My Lords, all the amendments in this group are in my name and that of the noble Lord, Lord Pannick, whom I thank for adding his name to them. We have of course covered some of the ground covered by our amendments in the last group, but there remains, I suggest, considerable scope for developing these very important arguments.
These amendments are put down with two objectives in mind. The first and principal objective is to preserve judicial discretion in sentencing, which the Bill threatens seriously to undermine or remove. The second objective is to express our concerns that minimum sentences do nothing to improve our penal system or our sentencing practice, that they impede rather than foster reform and rehabilitation, and that they fuel sentence inflation.
Clause 101 would require a sentencing judge to impose minimum sentences for a number of offences in the absence of “exceptional circumstances” relating to the offence or the offender which would justify not imposing the minimum sentences. Clause 101(2) relates to the minimum sentences—called in the code “appropriate custodial sentences”, but minimum sentences none the less—applicable under Section 312 for, as we have heard, offences of threatening a person with an offensive weapon or a bladed or pointed weapon or article. For those offences, the code prescribes minimum sentences of a four-month detention and training order for 16 and 17 year-olds; a six-month detention
in a young offender institution for 18 to 20 year-olds; and for those aged 21 or over, six months’ imprisonment. Those sentences currently apply unless there are
“particular circumstances which … relate to the offence or to the offender”
and which “would make it unjust” to pass such a sentence “in all the circumstances.”
The new provision proposed in the Bill would change that test to require the passing of the minimum sentence unless the court concluded that there were “exceptional circumstances” which related to the offence or to the offender and justified not imposing a sentence. The significant change is the elevation of the requirement for there to be “particular circumstances” to a requirement for there to be “exceptional circumstances” before a judge is entitled to depart from the required minimum sentence. At first blush, that may not seem to be a much more onerous requirement, but it marks a very important change.
I confess that I was a little surprised that the Minister ducked the challenge from my noble friend Lord German to define the term “exceptional circumstances”. He shakes his head, but I felt he did. My understanding has always been that, in law, the word “exceptional” has a well-recognised meaning. I have no doubt I will be corrected by the noble and learned Lord, Lord Judge, if he disagrees, but “exceptional” in this or similar contexts means circumstances that are completely out of the ordinary. Judges regard themselves as bound not to find exceptional circumstances unless that high bar is met.
On the previous group, the Minister drew the distinction between minimum and mandatory sentences. He is right up to a point, but the move to a requirement for “exceptional circumstances” reduces that distinction by a considerable margin. The noble Baroness, Lady Chakrabarti, described them as “mandatory minimum sentences”. The fact is that the Government are trying to reduce the scope to depart from the minima. They are trying to reduce the number of people not getting those minimum sentences. My noble friend Lord Beith hit the point when he asked whether the Government were unhappy with the high number of departures from the minima on the present phraseology, which I suggest shows the fallacy in the Minister relying on the number of departures there are at present.
The noble Viscount, Lord Hailsham, was right in describing this as a proposal for a default sentence. In practical terms, a judge might well believe that the particular circumstances of the offence and/or the offender—under the current phraseology—were such that the justice of the case required a custodial sentence of less than the minimum level or a non-custodial sentence. “Particular” in that context bears its ordinary English meaning. It refers to the circumstances that apply to the offence in question—that particular offence —or to that individual offender. However, the use of the word “exceptional” is calculated to require the sentencing judge, in the majority of cases, to pass the minimum sentence even if the judge took the view that the minimum sentence might cause injustice. That is the weakness of these provisions.
Clause 101(3) would impose a minimum sentence of seven years for a third class A drug-trafficking offence, subject to exactly the same test. Clause 101(4) would impose a minimum sentence of three years for a
third offence of domestic burglary—again, subject to the same test. Clause 101(5) would impose the same minimum sentences for a repeat offence of carrying an offensive weapon or possessing a bladed or pointed article in a public place or in educational premises as those which apply for any offence of the threatening offences to which subsection (2) refers—again, on the same conditions.
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It will be clear from what I have said so far that these minimum sentence provisions represent a serious reduction in the discretionary powers of sentencing judges to exercise leniency when the circumstances require that. That fetter on judicial discretion we regard as entirely unwelcome. The Minister used the phrase “it is always for the judge to decide”. Under the new regime that will be inaccurate, and we believe that sentencing law should not impose on judges a requirement that they pass sentences that they themselves regard as unjust and would be unwilling to pass. That is bad for judges, it is bad for the criminal justice system, and I venture to suggest that it is bad for public confidence.
Our amendments would involve the removal of the requirement for there to be “exceptional circumstances” before a judge could depart from the proposed minimum sentences. Instead, the judge would need to be satisfied that
“such a sentence would be contrary to the interests of justice, having regard to circumstances which … relate to the offence or to the offender”,
and which justified the judges declining to impose such a sentence. We believe that the law and Parliament should learn to trust the judges. One regrettable thread running through this part of the Bill is the withdrawal of that trust, represented by a reduction in the ambit of judicial discretion.
Our second point is that another regrettable thread running through this part of the Bill is an apparently strongly held view on the part of this Government that longer sentences are better sentences. We believe that view is profoundly misplaced. I agree with many of the points made by the noble Baroness, Lady Jones of Moulsecoomb, on both these issues. Without going into detail because these issues have been canvassed in this House and elsewhere on many occasions, I say that the vast weight of evidence is to the contrary. It does not point to the proposition that longer sentences are better sentences.
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.