Transparency and Consistency of Sentencing

Robert Buckland Excerpts

Thursday 2nd February 2012 Commons Chamber

[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—

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[Mr Slaughter]

The young lady—the hon. Member—quotes statistics, but she fails to give credit for the steps that were taken and the resources that were put in. I think I had better stop on that point before I say something else I might regret.

As I was saying, the Youth Justice Board and YOTs together ensured that a child-centric approach was embedded in our youth justice system. The Labour Government correctly said that the right way to cut youth offending and the number of young people in the secure estate was to stop them turning to crime in the first place. Labour’s approach was incremental, evidence based and properly resourced.

The Opposition understand that the Lord Chancellor’s reckless promise to lead the austerity charge means 20% cuts to YOTs in one year, but up to 60% cuts to their preventive programmes. We puzzled at the wanton attempt, which was abandoned only at the last hurdle, to abolish the YJB. At least the Government did not seek to abolish the Sentencing Council. I do not know why they did not do so, because it is a recent Labour innovation, and it is transparent and effective, and it gives coherence and yet flexibility to a key area of public policy. I would have thought it was ripe for the chop.

It is worth recollecting the recent history of sentencing policy to see how far we have come in a relatively short time. I do not disagree with the Lord Chancellor on the current operation of the Sentencing Council, but I shall go over its history to show how it developed. Prior to 2004, sentencing guidelines were laid down by the Court of Appeal criminal division in the form of guideline judgments, and beyond that advocates and sentencers were reliant on practitioner texts, primarily Thomas. The texts were effectively sentencing decisions in individual cases accompanied by a more general judicial commentary on sentencing ranges for the type of offence under consideration. In the words of Professor Ashworth, former chairman of the Sentencing Advisory Panel:

“A guideline judgment is a single judgment which sets out general parameters for dealing with several”

variations of a certain

“type of offence, considering the main aggravating and mitigating factors, and suggesting an appropriate starting point or range of sentences…This kind of judgment was pioneered in the 1970s...guideline judgments...set out a fairly elaborate framework within which judges should determine length of sentence…These judgments acquired authority from the fact that the Lord Chief Justice laid them down: they were intended to bind lower courts, and were treated as doing so...the key element is that they were intended and accepted as binding, in a way that most Court of Appeal judgments on sentence are not.”

The Court of Appeal criminal division’s guideline judgments covered both a limited number of specific offences and more general overarching sentencing principles. Guideline judgments were, however, relatively infrequent and by the late 1990s covered only a small proportion of offences.

The Crime and Disorder Act 1998 created the Sentencing Advisory Panel to solve a problem with the Court of Appeal system. When drafting its judgments, the Court of Appeal was constrained by the material on which reliance could be placed. The Sentencing Advisory Panel, chaired by a distinguished academic lawyer, was established to draft and consult on proposals for guidelines and to refer them back to the Court of Appeal for consideration and, in that way, to inform the issuing of a guideline judgment. The Court of Appeal was not obliged to accept the panel’s recommendations, but in most cases did so, sometimes with modifications.

The important feature was that the laying down of guidelines remained under the control of the senior judiciary. The Sentencing Advisory Panel was launched on 1 July 1999 as an advisory non-departmental public body, its role being to promote consistency in sentencing by providing objective advice to the CACD to assist it in framing or revising sentencing guidelines. The panel consisted of 14 members, including sentencers, academics, those with recent experience of the criminal justice system and lay people with no connection with criminal justice. They reviewed the applicable law and statistics and any relevant research and consulted on proposals before formulating advice. In its first five years of operation, the panel produced draft guidelines on about a dozen offences, which were submitted to the Court of Appeal. The Court acted on all but one of those advices, issuing guidelines in a subsequent decision.

In 2001, the Home Office published the Halliday report, which examined the sentencing framework in England and Wales and concluded that we should go further and set up an independent body—either the Court of Appeal sitting in a new capacity or a new judicial body set up for that purpose. The Government took that recommendation forward in the Criminal Justice Act 2003, which established the Sentencing Guidelines Council. The council was established by the 2003 Act and came into effect on 27 February 2004.

[Mr Buckland]

I am very grateful to the hon. Gentleman for regaling us with a detailed history of sentencing policy development, but would he enlighten us on what happened to “custody plus”, a policy that was introduced in legislation but then dropped because no work was done on how it would be implemented?

[Mr Slaughter]

I hope I am not boring the hon. Gentleman, who I know takes a keen interest in such matters. Contributions from Government Back Benchers seem ad hoc and based on anecdote. I am setting out how a Labour Government approached policy in a rather more controlled manner. He mentions “custody plus”, but he will be aware—he was a member of the Public Bill Committee on the Legal Aid, Sentencing and Punishment of Offenders Bill—of the terrible confusion that he and his colleagues got themselves into on the question of whether to allow magistrates to sentence for 12-month periods. They first objected to that and then withdrew their objections, so he has not chosen a great example.

[Mr Buckland]

The hon. Gentleman touches on another measure the previous Government brought in but never enacted, so that was a very poor example to choose, if I may say so.

[Mr Slaughter]

At least we were clear in our intent—the hon. Gentleman does not even seem to be clear in that. However, I do not want to have a go at him. While I was listening to the Lord Chancellor, I was reading the evidence Lord Justice Leveson gave to the Select Committee. I was pleased to see that when he sits as a recorder he always fills his forms in properly and submits them to the Sentencing Council. I think he deserves a bonus for that. [Interruption.] I might be telling the hon. Gentleman things he already knows, or he might just not be interested, but I will progress.

In all fairness, the Lord Chancellor said that the Sentencing Council was a good thing to set up and that it was performing a sensible role. The Sentencing Council was set up in 2010 under the Coroners and Justice Act 2009. The Act replaced the SAP and the SGC with a single unified Sentencing Council. The council’s functions, of which the House should take note, are to promote a clear, fair and consistent approach to sentencing; produce analysis and research on sentencing; work to improve public confidence in sentencing; prepare sentencing guidelines; publish the resource implications in respect of the guidelines; monitor the operation and effect of the sentencing guidelines; prepare a resource assessment to accompany new guidelines; promote awareness of sentencing; and publish an annual report, the first of which we saw last October.

I trace that history to show that, in only 15 years, we have moved from a largely ad hoc system to one that is comprehensive, statute based and already recognised as an asset to the criminal justice system. That process of change has been rapid, but organic. It has required co-operation and open minds among politicians, civil servants and sentencers. Finding a balance between a framework that delivers consistency and transparency, and retaining the discretion and independence of the sentencer, is no easy task, but the stepped process the council adopted permits the best of both worlds.

In his foreword to the first annual report, which was published last October, Lord Justice Leveson rightly says the council is proud of its progress so far. I do not believe we would have had a Sentencing Council without a Labour Government, any more than we would have had a Youth Justice Board or YOTs. I welcome the present Government’s support for all three, however belated.

The annual report came too early for the latest published guidelines, on drugs offences, which were released last week, as the Lord Chancellor said. However, the guidelines are a good example of how an effective and intelligent sentencing regime could operate. They recommended lower tariffs for what are sometimes called drug mules, who, the council noted, are often vulnerable people.

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[Philip Davies]

My positive proposal appears to have escaped my hon. Friend. I think I am right in saying that he is a member of the new 301 group, which I thought referred to the number of seats we had to win at the next election; I did not realise it was the target for the number of people we should have in prison, which seems to be the approach advocated. What about the quality of life of many law-abiding people in this country? We talk about the rights of criminals, but what about speaking up for the law-abiding people who think that their quality of life would be improved if more people were sent to prison in the first place? Not only are all those people not being sent to prison, but we still have a system in which someone who goes to court with 100 previous convictions behind them is still more likely not to be sent to prison than to be sent to prison. How on earth can we have a criminal justice system in which that is the case?

[Mr Buckland]

I yield to no one in my admiration for my hon. Friend’s force of argument, but I query that last statistic. I have been looking at a sentencing survey that was conducted in relation to the Crown court for the six months from October 2010 to spring 2011, which says that 78% of offenders with 10 or more previous convictions were going straight into custody. That may not be the 100% he would like but it is a pretty hefty statistic by any reckoning, is it not?

[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.

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

I refer the House to my entry in the Register of Members’ Financial Interests.

The sentencing process will always be imperfect and flawed because it comes at the end of a process that starts with a crime being committed, a wrong being done, resulting in damage, death or injury, and whatever the sentencing process contributes, that wrong can never be put entirely right: the family of the victim of somebody who has caused death by dangerous driving, sitting in court, will never be able to recover what they have lost; the partner and children of a householder murdered in the course of a burglary will never be able to recover what they have lost; the victims of a household burglary, examples of which we have heard today, will never be able to recover what they have lost.

It is wholly wrong, therefore, for legislators, judges or anyone else involved in the process to claim too much of the sentencing process or suggest that it can right the social ills of our country. It can never do that. As my hon. Friend the Member for Penrith and The Border (Rory Stewart) reminded us, its function is more limited but still important, bearing in mind the duty of the state and the Government to protect the public. That is one of the functions of sentencing. The others are to punish offenders; where appropriate, to offer the hope of rehabilitation to offenders; to reduce reoffending; and to deter others. Those are the functions of sentencing, and we lose sight of them at our peril.

To be fair to the previous Government, they enshrined those principles in law, through the Criminal Justice Act 2003, which was perhaps one of the few wise decisions that they took. It seemed to me, and many others involved at the heart of the system, that many of the previous Government’s decisions were based on precious little evidence or analysis. I listened carefully to my hon. Friend the Member for Witham (Priti Patel) as she explained, as she always does, the case for victims of crime. As someone who was part of the system, as a lawyer and part-time judge, I know that it is easy to overlook victims in the process, because it is the state taking action against the individual, with the victim a mere player—a witness, if you like.

Those old nostrums no longer stand the test of time, which is why there is much merit in what my hon. Friend said about the voice of victims. Hence, I am a passionate supporter of restorative justice. Having seen the limitations of the court system and understood the lack of control that victims feel, I see in restorative justice a chance for those victims to regain control of the situation. Only a few months ago, I heard from the victim of a double rape, who told me and a rapt audience of about 100 people in my constituency about the first time she gained control of the situation. Having been brutally raped, she gave evidence in a trial that resulted in a successful conviction, but—understandably, perhaps—she was told at the end of the trial, “Thank you, you were a brilliant witness. That’s all.”

It might have been all for the criminal justice system, but it was not all for her, because she had to live with the consequences of what had happened—her job over, her family broken up, her life changed utterly. She said that when she met the perpetrator of the rape in prison, for the first time she had control over events. She felt that she was in the driving seat, that she was dictating the process and that she, although never being able to obtain full closure, was for the first time able to explain to the perpetrator of this dreadful crime the effect it had had on her. That is why I believe in restorative justice, and why I am delighted that the Government are committed to rolling out and enhancing this aspect of our system.

The Sentencing Council has come in for a degree of criticism today, and rightly so. My hon. Friend the Member for Penrith and The Border reminded us, most eloquently, that to reduce sentencing to a desiccated calculating exercise would be wholly wrong. Judges have to bring with them that element of humanity that is part of the human condition. When you sit in judgment on your fellow man or woman, Mr Deputy Speaker, you have to look them in the eye and judge them as one human being over another. Anyone who tries to rationalise that or limit those decisions to mere rationality does the system a disservice; indeed, they put it in danger. That is why we must never reduce sentencing to mere algorithmic calculation. However, that is the danger of the formulae that have been used in a number of guidelines issued by the Sentencing Council.

I enjoyed challenging Lord Justice Leveson about such matters when I described the new assault guidelines as the judicial equivalent of that game show “The Krypton Factor”—you may remember it, Mr Deputy Speaker, from some years ago—where hapless contestants had to crawl through an assault course and be challenged in a range of activities that seemed to baffle them and the presenter. My challenge was rebuffed, but I renew it in the Chamber today, because I firmly believe that the danger of guidelines is that because departing from them without proper explanation is a ground for appeal, they effectively fetter the discretion of sentencers. I have no problem whatever with trying to achieve a consistency of approach; and, to be fair to the right hon. Lord Justice Leveson, he agrees with that. He would be horrified if he thought that the courts system was somehow being reduced to mere arithmetic and calculation. However, the danger remains that with an over-emphasis on the guidelines—let us not forget that the court must, not “may”, have regard to the guidelines—we become over-prescriptive in sentencing.

[Rory Stewart]

Just to expand on that point, does my hon. Friend agree that, as the US Supreme Court found in the case of Booker and Fanfan, the distinction between mandatory sentencing guidelines and purely advisory guidelines is misleading and dangerous? As he is implying, what appear to be simply suggestions operate in practice as mandatory sentences.

[Mr Buckland]

That is absolutely right. We are often told that guidelines are not tramlines, but my worry is that as we develop the system, that will increasingly become the case, which is a matter of legitimate concern to us all. My hon. Friend rightly reminded us earlier about the historic role of the jury. In fact, it is interesting to remind oneself that in addressing juries, counsel will be enjoined not to talk to them about the likely sentence that may be passed on the offender, because that is to trespass not only on the function of the judge, but on the function of the jury. My hon. Friend is quite right to introduce into the debate that element of realism, common sense and public experience that juries bring to the court system. That is why they are there, why the system works and why we as parliamentarians support it, and vigorously so.

Having criticised some of the Sentencing Council’s functions, let me commend its research work. One of the better things that it has done is to start the process of looking at the decisions that are made in our Crown courts up and down the land, and to commission research on the attitude of the general public to sentencing. There are two reports in particular that I think the House would be interested to hear about, one of which I referred to in an intervention on my hon. Friend the Member for Shipley (Philip Davies). The report commissioned by the Sentencing Council and published in May last year by Ipsos MORI conducted a survey of just under 1,000 members of the public and interviewed offenders and victims of crime. Perhaps inevitably—but for the first time based on empirical evidence—the report quite rightly pointed out a number of key things, including that the public perceive the system as being too lenient, but that some of their concerns are allayed once they have a greater knowledge of the workings of the sentencing system. The points that have been made about greater transparency and awareness, and about the televising of proceedings, are all founded on the research that has been carried out. It is plain and simple: if we give the public a greater understanding of the system, they will give the system greater support.

I was fascinated by the public’s view on the reduction of a sentence in return for a guilty plea. They feel that we, the lawyers, are getting it back to front. They would understand and appreciate the system better if, instead of reducing sentences and giving people credit for pleading guilty, the court were to give longer sentences to those who plead not guilty and string the process out, only to be convicted at the end of a trial. They do not like the notion that offenders are somehow being rewarded for having admitted their guilt. That was a fascinating insight that we, as legislators, should bear in mind. Indeed, the Sentencing Council should also take it into account when it reviews the system of credit being given for a guilty plea.

[Anna Soubry]

Does my hon. Friend agree that the public perhaps do not understand that the courts give credit for a guilty plea because it spares the cost, and the trauma to the witnesses and victims, of a trial? Furthermore, if someone has admitted to having committed a crime, they stand a much better chance of being rehabilitated and helped, so that they will not go on to commit more offences.

[Mr Buckland]

My hon. Friend is right. The report found that there was an appreciation of the economic and emotional benefits of early guilty pleas. However, the public preferred the argument that guilty pleas spare the victims trauma; they were somewhat resistant to the economic, pounds, shillings and pence argument. That is quite understandable, given that members of the public view sentencing and the other criminal justice procedures with the utmost seriousness. To them, public protection through the criminal justice system is second only to military matters such as the defence of the realm—my hon. Friend the Member for Beckenham (Bob Stewart) has arrived in the Chamber at just the right moment—and is a matter of the utmost seriousness.

Other work has been commissioned by the Sentencing Council, and it has caused a bit of angst among judges, because they have to fill in forms after every sentence—[Interruption.] I hear involuntary groans in the Chamber at that. For the first time, the courts in England and Wales are being asked to provide a wealth of evidence about what factors and influences are taken into account when those decisions are made. The first report was published in October 2011, and it covers the six-month period from October 2010 to the end of March 2011. The results bear close scrutiny.

The survey covered many hundreds of cases. When studying previous convictions, it found that 78% of offenders with 10 or more previous convictions taken into account by the court were sent to immediate custody. That is a significant and reassuring statistic. It also found that 59% of offenders with one to three previous convictions were also sent to immediate custody, and that 49% of offenders had no previous convictions taken into account when their sentence was determined. Those facts need to be stated. For the first time, there is an emerging body of evidence to show what influences judges and what is going on in our Crown courts.

On the subject of discount for guilty pleas, the survey found that 69% of those who pleaded guilty received a full discount; 12% received a discount of between 20% and 32%; 8% received a discount of between 11% and 20%; and 8% received a much lower discount. That shows, in my view, that judges are using their discretion within the guilty plea discount system and are not formulaically applying the guidelines as laid down by what I think was the Sentencing Advisory Council in a previous incarnation of the Sentencing Council. We have started to create a body of evidence, although we still have a long way to go in working out what decisions are made.

I finish where I started. This is a human system, and it will always be an imperfect system, but if we rob of the system of its humanity, we are doing a disservice to our fellow citizens.

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[Neil Carmichael]

I thank my hon. Friend. What he has said reaffirms my view that transparency is important. I do not doubt that the Secretary of State listened to that carefully as well.

The rule of law is essential to us as libertarians, as politicians, and as a country with common law at its core, and it is important to bear in mind that the separation of powers makes the rule of law work well if we respect that separation of powers. It is vital for us to recognise the independence of judges, to understand that—as the Secretary of State said—they are there to make judgments, and to understand that they are likely to be the best people to talk about a case because it is they who are judging it and know all about it. I think that politicians are heading into dangerous territory if they become too prescriptive about the way in which they think judges should be sentencing.

I also think it dangerous—this point was made by my hon. Friend the Member for South Swindon (Mr Buckland)—to think in terms of a sort of toolkit that forces certain decisions to be made because of what we think is happening in a relatively abstract way. It is important to make the distinction between specific cases and setting rules, which is what we are talking about, and to respect the fact that the separation of powers is core to our way of proceeding.

Why do we give out sentences? Surely one of the most obvious purposes of sentences is to ensure that people stop misbehaving, and that is what we need to talk about in this debate. Several Members have referred to the number of individuals who are reoffending, and it is true—I have checked the facts myself—that 57% of short-term jail sentences result in reoffending within 12 months. That is completely unacceptable: it is not what we are doing the job for. We need to understand why there is so much reoffending. I think that many aspects of the problem are connected with the way in which prison operates. For instance, a number of my constituents have encouraged me to think about the standard of literacy in our prisons, and quite right too. Far too many people who end up in prison, especially the young, cannot read or write properly.

[Mr Buckland]

I am grateful to my hon. Friend for spelling out the appalling problems of reoffending in statistical terms. Does it surprise him to learn that 70% of young offenders in detention have some form of speech, language or communication disorder?

[Neil Carmichael]

No, it does not, because I was told that a few weeks ago. I think that the “toe by toe” approach in our prisons is an important way of lowering that figure. I urge the Ministry of Justice and the Secretary of State to think carefully about how we can improve literacy in our prisons so that those leaving prison can have a better chance of participating in society and employment.

Of course, the same applies to drugs: there are just too many people in prison taking drugs, too many people going to prison with drug habits, and too many leaving with a drug habit, which is completely unacceptable. It is important that we tackle that in a rigorous way.

A lot of people have talked about restorative justice. It is a great way of dealing with the victim relationship, and we should promote it. In my constituency of Stroud, a huge number of people want to support restorative justice, and there is a small campaign to promote it. I do not think that many of the campaigners know that it was introduced by Michael Howard, latterly of this House. It was persisted with by the previous Government and by this Government—and quite right, too.

Obviously, for a wide range of crimes, custodial sentences matter and are important; we have gone through all the figures in the past two or three hours. I do not think that many Members on either side of the House would dispute that crimes involving knives, and burglary, should attract custodial sentences. However, there are clear grounds for thinking about community sentences as well. I have taken the Secretary of State for Justice to my constituency and shown him an excellent scheme operated by REACH Gloucestershire, which is busy reconstructing a pathway along a very long canal. That is working, and people know it works. I have talked to people on the scheme; it is hard work, and they recognise that they do not want to do the same again. It is good for them to be given a job of work, and a form of punishment that makes them think carefully about how they operate in society.

Such community sentences are to be encouraged, but let me state clearly that there should be custodial sentences where appropriate. There should also be consistency; my hon. Friend the Member for Broxtowe (Anna Soubry) emphasised its importance. However, that has to be matched up with the role of the judge, and his responsibility for making judgments. I come back to the central point that we cannot be too prescriptive. We should not go down the populist route of saying, “Hang ’em and flog ’em”; we should instead take responsible decisions to make sure that our judiciary, sentencing process and prisons operate in a way that is consistent with our values as a democratic nation, with our objectives of making sure that we deal with crime and stop reoffending, and with our fundamental belief in the rule of law.

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[Stephen Phillips]

My hon. Friend makes an important point about cost-effectiveness. If a different judge has to sentence, the papers have to be read and more work is done in court, thereby taking up court time, while the case is explained by the advocates for the Crown before the plea in mitigation is taken. Then, there is generally a further adjournment—certainly when I sentence, and no doubt when my hon. Friend the Member for South Swindon (Mr Buckland) sentences—when the judge retires to consider precisely what he is going to do. All of that could be avoided.

In my experience as a recorder—a role I continue to carry out for a few weeks a year—sentencing lists often include trials where there has been a conviction, and the case is not always reserved to the judge who heard the evidence. In my view, it certainly should be, and I hope that my right hon. and learned Friend the Lord Chancellor and his Front-Bench colleagues will look at that issue.

The first tension for the House when it considers such matters, therefore, is that between public expectation or perception on the one hand and the necessity for judges who hear cases to deal with sentences and impose them appropriately on the other. There is another tension, however, between the discretion of the judiciary to impose the appropriate sentence and the expectations of the public that sentences will reflect the gravity of the crime. That, of course, is a tension that manifests itself most clearly in the discretion afforded to judges in passing the sentences they impose for which they are criticised, from time to time, both in this House and in the press.

Let me echo some of the comments of other Members about the wisdom of this House second-guessing the judiciary in sentencing exercises. If we are to stand behind the independence of the judiciary, as I know my right hon. and learned Friend and other Ministers do, and to insist that the judiciary are responsible for sentencing and not the court of public opinion—as we have seen from time to time—we must be robust and stand up and say here that which is right. That which is right is that there must always remain a certain element of discretion in the sentencing exercise, notwithstanding the frameworks that this House establishes, within which the exercise itself must take place, and the guidance laid down by the Sentencing Council.

The debate therefore takes place in the context of those tensions. Any Member who thought that the tensions were unreal and that the public did not have such perceptions or, indeed, criticise judges from time to time, will find when they return to their offices and read their e-mails an e-mail from our frequent correspondent—by which I mean that of all Members of the House—who goes by the name of UK Patriot. Many Members might delete his e-mails, but I read them. He has sent us all an e-mail today about the “Big Ben bomb gang” who are, he says, apparently out in six years. He says:

“The fact that this has happened is outrageous!”

He tells us that they appear to have been treated by the courts as though

“they were naughty boys owning up to scrumping apples.”

He goes on in the same vein.

There is a common public perception that the judiciary are not imposing proper sentences. It is therefore important, in the terms of the motion today, that we consider both consistency and transparency and that the Government push that agenda as they carry forward their work on sentencing and consider reform of the criminal justice system.

I openly acknowledge that the advent of the Sentencing Council, formerly the Sentencing Guidelines Council, has ensured greater consistency in sentencing. Like the hon. Member for Hammersmith, I am pleased that the Government have not decided that, because of the current financial crisis—we will not touch today on who is responsible for that, although the hon. Gentleman knows my views—this body should be abolished.

[Mr Buckland]

I think that my hon. and learned Friend is grappling with the same issue as regards the Sentencing Council as many of us have in recent months. Does he think that there is a case for the Court of Appeal doing the job of the council with an additional resource function to carry out the research that I referred to in my speech?

[Stephen Phillips]

This is a rare area in which I might disagree with my hon. Friend. Before the Sentencing Guidelines Council was established, as my hon. Friend will know and as the House heard in the Front-Bench speeches, the Court of Appeal used to issue guidance in the form of judgments in particular cases on how judges should proceed in sentencing. That was worth while, and, as my right hon. and learned Friend the Secretary of State made clear in his speech, the Court of Appeal retains that role. We saw it, as an intervention revealed earlier in the debate, in the riots last year. The Court of Appeal, essentially, was able to establish that as a matter of English law the context in which otherwise minor offences had taken place required much stiffer sentences to be imposed than would otherwise have been required either by previous guidance from the Court of Appeal or by guidance from the Sentencing Guidelines Council.

I can agree with my hon. Friend the Member for South Swindon to the extent that it does seem important that the Court of Appeal should retain that overarching ability to exercise its right to indicate to lower court judges what would be an appropriate sentence in particular circumstances. What the Court of Appeal never had and still does not have the opportunity to do is consult more widely, whereas the Sentencing Guidelines Council did have that opportunity, as does the Sentencing Council, which consults much more widely than the Court of Appeal ever could in a criminal case. In any case in which the Court of Appeal was handing down guidelines, it would receive submissions only from the parties to the case—and perhaps from the Attorney-General; I know not—but it would not be able to consult extensively with the public as the Sentencing Council can and does. If we are to encourage public confidence in the sentencing regime, it is very important that the public are consulted.

The only respect in which I might criticise the Sentencing Council—perhaps I am going slightly off the topic here—is in relation to its consultations on mandatory or discretionary guidelines on sentencing, which are not well publicised or well known. The representations it receives usually come from the Criminal Bar Association, other specialist associations and those who are particularly interested in the criminal justice system.

--- Later in debate ---

[The Solicitor-General (Mr Edward Garnier)]

I think that I am the 16th contributor to the debate, and it is not surprising—indeed, it is welcome—that although the debate is entitled “Transparency and consistency of sentencing”, and we are required by the motion to have

“considered the work of the Sentencing Council and the transparency and consistency of sentencing”,

contributions from right hon. and hon. Members have dealt with a number of wider issues within the criminal justice system. I congratulate the two Deputy Speakers who have chaired our debate on permitting such a liberal approach to the terms of the motion, which has allowed a number of informed and informative contributions.

I confess I thought that at some stages in the debate, the hon. Member for Hammersmith (Mr Slaughter) who, at least this afternoon, speaks for the Opposition on such matters, had been sentenced to a period of solitary confinement. For considerable periods he was the only Labour Member who thought it appropriate to remain in the Chamber. He, poor fellow, had no liberty and no discretion about whether to sentence himself to time in the Tea Room or somewhere else. It was a pleasure to see him sitting there silently for much of this afternoon. He has assisted us greatly with two contributions. Many people will no doubt find assistance from reading, with great care, what he had to say, in tomorrow’s Hansard. His praise for our judiciary and the criminal justice system was of considerable value, and the sentiment was shared across the House. I think he said that there was no room for complacency. If he did say that, he was right to do so.

From listening to the speeches of Government Back Benchers, I think it is fair to say that while there is universal acceptance of the high quality of our judiciary, from the highest court in the land, the Supreme Court, to the lay magistracy, there is no room for complacency and plenty of room for public comment. There is plenty of room for Members of Parliament—indeed, there is a duty on them, when it is appropriate—to make stinging comment, often in offensive terms. It is the right and duty of a Member of Parliament to speak up for his constituents or for a particular group of citizens who have strong views. It is right that my hon. Friends the Members for Gainsborough (Mr Leigh) and for Shipley (Philip Davies) come to this place not to agree with everything that goes on, but to disagree and explain why they disagree. The Government and the Opposition can make judgments about their contributions and reach a rational conclusion about whether to agree or disagree with them. I am grateful to both of them, and indeed to all Members who have taken part in the debate.

As I said, it is not surprising that our debate has been spread widely. We have considered the work of the Sentencing Council and whether it is a constitutional abomination that is interfering with the freedom of Englishmen. I say to my hon. Friend the Member for Penrith and The Border (Rory Stewart) that in some senses I hope it is interfering with the freedom of Englishmen who commit crimes and deserve to be sentenced to terms of imprisonment or, if their offences are not so hideous, to non-custodial disposals.

I know that my hon. Friend is a man who thinks a great deal about a great many things, and it is clear that he has thought a great deal about the difficult constitutional issues that are revealed in any discussion of the separate roles of Parliament, judges, juries and the Sentencing Council. None the less, I disagree with his conclusion if it genuinely is that the Sentencing Council is an affront to the liberty of Englishmen.

During the passage of the legislation that the last Government introduced setting up first the Sentencing Guidelines Council and then the Sentencing Council, I expressed the view that there was a danger that those bodies would interfere with the discretion of the judiciary. I said that both as a Member of Parliament and as someone who has sentenced people—until I came into government in 2010, I used to sit as a Crown court recorder, like my hon. Friend the Member for South Swindon (Mr Buckland) and my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips). I think if my hon. Friend the Member for Penrith and The Border were to sit either as a spectator in the public gallery or alongside the judge—or even, dare I say it, if he were to imagine what it must be like to sit in the dock and hear a judge promulgate a sentence—I do not think he would be in any doubt whatever that our judiciary is not fettered in the way that I feared it might be, and the way he perhaps implied it was, by the guidance of the Sentencing Council.

Time and time again as Solicitor-General, I have appeared in the Court of Appeal criminal division referring what I consider to be unduly lenient sentences to the Court for review. I remind the House that I do that not as a member of the Government but as an independent Law Officer protecting the public interest. When I do so, I am constantly reassured that the Court of Appeal reminds the judiciary and the public who are in court that the sentencing guidelines are simply that—guidelines. When it is just to depart from them, the judiciary must do so. When it is just to show mercy, it is right and proper that the court should do that.

In cases such as the riots, to which my right hon. and learned Friend the Secretary of State referred, it is right that sentencing judges in London, Birmingham, Liverpool or Manchester can go beyond the range of sentences recommended in the guidelines for affray, robbery, burglary of shops, arson or whatever it may be. The Court of Appeal and the Lord Chief Justice have said that given the context in which the crimes were committed, it was entirely proper that the sentencing judge should go beyond the sentence that might normally be expected for, let us say, the theft of three bottles of water, a cardigan or a pair of trainers from a shop.

It seems to me that we need to bear in mind the context in which the Sentencing Council does its work. Yes, the situation has changed from what happened 20, 30 or 40 years ago, when we relied only on the Court of Appeal to set out guidelines. However, now that we have the council I am, if not an enthusiastic convert, a convert who is prepared to say that its work, and previously that of the Sentencing Guidelines Council, has demonstrated its worth.

I should like to echo those who thanked Lord Justice Leveson—I am thinking particularly of the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), the Chairman of the Justice Committee. Lord Leveson’s work on sentencing is in addition to his ongoing inquiry into the press and his work as an ordinary member of the Court of Appeal. He has to fit in sitting days in the Court of Appeal and deal with the work of the Sentencing Council in addition to his work on the Leveson inquiry, so I hope it will not be suggested that that judge, let alone any other judge at that level, shirks in his public responsibilities. He is working extremely hard and producing good work.

However, the fact that the council produces those guidelines does not mean that we must agree with them. Members of Parliament can disagree with them, as can members of the public who read about sentences in their local or national newspapers. We can form our own views, but as my right hon. and learned Friend the Lord Chancellor said at the outset, Members of Parliament must be a little careful when we express such views, because the public expect us to have opinions based on fact, not simply on conjecture or rumour, or on a bad report of a case that we read in the newspaper. When Members of Parliament disagree with a sentence that a Crown Court judge has arrived at, we are under rather more of a duty than the young reporter or the ordinary member of the public to do our best to find out the facts.

One good way of finding out the facts is to ask the House of Commons Library to do the research for us. Another good way of increasing our knowledge of what the Crown Courts and other sentencing courts do is to go and sit in them, which I did in opposition. I urge my right hon. and hon. Friends and the few Labour Members in the Chamber to go to their local Crown court to see what happens. Friday is a very good day to do so because it is often the day when the sentencing lists are dealt with.

I take what my hon. and learned Friend the Member for Sleaford and North Hykeham said about cases sometimes being dealt with by one judge at one instance and then being referred to another judge, but by and large, I like to think that happens only when they are dealing with cases in which there is a guilty plea followed by a sentence. The sentencing judge on a guilty plea is in just as good a position as the judge that received the plea. The important thing to bear in mind—this is a piece of advice that the Court of Appeal constantly gives, and my right hon. and learned Friend and I constantly give it to the Crown Prosecution Service, which we superintend—is that the factual basis on which the plea is made is established. Sentencers cannot sentence in a vacuum. It is essential that the facts of the case as admitted or as found by the jury are clear, so that the sentencer knows precisely on what basis he is sentencing.

[Mr Buckland]

Will the Solicitor-General reassure the House that the basis of pleas are reduced into writing—that they are court documents? Transparency is an important part of that process, as has been emphasised by all courts, including the Court of Appeal, for some years now.

[The Solicitor-General]

I am sure my hon. Friend is right about that—he will know that from his experience both as an advocate and as a sentencer. It is utterly frustrating to have to analyse sentencing remarks that are based if not on conjecture, then on a total lack of knowledge of the facts. Advocates—those who appear for the Crown and the defendant—have a duty to ensure that the court is given the facts.

Advocates also have a duty to ensure that the court is advised about the relevant sentencing law and powers. One of the problems, or unintended consequences, of the raft—I was going to say the flood—of legislation passed by the Labour Government was that those Acts had something to do with amending the criminal justice system. The previous Government were not so silly as to call every one of those 64 Acts of Parliament a criminal justice Act, but I can assure the hon. Member for Hammersmith that 64 pieces of legislation passed between 1997 and 2010 affected the way the criminal justice system worked. It is completely—I will not use an unparliamentary expression—confusing to have to sit there and try to work out which piece of legislation deals with which type of offence and whether that legislation is in force, not yet in force or out of force.

Let me take the example of the Criminal Justice Act 2003, which is almost as thick as this great tome—the wonderful “Vacher’s Parliamentary Companion”—in my hand. Before this Government came into office, I asked a parliamentary question of the previous Government, and it was quite clear that they had simply mismanaged the conduct of that piece of legislation. About a third of it was repealed before it even came into force. Another third was not in force by the time the previous Government left office. Individual bits of the remaining third were brought into effect, and we are now having to repeal them—I am talking, for example, about the IPP legislation. Other bits were also brought into force by the previous Government, but they then realised they needed to repeal them.

What we require from the House, therefore, is an understanding that legislation needs to be thought about. We need, of course, to consult—this is what the Sentencing Council does—the people who have to apply it and the people it will affect. We need to work out what we will get if we pass what I call early-day motion legislation—expensive appeals; judges telling my right hon. and learned Friend the Lord Chancellor that statutory construction is hell; and a huge lack of public confidence and satisfaction in the justice system.