Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

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

[Lord Marks of Henley-on-Thames (LD)]

My Lords, it is a particular pleasure to speak because I have rarely attended any debate where there has been quite such unanimity. We of course also welcome the Bill and the intention to introduce the proposed code. The Bill is an essential pre-consolidation measure—or, more accurately, set of measures. I join the noble Baroness, Lady Deech, the noble and learned Lord, Lord Brown, and others in praising the work of the Law Commission and of Professor Ormerod in particular. I only wish that the Government and other Governments would take more notice of other Law Commission reports that have been shelved rather than enacted over the years.

The Bill loyally applies a number of important legal principles which our sentencing law has spectacularly lost sight of in recent decades. The first is that legislation should be accessible: easy to find, in one place, and possible to develop as one body of readable law. In sentencing in particular, where the liberty of the subject is at stake, there should be an end to the draftsmen’s nasty habit of defining words and phrases by reference to other legislation—where, for instance, such and such a phrase “shall have the meaning ascribed to it” in another piece of hardly or only vaguely linked legislation using the same phrase. This means that the reader, who may not necessarily be a lawyer but a lay member of the public trying to find out what the law actually is, has to go scrabbling around in other pieces of legislation to find the meaning he seeks. In some legislation double cross-referencing is not uncommon. I agree with every word that the noble and learned Lord, Lord Hope of Craighead, said on this subject.

Consolidation is generally to be welcomed because it makes legislation more accessible. It is important not only that lawyers and judges can find the law on a topic in one place—the noble and learned Lord, Lord Garnier, illustrated this when he spoke of how often adjournments of the Crown Court are required while everyone rushes around trying to check the legal powers of criminal courts; having seen that many times, I know it is an extraordinarily undignified and unedifying sight—but that members of the public can understand sentencing, not least to enable them to know the actual and potential consequences of illegal behaviour. It is also important that the press can access the law and write about it accurately. The fact that the press so frequently gets the law on sentencing wrong is just as much a reflection on overcomplicated law as it is on careless reporting. The production of a sentencing code will address these issues.

The second principle that this legislation embodies is that legislation should be as simple as possible. The elimination of anomalies and redundant legislation of the kind mentioned by the Minister in opening and by other noble and learned Lords, particularly the noble and learned Lord, Lord Judge, will remove the cause of many of the mistakes made in sentencing and reduce the number of appeals where the sentencing process has gone wrong. The law in this area has become ridiculously complex, as the example given by the noble and learned Lord, Lord Judge, made very clear. It is extraordinary that the Law Commission found that no less than 36% of sample criminal cases randomly selected from the Court of Appeal workload involved sentences that the court below should not have passed as a matter of law. The Law Commission also commented on the delays in sentencing and in sentencing appeals caused by complexity in the law. The noble Baroness, Lady Mallalieu, referred to the huge estimated savings of more than £0.25 billion over 10 years as a result of the proposed implementation of the code. I echo her hope that these savings may be applied to making improvements elsewhere in the criminal justice system.

The third principle, mentioned by the noble Lord, Lord Davies, is that legislation should not be retroactive. While it is sensible and welcome that, by virtue of the clean sweep, when the code comes into force all offenders will be sentenced in accordance with the code whenever their offences were committed, it is right that the Bill provides for an exception to this principle to ensure that an offender will not be liable to a greater penalty under the code than was applicable to his offence when it was committed. That is made clear in the Explanatory Notes and was mentioned by the Minister in opening. I understand that that is the effect of Clause 1(4), but it is an important guarantee and it is essential that it is watertight. The noble and learned Lord, Lord Hope, also made this point.

The code will not, of course, make new substantive sentencing law. That is not the function of a consolidating statute. The noble and learned Lord, Lord Brown, made that point clearly, and I thought almost with strictures for following speakers. However, future sentencing reforms will, one hopes, be made by amendment of the code, which can then be kept up to date and developed as a single and accessible but dynamic body of law.

While discussing sentencing, I mention that we want to see a more wide-ranging reform of sentencing policy incorporated in the code in due course. In its welcome briefing, the Prison Reform Trust calls for a review of the sentencing framework as a whole, which we would support. Our aim throughout is to increase the life chances of offenders by achieving their rehabilitation, thus turning lives around, reducing reoffending rates and cutting the cost to society of crime, not only financially but in terms of disruption and human misery. We hope that the code develops in that direction as time goes on.

As is well known, we want to see an end to short prison sentences of less than 12 months. The evidence suggests that they are very damaging. Apart from that, we also need to end sentence inflation occurring through statutes permitting incremental increases in maximum sentences or new offences with ever greater sentences. Public and media pressure on courts is another source of sentence inflation. Indeed, the present Lord Chief Justice has spoken in the past about the dangers of sentence inflation. I very much hope that the presence of a comprehensive code will help to reduce that danger. In passing, we want to see sentencing judges much more involved in how both their custodial and community sentences for particular offenders will be implemented.

We welcome the Bill and the proposed introduction of a comprehensive and more accessible sentencing code, but we see this as an important step on the way to reforming our entire system of sentencing, punishment and rehabilitation so as genuinely to put rehabilitation first.