Coroners and Justice Bill

This debate has been very interesting and well informed, and I shall try to conclude it in that spirit. It might be helpful if I were first to give some background to the proposals in the Bill for a Sentencing Council—I claim some authorship for those. In the mid-1990s, there was, as those of us who were in the House at the time will recall—a number are present on the Labour Benches—concern about the unrelenting rise in crime that had taken place under the Conservatives. Hon. Members may recall that recorded crime doubled between 1980 and 1995. The Conservative campaign guide of 1994 sought to point out that although recorded crime had risen, crime as calculated by the chosen measure of the Conservative Government—the British crime survey, which they had established—had risen by "only 50 per cent." Both sets of data were true, but even a 50 per cent. rise was alarming. Thus, following the appointment of the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) as Home Secretary in 1993, there was a big shift in the penal policy of the Conservative Government against what he regarded as the liberal and wet approach conducted by all his Conservative predecessors with, probably, the single exception of Lord Waddington; there was great concern about increasing the number of prison places and much else besides. One of the things that I examined at the time was the question of consistency in sentencing. With great assistance from the statisticians in the House of Commons Library, I published a paper in 1996 called "Honesty, Consistency and Progression in Sentencing", and its conclusions found their way into the Labour manifesto and then into the Crime and Disorder Act 1998, which was piloted through this House by my right hon. Friend the Member for Cardiff, South and Penarth (Alun Michael). I proposed a modest change: that a sentencing advisory panel should be established. He will recall how tentative we were about moving into territory that previously had been within the exclusive ambit of the judiciary. What the data that the House of Commons Library statisticians had produced and that I had published showed was that there was no necessary connection between crime levels—or the rates of growth or decline in crime—and local sentencing rates, be they the custody levels, the proportion of offenders sentenced to custody, or average sentence lengths. Of course I accept what both the hon. and learned Member for Harborough (Mr. Garnier) and the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) said about the fact that the court has to have discretion for all sorts of reasons, not the least of which is that there may be what the hon. and learned Gentleman has described as a local "epidemic" of crime and the court may wish to set out imperatives as to why that is not acceptable locally—no one argues about that. The argument is about areas where there are apparently random differences in sentencing that bear no direct relationship either to local crime levels or to reoffending rates. What I was seeking to do was better to inform the sentencing process, without encroaching on the necessary independence and discretion of sentencers, so we established the Sentencing Advisory Panel. As a result of a major study into sentencing, which I got going towards the end of my period as Home Secretary, which my right hon. Friend the Member for Sheffield, Brightside (Mr. Blunkett) continued and which reported in 2001-02, we then had the Criminal Justice Act 2003—it established the Sentencing Guidelines Council. More recently, in the light, not least, of the pressure on prison places, the Carter inquiry was established and it reported in early December 2007. Alongside Lord Carter's report was published further statistical evidence called "Local Variation in Sentencing in England and Wales". It was produced by my Department, but it never got quite the attention that it deserved—I say that because it contains extremely interesting data. It looks at the variations in custody rates, average sentence lengths and the use of determinate and indeterminate sentences. It showed that all those things varied "significantly" across the 42 criminal justice areas in England and Wales. It also suggested:""The range in custody rates in magistrates' courts and ACSLs"—" average custodial sentence lengths—""in the Crown Court narrowed between 2003 and 2006, suggesting that sentencing practice became more consistent across the CJAs over this period."" I suggest that that was partly as a result of the work of the Sentencing Guidelines Council. The document also suggested that there was little in the way of linkage, stating:""Variation in sentencing amongst the CJAs was not well explained by local crime rates, although there was a weak relationship between recorded crime rates and magistrates' court custody rates for theft and handling stolen goods offences."" It continued:""No statistically significant relationships existed between changes over time of recorded crime and sentencing in magistrates' courts and Crown Court centres by CJA."" Against the background of the relative partial success of the Sentencing Advisory Panel and the Sentencing Guidelines Council, Lord Carter recommended that I should establish a judicially led working group to look more closely at whether we could have better machinery for advising and guiding the judiciary on sentencing. Lord Justice Gage kindly accepted the invitation to chair this sentencing commission working group, and his report was produced late last year. What I sought to do is to replicate, of course in more detail, the key recommendations of his report. I note what the hon. and learned Member for Harborough said about the need for proper judicial independence, but he also said that we had to avoid a judicial free-for-all. I have said very much the same thing and I made it clear in my statement on 5 December 2007 on Carter. I assume that the hon. and learned Gentleman knows Lord Gage and many of the other distinguished members of the working group, so he will know that they would not have made the recommendations if they thought that they would fetter the proper discretion and independence of the judiciary. We have tabled amendments 143 to 146 to clause 104 and amendment 148 to clause 108 because those provisions were criticised in Committee—[Interruption.] I welcome the hon. Member for Mid-Sussex (Mr. Soames) to the Opposition Front Bench. It is good to have him here to listen to this important debate. We have responded to the criticism that was made on both sides in Committee that the original provisions were too dirigiste. Therefore, clause 104 will no longer make it a requirement on the Sentencing Council to subdivide all offences into categories of offence, but it will have the discretion to do so. If it does, we invite it to subdivide the offence categories in much the same way as they are currently subdivided. We also make it clear that aggravating and mitigating factors can be related to the offender as well as to the offence, and that is the important effect of amendment 144. Clause 108 sets out the duties of the court in respect of the sentencing guidelines to be found in clauses 103 and 104. Here, too, we have sought to add greater flexibility to the system. Generic offences such as burglary, robbery and theft cover a range of behaviours and, therefore, the Sentencing Guidelines Council has subdivided them into categories. Where they are divided and there are aggravating or mitigating factors, they can be within the overall range of the guidance for the offence and not just in that particular category of offence. I suggest to the hon. and learned Member for Harborough that that will give sentences a considerable degree of flexibility. The hon. and learned Gentleman suggested that he would divide the House on amendment 43. Currently, the council will be asked to follow sentencing guidance and he suggests that instead it should "have regard" to it. Those words are in the 2003 Act. I was abroad at the time, so I claim no authorship and I cannot remember whether the Opposition thought that it was wonderful. In any event, especially in the area of the law, we have to learn from experience. The hon. and learned Gentleman would not suggest that the criminal justice process or law is fixed in the concrete in which it was embedded back in 1997—at least I hope not.