Coroners and Justice Bill

My Lords, Amendments 83 to 89 return our attention to the duty on sentencers to follow guidelines. The amendments would revert to the current test, contained in the Criminal Justice Act 2003, so that sentencers need only "have regard to guidelines". In Committee, I set out in some detail the flexibility that government amendments have introduced into the duty to follow guidelines. With the indulgence of the House, I do not intend to rehearse those changes in detail again this evening. However, I have to say on behalf of the Government that I cannot agree with the contention that the duty to follow guidelines as set out in the Bill is unduly restrictive of judicial discretion and in any real way affects the independence of judges, whether they be judges in the higher courts or magistrates in the lower courts. That is simply not borne out by the contents of the clauses. There is no duty to follow, for example, a US-style, narrowly defined grid, because there is no grid. There is no duty to sentence within the subdivided ranges of a guideline. There is no duty to sentence even within the entire range of the guideline if—this has perhaps not been referred to enough in this debate—it would not be in the interests of justice to do so. The ranges in existing guidelines are wide—zero to 12 years’ custody in the case of robbery—and with the important opt-out in the interests of justice. I do not believe that this can be considered unduly restrictive; I cannot believe that any member of the public looking at this would consider it unreasonable or would consider that it could lead to injustice. I listened with great interest to the speech made by the noble Earl, Lord Listowel. I cannot agree with his contention that the discretion that magistrates have in sentencing will somehow be unduly restricted by the duty to follow guidelines. As the noble and learned Lord, Lord Woolf, said, guidelines are not rigid rules. I have on a number of occasions during our debates quoted from the current sentencing guidelines for serious offences in the Crown Court, but I could also have illustrated the range of discretion with examples of sentencing guidelines for magistrates. The magistracy benefits from having a comprehensive set of guidelines covering most offences dealt with in a magistrates’ court. The discretion within those guidelines is wide. For example, the guideline for failure to surrender to bail ranges from a fine to a community order to an immediate custodial sentence; for actual bodily harm, it goes from a community order to 24 weeks’ custody to being sent to the Crown Court for sentence. The duty to follow guidelines is to sentence within those overall ranges. Of course, the magistrates can depart from those ranges if it is not in the interests of justice to follow the guidelines. In Committee, I was asked, as we have heard, whether I thought that this test was more robust than the current requirement only to have regard to guidelines. The noble and learned Lord, Lord Lloyd of Berwick, quoted me correctly as saying that it was "slightly more robust". Whether that puts me in the position of the parlourmaid or not, I am perhaps not best to judge. "Slightly more robust" means that this is a small change; indeed, it is the evolutionary approach recommended by the majority of the Gage working group. We think that it is a change worth making. It is also entirely in keeping with the approach that we have taken to the other Sentencing Council provisions. These provisions are based on the recommendations of the independent working group chaired by Lord Justice Gage. The working group made it clear that it was recommending an evolutionary approach rather than a revolutionary one. Its recommendations were based on, and build on, the existing guidelines system. It recommended changes only where they would improve the current system. This is not change for change’s sake. It is not a case of, "If it ain’t broke, don’t fix it". The Gage working group recommended a more robust test because it wanted to achieve greater transparency and in particular—I rely on this heavily—greater consistency in sentencing. The working group conducted a survey of 10 Crown Courts for one month in 2008. It found that in a significant number of cases—46 per cent of cases sampled, excluding burglary—sentencers imposed a sentence outside the guideline range for the level of offence seriousness described; that is, they sentenced outside the subdivided range that was identified as closest to the offender’s offence. There is no question but that the Gage working group was concerned about the lack of consistency that is sometimes shown in sentencing in our courts, to which the noble and learned Lord, Lord Woolf, referred. Greater consistency is an aim that I think the House will share and strive to promote, although we do so by making some modest adjustments to the tiller. The duty to follow guidelines, with the discretion that that allows, is evolutionary; it is an evolution of the existing test for that purpose. There is no doubt that the Lord Chancellor rightly guards the independence of the judiciary. Everyone understands the important role that judicial discretion plays in this country in ensuring that justice is done to the individual offender. However, criminal justice policy touches on other issues, as well as those of maintaining necessary discretion. Frankly, unjustified disparities in sentencing and inconsistency are damaging to confidence in the idea of justice that is so important to society. We think that there should be properly constituted guidelines and that these guidelines should be followed where it is appropriate to do so. We should not lose sight of the fact that guidelines assist sentencers at every level of the judiciary. They assist the magistrates and the recorders, who do not sentence every day of their lives, and they help to develop consistency across the professional judiciary. The fact that sentencers follow guidelines, explaining when they have or why they have not, increases transparency. That in turn can increase the public understanding and confidence in sentencing that is at the heart of a criminal justice system that works. Professor Andrew Ashworth from the University of Oxford, in his response to the Gage working group’s consultation paper, sets out why guidelines are important and should be followed. He states: ""The rule of law requires that, so far as possible, the court should follow the relevant principles and guidelines, using its judgment to apply them to the facts of the case. Thus the guidelines should always be the starting point. The statutory phrase, "have regard to" is not sufficiently powerful to convey this, inasmuch as it may be taken to suggest that the court’s obligation is to give consideration to the guidelines and nothing more. A formula should therefore be found that ensures that the court applies the guideline, in the sense of starting from the sentencing guideline, but which allows the court to depart from the guideline for good reasons"." His conclusion is: ""The time has surely come, after nine years of the Sentencing Advisory Panel and four years of the Sentencing Guidelines Council, to consider strengthening the statutory formulae"." We agree with that conclusion. The provisions in Clause 115 build on the current system, creating a more robust test. It may not be a radical departure, but it remains a change worth making. The noble Lord, Lord Hunt of Wirral, accused me of having no friends—he called me "Johnny No Mates"—when I argued the case in Committee in July. I almost felt sorry for myself. However, I am not without friends tonight, whatever the position was then. In fact, I have friends in high places—among them the noble Baroness, Lady Linklater; on this occasion perhaps to a lesser extent, if that is fair, the noble Lord, Lord Thomas; and, of course, while I do not want to embarrass him, I have the support of the noble and learned Lord, Lord Woolf, who has such experience in this field and commands the respect of the whole House. If noble Lords do not listen to me, they should listen with great care to what the noble and learned Lord says in moderate support of this measure. I ask the noble and learned Lord, Lord Lloyd, to reconsider the amendment in the light of the changes that the Government have made, and in the knowledge that sentencers will continue to have independence and the ability to sentence as justice requires. "As justice requires" is central to our system, and is one of the matters that the Bill introduces.