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Criminal Justice and Immigration Bill

My Lords, I am delighted that the noble and learned Lord is pleased that we have butchered Section 229 to the effect that he wanted. He argues—as always, with great persuasiveness—that, having butchered it, there is nothing left. Perhaps I may argue that there is something left and that it is important to leave it in the statute. I shall do so as briefly as I can. Without Section 229, the courts would have no statutory framework at all for making an assessment of risk. They would have no specific entitlement not just to look at the circumstances of the trigger offence but also to take account of all such information as was available about the pattern of behaviour of which the offence formed part. That is a matter of particular relevance to a court which has a special responsibility for assessing an offender’s prospective dangerousness and it is a hallmark of public protection sentencing. I hope that the noble and learned Lord will not mind my citing the case of R v Considine, which I am sure he knows extremely well. The reference is Court of Appeal, 2008, Volume 1 of the Weekly Law Reports, page 414. In it, a strong court of five judges had to decide issues surrounding the use of information that was not proven evidence but related to what information a court could use in making its assessment of risk. In that case, the Court of Appeal dismissed an appeal against an IPP given to an offender for making two threats to kill and having a knife in a public place. The question on appeal was whether the assessment of dangerousness for the purposes of Sections 225 to 229 had been based in part on inadmissible material. The court noted that Section 229 specified that the court may take account of any information before it about the offender. It also noted that similar language is used in Section 229(2)(b) and (c), which apply to persons with no previous convictions, and those two paragraphs would remain in Section 229. The court held that, "““as a matter of statutory construction, relevant information bearing on the assessment of dangerousness may take the form of material adverse to the offender which is not substantiated or proved by criminal convictions””." We do not agree with the suggestion that Section 229 is unnecessary and that courts would be entitled to look at all such information anyway. The information that a court can take into account is affected by the purpose for which the court is considering it. The Court of Appeal interpreted Section 229 and the special public protection policy function that it serves. It held that the sentencing judge was entitled to take into account information that would have been excluded if he had been considering the punishment element of the sentence to be imposed. When assessing the risk of dangerousness, the court does so not for the sake of punishing the offender but for the purpose of protecting the public by determining whether the offender is dangerous and thus potentially liable to a public protection sentence. We argue that this policy dimension is served by the language that remains in Section 229 and that it should be maintained. I take the point made by the noble and learned Lord about previous convictions. We think that there is an advantage in making it clear to criminal justice agencies and to the general public, if not to learned judges, that previous convictions are, of course, very relevant to the assessment of risk. We believe that makes it transparent and encourages confidence. I rely, in arguing with the noble and learned Lord, on the information parts of Section 229(2); in other words, new subsections (2A) and (2)(aa).