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Criminal Justice and Immigration Bill

moved Amendment No. 3: 3: Clause 16, page 11, line 18, leave out from ““is”” to end of line 37 and insert ““repealed”” The noble and learned Lord said: My Lords, the object of the amendment is to repeal Section 229 of the Criminal Justice Act 2003. I should first explain why I did not press this amendment to a vote on Report. Section 229 of the 2003 Act contains the statutory definition of dangerousness. By subsection (3), which is the crucial subsection, the court is obliged to assume dangerousness if the offender has been convicted on two or more occasions of certain specified offences commonly known as the ““two strikes and you’re out”” provision. That subsection is to be repealed by the Bill as it stands and I am very grateful to the Government that they are taking that course. All that will then be left of Section 229 is subsection (2). All that subsection (2) will say is that the court in assessing dangerousness, "““must take into account of all such information as is available to it about the nature and circumstances of the offence””," and may take into account previous convictions. That is all Section 229 will then provide. On Report, I pointed out that the courts have always taken previous convictions into account. What else can they take into account more obviously than previous convictions? They really do not need to be told by Parliament that they may do that. I think that is now accepted by the Government, at least to that extent, that Section 229 is covered by the existing practice. However, the noble Lord, Lord Bach, argued that the reference in Section 229 to information about the offence, or information about the offender, adds something that the courts have not always taken into account and he referred to the case of Considine in support of that argument. I was unfamiliar with that case so I needed to look at it before asking the House to express a view. I have now looked at it. It turns out that, so far from helping the argument of the noble Lord, Lord Bach, it helps mine. Indeed, I would go further than that and say that it is absolutely conclusive in favour of my argument. In an earlier decision, in the case of Johnson, the court said that subsection (2), "““adds nothing to the approach which the sentencer would normally take, that is, to consider all the information available to the court … it is difficult to see how any sentencer, properly forming his judgment, would properly fail to take all matters of possible relevance into account””." I say amen to that. That sentence in Johnson was expressly approved by a five-judge Court of Appeal in the case of Considine, the case on which the noble Lord, Lord Bach, relied. In the light of my looking at that case, I wrote to the noble Lord and to the Lord Chancellor to ask them to reconsider Clause 16. Once subsection (3) has gone—and it is going—to retain Section 229 is pointless. It is saying only what already happens. Hence my amendment to repeal Section 229 of the 2003 Act. In his letter of reply the Lord Chancellor makes three points. He accepts now that subsection (2) does reflect the existing practice of the judges in assessing dangerousness. But he says that the statute got there first. It is only in 2007 in Considine that the case law caught up with Section 229. It may be that that sounds odd, but it seems to me that that is what the Lord Chancellor is saying in this sentence of his letter: "““The fact that the courts did in fact, by a process of case law development, confirm by the end of 2007 that the statute reflects case law derived in other contexts as to assessing dangerousness is helpful””." As I understand it, the argument is that the courts might have taken a different view in assessing dangerousness in relation to the new, indeterminate sentence than they have always done in relation to the ordinary life sentence. If that is the meaning of that argument, I suggest in all seriousness that it is scraping the very bottom of the barrel. It suggests that, in interpreting this new provision covering indeterminate sentences, the court might have excluded all together what is relevant in assessing dangerousness. In any event, what might have been the position no longer matters, because we now know as a result of Considine that there is no difference between Section 229 and the practice which the judges have already adopted. So I say to the House that Section 229, consisting of what it will consist of unless my amendment is adopted, is wholly otiose and should be repealed. I can deal with the second and third arguments of the Lord Chancellor quite simply. The second argument was that it might imply an intention to repeal or alter the law substantially if we repealed Section 229. But we are of course altering the law substantially in the Bill by repealing subsection (3). That is the subsection which has the teeth, as I have tried to explain. We are not surely implying anything by repealing Section 229 about the information which courts ordinarily take into account in assessing dangerousness, because, as I have said, we now know that subsection (2) adds nothing to the existing practice. Finally, the letter states that Parliament can, if it wishes, embody case law in legislation, to which I say, ““Of course, it can””. But there is surely no point in stating the obvious. It is surely our duty to shorten, so far as we can, and simplify legislation. We have an opportunity of doing that now by repealing Section 229, which if it remains, will simply be a blemish on the statute book. I invite the House to do that and beg to move.