My Lords, judicial discretion is a very important aspect of the judicial process. However, embedded in judicial discretion is the fact that you cannot know in advance with precision how that discretion will be exercised. If you have studied the sentencing guidelines you may know roughly the areas in which the discretion will operate, but having a fixed penalty as a minimum means that it is known in advance that unless there is a particular circumstance to take you out of the situation a fixed penalty will happen. You know that in advance.
I have heard what has been said in support of this clause and also the other point of view from a very experienced police officer. I know a case of knife-carrying that was enough to kill somebody and give the carrier a life sentence. I found that a very traumatic experience. Telling people in advance what the sentence will be is an extremely important deterrent. It has been done in various parts of our judicial system. Therefore I do not regard the principle on which this is based as one that can apply in all circumstances. In a second offence
for knife crime it is reasonable for a statement to be made about precisely what the sentence as a minimum will be unless there are circumstances that take it out of the ordinary.
My noble friend Lord Marks has commented on the nature of the exception. If he wishes to improve on that, there is the option of an amendment to that effect. So far, none is forthcoming. I shall take it that the exception, in so far as it is stated, is a reasonable exception in the circumstances of this case. Of course the idea is not to put more people in prison; it is to prevent people from going to prison by knowing that if they do this particular thing for a second time that is where they will go. On the whole, one hopes that that has a deterrent effect.
Information about this will quickly get around among the people who are affected by it. One can understand the idea of discrimination but of course it depends on the way in which the power to stop and search is used. As far as I am concerned, this power must be used in accordance with the best discretion of the police officers on the street. However this amendment has come about—it was made in the other place—the Government have decided in the light of their experience and of their policy as a whole that it should be adhered to and given effect.
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