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Criminal Justice and Immigration Bill

My Lords, I shall deal with the imbalance in a moment and suggest that it is not quite as much an imbalance as the honourable Member thought. I have already said that to deal with this whole problem we would have to deal with each-way and indictable offences, too. This Bill deals only with summary offences, which are the real problem—or the greater part of the problem—in this case. In the Crown Court, with indictable offences between 2005 and 2006, suspended sentence orders have increased by 10 per cent. Immediate custody has fallen by 3 per cent. This compares to what happens with summary offences in the magistrates’ courts. For summary offences in the magistrates’ courts alone, there is a slight drop in immediate custody rate, from 2.2 per cent to 1.9 per cent. However, the rate, as I have mentioned, shows a much greater increase, from 0.3 per cent to 1.1 per cent. Although the phenomenon of suspended sentence orders being drawn from the former community sentence population is not just confined to summary offences, we believe that the situation relating to summary-only offences is more concerning. Why do I say that? First, these summary-only offences are the least serious offences in our criminal law. We should be attempting most strongly to mitigate the concern about what is rather unattractively called up-tariffing. Secondly, the ratio of increase is greater with summary-only offences. Immediate custody has dropped by about 0.1 per cent. The rise in suspended sentence orders is around six times greater than that fall in immediate custody. For indictable offences in the Crown Court, the drop in immediate custody is 3 per cent, while the rise in suspended sentence orders is 10 per cent—about four times greater. I have given the figures. Although I am conscious of having poured figures on the House this afternoon, this is an important issue in terms of figures and numbers if we are deciding the right thing to do. The counter-argument is that strict operation of the sentencing guidelines and the custodial threshold precludes magistrates from operating in this way and that the inevitable effect of this clause will be the precise opposite of what the Government contend; namely, there will be an increase—not a decrease—in custody rates. I could not fault that logic if the operation of the custody threshold was an exact science. The truth of the matter is, as all noble Lords know, that it is not. There is necessarily an element of judgment. That inevitably leads, as the Lord Chief Justice put it, to a borderline area where the decision might go either way. As we have repeatedly made clear, our contention, based on the available evidence, is that, in the absence of a power to pass a suspended sentence, magistrates would, when dealing with these borderline cases, by and large opt for a community sentence rather than immediate custody. I pray in aid of our case Paul Cavadino, the chief executive of Nacro, who said: "““Restricting suspended sentences to more serious offences should help to avoid the ‘boomerang’ effect of these sentences which is boosting the prison population. This happens when courts pass suspended prison sentences on offenders who would not otherwise have been jailed and then activate them on top of a new penalty if the offender returns to court””." I have had the benefit of listening to the debates in this House, both in Committee and on Report; I have also had the benefit of reading what was said in another place yesterday. We are ready to concede that we cannot be 100 per cent certain of the impact of Clause 10. We believe that it will increase the prison population, but we may be wrong. The noble Lord, Lord Elystan-Morgan, put it this way on Report: "““The Government might be wrong on this matter””.—[Official Report, 2/4/08; col. 1090.]" As I have said, we stand by the view that the provision will lead to more community sentences being passed and not to an increased use of custody. If we are wrong, the amendment passed by the other place yesterday deals with that possibility. If the clause does not have the effect that we believe it will, the amendment enables us, with the agreement of both Houses, to suspend the operation of the clause. Such a suspension would restore the option of a suspended sentence order for a summary-only offence and allow a breathing space to re-examine the impact of the clause. The Government are not saying that they are necessarily 100 per cent right here. We think that we are, the figures suggest that we are and our experts tell us that we are right, but we may not be. The compromise that we are offering this afternoon is the possibility to revoke the change in the law by order with no need for primary legislation. I am advised that it should be possible to tell whether any untoward trend is taking place within 18 months of commencement. Given that the elected House has shown its views on this matter on two occasions, I very much hope that this House will agree that the compromise that the Government are putting forward is both sensible and proportionate. Moved, That the House do not insist on its Amendments Nos. 9, 301 and 327, to which the Commons have disagreed, and do agree to Amendments Nos. 9A, 301A and 327A proposed by the Commons to the words restored to the Bill.—(Lord Bach.)