Coroners and Justice Bill

My Lords, I feel that I must speak, not only because my hero has just spoken but to defend myself against some accusations of inconsistency between Second Reading and Committee. I hope that I can defend myself adequately. With so many distinguished legal eagles speaking with such passion, knowledge and experience, to engage in this debate at all is at best presumptuous but, having spoken, I feel that I ought to return to the subject. I speak as a complete non-lawyer—perhaps non-lawyers have a voice in the matter—but I have some experience, both as a magistrate and as a children's panel member in Scotland. The framework for the Sentencing Guidelines Council seems to me appropriate and acceptable. It is inevitable that many sentencers, especially those represented by the council of circuit judges and the Magistrates’ Association, will see this as simply an attempt further to curtail their judicial discretion. It is worth reminding ourselves that there are also very important voices—we have already heard one this evening—being raised in support of the formula. The Sentencing Commission Working Group is a highly distinguished body led by Lord Justice Gage, which proposed the key formula being debated now. In other words, these are guidelines—just guidelines—being drafted and approved by sentencers themselves. The balance that is being struck is between the stricture that sentences must follow the guidelines and the caveat, ""unless … it would be contrary to the interests of justice to do so"." That seems to me to represent a good balance between the need for consistency—a greater need today—and flexibility. After all, what can be more fundamental to any decision, as the noble and learned Lord, Lord Woolf, just said, than that it is in the interests of justice? Justice does not take place in a bubble, and judges’ decisions must also command the understanding and respect of the public and serve the interests of the community. In Committee, I proposed a new clause setting out the purposes of sentencing, which included the primacy of the prevention of reoffending as a central guiding purpose. That is what really matters in our communities and is the means by which communities can judge our judges. At the moment, we have an uncontrolled rise in the size of our prison population, now at unparalleled levels, despite the fact that the number of people coming before the courts and being found guilty has remained almost stationary during the past 10 years. That reflects the increased use of custody as a disposal and demonstrates the failure of the system to prevent reoffending—particularly, and most worryingly, by young offenders. Is not the use of custody a key way in which we can all judge whether the interests of justice are being served? Does not the evidence tell us that those interests are manifestly not being well served at this time? Therefore, there is a real need to look again at our sentencing guidelines, among other considerations. The hope for the future is that those interests will be better served, as the Sentencing Council will be required to make impact assessments of policy proposals and monitor their outcomes, so that the disasters of new legislation such as IPPs could well be avoided in future. That is an additional and welcome role for the council, particularly when the proposals throughout this section of the Bill are clearly seen as a means of depoliticising the sentencing process. Of course, custody rates are influenced by a variety of factors—not least what alternatives to custody exist, properly resourced and available to sentencers, which is still a distant dream—but it remains the case that legislative changes and sentencing practice are at the heart of things. However, as I said earlier, the need for consistency and comprehensibility is vital in the interests of good decision-making and the confidence of the public. Consistency has been described as the holy grail of sentencing, and we are still a long way from achieving this, even when the facts of individual cases are taken into account. The figures published by the MoJ on offenders found guilty and receiving custody range from 6 per cent to 16 per cent in magistrates’ courts, and 45 per cent to 68 per cent in the Crown Courts. More worryingly, the YJB figures for children showed even greater differentials in the use of custody, with Liverpool at the top end at 18 per cent, Birmingham at 8 per cent and Newcastle at the bottom at 2.1 per cent. Those areas are viewed as similar, and such inconsistencies are not explained away by the differences in individual cases. I am afraid that Thomas on sentencing has not succeeded in ensuring consistency, despite his massive volumes. Using the phrase "must follow the guidelines" will reassure those in the community of the expectation of the consistency of the process. This is an outcome that sentencers should welcome, whereby they have all the flexibility that they need through the caveat that the interests of justice are being served at all times. This wording builds on the well established work of the Sentencing Advisory Panel and the current Sentencing Guidelines Council, and was proposed by Lord Justice Gage’s working group. It is echoed by other sentencing councils in other parts of the world. The council has also built in the additional flexibility of reviewing and modifying its advice in the light of experience over time. Nothing is set in concrete. I do not believe that those who resist so eloquently this part of the Bill have anything to fear. Indeed, we should be confident that experience will show us that the interests of justice will be better served. I am still shoulder to shoulder with the noble and learned Lord, Lord Woolf.