Criminal Justice and Immigration Bill

My Lords, let me do my best. To start off with, I remind noble Lords that we are seeking in Clause 10 to remove the rights for summary offences to be dealt with by suspended sentence orders; we are not for a moment trying to remove the right to use suspended sentence orders for either-way offences, let alone indictable offences. We are talking about summary offences only. Let me make clear our premise. The courts are in practice using the new suspended sentence—which came in on 1 April 2005—for substantial numbers of summary cases which would previously have received non-custodial sentences. The courts have made substantial use of the orders since their introduction. There has, however, been no commensurate drop in the use of the immediate custodial sentence. Suspended sentences are therefore not being imposed instead of immediate custody. Let me go through the figures. Comparison of the confirmed sentencing figures for all courts for 2006, after the legislation came in, and those for 2004, before it came in, show that the immediate custody rate has remained stable at just under 7 per cent, whereas the usage of suspended sentences has increased from 0.2 per cent in 2004 to 2.4 per cent in 2006. The number of suspended supervision orders has increased from 2,900 to 33,500, 12,700 of which were for summary offences as against 700 in 2004. The figures for the magistrates’ courts alone may be even more significant. A comparison of 2004 and 2006 shows that the immediate custody rate has remained stable at 4 per cent whereas the usage of suspended sentences has increased from 0.1 per cent in 2004 to 1.7 per cent in 2006. The actual numbers increased from 1,300 to 23,300. Some 12,400 of that number were for summary offences, as against 700 in 2004 before the Act came into force. For summary offences sentenced in the magistrates’ courts alone there was a slight drop in the immediate custody rate, from 2.1 per cent to 1.9 per cent. However, the rate of use of suspended sentences shows a much greater increase of 0.1 per cent, to 1.1 per cent. As I said, we do not believe that that is due to a change in the seriousness of offences. The only explanation offered in Committee was that there had somehow been a sudden increase in the seriousness of offences so that the number of suspended sentences shot up even though the number of those going to prison remained the same. We are not aware of any evidence that there has been a sudden change in the seriousness of offences. It seems to us very unlikely that such a change would coincide exactly with the availability of the new suspended sentence. It also seems implausible that any such increase in seriousness would coincide so exactly with the availability of the new suspended sentence. In fact, use of immediate custody for summary-only offences in the magistrates’ courts has been fairly stable at around 2 per cent for the last 10 years, up to and including 2006, which would appear to argue against an increase in seriousness in recent years. The implausibility is twofold. First, it seems implausible that an increase in seriousness has occurred specifically to coincide with the introduction of the new suspended sentence. Secondly, it seems implausible that such an increase would manifest itself by moving offences from community disposals to suspended sentence orders, but that no significant proportion of offences would justify a move up to immediate custody. Those who support the amendment have to say what explanation there can be for these figures—which are unchallenged, as I understand it—other than our explanation, which is that these sentences have been used, not altogether but largely, in place of what would otherwise have been community orders. We believe it is very much more likely that magistrates have not maintained the previous custody threshold. It is one thing to say that magistrates should go through a simple logical process whereby they simply label an offence as being one side or another of the custodial threshold, in complete isolation from consideration of the sentencing options. I intend no disrespect to any court, let alone magistrates’ courts, but we all know that this is a grey area, as the noble and learned Lord the Lord Chief Justice has acknowledged, where a prison sentence might or might not be appropriate for an offender, and with these offenders it is difficult to consider the question in isolation from the available options. The noble and learned Lord the Lord Chief Justice said on 15 November 2007: "““The seriousness of the offence determines whether it crosses what is known as the ‘custody threshold’, but factors personal to the offender can justify the court in passing a non-custodial sentence even where the custodial threshold is crossed. In practice there is quite a wide border-line area where it is open to the court to choose between sending the offender to prison or dealing with him in some other way. This is particularly true in the case of Magistrates””." I think that was the point that the noble Lord, Lord Elystan-Morgan, was making. A suspended sentence, intuitively, is different from an immediate custodial sentence where the offender has no opportunity to avoid the clanging of the gates—prison. Introducing a freely available suspended sentence, which was intended to be a useful tool to the courts as an alternative to custody, has in fact—I maintain that the figures show this—had the unforeseen effect of blurring the level of the custodial threshold. But in any event, if the suspended sentence is no longer available for summary offences, courts will impose an immediate custodial sentence only in those cases where they are clear that they have no alternative, and in other cases they will use community disposals. Under these circumstances we believe that the custodial threshold is likely to revert to something close to its previous level. To support the case that I am putting, I pray in aid the fact that the chief executive of NACRO, Paul Cavadino, agreed precisely with the point that I just made. The noble Baroness, Lady Stern, was a director of NACRO for many years. It is a very well respected organisation. In other words, Paul Cavadino should know what is happening. He said: "““Restricting suspended sentences to more serious offences should help to avoid the ‘boomerang’ effect of these sentences which is boosting the prison population. This happens when courts pass suspended prison sentences on offenders who would not otherwise have been jailed and then activate them on top of a new penalty if the offender returns to court””." Not all suspended sentences are successful, if that is not already obvious. When a suspended sentence is given, in as many as 30 per cent of cases the offender, alas, offends again and is then liable to a longer period of imprisonment for his original offence and for the new offence. In a newsletter of May 2007 the Sentencing Guidelines Council said that the number of suspended sentences rose steadily between 2004 and 2005, that provisional figures for 2006 show a much more rapid increase and that the information available to the council and the panel appears to indicate that this increase has been accompanied more—I stress ““more””—by a reduction in the number of community orders than in the number of custodial sentences. Therefore, having seen the operation of this new change, the Sentencing Guidelines Council came to the view that the case we are putting today is more likely to be true than the opposite. I have spoken to the noble Lord, Lord Dholakia, and told him that I wished to quote from his Second Reading speech. He is a most distinguished Member of your Lordships' House who has gained great expertise in this field over many years. I stress that he was speaking from the Back Benches when he said: "““The Bill provides for the restriction of suspended sentences to indictable offences and those that can be tried either way. There is evidence that courts too often pass suspended sentences where they could have passed a community sentence. Even where courts use the suspended sentence properly to replace an immediate jail sentence, they often fix suspended periods of imprisonment longer than the immediate prison sentence that they would otherwise have passed. If the criminal reoffends and the sentence is activated, the offender is imprisoned for longer than if he had received an immediate prison sentence in the first place. Let us hope that the Bill will at least limit this damage by prohibiting the passing of suspended sentences for minor summary offences””.—[Official Report, 22/01/08; col. 163.]" It is only that which the Government seek to do—to prohibit the passing of suspended sentences for minor, summary offences. If there is concern about the supervision aspect, I should say that all conditions that can be imposed under a suspended sentence can be imposed under a community order without adverse effect on the prison population. It is our firm belief that if we do not introduce Clause 10, the courts will continue to impose suspended sentence orders where they would previously have used community orders. The results of that, ultimately, would be that around 400 people—I want to be very careful with figures here because there is no way of proving the point as I am referring to the future rather than the past—would end up in prison who would not be there if we remove the suspended sentence for summary-only offences. I have spoken for some time but this is a serious matter. I ask the noble Lord to consider withdrawing the amendment—