Coroners and Justice Bill

I fear if I had not interrupted, I might have lost my chance to say a few words. Clause 111 causes me something of a problem. What I have heard during this short debate adds to my sense of that problem. It appears to me that in Part 4 the Government have been conscious that, if sentencing guidelines are going to work, they must have the support of the judiciary. The reason why the present Sentencing Guidelines Council, which will continue to exist until this legislation is passed, was presided over by the Lord Chief Justice was to try to indicate to the judiciary as a whole the importance of following the guidelines. The experience in the United States is that if you have a grid, the judiciary find their hands are bound in a way which it regards as being unacceptable. Therefore, it resorts to devices in order to avoid that effect in a case where they feel the grid produces injustice. No doubt those on the committee who recommended the current drafting were conscious of that and concerned about it and, therefore, included in their recommendation the important words at the end of subsection (1) of Clause 111, ""unless the court is satisfied that it would be contrary to the interests of justice to do so"." I do not know how those words are going to be interpreted but I would point out that the present test, which requires the judiciary to "have regard to", is working perfectly satisfactorily. In addition to the other matters relied on by noble and learned Lords who have addressed this issue, I would suggest that there is a grave disadvantage to adopting this new formula. If I was a judge and I was in a situation where I wanted to disapply the guidelines, I must confess that I would not find any difficulty in doing so. I hope I never passed a sentence when I was a sentencing judge which I did not consider at the time was in the interests of justice to pass. If that be so, presumably, if I was faced by a guideline which was inconsistent with what I wanted to do, I would say that I was satisfied that it would be contrary to the interests of justice for me to pass any other sentence than the sentence I wanted. It therefore seems to me, with greatest respect, that giving these words the natural meaning, far from reducing the discretion of the judge, in fact increases it. I do not know whether that is what is intended, but if so, perhaps we are getting unduly alarmed by the present subsection. I ask the Minister to indicate whether the interpretation I have speculated on is the one which the Government are urging on the judiciary. If it is, I do not think we want to be too concerned about the present language of Clause 111(1). My concerns are, however, that those distinguished lawyers who have anteceded me in addressing the Committee on this clause apparently were taking a different view from my interpretation. Therefore, I have reservations as to whether I am right. But to me, this does not look like a straitjacket; it looks like almost no jacket at all.