page 90, line 11, leave out subsection (5) and insert—


"(5) The persons eligible for appointment as a non-judicial member by virtue of experience of criminal prosecution include the Director of Public Prosecutions."

The noble Baroness said: My Lords, this amendment forms part of the group that we have just discussed. The purpose of reducing the number of non-judicial members is to recognise the force of the argument concerning the appointment of a mainstream civil servant to the council. The proposed five non-judicial members will bring experience that covers the whole spectrum of a criminal case, from detection of the offender to completion of the sentence—an issue we discussed in some detail earlier.

As I said, concerns have been raised about the possible appointment of the commissioner for correctional services as the person who would bring to the council experience of sentencing policy and the administration of sentences. The issue here has been

5 Nov 2003 : Column 853

the role and responsibilities of a mainstream civil servant and the possible conflict between the responsibility to Ministers and the responsibility as a member of the independent body. It will be of great benefit to the council to have direct access to that person.

I have already resisted the previous amendments of the noble and learned Lord, Lord Ackner, and I shall resist his next one. The noble and learned Lord proposed that the council should consist only of judicial members and those amendments have been lost.

In the circumstances, it is essential that each of the specified areas of experience is covered, as I argued on the previous amendments. In view of what has happened, I hope that the noble and learned Lord will withdraw his amendment.

I apologise for not being immediately fluent. I have repeated all that I said earlier because I thought that I had dealt with the issue then. I beg to move.

On Question, amendment agreed to.

[Amendment No. 216 not moved.]

Baroness Scotland of Asthal moved Amendment No. 216A:


    Page 90, line 19, at end insert—


"(8A) The Secretary of State may appoint a person appearing to him to have experience of sentencing policy and the administration of sentences to attend and speak at any meeting of the Council."

On Question, amendment agreed to.

Clause 154 [Duty of court to have regard to sentencing guidelines]:

Lord Ackner moved Amendment No. 217:


    Page 92, line 44, at end insert—


"( ) Nothing in subsection (1) shall fetter the judges' overriding discretion in the individual case to set the sentence he thinks is appropriate."

The noble and learned Lord said: My Lords, I do not know to what extent in this House I am pushing at an open door. It is very difficult to know. Certainly the noble Baroness has constantly referred to the fact that judicial discretion will not be interfered with in any way.

I took heart—not for very long—way back in January when the noble and learned Lord, the reluctant Lord Chancellor, was making a Motion on sentencing policy. He set out how everything is based largely on Mr Halliday, and then said:


    "I also make it 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".

He said a little later:


    "We want Parliament and the Secretary of State to have a role . . . There must be a combination of Parliament and judges setting the guidelines, with the judges ultimately deciding, entirely independently, on individual cases.

5 Nov 2003 : Column 854


    "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".—[Official Report, 15/1/03; cols. 253-254.]

I therefore hope that I shall be, if not interrupted, at least told that all that is still sterling silver and that my amendment is in no way resisted. I beg to move.

Baroness Anelay of St Johns: My Lords, I should like to speak to Amendment No. 226 in my name, which is in the same group as the amendment of the noble and learned Lord. It seeks to examine the effectiveness of paragraphs 7 and 8 of Schedule 19 in limiting the power of the executive to interfere in judicial discretion in the process of sentencing for murder.

I appreciate that we will come much later to a detailed discussion of Schedule 19 and its related powers, but I thought that it was right to group this amendment with that of the noble and learned Lord so that I could put my position on the record and invite the Minister to give what I hope will be the Government's main defence and justification to the noble and learned Lord.

When accused of undermining the role of the judiciary by their proposal in the Bill, the Government have in the past sought refuge in paragraphs 7 and 8 of Schedule 19. They have said that there is still judicial discretion in determining the length of a sentence for murder. The judge can vary it up or down, they say, from a starting point laid down in Schedule 19, by taking mitigating or aggravating factors into account. Paragraph 8 then says that detailed consideration of these factors may result in the judge passing a minimum term of any length at all, whatever the starting point may have been. Indeed, it may result in the judge making a whole life order. The decision is his, so they say.

My amendment reduces the level of consideration that the judge must give to the aggravating or the mitigating factors. My amendment would mean that the judge would give consideration rather than detailed consideration to the factors before passing sentence.

I would be grateful if the Minister could set out clearly on the record why the Government believe that this particular part of Schedule 19 leaves the judge with the power to exercise his judicial discretion with regard to the sentences within Schedule 19 rather than being directed by the Secretary of State.

Lord Ackner: Before that amendment is considered, it should be grouped—should it not?—with my Amendment No. 225C, which is immediately before it, and which says that nothing in Schedule 19,


    "shall fetter the judge's own discretion in the individual case to set the sentence he thinks is appropriate".

Baroness Anelay of St Johns: My Lords, since it is a question on Report, I am able, within the rules, to answer it. I purposely did not group my amendment as the noble and learned Lord suggests because I wanted

5 Nov 2003 : Column 855

to give the Government, at this stage, the opportunity to give their defence on judicial discretion with regard to Schedule 19. I hope that I made it clear in our previous debate on sentencing that I am no longer able to go down the route taken by the noble and learned Lord, Lord Ackner. Therefore, because he has dismissed the package of proposals I put forward, I cannot support his amendments. I therefore do not group amendments of mine with his where I think there is any chance that I may need to divide the House. I do not wish to follow a Division pressed by the noble and learned Lord which he may win or lose but which would pre-empt my own action.

Lord Carlisle of Bucklow: My Lords, I strongly support the noble and learned Lord, Lord Ackner, on Amendment No. 217. We have just agreed, as a House, to the setting up of a Sentencing Guidelines Council. It will have great authority; it will have members who are respected, and I am sure their views will be respected. They will issue guidelines. However, there is nothing new in issuing guidelines. The Court of Appeal has been issuing guidelines for many years.

The Bill states specifically that every court must, in sentencing an offender, have regard to any guidelines which are relevant to the offender's case. That is the position at the moment. Yet no one suggests that the passing of guidelines by the Court of Appeal in any way overrules the final discretion of the judge who has tried the case to decide the appropriate sentence. I think, in fact, that the words used by the noble and learned Lord, Lord Ackner,


    "the judges' overriding discretion in the individual case to set the sentence he thinks is appropriate"

should be on the face of the Bill when we are setting up a Sentencing Guidelines Council.

The Minister has on many occasions expressed her confidence in the judiciary. She has said that this Bill is in no way an attack on the judiciary. She tells us that her right honourable friend the Home Secretary has an equal confidence in the judiciary and that they have confidence in the way in which the guidelines have been used until now and the way in which the courts have interpreted them. The way in which the courts have interpreted them is by having regard to those guidelines but, in the end, the judge has an overwhelming discretion, based on everything he has seen and heard in that court, to decide what the appropriate sentence is, and the guidelines will not be able to overrule that discretion. I hope very much that the Minister, who has expressed that confidence in the judiciary, will be prepared to accept this amendment.


Next Section Back to Table of Contents Lords Hansard Home Page