Police, Crime, Sentencing and Courts Bill

Lord Judge Excerpts

Lords Hansard - part two & Committee stage
Wednesday 10th November 2021 Lords Chamber

We share the profound concern expressed by the noble Lord, Lord Ponsonby of Shulbrede, about sentence inflation, so often expressed by many Members of the House experienced in the criminal justice system. We imprison too many people for too long. Our prisons are overcrowded and underfunded and the record of prison in achieving the reform and rehabilitation of offenders is extremely bad. I reiterate what the noble Baroness, Lady Massey, said, to the effect that long sentences impede rehabilitation and reform, and that goes for adults as well as for young people and children. I beg to move.

[Lord Judge (CB)]

My Lords, I sometimes wonder when I read statutes that make provision for sentencing whether those who are responsible for the ideas behind them or those responsible within the department have any idea how difficult it is to pass a sentence. It is easy in a debate like this to talk about two years, three years, seven years, probation or whatever it might be, but it is not like that in the real world. When we have to consider minimum sentences—and I love the semantics about whether we are talking about an obligatory minimum sentence or mandatory sentence subject to exceptions—the ultimate requirement for a sentencing judge is to pass a just sentence. That is why I support the amendment in the name of the noble Lord, Lord Marks.

I am sorry that I am going to take time about this, but there are perhaps four ingredients of a sentence that we now have to consider. One is societal attitude to the crime. Judges get that from what Parliament says that the maximum sentence must be. Dangerous driving causing death, in my lifetime, has gone from two years to five years, 10 years, 14 years and now life. That is Parliament reflecting the seriousness with which society, reflected by Parliament, sees the crime. That always works in the sentencing process. On the rare occasions when a maximum sentence is reduced, as it was with theft, from seven years to five, that too is reflected in the sentencing requirements. However—and although I am used to it, it is no less pernicious—there is the minimum-term idea. Parliament has willed it to be so, and a judge has to be loyal to the Act of Parliament and the oath that he has taken. There it is: forget the semantics, but the starting point is X, and you can move from X only if circumstances permit it, which are now being elevated into “exceptional”.

But that is only the starting point. There is the actual crime itself. Is it a very bad case of its kind or not? This is of particular importance when using “exceptional”. There are many cases where more than one defendant is involved, and sometimes the sentencing judge has in front of him a gang. One member of the gang is a gullible gopher, the person chosen because he is a bit thick, who goes along with it. Do we start with him, with the same minimum sentence as all the others in the same gang? Yes, says this provision, unless it is exceptional. Then we have to remember the victim—the impact on the victim, how it has affected him or her, how long the awful or relatively minor effects will affect that person and how strong, weak, troubled or so on the victim may be. Then there is the defendant. Every single defendant is an individual. On one hand you have the gopher, while on the other you have the sophisticated criminal who does these crimes as a matter of ordinary employment.

My goodness, I could give noble Lords a lecture on this issue, I am not going to because I do not lecture the House, but I am looking at the Minister and members of his department when I use that word. All those ingredients go into making a sentencing decision, and the sentencing judge struggles to balance all of them, because there is a huge conflict on every occasion. If you introduce a minimum term, you have changed the nature of the exercise, which is not to decide in the light of all the ingredients of the defendant, the victim and the crime itself, because you have added a minimum term. The possibility that a judge should be required to pass a sentence that he or she regards as an unjust sentence on a particular individual in a particular case for a particular crime is really rather—I must moderate my language—appalling. A judge should never have to pass a sentence that he or she conscientiously regards as unjust. That is what is wrong with this provision.

[Viscount Hailsham (Con)]

I support the amendment proposed by the noble Lord, Lord Marks, for very much the same reasons advanced by the noble and learned Lord, Lord Judge. I very much favour the preservation of a judicial discretion; it is absolutely essential.

I worry very much indeed about sentencing inflation. When I was at the Home Office working as a Parliamentary Under-Secretary at the back end of the 1980s, I was a Prisons Minister. At that time, the prison population was around 40,000; it has now doubled—it is well into the 80,000s. Are the streets any safer? Does the community feel safer? The answer to that is manifestly that no, it does not.

The noble Lord, Lord Marks, is utterly right when he says that longer sentences mean more people in custody. What is the consequence of that? If you pack people into prison, there is overcrowding and the chances for rehabilitation and retraining are greatly diminished. I know that from my personal experience: for three years or so, I was on the monitoring board of a local prison near me in Lincolnshire—actually, it was just over the border—and the chances of prisoners getting proper courses were very small, so the chances of rehabilitation were thereby much diminished.

The purpose of this clause is to ensure that, in the generality of cases, a prison sentence is the starting point. That is what is intended by using the phrase “exceptional circumstances” as the proviso. That is to say that it will be disapplied in a small minority of cases. The noble and learned Lord, Lord Judge, made a very important point that we need to keep a grip on: exceptional circumstances may not exist, but the sentence could be unjust. So the noble and learned Lord is in fact saying to this Committee—and he is absolutely right—that the impact of the Government’s proposals is to drive the judiciary in particular cases to impose a sentence that they know to be unjust, because they cannot find exceptional circumstances. I find that wholly deplorable.

The amendment from the noble Lord, Lord Marks, enlarges judicial discretion to make it more in accordance with the principles of natural justice. I very much favour that, and I hope that the Committee will do so as well.