New Clause "L".—(COMPUTATION OF SENTENCES OF IMPRISONMENT PASSED IN ENGLAND AND WALES.) (Hansard, 26 July 1967)

§ Miss Bacon
I beg to move, That this House doth agree with the Lords in the said Amendment.
We can take at the same time Amendment No. 98, new Clause "M" entitled "Consideration of time spent in custody in passing sentence in Scotland", page 43, line 22, at end insert: A court in Scotland, in passing a sentence of imprisonment or detention in a young offenders institution as defined in section 31(1)(d) of the Prisons (Scotland) Act 1952 on a person for any offence shall, in determining the period of imprisonment or detention, have regard to any period of time spent in custody by that person on remand awaiting trial or sentence. and Amendment No. 250, in Schedule 6, page 119, line 15, column 3, at beginning insert: Section 17(2)". The Amendment to Schedule 6 is consequential on the repeal of Section 17(2) of the Criminal Justice Administration Act, 1962, which provides that time spent in custody after committal for trial or sentence to the courts of assize and quarter sessions shall count towards any 881 eventual sentence of imprisonment. This provision does not enable any time spent in custody before committal or in connection with a summary trial to count towards the sentence.
The Streatfeild Committee recognised that this distinction between time in custody before and after committal is somewhat illogical, but pointed out that periods in custody before committal tend to be much shorter than those after committal and that to count the former periods would be complicated for the prison administration. But the Government consider that it would be administratively feasible to require all the time spent in custody to count towards sentence provided that the new provision is not retrospective because that would involve recalculating the release dates of about 30,000 prisoners.

§ Mr. Carlisle
Does this proposal affect the position of people on appeal? As I recall, the new provisions regarding the Criminal Division of the Court of Appeal strictly prohibit it from increasing a sentence in any circumstances and the only deterrent power left in the Bill concerning frivolous appeals was the right to say that the time spent awaiting appeal should not count towards the period of the sentence. I regret that I speak only from recollection of that Bill and that I have not looked it up today, but I think that that is the position.
I should be grateful to know whether this provision in the Bill affects the situation. If so, I should have thought that the matter should be considered closely. The Criminal Division of the Court of Appeal is heavily overworked. Appeals are waiting many months before they are heard. If anything leads to a greater incentive to appeal, it should be deplored.

§ Mr. N. R. Wylie (Edinburgh, Pentlands)
Amendment No. 98 is preferable to that of Amendment No. 97 because it leaves the court with a discretion. It simply provides that in passing a sentence… the court shall … have regard to any period of time spent in custody by that person on remand awaiting trial or sentence. I wonder whether the Amendment is necessary because in my experience that is something which the courts have always done. In pleas in mitigation the 882 judge is always told how long an accused has been in custody and detained. Amendment No. 98 should commend itself to the House.

§ Mr. S. C. Silkin
I entirely approve the principle of the new Clause, but I ask my right hon. Friend the Minister of State to deal with one matter which I do not altogether follow, namely, the exception in the case of a suspended sentence.
I can understand the exception in the case of a probation order because presumably one is referring to the breach of the order and the court is making a new sentence when the person appears before the court on a breach of the order. I can understand the principle in the case of a conditional discharge when presumably, on a breach of the conditions, the court is starting afresh. But in the case of a suspended sentence which is made when the defendant originally comes before the court, it seems hard on him that if he had been given the ordinary sentence he could have counted the time whereas if he is given a suspended sentence he could not. It might well have the result that he would serve far longer in the end by having a suspended sentence and then, unfortunately, defaulting at a later stage than if he had had an ordinary sentence which was not suspended. What is the reason for that?

§ Sir D. Renton
I hesitate to speak at this hour of the night because, having been up until 4.30 in the morning, one cannot be sure that one is right on a complicated matter of this kind.
I am puzzled why we need to refer specifically to what the hon. and learned Member for Dulwich (Mr. S. C. Silkin) has just described as the exception relating to probation and conditional discharge. I would not think that anyone in his senses would in those circumstances regard time passed on probation or on conditional discharge as being relevant to the computation of sentences of imprisonment in the context of the Clause. Therefore, I do not know why it is necesary to write into the new Clause the passage in subsection (1) beginning with the words but where the offender was previously subject …

§ Miss Bacon
The fears of the hon. Member for Runcorn (Mr. Carlisle) were 883 groundless, because the Lords Amendment does not prejudice appellants in any way. With regard to suspended sentences, to which my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) referred, it is impractical to trace and calculate time in custody before a suspended sentence was passed, which might have been two and a half years earlier. While it might be considered fair, it would be impractical to do that.
On reflection, the right hon. and learned Member for Huntingdonshire (Sir D. Renton) will, perhaps, realise that it is important to include the words which, he thought, might be unnecessary. I assure him that they are necessary.

§ Mr. Wylie
Is the right hon. Lady under the impression that Amendment No. 98 makes no difference whatever to the law of Scotland?

§ The Under-Secretary of State for Scotland (Mr. Norman Buchan)
If I may reply to the point made by the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie), the new Clause puts into statutory form what has become established practice in Scotland. It has not, however, become absolutely universal practice. Above all, a prisoner has not always known after conviction that time spent in custody has been taken into consideration. It is, therefore, a question of making a standard, codified practice and,. secondly, of ensuring that where justice is done, it is seen to be done. As the hon. and learned Member knows, no one has a stronger sense of justice than most inmates of Her Majesty's Prisons.