Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) Order 2010

My Lords, I, too, thank the noble and learned Baroness the Attorney-General for introducing the order and for indicating the underlying thinking behind the Government’s intention. It is widely recognised that murder is one of the most heinous of crimes, and nothing I say in the debate will detract from that nor from the sympathy that is due to the families of victims. I concur with both the noble and learned Baroness and the noble Lord in expressing our deepest sympathy to them. This order can perhaps be traced back to the senseless and brutal murder of Ben Kinsella, whose family’s loss continues, as does our sympathy for them. I also share with the noble and learned Baroness her expression that the courts should ultimately be free to determine the minimum sentence by taking into account all the factors and that we are debating today where the starting point is. Nevertheless, I wish to strike a note of scepticism in relation to the order. This is born out of a concern that what we have here has come from the school of thought of "something must be seen to be done", rather than from taking a step backwards and working out what is the right thing to do. To support that view I shall quote what the Justice Secretary said when he and the Home Secretary made the announcement that this order was to be brought forward. Mr Straw said in his press statement, ""I am clear that we will not stop in our efforts to stop kids killing with knives"." However, as is clear from the order and as the noble and learned Baroness has said, the order does not affect kids because the starting point for those under 18 will still be 12 years even after the order comes into force. It will do nothing for kids. If, as the Attorney-General said, a mature 17 year-old uses a knife with premeditation, the circumstances may be such that the end point could be the court determining a sentence which is not far distant from that for an adult. However, that could happen at the present time without the need for the order, which does not affect anyone who is 17 years of age. I sometimes fear that there is a gulf between the kind of rhetoric that the Justice Secretary used in announcing this order and the reality—that it will not have the impact that he claimed—which may be what leads to public cynicism about our political process. I am also sceptical about whether it achieves what the Government claim that it will achieve. Will it indeed be effective in tackling knife crime or, more specifically, murders involving knives? As we have heard, the Government were required to consult both the Sentencing Guidelines Council and the senior judiciary. Responses from those two sources show that that scepticism is somewhat shared. In its response, the Sentencing Guidelines Council made the point that I have already made: that this measure will not deal with public concern about kids carrying knives and that the need to increase the severity of sentences is well recognised by the courts where the, ""use of a knife appears already to be accepted as an aggravating factor when imposing sentence for murder"." The use of a weapon to frighten or injure is already an aggravating factor in the council’s guidelines and is deemed highly culpable when the weapon is taken with that intent. The noble Lord, Lord Henley, talked about the use of a knife and definition of a knife—a point raised specifically by the SGC—and the word "weapon". It may be too easy for the Government to say, as they do in the Explanatory Memorandum, that the ordinary English usage will determine it, because there could be circumstances when a screwdriver is not deemed to be a weapon. I think that carrying a baseball bat would certainly involve that, but what about a pair of nail scissors, which could be turned into a weapon? Then you get occasions, which by all accounts are relatively common in violent situations involving gangs of youths, when a bottle which has been used with the intention primarily of drinking from it suddenly gets smashed and is then turned into a weapon. The bottle is not brought to the scene of the crime with the intention of using it as a weapon but, as so often happens in cases like this, drink is another factor that leads to the crime. My concern would be that you could reach the stage, which the Sentencing Guidelines Council warns against, where there is inconsistency, with some cases being considered to fall within the ambit of this order and others not. It is the inconsistency and lack of clarity that the Government have said that they want to try to get away from, but it might actually be made worse or imported by this order. Also, at paragraph 8.3 of the Explanatory Memorandum, we are advised that the, ""Lord Chief Justice responded on behalf of the senior judiciary and representations were also received from the Judges of the Central Criminal Court"." However, we are not given any indication as to what the Lord Chief Justice said in his response. As my colleague Paul Holmes said in Committee in another place, the office of the Lord Chief Justice was approached to try and ascertain what kind of response he made. It is only fair to say that that information that we got suggested that there was scepticism on his part and the part of the senior judiciary about the merit and efficacy of this measure. Gun and knife crime cannot be directly compared, because guns are often associated with multiple killings and serious organised crime, whereas knives can be available in many ordinary domestic settings. There is little deterrent effect from the proposed change—that was another view expressed—and judges already take the use of a knife into account as an aggravating factor when coming to a decision as to the appropriate starting point. If both the Sentencing Guidelines Council and the Lord Chief Justice have cast doubt on whether the measure will have the effect intended and claimed by the Government, it might be useful for the noble and learned Baroness to indicate what the Government heard from the Lord Chief Justice and how they respond to the specific concerns that he appears to have raised. I apologise for bringing up what may seem to be legal niceties, but that is what we are here to do. The Minister made things clear in her introduction, and the Explanatory Memorandum refers to an offender aged 18 or over who takes a knife or other weapon to the scene of the crime, with the intention of using it to commit any offence. However, sub-paragraph (2) of new paragraph 5A, which is to be added to Schedule 21 to the Criminal Justice Act 2003, states: ""The offence falls within this sub-paragraph if the offender took a knife or other weapon to the scene intending to … commit any offence"." It does not state, "intending to commit any offence with that knife". As I interpret it—I may be totally wrong, and I welcome assurance that I have got it wrong—the offender could have taken a knife to the scene of a crime intending to commit a crime of a non-violent nature. At it stands, if something happened and the knife was used, that would bring the offender within the ambit of this provision. Is that what is intended? If the element of premeditation is essential, as I think the noble and learned Baroness said it is, that is not clear from the way in which the sub-paragraph is phrased. If that is not clear, we could get into a situation. The Court of Appeal has indicated that a 30-year starting point would not be appropriate in cases of gun crime where there was no premeditation. If premeditation is not a requirement, knife crime could end up with a higher starting point than unpremeditated use of a gun. I know that that is not what is intended, but I welcome reassurance that that is clear. I thank the noble and learned Baroness for her explanation of the costs given by the Government’s estimate and by the Sentencing Guidelines Council. It is helpful to have that on the record. The government figure used in the Explanatory Memorandum—about £11 million—is an annual average over a 45-year period, but we should be talking about a 30-year period, because none of it will kick in until the first 15 years have expired. The figure of £11 million will probably be closer to £16.5 million after the first 15 years. Given the objective of this order, one of the most important points is that the Government accept that the important issue in trying to tackle knife crime and murders involving knifes is the fear of being caught. I believe that is the greater deterrent. Paragraph 3.9 of the evidence base attached to the Explanatory Memorandum states: ""A key factor for the prospective offender is the probability of detection. Knives are relatively easy to conceal and dispose of. Given the detection of gun crime is higher than knife crime, the incentive to use a knife rather than a firearm may be significant. Similarly, where the costs of acquiring weapons may have a significant impact, the ready availability of knives and other sharp objects means that acquiring these is relatively easy compared to other weapons e.g. guns"." I do not dispute the factual nature of that, but it indicates that the Government accept that the fear of being caught is a key factor. You cannot punish unless you catch, so perhaps the focus is wrong. The focus should be on detection because only then can punishment come into effect. I am somewhat sceptical that the young thugs who commit these crimes do the cost-benefit analysis suggested by the Explanatory Memorandum. I have far more experience north of the border than south of it. Knife crime is a serious problem in Scotland and is usually combined with drink. The usual explanation, which by no means mitigates the crime, is that young people—young men in particular—take knives with them because they know that others are out with knives, and it might be that they will need a knife for self-defence. That is not a cost-benefit analysis; it is a culture that we have to tackle. The important thing is trying to find ways in which detection can be more effective. I conclude by drawing attention, as did my colleague Paul Holmes in another place, to the so-called Cardiff model, based on the work of Professor Jonathan Shepherd, who is chairman of the violent crime task group of the Cardiff Community Safety Partnership. He took casework from the accident and emergency unit in a hospital in Cardiff, because he found out that many of the cases that he was dealing with never came to the notice of the police. He regularly had to repair people who were the victims of knife crime. He succeeded in anonymising the data with regard to the location of the violence, the type of weapon used, the number of assailants, the day of the week that the incident occurred and the time of the incident. Engaging in intelligent policing then allowed the police to deal with that information. If X nightclub was a spot where there was regular violence on a Friday at 11.30 pm, that is where the police focused their attention. It might be outside another nightclub on a Saturday or in the early hours of Sunday morning. Getting that information was a rolling programme. It could be updated if there was some displacement of the crime because the police were effective in one area. Clearly, that information would come through as well. Interestingly, in Cardiff since 2002, when I understand this project started, overall accident and emergency violence-related attendances have been reduced by 40 per cent. Cardiff moved from mid-table to being the safest city in a Home Office list of 15 similar cities. The Home Secretary, Mr Alan Johnson, asked for a report on this in October 2007. What has been done to disseminate what would appear, on the surface, to be the good and effective practice that was covered in that report? I acknowledge that the Government have deployed several measures, engaging with the police in more visible policing, but there would appear to be something worthwhile there. My colleague Chris Huhne made several freedom of information requests to hospital trusts. In an article in the Times on 30 March 2009, Mr Huhne wrote: ""There are 150 hospital trusts with emergency departments in England. Of the 123 that have replied, just 20 per cent are co-operating with their local police force in providing Cardiff-style data. Nearly four out of five are not helping the police"." However, the Crime and Disorder Act 1998 imposes a responsibility on health, local government and police authorities to work together. My final plea to the Minister would be for some assurance that that kind of effective policing can be taken forward. It is a far more effective way of tackling the outrage of knife crime and murder by knives than the provisions that we have in this order.