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Criminal Justice and Immigration Bill

My Lords, I will not do that because it is not the Ministry of Justice’s intention to do so. Whatever criticism may be made of the Government or my department, my right honourable friend the Lord Chancellor has clearly signalled his intention to work hard to establish the right and proper relationship with the judiciary. Thinking back to his appointment last summer, I do not think there has been one instance when he has criticised the judiciary. That signals the intent. I gather from noble Lords that they do not like this clause. I recognise that there is the question of what is in the clause and the more general question about judicial discretion. I shall deal with the clause first and then come on to the important question of the right relationship between Parliament and the judiciary, which has been at the heart of a great many of our discussions tonight and during other stages in the Bill. This clause is designed to give courts wider discretion to set suitably high tariffs for offenders who have received a life sentence for a particularly serious crime. I should emphasise, as other noble Lords have done, that it is intended to apply to exceptional cases only rather than to routine life sentences. It will apply where an offender receives a discretionary life sentence; that is to say, any life sentence other than a life sentence imposed for murder under the provisions of the Criminal Justice Act 2003. It will not apply to sentences of imprisonment for public protection; that is to say, indeterminate sentences. Section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 specifies that when setting tariffs for discretionary life sentences, courts shall take into account the seriousness of the offence, remand time and early release provisions for determinate sentences. There has been concern that that results in a method of calculating the tariff that can undermine public confidence because the courts determine the punishment part or tariff of the life sentence by using the appropriate determinate sentence as a starting point, which is then halved to take account of the fact that an offender with a determinate sentence will be released on parole at the halfway point of the sentence. This exercise in some very serious cases can seem to result in what appear to be disproportionately short tariffs. An example is the case of Sweeney. Sweeney was sentenced to life imprisonment for the offences of kidnap and sexual assault of a child under 13. Following the usual calculation, his tariff amounted to six years. This clause will mean that where a particularly serious crime has been committed by a person over 18, judges will be able to calculate tariffs without taking into account the parole arrangements that apply to standard determinate sentences. Under the current law they must do so, which means that the final tariff is assessed as half of what the full determinate sentence would be. This clause—the Case A—allows the court to apply some reduction less than 50 per cent or to make no reduction at all, as appropriate in the particular circumstances of an individual case. The Case B element of this clause reflects case law and allows a court to apply a smaller reduction to the tariff, though not less than one-third. The exceptional cases to which this is relevant have historically been ones where an offender already serving a determinate sentence is sentenced for another offence to an indeterminate sentence. For technical reasons, the tariff of an indeterminate sentence should not run consecutively to the tariff of a determinate sentence, but, for reasons of justice, it may be important to ensure that the later offence will result in the prisoner serving extra time in custody. Case B is simply to maintain case law; it brings nothing new to sentencing practice. It is Case A that introduces the new discretion for exceptionally serious cases. The Government believe that the clause will meet a gap in the current law where the type of sentence that would normally be imposed on a determinate basis would not be adequate. I fully accept that that refers to cases in exceptional circumstances. I also understand concerns raised by noble Lords that Parliament should not seek to micromanage the performance of the judiciary, in whom we have great confidence or, as the noble and learned Lord, Lord Mayhew, said, go towards a tick-box approach. That is not our intent at all. I agree with the noble and learned Lord, Lord Lloyd, when he says that it is Parliament’s duty to accept the broad parameters under which the courts work by legislation and then for the judiciary to have discretion within that framework, and to have regard to judgments given by superior courts and the guidelines issued by the Sentencing Guidelines Council—which, as noble Lords know, is an independent body chaired by the Lord Chief Justice. I also say to the noble and learned Lord that the Sentencing Commission Working Group published its consultation on establishing a structured sentence framework on 31 March. That arose from the Carter recommendations, which suggested that there was a need, in thinking through criminal justice policy in future, to ensure that all the relevant elements were brought together, so that there was consistency of purpose. I am sure that the noble and learned Lord will want to respond to that consultation. I fully accept that it is one thing for me to stand here and say that I agree with the noble and learned Lord that Parliament should set the broad framework and then we ought to allow the judiciary to get on with the job. He will then point me to legislation that he thinks does not meet the case. Of course there are instances of that. There will be reasons why Parliament seeks to be more precise in certain ways. It is interesting to look at our various debates so far. By my reckoning, noble Lords have argued against greater judicial discretion in about six or seven cases; whereas, in another five cases, noble Lords have argued for greater judicial discretion. In a sense, that is part of the parliamentary process: we tend to pray in aid whatever argument we can discharge to make the case for the point that we believe in. Although in general all noble Lords will sign up to increased judicial discretion, clearly, as legislation goes through, there are areas where they say, ““On that matter, we do not think that there should be greater judicial discretion. We want to give a clear indication to the judiciary of what they should be doing””. In our debates on youth justice, many noble Lords have been concerned that there is too much judicial discretion. We can see why Parliament is sometimes tempted to fetter the judiciary. I am not trying to excuse the Government from their responsibility to ensure that there is a proper balance between parliamentary direction and judicial discretion; I am trying to say to the noble and learned Lord that it is often easier said than done. The sentencing framework to which I referred and the consultation that has just been held will, I hope, provide us with a sensible way forward that meets the Government’s needs and those of noble Lords who wish to reinforce the discretion of our excellent judiciary.