My Lords, I oppose Clause 25 standing part of the Bill. The clause would make a custodial sentence compulsory in the case of a second offence of possession of a knife in a public place. The sentence would be a compulsory minimum of six months in prison for offenders over 18 and of four months’ detention in the case of 16 and 17 year-olds. The clause was introduced into the Bill in the House of Commons by an amendment moved from the Conservative Benches by my honourable friend Nick de Bois. It was not supported by the Government and, indeed, Conservative Ministers abstained on it. I rather hope that my noble friend and other Conservative Ministers will abstain in this House.
Our reasons for opposing this clause in the House of Commons and again in your Lordships’ House are fourfold. First, mandatory minimum sentences are wrong in principle in all but a few special cases, because they remove judicial discretion and fail to allow for individual circumstances. Secondly, the clause is unnecessary, because knife crime is already falling, and runs counter to the aim of rehabilitating offenders. Thirdly, the clause would risk doing real harm to those affected by it, because many who should not be in prison would be imprisoned, damaging large numbers of principally young lives. Finally, the clause would be discriminatory in its effect, even if that is not the intention of its promoters, and so would risk doing serious damage to community relations in this country.
My first reason is one of principle. Determining sentences is generally far better left to judges. Our judges in the criminal courts hear the evidence in individual cases and fully take into account all the facts, including the circumstances of the offence and
of the offender, before passing sentences. Obliging judges to take a course that they would not otherwise take necessarily involves forcing them to impose a sentence which they would consider unjust.
We completely agree with those who support the clause that knife crime is extremely serious, that everything should be done to discourage it and that in very many cases, particularly when an offence is repeated, possession of a knife in public will warrant a sentence of imprisonment. In those cases, judges can and do impose custodial sentences. They can, indeed, be legitimately encouraged to pass custodial sentences in such cases in sentencing guidelines. However, if they decide not to pass a custodial sentence in a given case, that is because they regard one as unnecessary, unwarranted or unjust. If the clause is intended to have any practical effect—if it is more than pure posturing—that effect would be to oblige judges to pass a custodial sentence when they would not otherwise do so. There is absolutely no evidence that our judges get this wrong or that they are, in some way, a soft touch and fail to impose custodial sentences when the public interest or justice demands that they should do so. The clause would be an entirely unwarranted restriction on judicial discretion.
That leads to my second reason for opposing the clause, which is that it is unnecessary. Knife crime is falling. The Crime Survey for England and Wales indicates a continuing reduction in crime overall and in crimes of violence in particular, including knife crime. I would suggest that this is one of the significant successes of the Government, all the more remarkable for being achieved against the background of very difficult economic circumstances. The number of young people in custody has fallen to a record low. In May this year, there were fewer than 1,100 young offenders in custody under the age of 18—a fall of no less than 200 from a year ago. The number of 18 year-olds in custody also continues to fall. Parliament and professionals in the criminal justice system have been working very hard and successfully to reduce the numbers of young people in custody. This has been a continuing theme of this Government’s drive to push down crime: rehabilitation to reduce reoffending, and helping young offenders in particular to get away from crime and criminals and lead law-abiding and useful lives. This has been the very point of the rehabilitation revolution and was at the heart of the Offender Rehabilitation Act that we passed this year.
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Against that background, and given the Secretary of State’s repeated statements of his commitment to rehabilitation, it was a shame to hear him say in relation to prison overcrowding:
“I make no apology for the fact that under this Government more people are going to prison, and they are going to prison for longer”.—[Official Report, Commons, 16/6/14; col. 843.]
If true, that is a matter for apology. I know that many in your Lordships’ House agree that rehabilitation is one of the main purposes of punishment and that rehabilitation is generally best achieved by a community sentence, unless a custodial sentence is unavoidable. This clause is calculated—even designed—to reverse that trend: to increase the numbers, particularly of
young offenders, receiving custodial sentences, and increase the numbers therefore in custody at great cost to the public purse.
My third reason for opposing this clause is the damage it would do in individual cases. No doubt supporters of the clause will point to the exception which, they will claim, would avoid injustice. The exception granted would permit the court not to impose a custodial sentence if,
“the court is of the opinion there are particular circumstances which … (a) relate to the offence or to the offender, and (b) would make it unjust to do so in all the circumstances”.
However, I reiterate the point I made at Second Reading. If a “particular circumstances” exception is to be widely applied, then it makes a nonsense of the provision for mandatory sentences. If it is to be applied only rarely, then serious injustices will be frequent. The reality is that there are many perfectly ordinary circumstances—neither exceptional, nor even particular—when it would be unjust to impose a custodial sentence for a second offence of possessing a knife.
I add in parenthesis that one weakness of this proposed exception is that although this clause would prescribe a sanction only for repeat offences, the circumstances of the first offence, however minor or understandable in context it might have been, would be entirely irrelevant to the applicability of the exception, and therefore to the imposition of a compulsory prison sentence. Imagine a boy of 15 who carries a knife for a dare. Stupid and reprehensible such behaviour may be, but unfortunately there is nothing unusual about it.
Then imagine the same boy, just under two years later, now 17, approaching his A-level examinations and hoping to go to university. He carries a knife for his own protection and that of his girlfriend when they have been threatened. Again, that is a stupid and reprehensible thing to do, but again there is nothing unusual about it, so there is nothing particular about the circumstances of the offence. Nor is there anything unusual about an 18 year-old being on the brink of taking public examinations, so there is nothing particular about the circumstances of the offender either.
Then imagine that this boy is the son or grandson of a relative or friend. How could your Lordships defend to the parents of that boy the statutory requirement that the judge should send him to prison in a case in which, by definition, the judge would not have passed such a sentence in the exercise of his or her own judgment? If this clause were passed, to avoid imposing the compulsory custodial sentence in such a case the judge would effectively have to flout the will of Parliament and his judicial oath and find that these completely run-of-the-mill circumstances were particular circumstances, making this case so different from others as to require an exception to be made. I suggest that if this clause were enacted, it would cause significant numbers of young people serious and sometimes irreparable damage to their future prospects of further education, employment and useful and productive lives—when a judge would not have passed a custodial sentence.
My final reason for opposing the clause is that it would be discriminatory in its effect. If enacted, it would disproportionately affect young black men because
they are disproportionately subjected to stop and search. The Equality and Human Rights Commission report in November 2013 found that in the year 2011-12 black men were six times more likely to be subjected to stop and search than white men. The commission rightly said that, used responsibly, stop-and-search powers are an important tool in the fight against crime and particularly useful in preventing people going out with knives and catching those who do. A great proportion of those caught in possession of knives are caught through stop and search. It follows that if this clause were enacted, the damage caused by the disproportionate use of stop and search would increase and more young black men would be sent to prison as a result. That in turn would risk causing ever increasing resentment and significant damage to community relations, particularly in our great cities.
We are not persuaded that there is any justification for the approach embodied in this clause beyond, I regret to say, a desire to appeal to a populist press with an eye-catching message that we are tough on knife crime. I invite Members of your Lordships’ House not to yield to the temptation to look tough on crime by passing a measure that would actually do nothing whatever to reduce crime.