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Coroners and Justice Bill

The first point that I make in support of the amendment is that there is nothing new about sentencing guidelines. It has always been one of the functions of the Court of Appeal to provide guidelines wherever that has been thought desirable and necessary. However, the absence of a guideline judgment has never meant that judges were, as it were, on their own—far from it. We have always had, as any practitioner will know, Thomas on sentencing—a loose-leaf work in four massive volumes—in which the facts of all comparable cases are set out in great detail. In my view, the existence of Thomas on sentencing is by far the best way of ensuring consistency in sentencing, since it is the most complete record of all the decisions and it is always kept up to date. Criticism might be made that this is all very well; it is what the judges do for themselves, but it does not reflect the views of the public. That would not be so. From time to time, Parliament takes the view that the sentencing level in a particular type of offence is too low and it takes steps to correct the position. The example that I always give—I am afraid that I have given it before in this House—is causing death by dangerous driving. When I became a judge, the maximum sentence was two years; the maximum sentence is now 14 years. My view happens to be that 14 years is far too high when one compares that offence with other very serious offences, but that is neither here nor there. What matters is that, whenever Parliament has increased the maximum sentence, the judges have always followed suit. That has happened, I think, on every occasion. In 1998, we had the Sentencing Advisory Panel, whose purpose was to give judges independent advice as to the appropriate level of sentencing and, in 2003, as we all know, we had the Sentencing Guidelines Council. So the judges have not been wanting for outside guidance; we have always welcomed such guidance and we have always had regard to it. Now, for the first time, judges will be obliged to follow the guidelines unless the interests of justice require otherwise. That, to my mind, is a very different thing. Why are we being asked to change a test so soon after the existing test was approved and confirmed by Parliament in 2003? I remind the Committee of what Section 172 provides. It states: ""Every court must … in sentencing an offender, have regard to any guidelines which are relevant to the offender’s case"." What is wrong with that? That was the Government’s view as recently as 2003 in bringing forward legislation, which was by no means noted for its liberality or, indeed, for letting judges get on with the job. That was their view then, so why has their view changed? What is the evidence that that existing test, set out so recently, is proving unsatisfactory? Or is there some other reason for making the change? I hope that the noble Lord will answer that question when he replies. Perhaps I may venture to suggest a possible explanation. The starting point was, I think, the review of the prison system in 2007 by the noble Lord, Lord Carter of Coles. It was difficult, the noble Lord said, to predict the number of prison places that would be required without a structured framework such as exists in the United States in Minnesota and in North Carolina. Only in that way, he thought, would it be possible to forecast the growth of the prison population. The noble Lord, Lord Carter, reported in December 2007. The same month, the Lord Chancellor and the Lord Chief Justice asked Lord Justice Gage to chair a working party to consider the recommendations of the noble Lord, Lord Carter. The working party unanimously rejected the noble Lord’s central recommendation that we should have a structured framework such as there is in Minnesota. In paragraph 4.24, it said that it would simply not be workable in the United Kingdom. Yet by a majority the working party favoured the stricter test, which is now proposed. In other words, it rejected the reasoning of the noble Lord, Lord Carter, but somehow accepted his conclusion. Why did it do that? It is difficult to say because its reasons are not given. All that it says is that the stricter test now proposed would provide the, ""necessary consistency, transparency and predictability"." I have already said something on the subject of consistency. The noble and learned Lord, Lord Woolf, is right when he says that consistency is a most important objective. The noble Lord, Lord Pannick, is also right when he says that consistency is not incompatible with a degree of flexibility. In any event, as we all know, absolute consistency in sentencing is unobtainable. If we wanted a greater degree of consistency than we have, we ought to have gone the Minnesota route, which we have not done. It is therefore difficult to see what reasons the minority, as it were, could have had, but let me take them one by one. I have already mentioned consistency. The next was transparency. I fail to understand how transparency is relevant at all in this connection, but perhaps that, too, will be explained. Finally, it said that this was "necessary for predictability". In what sense is it "necessary"? Are the Government saying that it is necessary for the judges to be tied down in the way that is now proposed so that the Government may be able to predict the number of prison places that they may need in 2010, 2015 or 2020? With regard to "predictability", the working party says, in the next paragraph, that, ""it is not possible for guidelines to control the prison population, as the prison population will depend on a number of factors the most important being the number of offenders brought to justice and the profile of the crimes they commit"." I would add to that that the number of prison places needed will depend to a even greater extent on how much new criminal legislation is brought forward by the Government, how many new offences are created and things such as the indeterminate sentence for the protection of the public, which, by its very nature, is unpredictable. Perhaps the Minister will, in his reply, give an estimate of the extent to which the new test that is now proposed will add in any way to the predictability of prison population compared with these other matters. It appears that predictability was the reason why all this started. It is rather like trying to predict the inflow of water through a broken sea valve when the ship is sinking. In the mean time, I respectfully suggest that we stick with the test that we have under the 2003 Act until we have been given some better reason for changing it. I beg to move.