Coroners and Justice Bill

I think our view is that it is slightly stricter, but I place the emphasis on the word "slightly". It gives, with the caveat, something that I would argue means that there is no need for noble Lords to think that somehow this is—to use a cliché—the end of civilisation, or the end of justice as we know it. It is not. Judges’ discretion is, because of the caveat, every bit as great as it has always been. The noble and learned Lord, Lord Woolf, asked a couple of relevant questions. How has "the interests of justice" been interpreted? I will do my best with this. It has been used in sentencing-related legislation—as the noble and learned Lord will know much better than me—to enable courts to deal with circumstances which are exceptional and particular to a case. I repeat: exceptional and particular to a case. The words can be interpreted by the courts and then incorporated in guidelines. We believe that the Court of Appeal is likely to provide guidance in the interpretation of the "interests of justice" test. We have adopted the recommendation of the majority of the working group that there should be a more robust duty to follow guidelines, subject to an "interests of justice" test. We believe that this gives wide discretion to sentencers to depart from guidelines where, in the interests of justice, it would not be appropriate to follow them. This means that a sentencer can depart from the guidelines where, for example, there are compelling mitigating factors—mercy killings would be one example of this—or indeed where the aggravating factors are so serious that the sentencer feels the need, in the interests of justice, to impose a more severe sentence than is set out in the guidelines. I indicated at Second Reading that the Government would be receptive to ways to ensure that the right balance was struck between the duty on sentencers to follow guidelines and the need to exercise discretion in individual cases. Thus the two government amendments in this group—Amendments 189B and 189C—are designed to achieve that balance. Amendment 189C does two things. First, Clause 111 has been redrafted to make it clearer that the duty to follow guidelines does not mean that a sentencer has to sentence within a narrow category; rather, the sentencer is required to sentence only within the entire guidelines range for the offence, unless it is in the interests of justice to depart from the entire guidance. Secondly, the amendment seeks to clarify the duty on sentencers—where there is a guideline that identifies categories of offending behaviour—to identify the category that most resembles the case before them. This amendment means that the duty of the court to decide which category most resembles the facts of a particular case does not apply if there is not a sufficient resemblance. There is already a wide range of discretion for the sentencer, and we hope that these government amendments make that discretion even clearer. Let me illustrate this with a practical example. If we take an offence such as robbery, we see that there is an existing guideline issued by the Sentencing Guidelines Council. That guideline is formatted in a way which subdivides the offence into three levels of seriousness. That is the preferred format but, as our earlier group of amendments made clear, it is not mandatory. Assuming that robbery guidelines are subdivided, the duty on the sentencer to follow guidelines is to sentence within the whole offence range—that is, the range for the entire guideline. For the current guideline the offence range goes from a custodial sentence of no years to 12 years’ custody. This amendment makes it very clear that the duty does not force the court to stay within the subdivided range known as the "category range". However, the Committee should note that there is sufficient flexibility to have as many or as few categories within a subdivided offence-specific guideline as appear to the council to be appropriate, given the nature of the offence. Again, we should not forget that this duty to follow the guideline—to sentence within that range of 0 to 12 years—does not apply if it is not in the interests of justice to do so. Furthermore, Clause 111 makes it clear that where there is a subdivided guideline which has starting points and ranges for each category, there is a duty on a sentencer to identify the category that most resembles the case before them. Amendment 189C provides further clarification that this part of the duty does not apply when the sentencer considers that the case they have before them does not sufficiently resemble any of the categories. In other words, a sentencer is not required to try to shoehorn a case into a guideline category. I argue that the government amendments make very clear the wide discretion that exists within this duty to follow guidelines. There is no requirement on a sentencer to sentence within a narrowly defined range. It is not, in our view, correct to say that this duty is unduly restrictive, that it fetters judicial discretion or that it stops the sentencer from doing justice in an individual case. That power of a sentencer, be it a magistrate or a High Court judge, remains as it always has. It is important that we have properly constituted guidelines and that these guidelines be followed. It has been said from all sides in this debate that guidelines assist sentencers; they help to provide consistency, which earlier in today’s proceedings was considered to be an absolute sine qua non, if I may use the expression. Consistency is what sentencing should be about. Guidelines can also increase public confidence in sentencing. That is why the Government believe that these provisions allow sentencers a clear and wide degree of discretion.