My Lords, of the amendments in this group, Amendments 71 to 78, to which I speak now, replicate the amendments I spoke to in Committee, which were also in my name and the name of the noble Lord, Lord Pannick, whom I thank for adding his support to them. Noble Lords will remember that in Committee we had significant and powerful support across the Chamber, including from noble and learned Lords and two former Lord Chief Justices, among them the noble and learned Lords, Lord Thomas and Lord Judge.
These amendments raise an important point of principle concerning judicial discretion. The proposed provisions in Clause 102 impose mandatory minimum sentences and permit judges to depart from those mandatory minima only in “exceptional circumstances”. That amounts to a serious attack on judicial discretion in sentencing and is likely in many cases to give rise to significant injustice. That is true for all four of the minimum sentences proposed: six months in custody for adults threatening with a weapon or bladed article, and four months for 16 and 17 year-olds; seven years for a third class A drug trafficking offence; three years for a third domestic burglary; and six months, or four months for 16 and 17 year-olds, for a repeat offence of carrying an offensive weapon or possessing a bladed or pointed article in a public place or on educational premises.
I am grateful to the Minister for considering our arguments on this topic and for meeting me to discuss them. However, my understanding is that he is likely to maintain the position he took in Committee. He is likely to argue that the judge’s power to depart from the minimum sentences if they find they are exceptional circumstances allows a judge some latitude. Yet he maintains the position that “exceptional circumstances” is a phrase well known to the law as a threshold and should not be changed.
The reality is that the phrase “exceptional circumstances” allows a judge very limited latitude indeed. It is true that the noble Lord, Lord Ponsonby, with his long experience as a magistrate, has said that magistrates’ courts are in the habit of treating the requirement for “exceptional circumstances” with a degree of flexibility. Perhaps that is true of exceptional hardship in relation to disqualifying people for acquiring 12 points on their driving licences. However, the reality is that, properly applied and precisely because this is a threshold phrase well known to the law, as the Minister says, the requirement for exceptional circumstances is far more rigid and far stricter than that experience of magistrates’ courts would imply. Courts have regularly held the phrase to mean that the circumstances must be completely out of the ordinary for exceptional circumstances to be found. Indeed, it is patently obvious that that is the reasoning behind the proposed provisions in Clause 102. The Government are concerned to ensure that more severe custodial sentences are imposed in the cases to which these minima would apply.
Our amendments, on the other hand, would allow for judicial discretion to depart from the minimum sentences where the judge decides that it would be contrary to the interests of justice to impose such a minimum sentence, having regard to circumstances relating to the offence or the offender. Under our amendments, the prescribed minimum sentences would remain the default position—the default sentences—but judges would have the power to depart from them if they thought that the minimum sentences would be unjust. We believe that if only the Government could trust the judges to apply the law and to do what the interests of justice require in particular cases, they would simply accept these amendments.
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The Minister has argued, and I suspect will argue again, that Parliament has the power to legislate for more severe sentences and that judges are obliged to sentence in accordance with the legislation that Parliament passes. That, of course, is a truism. However, I expect he will go further. If and in so far as he goes further and argues that if Parliament passes legislation requiring a particular sentence for a particular offence that is somehow by definition a just sentence, there we part company. Legislatures here and across the world can and do pass unjust laws. In many cases these minimum sentences would not offend against a judge’s sense of justice, but there will be many cases where they do so offend. If they are offensive to judges and to reasonable people’s sense of justice, I suggest that they are probably unjust, whether or not they are sanctioned by statute.
Take the case of an inadequate young man, whether before or after he turns 18, who gives into peer pressure to carry a knife and repeats the offence, or who does so out of genuine fear of gang members, combined with a misplaced belief that carrying a knife might protect him. Or take the case of a drug addict, hopelessly incapable of either giving up drugs or funding his habit, who commits burglary repeatedly and then comes before the court for a third or fourth time at a time when there is at last some hope of his rehabilitation and treatment. Such circumstances in the world of criminal justice are commonplace, but to find them “exceptional” judges would be put in the position of having to act in breach of their judicial oath. That does not mean that the sentences would not be unjust.
To put judges in that position is as wrong as it is invidious. It would weaken the confidence and pride of judges in their position and their work, and the confidence of the public in the judicial system. It might also adversely impact on the ability of prosecutors to obtain convictions. Permitting judges to depart from these minimum sentences where it would be just to do so would also promote rehabilitation and reform where that is, or might be, achievable. Mandatory minimum sentences would do none of that.
I also support Amendment 82A, tabled by the noble Lord, Lord Ponsonby, and my noble friend Lord German, which would introduce restrictions on sentences of six months or less. We on these Benches would go further and introduce a positive presumption against such short sentences, which, on all the evidence, do nothing to reduce reoffending—rather, they do the contrary—or to cut crime. I will leave it to the two noble Lords to set out the case for this amendment more fully. I beg to move.