My Lords, we spoke in the previous group about young offenders, but there is in Clause 4 a very limited exception to the requirement to impose a serious terrorism sentence of detention where there are exceptional circumstances which relate to the offence or the offender
which justify not imposing the serious terrorism sentence. This amendment relates to a precisely similar provision in Clause 11 relating to the imposition of such an offence on adult offenders under Clause 11(5). I should have tabled a similar amendment in relation to Clause 4, and for that I apologise, but the omission can be made good, if necessary, on Report.
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The point of this amendment is simply to broaden the judge’s discretion to refrain from imposing a serious terrorism sentence where the circumstances demand it. The replacement of the word “exceptional” with the word “significant” would permit the judge to take into account circumstances that he views as sufficient to alter his view of the offender or of the offence so as to justify the imposition of a lesser sentence. The use of the word “significant” allows the judge an element of subjectivity about what seems to him to be important enough to justify that departure.
We believe in judicial discretion, for all the reasons mentioned by my noble friend Lord Thomas of Gresford in relation to the previous group, and for all the reasons which we discussed in the previous short debate. We do not believe that Parliament or any Minister can foresee what circumstances might persuade a judge to exercise less severity in these very serious offences. However, I suggest that the use of the word “exceptional” introduces a straitjacket, and I make that suggestion on the authorities because the use of the word “exceptional” places the judge in the position of having to make a finding that the circumstances are exceptional: that is, that they are so far away from the norm as to justify a finding, effectively, of fact that they are an exception. Without such a finding, he cannot use any discretion. The lack of discretion, I suggest, can be inimical to the interests of justice, and for that reason I invite the Committee to agree ultimately to a different formulation and invite the Government to consider a formulation that allows just a bit more flexibility than the Bill as drafted permits. I beg to move.