Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, this amendment also concerns an innovation introduced by the Criminal Justice Act 2003. Prior to that Act it was the practice of the judges trying murder cases to write to the Home Secretary recommending the minimum period to be served in prison as punishment. The Lord Chief Justice always added his own comments, either increasing or decreasing the tariff, as it came to be called. The Home Office usually accepted the judicial recommendation but sometimes the tariff was increased by a year or two. I never in my experience remember it being reduced. Then came the case of Anderson in the House of Lords, in which it was held that Ministers could play no part at all in the fixing of the tariff; sentencing was for the judges and not for the Executive. Section 269 and Schedule 21 of the 2003 Act was the ministerial riposte to that decision. The purpose of Amendment 178B is to repeal Schedule 21. Schedule 21 lays down an elaborate framework within which trial judges must work when fixing the tariff for a particular case. It has four different starting points: 15 years, 25 years, 30 years and whole life. It has seven different aggravating factors and seven different mitigating factors, all of which must be taken into account. The schedule was drafted within the Home Office without, as far as I know, any input from the judges. So far as I can remember, it was introduced at a late stage in the House of Lords without any debate in the House of Commons, but I may be wrong about that. In any event, the question arises: what was the reason for introducing Schedule 21? Why did the Government not leave the tariff to the judges? After all, it is the trial judge who fixes the tariff in all other life sentence cases, including manslaughter—why not murder? One possible reason would have been that the Government wanted to introduce greater uniformity in the tariff in murder cases. However, that argument will not run now because we now have the Sentencing Council, whose whole purpose and raison d’être is to secure uniformity, so far as it can ever be secured, and to ensure some input, at any rate, from experts and other members of the public. The Sentencing Council is working well. It covers all other crimes—including, as I have said, manslaughter—so why not murder? It is surely far better placed to give guidance on the tariff in murder cases than Parliament could ever be because it has a feel for sentencing as a whole and how murder fits in with other crimes. That is important. Another possible reason for Schedule 21 is that the Government wanted to raise the general level of tariffs in murder cases—in other words, their view was that the judges were being too soft on crime. If that was the intention, the Government could not have been more successful. The new starting points had an immediate effect. The average tariff in all murder cases before 2003—when the 2003 Act came into force—was just over 13 years. The average tariff now is 17.5 years, which is an increase of nearly five years. No wonder the prisons are overcrowded and that we now have more prisoners—I want your Lordships to listen to this—serving life sentences and indeterminate sentences for the protection of the public than the whole of the rest of Europe put together, including Russia and Turkey. How can that be justified? Whether Schedule 21 was intended to have such a dramatic effect, I do not of course know. Nor do I know whether there was any impact assessment before Schedule 21 was enacted. But what we all know is the need to reduce the prison population now by some means or another. We know that that is the desire of the Lord Chancellor. Perhaps I may say with great respect that he has made an excellent start by abolishing the indeterminate sentence for the protection of the public. I suggest that he now looks with a very critical eye at Schedule 21. I said earlier that sentencing is for judges and not for Ministers, but at least when the tariff was fixed by the Secretary of State in murder cases, he would have some knowledge of the facts of the particular case. Parliament obviously can have no such knowledge. The attempt to control sentencing from the sidelines, as it were, has two very great dangers. The first is that you tie the judges down so tight that they cannot do justice in the particular case. The second, which perhaps is even more sinister, is that the level of sentencing will become a sort of political football, with each side wanting to appear tougher on sentencing than the other. That may to some extent have already started but if it were ever to become a reality it would spell an end to the idea of a just sentence for the individual convict. Sentencing must always in the end depend on the view taken by the individual trial judge, which is why it is such an anxious process. In my view, the more we can leave it to the judge, subject to guidance by the Sentencing Council and with as little interference from Parliament as possible, the better. We can make a start by repealing Schedule 21. I beg to move.