Transparency and Consistency of Sentencing

Lord Clarke of Nottingham Excerpts

Thursday 2nd February 2012 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

I beg to move,

That this House has considered the work of the Sentencing Council and the transparency and consistency of sentencing.

I am glad to have the opportunity to debate this issue today. Public confidence in our criminal justice system rests on the principle that justice is dispensed independently by a judge in possession of the full facts of a case. It is normal to quote Magna Carta: we do not deprive people of their liberty

“without due process of law”

in this country. It is not the case in the United Kingdom, as it still is, unfortunately, in many parts of the world, that the Executive can order the detention and trial of people simply on the basis that they disagree strongly with the Government. Neither is it the case, as it is in some other judicial systems, that trials can be stretched out and rerun, until the “right” judgment is reached. Politicians do not sentence people in individual cases, judges do, and British Governments lose cases when they are parties in civil actions. I shall not go on, because we all know that those are the fundamentals of civil liberties and the rule of law in this country.

Independence is what we employ judges for, but alongside that fundamental truth lies an equally important principle—the discretion to do justice in individual case. Only judges see the full circumstances of each case, and they need the freedom to vary sentences in individual instances in accordance with the gravity of the offence. They have to bear in mind the circumstances of the individual offender and such mitigation as they may be able to offer. Sometimes the offence will be so aggravated that a higher than average sentence is required, as we saw, for example, after the riots in August. On other occasions, there will be significant personal mitigation, or relatively little harm caused to the victim, which means that a lower sentence than average will be justified. Just as we trust that our independent judges are the right people to make sensible decisions about the running of cases, so we generally trust them to apply the framework of criminal law across a range of different kinds of case of varying degrees of seriousness.

[Keith Vaz (Leicester East) (Lab)]

rose—

[Mr Clarke]

It is very early, but I give way to the right hon. Gentleman.

[Keith Vaz]

On the point about gravity, the right hon. and learned Gentleman will have noted the sentences that were given yesterday to a group of four al-Qaeda inspired fundamentalists, who as the result of a Goodyear hearing will, in effect, be out of prison within six years. Does he consider it important to revisit the whole notion of Goodyear hearings in view of the fact that people who were going to cause mayhem in London have got away with being in prison for only six years?

[Mr Clarke]

I am not yet familiar with the full facts of the case, so I certainly shall not comment. There is also a matter of principle. The custom is growing that Ministers conduct a running commentary on sentences in individual cases as they proceed. I do not think that that is wise. I believe in the separation of powers. The right hon. Gentleman is a senior and respected Member of the House, but my understanding is that those people will be sentenced next week. I will check. When the sentence is actually imposed, we have a system whereby the Attorney-General can put in an appeal on the ground of leniency and ask the Court of Appeal to reconsider it. I will inquire more closely during the course of the debate, as the right hon. Gentleman is obviously concerned.

Public confidence would not be well served if individual judges gave widely varying sentences in similar cases. We have one body of law as determined by Parliament, and the punishment should fit the crime. Parliament imposing the law is the guardian of public opinion. We are answerable to the general public and the maximum tariffs set by the House have to be taken as a guide by judges in all cases.

Different cases should attract different punishments. The question is how to ensure that our independent judiciary can make judgments that fit the facts of the case but are also consistent with each other: how to balance, on the one hand, the imperative of judicial freedom—such that they have the latitude to sentence according to circumstance—with, on the other hand, the need for a consistent approach across the system and in all our courts.

[Philip Davies (Shipley) (Con)]

My right hon. and learned Friend rightly focuses on public confidence. What assessment has he made of the current state of public confidence in sentencing? Does he have a view about the poll commissioned by Lord Ashcroft and carried out by Populus, which shows that more than 80% of the public, more than 80% of the police and more than 80% of victims think that sentencing is too lenient at the moment?

[Mr Clarke]

That has always been the case, certainly in my lifetime, and I suspect it always will be. I always wonder why that is the consistent public attitude. I shall not launch into criticism of the press, but I think it is because of the way these things are always presented to the public. The newsworthy cases are those where the newspaper decides to give a short version of the case and rouses the indignation of its readers by the apparent leniency of the sentence. Much though I respect opinion polls, particularly those obtained by Lord Ashcroft, the fact is that most citizens never go to a court of law. Most people, if we ask them, do not know what sort of sentences are imposed by the court. If all they read about are individual sensational cases, which a particular editor is trying to present as scandalous because of a lenient sentence, it tends to form public attitudes.

I shall not go further, but when we read a newspaper, we should not believe we are hearing all the facts of the case. The judge has probably heard hours of evidence from both sides, but what we read are two or three snappy lines summarising what is supposed to have happened in the opinion of the journalist.

[Mr Edward Leigh (Gainsborough) (Con)]

Let us look at the facts. Perhaps the public are worried about this fact: 48% of burglars do not receive an immediate custodial sentence.

[Mr Clarke]

In a moment, I shall probably make another passing reference to the fact that the Sentencing Council guidelines make it clear that custody is undoubtedly a normal sentence for burglary. In my experience, it always has been, and it still is. There has to be a clear mitigating circumstance for anybody to avoid a custodial circumstance.

[Mr Robert Buckland (South Swindon) (Con)]

My right hon. and learned Friend is correct in his assertions about lack of knowledge. It is not the fault of the public; it is the fault of the system that there is lack of knowledge in the public domain. That point is eloquently demonstrated and backed up by the findings of research conducted by Ipsos MORI for the Sentencing Council in May last year.

[Mr Clarke]

There is a very interesting website—I forget what it is called—

[The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)]

You be the judge.

[Mr Clarke]

I am reminded by my hon. Friend.

The facts of a case are given and the public are invited to give what they think is an appropriate sentence. Then they are told the sentence the judge gave. In fact, members of the public tend to give more lenient sentences than judges impose, because they have been led to believe—I shall not carry on, because it will only lead to reprisals in the morning. Some of our right-wing newspapers, which I started reading when I was a very small boy, have been telling the nation about soft judges letting off criminals for as long as I can remember, and in my opinion that will be the theme of some of our leading popular newspapers in 50 years’ time, if they survive that long. I shall move on.

This is where the Sentencing Council comes in—the independent body established in 2010 and ably led by its chairman, the right hon. Lord Justice Leveson, to whom I am grateful. Its role is precisely to promote a clear, fair and, above all, consistent approach to sentencing, backed up by supporting analysis and research. As hon. Members know, it does that by publishing guidelines—carefully crafted analyses that set out a clear decision-making process for courts and give guidance on aggravating and mitigating factors to help inform the sentence.

The guidelines include examples of the different levels of harm that a crime can cause, both to victims and the community. They set out varying levels of culpability that apply to offenders, such as whether the offence was committed on the spur of the moment or whether it was carefully planned in advance. They suggest common starting points and ranges for courts to use for different levels of offence. Importantly, they are guidelines, not tramlines or a rigid framework. They are flexible, and judges are always free to depart from them in exceptional circumstances. The most valuable quality for any judge in any court is judgment, which is what, in the end, they bring to bear.

[Rehman Chishti (Gillingham and Rainham) (Con)]

The point that guidelines should be guidelines was demonstrated after the riots, when in extraordinary circumstances judges used their discretion and gave firm sentences. Guidelines are for ordinary circumstances, but for those extraordinary events judges were spot-on in using their discretion.

[Mr Clarke]

As it happens, I entirely agree with my hon. Friend’s opinion. Judges rightly reflected the fact that the background was a sudden, alarming outburst of public disorder and that they needed quickly to give firm and severe sentences, in some cases above the average normally imposed for the offence. That was a correct response to public need.

In the two years it has been operating, the Sentencing Council has done much valuable work not only to promote consistency but in its more general role of seeking to improve public confidence in the criminal justice system. However, it has on occasion been criticised for both its general role in developing guidance for the courts and the contents of particular guidelines. The case that I want to make today, before listening to the views of the House, is that the current system is the right one and that these criticisms are largely misdirected. Contrary to what one sometimes reads in the newspapers, sentencing guidelines take a proportionate and sensible approach to the punishment of offenders, and one in which the public should have great confidence.

[Mr Stewart Jackson (Peterborough) (Con)]

My right hon. and learned Friend, in his normal charming way, has encompassed some of the problems in his overview of the concerns about the faith and trust of taxpayers and constituents in the criminal justice system. He says that he does not want to set a precedent whereby Parliament provides a running commentary on sentencing, and he criticises the media prism in which sentencing is discussed, but surely he concedes the obfuscation of court procedures. When will the average taxpayer get a say on sentencing in this country?

[Mr Clarke]

That is what this debate is for. MPs, and everyone else, are of course perfectly entitled to make whatever comments they wish about the criminal justice system, which, like every part of the public service, is accountable to Parliament, and ultimately it is Parliament that determines the framework of law by which the whole thing is conducted. It seems to have become rather fashionable nowadays for a running commentary to break out about a series of cases, and I think that we should be more sparing. I also think that anyone who comments on this or any other matter should ensure that they have the full facts before going out and giving a considered opinion, rather than just reacting to something they read over their morning coffee.

[Nicola Blackwood (Oxford West and Abingdon) (Con)]

Will the Lord Chancellor give way?

--- Later in debate ---

[Mr Clarke]

I will, but then I really must make some progress.

[Nicola Blackwood]

I thank the Lord Chancellor, who is being extremely generous, for giving way. His points about press sensationalism, the separation of powers and not wanting to have a running commentary from politicians are well made. However, I think that the lack of public confidence is not just due to a thirst for punishment beyond reason, because there is also the fact that reoffending rates are high. The point about sentencing is that we want it to be an effective deterrent against reoffending. At the moment, 49% of all prisoners reoffend within a year of release, and for adults released from short-term prison sentences the rate rises to 60%. We have to convince the public that our criminal justice system is effectively deterring prisoners from reoffending, which is not an issue of sensationalism.

[Mr Clarke]

I could not agree more. In fact, in so far as I have brought anything into policy since taking up my current post, it has to put much greater emphasis on reoffending, which is the biggest weakness of our system, but covering the full range of reforms would be outside the scope of the debate. The system punishes first of all, but it would serve the public better if it also led to the reform of more offenders, so that we could get reoffending rates down to a more respectable level. My colleagues and I are trying to address that in everything that we do in the Department of Justice.

It is relevant to the debate to consider what is most effective in deterring reoffending. Some people have held the belief for years, quite understandably, that in order to cut reoffending we must deter people by sending more and more to prison for longer and longer sentences. My personal opinion is that the evidence completely refutes that view. That approach does not work, particularly if it makes prisons overcrowded and unresponsive places where prisoners toughen up and meet some rough friends before being released to fend for themselves in the outside world. We are making more intelligent use of the prison estate so that, in addition to the punishment of confinement, there is a process of reform based on a working environment that tackles drugs, drink, mental illness and all the other things in order to lead people to behave when they are released.

[Several hon. Members]

rose—

[Mr Clarke]

I have now set off a whole lot of other interventions. As I have started this diversion, or been led to it, I will give way again.

[Derek Twigg (Halton) (Lab)]

I am very interested in what the Secretary of State is saying and agree with his view about the importance of deterrence as well as punishment, but there is a flaw in what he is saying about sending people to prison. When talking to police officers in my constituency a year or so ago, I was told that they took five or six prolific burglars off the streets and put them away for a year or two, which had a massive impact on burglary rates in the area, so it does work. Although they will be released eventually and might reoffend, the fact is that putting people in prison does have an impact in certain circumstances.

--- Later in debate ---

[Mr Clarke]

Burglary rates dropped in recent years because we had an economic boom, and I think that there is a serious danger that they will go up again—they are going up at the moment—if we do not get out of our present economic difficulties quickly. Better policing also counts. In my opinion, the police have become much better at targeting suspected offenders and arresting the people causing most of the crime. Of course prison is the right place for serious offenders, so the sentences that the hon. Gentleman describes sound quite light to me for persistent burglars, and everyone gets a rest while they are sent to prison. As I said when agreeing with my hon. Friend the Member for Oxford West and Abingdon (Nicola Blackwood), while such people are in prison, given that they will be released one day, we should make more intelligent use of prisons to try to ensure that we reform those people so that they are less likely to reoffend.

[Philip Davies]

The Secretary of State seems to be arguing that sending people to prison for longer would not help to reduce reoffending, but his Department’s own figures indicate that the longer they spend in prison, the less likely they are to reoffend. If he is not sure about that, I can tell him that the reoffending rate for people who spend less than 12 months in prison is 61%; for those who spend 12 months to two years in prison, it is 36%; for those who spend two to four years in prison, it is 28%; and for those who spend more than four years in prison, it is 17.6%. It is clear that the longer people spend in prison, the less likely they are to reoffend.

[Mr Clarke]

There is another debate to be had on that, which my hon. Friend will no doubt press for. If people are sent to prison for less than 12 months, we really do nothing whatsoever for them there. They are locked up, released at the end of their sentence and given no support when they leave, and there are staggering levels of reoffending. One thing that has always been done, by the previous Government and every Government, is that the more serious offenders are kept in prison for longer and more effort is made to try to keep an eye on them when they get out. That is a very brief summary of that debate. Once we start swapping statistics in this way, we could argue practically anything, particularly as most criminal statistics have been remarkably unreliable in recent years—I hope that they are now being improved. My hon. Friend’s view is not quite the same as mine, but I respect it.

[Mr Stewart Jackson]

My right hon. and learned Friend is being most gracious and generous in giving way. I wish to be helpful, if I can. I am puzzled by his view on the fact that putting people in prison does not work, because he will know about the possible great success of the social investment bond in HMP Peterborough, where 46% of the indicative income for keeping prisoners in prison will go back to St Giles Trust, Nacro and other third sector organisations. That approach will be rolled out across the whole country, if it is successful. Surely the point is that putting people in prison can work, if it demonstrably reduces recidivism in the long run.

[Mr Clarke]

I do not disagree. I have always held up the arrangement at Peterborough prison as a model of where we want to go. It is exactly what I wish to encourage. People are imprisoned, first, because they have to make their reparations to the public and be punished for what they have done but, as my hon. Friend has rightly said, there is now an extremely interesting situation in place where attempts to start reforming criminals start in the prison and are followed through outside by St Giles Trust, which is the partner of the private sector managers of the prison. We hope to replicate that pilot across the country, which is an example of where we ought to go. People get the punishment first and then proper efforts to stop them offending when they are released.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

To pursue that point further, is it not the case that if we have a system that faces constant increases in numbers, overcrowding and prisoners being moved around in order to accommodate the problems that the system faces, we will not get sentence planning, the careful structuring of sentences or measures to prevent reoffending, which are needed.

[Mr Clarke]

I entirely agree with the right hon. Gentleman. Indeed, that problem has constantly recurred with the extraordinary explosion in the number of people in prison in recent years.

As I have said, I am not saying that everything is perfect in the wider criminal justice system. I freely acknowledge that reporting and public understanding of our system is far from ideal, which is one reason why the coalition Government have a far-reaching programme of criminal justice reform as well as measures to promote transparency and public understanding. However, we should not muddle the problems of an overly complex body of law, which is too rarely reported accurately, with the rules governing how our judiciary apply the law in particular cases.

For the avoidance of doubt, it is worth saying that although the Sentencing Council is a recent innovation, the approach that it embodies is not new. Sentencing has operated in England and Wales for more than 100 years under broadly the same well-established constitutional settlement, in which Parliament sets the overarching legislative framework within which courts sentence, including the maximum penalty and, for some offences of particular public concern, the minimum penalty available to the courts. The role of independent judges is to work within that framework.

Since 2010, the Sentencing Council and its predecessor, the Sentencing Guidelines Council which was created in 2005, have provided courts with a decision-making process to assess the harm that offences cause to victims and communities, suggesting common starting points and ranges, and highlighting aggravating factors. The Sentencing Council has not fundamentally changed the basic division of responsibilities or the balance of power between Parliament, Government and the judiciary. Before the previous Government created the Sentencing Council, the Court of Appeal carried out this function. Its criminal division gave guidance to courts when it thought that discrepancies were beginning to occur. The Court of Appeal has not lost that power entirely and still gives guidance when it feels it necessary. However, the council now provides the great majority of such support to the courts.

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

Will the Secretary of State give way?

[Mr Clarke]

If my hon. and learned Friend will forgive me, I ought to get on or else I will be running a seminar for a large part of the afternoon, which would not satisfy all my hon. Friends.

The Sentencing Council adds stronger checks and balances to the tradition. It does so, first, through its 13-strong membership. The majority of its members are judges and magistrates, but it also includes the Director of Public Prosecutions, the former acting Metropolitan Police Commissioner and the former chief executive of Victim Support. The council has not yet produced guidelines for any category of offences that have not received the support of the Association of Chief Police Officers. These are not simply judge-made guidelines for the courts; a range of backgrounds are represented on the council.

Secondly, the guidelines are determined independently and transparently, but with extensive public consultation. The consultations for recent guidelines have happened over 12 weeks and have elicited thousands of responses. Thirdly, the guidelines enjoy a proper level of parliamentary scrutiny. The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) and his colleagues on the Select Committee on Justice consider every draft guideline in detail, taking extensive written and oral evidence from a wide range of experts, including the chairman of the council. The Select Committee’s work ensures that there is meaningful democratic engagement in sentencing guidelines, without compromising the crucial principle of judicial independence.

Over the past 18 months, the council has published guidelines on a number of areas, on occasion attracting lurid headlines about excessive leniency and so-called soft judges. Let me address that directly. Our judges are far from overly lenient. The average length of prison sentences has increased by 20% over the past 10 years. I do not have proper figures but, having practised myself 30 years ago, I think that the increase has been even greater. We now send many more people to prison and impose longer sentences than was ever the norm until the past four years. As my hon. Friend the Member for Gillingham and Rainham (Rehman Chishti) pointed out, judges can still respond to things such as the riots in an appropriate way.

The guidelines are concerned centrally with ensuring that sentences properly reflect the seriousness of an offence. They are statutorily required to have regard to the impact of sentencing on victims and public confidence in the criminal justice system. Naturally, people seize on isolated parts of the guidelines and quote them out of context. However, when set against the cases that courts see every day, they are well-thought-out, carefully considered, serious pieces of work. For example, the guideline on burglary concludes that domestic burglary should habitually attract a custodial sentence, that the sentimental value of any goods taken must be considered alongside their financial value, and that the presence of children when a burglary is taking place will significantly aggravate its seriousness.

[Mr Leigh]

My right hon. and learned Friend is gracious in giving way so often, and he has made clearly his point that burglars should get a custodial sentence. Let me refer to my previous intervention. If we are talking about domestic burglary—which is the worst thing—in 2009, 37% of those convicted of domestic burglary were given a non-custodial sentence. Does it worry him that the courts are not following what he is advising, which is that the people who cause such misery should end up in prison?

[Mr Clarke]

Individual judges must have considered the guidelines, which are quite new. I am surprised by that figure, however, because burglary has always habitually required a custodial sentence. There must have been some feature in those cases that made people think—either because of a particular problem with the offender when it might have been better to send them on a drug-rehabilitation course, or some other mitigating feature—that on this occasion they would not impose a custodial sentence.

Like all criminal offences, burglary is a wide-ranging offence. It covers everything from someone who has opportunistically opened a door, nicked something off a shelf and run, to two men wearing masks and going into a building, prepared to be violent towards anyone who tries to stop them. There is bound to be a range of sentences, but the guidelines of the Sentencing Council state that domestic burglary should habitually attract a custodial sentence. I have always agreed with that, as does my hon. Friend.

I want to consider the guideline on drug offences that produced some headlines last week. That guideline helps courts to distinguish between organised criminals who, as we know, cause misery to families and the whole community, and those who have become involved in the drug trade through intimidation or a dependency of their own. Contrary to the rather inaccurate headlines that occurred last week, which claimed that street dealers caught with 6 kg of cocaine could avoid jail—that startled me when I heard it repeated on the radio—the truth is that possession of that amount of a drug would be a very serious crime. The starting point for sentencing would be at least seven years in custody, even for an offender playing a lesser role in a criminal operation, rising to a starting point of 14 years in custody for those who have a leading role. The wholly inaccurate headlines stating that drug offences would receive lighter sentences were based solely on the reduction of the sentence for so-called drug mules, if they are addicts and are being exploited to carry drugs for the person who is manipulating them. That sentence has been eased a bit, to the extent that sentences for drug mules who bring in 1 kg of heroin or cocaine now have a starting point of only six years in custody, whereas previously that might have been 10 years.

Significantly higher sentences were recommended for those who play leading roles in a criminal operation, which is why the guidelines on drug sentencing did not receive the slightest criticism from anybody who knows the criminal justice system, including the police and prosecutors. Frequently, the commonly made criticisms of our judiciary and of the guidance produced by the Sentencing Council are unmerited.

I do not, however, wish to defend the status quo uncritically. Anyone who is remotely acquainted with our justice system knows that there are genuine challenges facing it, and that we cannot afford any complacency in addressing them. Sentencing guidelines, and the work of the Sentencing Council, would benefit from further public scrutiny and understanding. The need to ensure that the guidelines receive due public and parliamentary focus is precisely why the Government have allocated today for this debate. I look forward to listening to right hon. and hon. Members and hope that the debate will make a small contribution to establishing public attitudes, and perhaps also to successfully scotching some of the myths that surround the Sentencing Council’s work.

More broadly on confidence in the criminal justice system, it is no surprise to me that the public find it difficult to make sense of the body of criminal law, given that it has grown like Topsy in recent years. Under the Labour Government, constant changes and 20 criminal justice Acts over 13 years left us with a system that even experts have struggled to make sense of. Top-down schemes, meddling and prescription left the system in a complete mess. There were thousands of new offences. I was greeted publicly at the judges’ dinner with the complaint that

“hell is a fair description of the problem of statutory interpretation”.

The net result? A sentencing policy so chaotic and badly managed that towards the end of the last Government’s time in office, they had no room for all the extra people they were putting in prison. They had to let 80,000 criminals out early who promptly went on to commit more than 1,600 fresh crimes. I approved of the new unpaid work community payback scheme, but the way in which it was put into practice meant that offenders serving community sentences usually completed only one or two days of unpaid work each week. That is why there is an urgent need to sort out sentencing, and why we are reforming it. We will simplify it and make it easier to understand, and the House has already considered the Legal Aid, Sentencing and Punishment of Offenders Bill, which is currently in the other place and will introduce some of our far-reaching reforms.

Under that Bill, we propose to reform the statutory duty on courts and judges to explain the meaning and effect of their sentences and communicate them in plain English so that people can understand what will happen to the offender. We are simplifying the release framework so that all prisoners will be governed by one set of rules, making it easier for justice agencies to keep victims informed, and we are replacing the disgrace of so-called indeterminate sentences for public protection with a tough, determinate regime that can be easily understood by victims and the public. [Interruption.] I hear protests, but we all know that the guru on sentencing, Mr Thomas, described those sentences as an “unmitigated disaster”. In due course, we will also bring forward proposals to ensure that community punishments punish and reform more effectively.

Finally, I believe that our system suffers from a fundamental lack of information and openness. Public understanding of sentencing is critical to confidence in the system and to its effectiveness in ensuring that justice is done. We need to open up a system that to many people remains a rather mysterious world, to reassure people that the law is on the side of the law-abiding citizen. That is why I have announced measures that, in my opinion, collectively amount to a revolution in transparency in our courts.

One major item of progress is that we are developing legislation to remove the prohibition on cameras in courts and allow the broadcasting of sentencing remarks. That will be introduced in the Court of Appeal in the first place, but will be followed by extension to the Crown court at a later date. The filming of victims, witnesses, defendants and jurors will of course not be allowed under any circumstances. The change is intended to ensure that the public can see and hear sentences being handed down and hear the comments that judges make on cases. It is not so that our courts will become theatre. I hope that it will help to demystify the court process without undermining the seriousness and diligence that is so central to the quality of our justice system.

Alongside the televising of sentencing remarks, we are seeking to expand the use of restorative justice. Though the restorative approach is often seen as a means of reducing reoffending, for victims who want to take part it also helps to open up the court process. It allows victims to play an active role in helping the court determine how to deal with an offender, which is one reason why victim satisfaction levels with the approach are so high. Restorative processes can help to turn the justice system from one that does things to victims to one that does things with victims.

Last but not least, we are releasing more data than ever before on the performance of our courts. The radicalism of that policy has perhaps not yet been fully recognised, but it has the potential to deliver major progress in public understanding. For the first time, we are making available information on court performance, including delays and total times, and on sentencing decisions classified by offence. That will enable the public to see exactly what sentences are being handed down and where, particularly in their own locality, and it will help them to put that information in context.

What we are doing will represent a fundamental shift in how the justice system works. Justice must not only be done but be seen to be done if it is to command public confidence. The challenge is to deliver reforms to the wider system to simplify it and make its performance more visible to the public. As the measures that I have outlined suggest, I believe we are on the threshold of a step change in openness and transparency. The changes will complement and strengthen the sensible arrangements under which the Sentencing Council operates, which I readily acknowledge were introduced by the last Government, and its wider place underpinning the sound and long-standing division of responsibilities between the judiciary and the Executive in England and Wales. I look forward to the whole process being subject to parliamentary scrutiny, which we are taking a step further by having this debate.

--- Later in debate ---

[Philip Davies]

I think my hon. Friend is very good friends with Ministry of Justice Front Benchers and I suggest that he ask them some parliamentary questions, because those are the answers they have given. To be as helpful as possible, I will furnish him with the parliamentary answer that shows that people with 100 previous convictions behind them are still more likely not to be sent to prison than to be sent to prison. He might wish to take this up with his hon. Friends on the Front Bench.

I was shocked to receive a parliamentary answer showing the number of people who were given cautions for indictable offences, which are the most serious category of criminal offence and include murder, wounding with intent, abducting children and arson. That answer showed that 22 rapists, 24 people convicted of arson and 140 people convicted of unlawful intercourse with a girl under 16 have been given a caution. Bearing in mind the fact that cautions are given on admission of guilt, how on earth can we have a situation in which those people are not being sent to prison and are merely handed a caution? The Government are completely out of step with public opinion, particularly those highlighted in the Populus poll conducted by Lord Ashcroft, which showed that 80% of the public said that sentencing was too soft and that 70% called for life imprisonment to be made much harder.

There is this wrong idea that community sentences are far more effective at reducing reoffending and are also cheaper, but I want to point out that a Home Office survey found that the number of crimes committed per offender in the year before they were sent to prison averaged out at 140—or 257 for those on drugs. The typical cost calculated for those crimes was £2,000 each, which works out at £280,000 a year, in comparison with an estimated cost of £38,000 for a prison place, so perhaps we ought to think about what is most cost-effective.

In 2008, offenders who had completed a community sentence went on to commit a further 250,000 crimes in the 21 months following their sentence, 1,500 of which were serious offences including murder, rape and robbery. As I mentioned to the Secretary of State earlier this week, in 2008-09 some 6,600 people whom the probation service deemed to be high risk or very high risk were serving community sentences.

Then there is the myth that prison does not work. The reoffending rates for people serving short-term sentences is higher than any of us would like, but I have been to lots of prisons in the past 12 months, probably about a dozen—I even visited one in Denmark to see what they do there—and I argue that prison does work. It could probably work better but it does work. As I made clear in my earlier intervention, the longer people spend in prison, the less likely they are to reoffend. If prison itself was the problem, the longer people stayed there the more likely they would be to reoffend, but the opposite is true. I have given the figures: for people who spend less than 12 months in prison, the reoffending rate is 61%; for those spending 12 months to two years in prison it is 36%; for those spending two to four years in prison it is 28%; and for those spending four years or more in prison it is 17.6%.

Professor Ken Pease has used Home Office statistics to show that 13,892 offences resulting in conviction could have been prevented if offenders serving short sentences had been kept in prison for an extra month. That suggests an argument for sending people to prison for longer, rather than for not sending them to prison at all. My right hon. and learned Friend the Secretary of State complained, rightly, about the previous Government’s early-release programme that let people out of prison 16 days early, but the solution should not be not sending them to prison at all, which is what he seems to be advocating now.

When people are in prison we must try to rehabilitate them, but I do not understand why rehabilitation has to occur in the community. I have been arguing about this for quite a while with my Front-Bench colleagues. I should like a system modelled on the TBS programme that has been operating in Holland for many years. It treats prisoners with a personality disorder, of whom there are a large number in our prisons, and has achieved low reoffending rates. People are treated in prison, which is much easier because they do not have so many distractions—they cannot go off and do other things. In prison, they can be given proper targeted support, which is much harder when they are out of prison.

I very much support the Secretary of State’s promoting a stronger work ethic in prison. When I go round prisons, I am appalled by the lack of work ethic. Many prisoners are from families that have never worked; they are often the third generation who have never worked. Surely, one of the things we can do for them in prison is to get them into a proper disciplined routine so that they get up at a certain time in the morning and carry out tasks that get them into a work ethic. My right hon. and learned Friend is absolutely right to do that.

A study by Frances Simon in 1999 followed 178 prisoners until five months after their release. She found that 75% of those who had not sought regular work reoffended compared with only 28% of those who were actively looking for work and 15% of those in regular employment. That shows that even the discipline of going out and looking for a job can make a big difference to reoffending rates. Prison has to be the prime place where some of those people are given the discipline of a work ethic.

I think the Government are making a huge mistake about indeterminate sentences for public protection. Earlier today, my hon. Friend the Member for South Swindon (Mr Buckland) cast doubt on Ministry of Justice figures, but I trust my hon. Friends on the Front Bench. According to those figures, by the end of the 2010 calendar year, 206 people serving indeterminate sentences had been released from prison. Of those, only 11 had reoffended—a rate of about 5%, from my quick calculation. The criminal justice system as a whole would give its right arm for a reoffending rate of 5%.

If the Government are so obsessed with reoffending—the Secretary of State has said that he is—why on earth do they want to give up the part of the criminal justice system that probably has the lowest reoffending rate? It goes to show that the Secretary of State is not really preoccupied with the reoffending rate; he is preoccupied with reducing the number of people he sends to prison. That cannot be the right course of action and it is certainly not something that my constituents want.

[Mr Kenneth Clarke]

I am sorry to intervene just after my hon. Friend and I were warmly agreeing on the need to get a working environment in prisons. I can tell him that I had an excellent meeting this morning at the CBI, with leading figures from British business and the Prison Service, and we are making progress. On that we are totally agreed. With great respect, the figures my hon. Friend uses for IPPs are, unlike some of his other statistics, not very reliable. A tiny number of people have been released from IPPs, so to make a comparison between the very small sample he cites and the very large numbers he was using earlier is ever so slightly misleading. Most people imprisoned under IPPs have not been released and do not know when they will be released. There is an enormous backlog of cases for the Parole Board, which is wondering what to do with them.

[Philip Davies]

The figures my right hon. and learned Friend dismissed are the ones supplied by his Department. All I can do is give the figures as they are. They indicate that of the 206 people who have been released having served an IPP sentence, only 11 have reoffended. It is up to hon. Members to draw their own conclusion from those figures. The principle that we should not release people from prison until it is safe to do so strikes me and my constituents as a rather good one to have in the criminal justice system. His suggestion that we should release people from prison regardless of whether it is safe to do so seems rather bizarre.