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Coroners and Justice Bill

My Lords, it is a great pleasure to follow the contribution of the noble Baroness, Lady Fookes. I remember that years ago, when she was in the other place and chaired the expenditure committee, she produced many excellent reports on penal policy, whose contribution to the subject still stands up today. I begin with a general point, echoing the remarks of the noble and learned Lord, Lord Lloyd of Berwick, that there seems to be no halt in the changes to criminal law. Not so long ago, the Minister was good enough to provide me with the answer to a Written Question: how many new imprisonable offences have been created since 1997? On that date, the answer was that, up to July 2007, Parliament had created 1,472 new imprisonable offences—1,032 in primary legislation and 440 through regulations. These ranged from ships receiving trans-shipped fish under the Merchant, Shipping and Maritime Security Act 1997 to the attachment of earnings order—finding the debtor’s current employer, under the Tribunals, Courts and Enforcement Act 2007. That figure of 1,472 new imprisonable offences seemed to be rather a large number and I think that it might be worth while keeping that figure up to date. I wonder whether the Minister can tell the House how many new imprisonable offences, if any, are to be created by this Bill and subsequent regulations. That leads me to a few remarks on the proposal in Part 4for a Sentencing Council for England and Wales. The proposal derives, as I understand it, from the 2007 report by the noble Lord, Lord Carter of Coles, suggesting that, if sentencing were more structured and predictable, the provision of resources to implement sentences would be more easily manageable. He suggested Minnesota and North Carolina as models. In this respect, it is perhaps worth noting that prison numbers have risen in Minnesota from 6,200 to 9,900 in six years, a rise of 60 per cent. In North Carolina, they have risen from 31,200 to 39,000, a rise of 25 per cent. The evidence suggests that the countries where there are sentencing councils or commissions that lay down guidelines or other strictures are the countries with high and rising prison populations. I have endeavoured to try to establish from earlier debates, and from the Minister’s most helpful opening remarks, what exactly the sentencing council will be for. A number of those who support it think that the idea is to reduce, or at least control, the prison population. Yet, in the other place, the Lord Chancellor was adamant that he was not aiming to reduce the prison population through this measure. He said that the, ""suggestion that the proposal is driven by a desire to reduce the prison population is completely untrue. It is belied by the fact … that the prison population has increased by twice the rate at which it increased under the Conservative Government. It has increased by 2,000 places a year and rising".—[Official Report, Commons, 26/1/09; col. 47.]" Presumably, that is not the aim of the sentencing council. The Minister suggested that it would give predictability with regard to the demands on criminal justice resources. However, it is not clear how that can be achieved when sentencing is but one of the factors, and perhaps not the largest factor, to influence prison population size. The Minister mentioned that consistency was a possible reason for such a body. On that, there seems to be considerable wisdom in the words of Lord Justice Rose that, ""perfect consistency in outcome is impossible to achieve because of the infinite variety of circumstances with which … the courts are presented"." There is a question about the measuring of consistency. What will the sentencing council mean by consistency? Is its aim, as some have suggested, to ensure that no member of the judiciary is tempted to be independently creative, locally relevant, unconventional, problem-solving or imaginative in trying out new approaches or finding new ways? In particular, I am thinking here of the excellent work of the community court in Liverpool as an example of a creative, locally relevant sentencing disposition. A sentencing council will certainly curb any tendencies in that direction, making judges, as the noble Lord, Lord Kingsland, suggested, more like civil servants. That is a great reduction in the quality and vitality of our legal tradition. Have the Government given any thought to the merits of a sentencing advisory council, such as the one in Victoria, Australia, which does not get involved in designing guidelines for the judiciary, but has the role of researching sentencing policy, collecting and analysing sentencing information, providing information on sentencing to the government, judiciary and the public and providing feedback on the effectiveness of sentences? Would that not be a model that could command the widest support and lead to the best outcome while preserving the independence of our much respected judiciary? I should like to move on briefly to Part 5 and to the Government’s decision to introduce, by amendment, a provision in the Bill regarding the responsibility for deciding on the release of prisoners serving a sentence of 15 years or more under the Criminal Justice Act 1991. The transfer of this decision-making power from the Secretary of State to the Parole Board is very welcome. As the Minister will be aware, the amendment has been welcomed by the Joint Committee on Human Rights as a human rights enhancing measure. It is always important to note and celebrate decisions that make the criminal justice system more respectful of human rights. Finally, perhaps I may say a few words on the proposal for exploitation proceeds orders, which could be caricatured as clamping down on ex-prisoners who are so successfully rehabilitated that they give up crime and become writers instead. Clearly, there is an argument here. Broadcasters and publishers may well try to get those who have committed horrendous crimes to talk about them so that they can attract an audience and boost their profits. The fear is, however, that, as with other government measures, there will be creep. It will start with only two a year but anyone with a criminal conviction who wants to become a writer, broadcaster or newspaper columnist will feel under pressure about what they write, presumably, for the rest of their lives—if I have understood that correctly. If, for example, a man called Jimmy Boyle, who was in prison in Scotland in the 1980s, wrote some rather well known books about it, and is now a successful businessman, decided to write his memoirs in his old age, his royalties could be appropriated, even today. Will the Minister confirm that that is what is being proposed? I should have thought that it is an achievement when a convicted person turns to writing in order to make a living. As the Minister will know, there are concerns about the drafting of this measure, particularly, ""the extent to which any victim of the offence, the family of the victim or the general public is offended by the respondent obtaining exploitation proceeds from the relevant offence"." Is the Minister satisfied that the court will be able to decide whether people are offended? How will the prospective author know how to conduct his or her new non-criminal career as a writer in this context? The Joint Committee on Human Rights says of the criterion of being offended: ""There is no Convention or common law right to be protected from offence. The Bill introduces a degree of legal uncertainty which will be entirely dependent on the subjective reaction of a small group of people or the wider public to an individual’s actions"." I look forward to hearing the Minister’s response to this critique by the Joint Committee on Human Rights. I assure the noble Lord, Lord Borrie, who is not in his place, that if he wants to delete these provisions, I would be happy to support him.