Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Garnier Excerpts

Second reading committee (Hansard): House of Lords
Wednesday 12th June 2019 Grand Committee

[Lord Garnier (Con)]

My Lords, it is a pleasure to follow the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Mallalieu. I think that all of us in the Room will support this measure. The Law Commission has told us that there are three good reasons for codifying the law on sentencing: it would make the law simpler and easier to use; it would increase the public’s confidence in the criminal justice system; and it would increase the efficiency of the sentencing process.

I do not intend to say anything other than a few remarks about making the law simpler and easier to use. I say it from the point of view of someone who was a recorder, like the noble Baroness. Unlike her, I was not a criminal practitioner. I learned such criminal law as I did learn at the feet of someone who was then called Lord Justice Judge, who used to chair the recorders’ training weekends in Cheltenham. In the mid-1990s, when I was there, it dawned on me just how complicated criminal law was and, in particular, how complicated criminal law to do with sentencing was. As a civil practitioner, I had rather a grand idea about criminal law and thought that it must be terribly easy. Well, it is not and was not. Since I became a recorder in 1998, it has just got more and more complicated, so anything that can be done to make it simpler and easier to use is to be applauded.

I say that not only because it would have helped me—it became so complicated that I had to stop in 2015 as my brain was beginning to ache—but because most criminal cases, certainly in England and Wales are tried by amateurs, the magistracy, the lay Bench, which deals with about 90% of criminal cases, possibly more, and recorders, who are part-time judges who sit as Crown Court judges for perhaps three or four weeks during the course of the year. Many of them will be non-criminal, civil practitioners: solicitors and barristers whose specialism is in areas of the law outside crime.

Like the noble Baroness, I would frequently ask the advocates in front of me, “What can I do in this case?”, expecting that those experienced barristers—some were less experienced—would be able to tell me. Often, we had to adjourn for 20 or 30 minutes while everyone went and looked up the answer to the question. I confess that it was not always the case that we got it right, which led to the expense and delays to which the noble Baroness has already referred.

The problem is also accentuated because the amateur judges, be they magistrates or recorders, tend to do the cases “of less importance”. The irony, though, is that High Court judges and senior Crown Court judges frequently sit in murder cases, or cases where the only available penalty is life imprisonment. The biggest question that they have to decide as a matter of sentencing law concerns the tariff—that is, what is the minimum amount of time that the defendant will have to serve as part of that life sentence? But for the Crown Court recorder dealing with a case of burglary, domestic abuse or death by dangerous driving, with all its complicated aspects—or, sometimes, a historical sex case—a judge might on occasion be looking at the law prior to 1956 and applying it to a sentencing exercise in 2007 or 2015. That adds to the complications to which my noble and learned friend has already drawn our attention. For that reason alone, if we can introduce this sentencing code as quickly as we sensibly can, I suggest that the Bill is to be much welcomed.

I will give one further illustration of the complicated nature of our current sentencing system. In the first decade of the century, after the passing of the Criminal Justice Act 2003, one of the little games I used to play was to put down a Written Question at the beginning of every Session, asking the then Labour Government how much of that Act had been implemented, how much of it had been repealed before being implemented and how much of it had been repealed after implementation. Broadly, between about 2004 and 2010, the answer, “One-third, one-third and one-third”, used to come back. That is not a good way to run a criminal justice system. Although I appreciate that it is but the overture to the main work, if the Bill and this collection of measures can reduce that sort of stupidity and illogicality in our sentencing system, so much the better.

I heartily support the sentiments behind the Bill. I look forward to its speedy, but properly scrutinised, progress through this House and the other place. In finishing, I add my personal thanks to Professor David Ormerod. He first began discussing this matter with me more than five years ago, probably longer. I honestly did not think that I would live to see the codification of our sentencing system, but he and others at the Law Commission, under the chairmanships of both Lord Justice Bean and Lord Justice Green, have performed quite spectacularly to get this highly complicated subject reduced into something that even I can understand. I look forward to seeing it get on to the statute book.