Coroners and Justice Bill

My Lords, the purpose of this amendment is to keep the law as it is now and has been ever since the Sentencing Guidelines Council was created in 2003—and indeed since long before that. Section 172 of the Criminal Justice Act 2003 provides that every court, ""must have regard to any guidelines which are relevant"." Those are the words of my amendment and they represent the Government's view about the correct test as recently as six years ago. The question is whether anything has happened since 2003 to justify changing the law so soon. The existing test has been considered in a number of cases in the Court of Appeal, most notably in the case called the Queen against Oosthuizen 2006, 1 Criminal Appeal Reports (Sentencing), at page 385. In none of those cases has the test been found wanting, but more important by far, my noble and learned friend Lord Woolf said in Committee that the present test was working perfectly satisfactorily. The question is: why are we being asked to change it now? That presupposes an answer to a preliminary question of whether we are indeed being asked to change the existing law, because different views were expressed in Committee on that matter. My noble and learned friend Lord Woolf thought that the new test would, if anything, give judges greater discretion. That was on 15 July at col. 1220 of the Official Report. On the other hand, the noble Lord, Lord Dholakia, and the noble Baroness, Lady Linklater, said or at least implied at Second Reading that the new test would give the judges less discretion—in other words it would make the test more robust. However, at col. 1223 of the Official Report of 15 July, the noble Baroness, Lady Linklater, said that she stood shoulder to shoulder with the noble and learned Lord, Lord Woolf. I am not sure quite how she will manage that but we will wait and see. I asked the noble Lord, Lord Bach, the same question about where he stood. I asked whether he regarded the test as being more or less strict. His view was that the new test would be slightly stricter and he put particular emphasis on the word "slightly". That reminds me of the answer supposed to have been given by the parlour maid when reprimanded by the lady of the house for having had a baby. She replied that yes she had had a baby but it was only a little one. In my view, it is clear beyond any doubt that the new test is indeed stricter than the old one. That was the view of the Gage committee; otherwise it would not have proposed the change in the first place. The words "must follow … unless" something happens would look to any judge as if the burden of proof were being reversed. In any event, why would Parliament change the test unless it was intending to have some effect, presumably to reduce judicial discretion? Going on from there, the question is whether the Government have made good the case for reducing the discretion of judges. The reason given by the majority of the Gage committee is that change was needed in order to provide the, ""necessary consistency, transparency and predictability"." I will take each of those as briefly as I can in reverse order. On predictability, paragraph 9.4 of the report states that, ""effective planning for correctional resources requires significantly better … prediction of outcomes than currently is possible"." That is all about building prisons. However, in paragraph 8.4, the report had already stated that, ""it is not possible for guidelines to control the prison population, as the prison population will depend on a number of factors, the most important being the number of offenders brought to justice and the profile of the crimes they commit"." Quite so: even if the guidelines were made compulsory, it would not help us to predict the prison population next year, let alone in 2015 or 2020. It depends on far too many other factors, so we can forget about predictability. Secondly, transparency, like accountability, is a current buzzword, but I fail to see how it has any application at all in this context. Thirdly, consistency is, of course, a desirable objective in sentencing, but absolute consistency is unobtainable, as we all know. Even within the guidelines, there will be cases that look inconsistent with each other, but which in fact will not be. I doubt whether changing the test on which cases can be taken out of the guidelines will make the slightest difference to consistency. For those reasons, I, with great respect, disagree with the majority view of the Gage committee. I much prefer the reasoning of the minority, set out in paragraph 7.20. In particular, it makes the point that the 2003 guidelines should be given more time to bed down before we change the test. That was the point, we are told, to which many of the respondents attached great importance, and so would I. It is the point on which I know the Magistrates’ Association has expressed strong views. I hope we will hear about those from my noble friend in a few moments. Judges and magistrates have been put under enormous pressure by the amount of recent legislation affecting sentencing. Since 1993 there have been no fewer than 56 separate enactments which bear on sentencing, all of which are set out in annexe B of the report. Sentencing has never been easy, as I know from my experience. It is now becoming a nightmare. Please, let us leave the present test as it is until the new sentencing council has come into existence and has prepared new guidelines. There will then be plenty of time to see whether the present test is working. I beg to move.