PRISON SENTENCE PARTLY SERVED AND PARTLY SUSPENDED

HC Deb 13 July 1977 vol 935 cc460-96

'46A.—(1) Where a court passes on an adult a sentence of imprisonment for a term of not less than six months and not more than two years, it may order that, after he has served part of the sentence in prison, the remainder of it shall be held in suspense.

(2) The part to be held in suspense shall he not more than three quarters and not less than one quarter of the whole term, and the offender shall not be required to serve that part unless it is restored under subsection (3) below; and this shall be explained to him by the court, using ordinary language and stating the substantial effect of that subsection.

(3) If at any time after the making of the order he is convicted of an offence punishable with imprisonment and committed during the whole period of the original sentence, then (subject to subsection (4) below) a court which is competent under this subsection may restore the part of the sentence held in suspense and order him to serve it.

(4) If a court, considering the offender's case with a view to exercising the powers of subsection (3), is of opinion that (in view of all the circumstances, including the facts of the subsequent offence) it would be unjust fully to restore the part of the sentence held in suspense, it shall either restore a lesser part or declare, with reasons given, its decision to make no order under the subsection.

(5) Where a court exercises those powers, it may direct that the restored part of the original sentence is to take effect as a term to be served either immediately on the expiration of another term of imprisonment passed on the offender by that or another court.

(6) "Adult" in this section means a person who has attained the age of twenty-one; and "the whole period" of a sentence is the time which the offender would have had to serve in prison if the sentence has been passed without an order under subsection (1) and he had no remission under section 25(1) of the Prison Act 1952 (industry and good conduct in prison).

(7) Schedule (Matters ancillary to section 46A) to this Act has effect with respect to procedural, sentencing and miscellaneous matters ancillary to those dealt with above in this section, including in particular the courts which are competent under subsection (3).

(8) This section and paragraphs 1 to 6 of Schedule (Matters ancillary to section 46A) and the Powers of Criminal Courts Act 1973 shall be construed and have effect as if this section and those paragraphs of the Schedule were contained in that Act.'.—[Mr. John.]

Brought up, and read the First time.

Mr. John: I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this we are also to discuss New Clause 10—Reduction of sentence following plea of guilty—New Clause 11—Suspended sentences of imprisonment—and Government Amendments Nos. 119 and 124.

Mr. John

The new clause deals with a matter upon which we agreed in Committee and which was considered before the Committee stage. I believe that New Clause 4 and the new schedule contained in Amendment No. 124 give effect to the Committee's wishes.

In Committee we discussed the fact that although there were custodial sentences and fully suspended sentences there was no partial suspension so that a person could spend some time in prison. It is the belief of most modern criminologists that the fact of imprisonment is of itself the greatest lesson, and that we should not unnecessarily prolong the imprisonment with the result that the local prisons are overcrowded with the relatively minor offenders at the bottom end of the scale.

I welcome the fact that the Opposition supported this change. However, whilst I am very grateful for the support of the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) and for the amendment he moved in Committee, I think that he will acknowledge that the impression that the clause was purely the Opposition's brain child is not correct. The Advisory Council on the Penal System and others have been discussing this matter.

Mr. Patrick Mayhew (Royal Tunbridge Wells)

indicated assent.

Mr. John

I am glad to see that the hon. and learned Gentleman fairly acknowledges that fact. I am also glad that he was, as it were, the midwife of this concept's coming into law.

The sentencing power given by the clause differs from full suspension in several important ways. The most obvious is that the first portion of the sentence is spent in prison. Secondly, partial suspension will not be available for those under 21. At present, young prisoners under 21 are released on licence, under the terms of which they may be recalled to prison. It would have been cumbersome, certainly in the time avail- able, to try to fit the new arrangements in with the existing arrangements for the licensing of young prisoners. I believe that it is better to have such a provision on the statute book than to miss the boat entirely when there is already a system of licensing which helps the young prisoner.

Another difference is that the sentence may be suspended only for its nominal length, whereas a fully suspended sentence may be suspended for longer than the nominal length. For example, a sentence of one year's imprisonment suspended for two years can be imposed. That will not be so with this form of partial suspension.

The new sentence also differs in that there will be no power for courts to make a supervision order on the suspended portion of the sentence. Partial suspension differs from full suspension precisely because the experience of prison should be sufficient to prevent re-offence.

Mr. Edward Gardner (South Fylde)

As I understand it, as there will be no power for a supervision order to be applied to the new sentence, Section 23 of the Powers of Criminal Courts Act will not apply. There was a recommendation in the Younger Report in 1974 that a new order should be created, known as the custody and control order, which should apply to juvenile offenders only. That had great merits which the new clause appears to copy. Would it not have been possible to extend to adult offenders the recommendations of the Younger Report, which were intended for those between 17 and 21?

Mr. John

I believe not. I shall consider the matter before the Bill goes to the other place, but I do not promise that that can be done. One of the problems about the custody and control order is its public expenditure implications. The hon. and learned Gentleman will know that we are undertaking some work on the question of the generic sentence, but I cannot pretend that in the time available we can go wholly towards what he is now advocating.

Fears have been expressed that the new form of sentence will lead not to a diminution in the prison population but to an expansion. I strongly believe that the opposite wall be true. The sentence should be used not to replace the fully suspended sentence but to replace the fully custodial sentence—in other words, to replace longer terms of imprisonment rather than to replace the fully suspended sentence with partial imprisonment and partial suspension. I hope that the courts will use their powers in that way.

The courts are being given maximum flexibility in the type of sentence they may pass, and I hope that they will use it in such a way that the prison population, which is, alas, too high, will be reduced without a significant diminution of the deterrent effect.

Mr. W. R. Rees-Davies (Thanet, West)

Did the hon. Gentleman and his colleagues, including the Home Secretary, consider the person whose sentence was suspended being put on some form of probation during the period in question? For example, did they consider that where it was decided to give a man a short period in prison, with suspension thereafter, it might be worth while also to take the power to have him made the subject of a probation order for the later period, and thereby keep some control over him?

Mr. John

Consideration was given to that. What influenced us against it was the belief inherent in the whole concept of a partially suspended sentence—that the short taste of imprisonment will prevent re-offence, certainly for the period of the sentence, and will be a sufficient deterrent without subsequent expensive supervision. It is a matter on which we must make a judgment, and I believe that our judgment will be vindicated.

Mr. Leo Abse (Pontypool)

As a member of the Younger Committee, I appreciate the difficulties that my hon. Friend mentioned. But am I correct in understanding that the clause in no way impinges on young people?

Mr. John

No.

Mr. Abse

Nothing is being done, then, to implement the Younger Report in regard to young people. I appreciate the difficulties with adult offenders, but is it not a little dismaying, now that we are beginning to think on the lines of the Younger Report, that nothing is being done for young people by bringing in a custody and control order?

5.0 p.m.

Mr. John

I draw a sharp distinction between my hon. Friend's statement that nothing is being done and my statement that nothing is being done in the new clause. I explained that as far as possible the Home Office is considering the Younger Report and how it may be brought into effect, without significant public expenditure implications, at some time in the future. But, because of the difficulty of fitting in partial suspension with the licensing system for young adults, it has proved impossible wholly to reconcile the two aspects in the time available.

I was going on to deal with New Clause 10, which will be moved by the hon. and learned Member for Royal Tunbridge Wells. I opposed it in Committee and I propose to advise my hon. Friends to oppose it again.

Mr. Mayhew

We greatly welcome what the Minister of State has done in accepting the principle, at any rate, of our proposal in Standing Committee concerning the partially suspended sentence, which is the subject of New Clause 4. We are grateful to him for the generous things he has said about the part that we played in it, whether it was as brain-father or midwife. At any rate, we thought that the Bill had a large gap in regard to partial suspension of sentence which ought to be filled, and we are very glad that the Minister of State has filled it.

New Clause 4 as formulated is a great deal more comprehensible than the form that we were able to achieve in our amendment in Standing Committee. We see this as an additional weapon in the armoury that the courts can bring to bear in the fight against crime.

The Criminal Justice Act 1967, which introduced the suspended sentence, has been something of a disappointment, largely because—I think it is generally agreed—a great many people who get a suspended sentence think that they have got away with it because the sentence has to be wholly suspended, as the Minister of State has explained. What is worse is that many of their friends feel that they have entirely got away with it. The fact that an already determined sentence is hanging over someone if he goes wrong again is not really seen to constitute much of a punishment or much of a deterrent.

But if the courts will now be able to pass a sentence appropriate to the gravity of the offence which also takes into account the circumstances of the offender, I believe that the court will be able to give a short, sharp, and, I hope, nasty taste of prison to an offender, and that will linger on and be of some useful effect before the offender has had time to become acclimatised to prison. That is the virtue of the new clause.

It is important that it should be seen not as providing a soft option but as providing an option that will enable the courts to deal more severely than they often feel able to do now, with people who need to have the deterrence of a taste of prison at what is relatively the outset of their criminal experience. I believe that it offers a very good chance of ensuring that it will be the offender's last experience of crime.

This is entirely a matter for the prison authorities, but I hope that it will be possible for them to arrange for a rather more stringent regime in the case of someone who has to serve only a few weeks or possibly a few months of a sentence actually in prison, as provided in the new clause. I hope that it is part of the object of the new clause to ensure that the recollection of a short period in prison will remain as a very unpleasant one. We therefore congratulate the Government in accepting our suggestion.

We are rather sorry, however, that there is no provision in the clause for supervision once the suspended part of the sentence has been embarked upon. There is provision for supervision to go with a fully suspended sentence under the existing legislation, and it may well be that that can be remitted at a later stage. I believe that supervision following release from custody will be desirable in cases such as this. We hope that the public will recognise the purposes for which the new clause is provided and that the court will make use of it.

Concerning New Clause 10, I was very sorry to hear that the Minister of State is not prepared to adopt any more con- structive a course than he was in Standing Committee. I had hoped that he would apply his equally discriminating eye to this proposal as he did to New Clause 4.

The purpose of New Clause 10 is to make open and certain what at present is overt and uncertain. I am referring to the practice of rewarding a plea of guilty in a criminal case with a reduction of sentence. It is a universal practice, but the reduction that is made hardly ever explicit so that it is not possible to spell out exactly how much has been knocked off a sentence.

This desirable practice—as I think everyone with personal experience will agree—to some extent secures a reduction of public time and expense in the trial of completely unmeritorious cases which have no more than an outside hope of ending up in acquittal but which take place because it is not unheard of for a jury to come in with an eccentric or even a perverse verdict of not guilty. A great deal of public time and money is spent while those cases wend their weary and expensive way, week after week and sometimes month after month, to the benefit of no one but my learned Friends and myself.

I spend much of my time in the courts, as do many of my colleagues, in trying to make sense out of laws passed by Parliament and in trying to cut down the time that cases take to be litigated. This is a very good example of what we can do in this House. If we make open and quantifiable, in the terms of the new clause, what at the moment is universal but uncertain, there will be a far greater chance of the guilty man not deciding to take his chance but saying that he will settle for 25 per cent. off the tariff sentence to be awarded.

I believe that that is desirable because it represents a sensible bargain in the public interest and in the interest of justice. It is sensible because we avoid these immensely long and expensive trials. But the advantage to the public which is represented by this universal practice—it really is universal—is not sufficiently exploited. The reason for this is that no one can be sure how much he has had knocked off his sentence, or how much he will have knocked off it.

If one is advising a client one can only say "You can be sure that you will get something off." If be client asks "How much?", the answer has to be "I cannot tell you." After a sentence one still cannot tell an offender how much has been knocked off it. The purpose of the amendment is to make it abundantly clear—

Mr. Ian Mikardo (Bethnal Green and Bow)

There are also cases, of course, in which a defendant is induced to plead guilty on the promise that it will get him a reduced sentence, and then he gets nothing at all knocked off his sentence.

Mr. Mayhew

I do not think that is the case, but if it is the new clause would secure that that could never possibly occur. By administrative action, on a plea of guilty it would automatically follow that there would be a 25 per cent. reduction in the sentence. I do not accept that what the hon. Gentleman referred to actually happens. But if it did happen through some miscarriage of justice, it would be overcome by the terms of the new clause.

Mr. George Cunningham (Islington, South and Finsbury)

Are not we running into the difficulty that we have with garages? We are told by a garage what is being knocked off the price of petrol, but we are not told the price from which the reduction is made. I suggest that it would still be possible for a court to undo the suggested provision.

Mr. Mayhew

First, this is a universal practice; secondly, it is desirable. It is right that the courts should reward a plea of guilty—in the public interest and the interests of justice. I could understand it if those who oppose the new clause put down an amendment to make any reduction of sentence on a plea of guilty unlawful, but I have met no one who wants to go that far.

Mr. Bruce Douglas-Mann (Mitcham and Morden)

In a case in which there was a doubt on a point of law—to take the example of the blasphemous libel case or the DPP v. Shaw, where the defendant pleaded not guilty because he did not believe that what he had done was an offence—under this proposal, the defendant would get a third more sentence.

Mr. Mayhew

The hon. Gentleman anticipates my point, that where a defence is maintained in good faith in the belief that a point of law is involved, this provision will not apply. But what is often said in opposition to this idea is that it penalises someone who pleads not guilty. That is not so, because the man who pleads not guilty and is then convicted gets the "tariff" sentence at the end of the day. The margins are imprecise, but we know that there is a tariff for each type of offence.

All institutions are mortal, but if a sentence is outside the tariff, the case goes to the Court of Appeal and may be reduced—sometimes too much, perhaps. One must trust the judiciary, bearing in mind that all these institutions are staffed by mortals and therefore will make mistakes, as we do. But I hope that hon. Members will not argue that we cannot trust the judges to give effect to the will of Parliament. They loyally do their best to follow Parliament's intentions, often with absurd results—vide, for example, Section 3 of the Criminal Justice Act 1961, which was removed in another place but unhappily restored in Committee in this House. I should have had more to say about that if a later amendment had been selected. We can trust the judges in this matter.

The amendment seeks only to make open and measurable what is universal but not measurable, vie shall thereby get a better bargain in the interests of the public and of justice and many fewer cases will go to the inevitable conclusion of a finding of guilt after weeks and weeks and the expenditure of thousands of pounds of public money. That will be a useful improvement to the practice of the criminal law.

I hope that all hon. Members will recognise this as a genuine attempt to speed up criminal cases—not at the expense of fairness and justice and not adding to the risk of undue pressure on someone to plead guilty who is innocent, but simply to bring into the open something which is universal and to get the best for the public from the present bargaining position.

I should add that we do not propose to move New Clause 11, because New Clause 4 adequately represents our intentions.

Mr. Percy Grieve (Solihull)

I, too, welcome New Clause 4. The institution into law of the partially suspended sentence will increase the desirable flexibility and discretion of the courts. I congratulate my hon. and learned Friend the Member for Royal Tunbridge Wells (Mr. Mayhew) on the part that he has played.

Sentencing is one of the greatest problems for those who hold judicial office. There is considerable difficulty in balancing the protection of society and the rights of society against the sometimes wholly distressing mitigating circumstances of a prisoner. Judges deal with this difficulty every day, allowing for the human element, with justice and mercy. Those who rush to condemn judges for particular sentences should bear that in mind. Unless one has sat throughout a case and heard all the factors urged on a court, it is difficult to assess the sentence passed.

The court is often obliged, for the protection of the public or in the public interest, and despite mitigating circumstances—despite perhaps the assurance that the accused will never offend again —to send someone to prison. That sometimes happens with youngish offenders, who are over 21.

This often happens to defendants who have been in breach of trust—who have defrauded their employer, for example. The judge is then obliged, although the defendant will never offend again, to send him to prison as a deterrent to others. The new clause will greatly help in that type of case, since it will now be possible in mercy partially to suspend the sentence. I therefore give the new clause my undivided welcome.

I agree with my hon. and learned Friend that it would have been desirable to give the court the power to make a supervision order for the period of the suspension of the sentence, and I hope that Ministers will consider that. It is precisely in the type of case in which a sentence is suspended, even under the present law, that supervision in the form of help is often most necessary.

On New Clause 10, I find the idea of institutionalising the universal practice of reducing a sentence which the court otherwise would have imposed for a plea of guilty is not without attraction. The accused man may be told by his counsel that the facts are plainly against him and that if he pleads guilty he may get something knocked off his sentence. In many instances the accused will fight a long and unnecessary case at considerable public expense, partly because he hopes against hope that he will get off altogether, and he does not feel completely assured that he will get something knocked off his sentence at the end of the day.

We are seeking to institutionalise the assurance that if the man pleads guilty the judge will be obliged to reduce the sentence that he would otherwise have passed by one-quarter. That seems very reasonable and I welcome it. I am sorry that it is not acceptable to the Minister of State.

Mr. Douglas-Mann

Has the hon. and learned Member in his long experience ever considered at the beginning of a case that his client was likely to be found guilty but at the conclusion has found that that client has been acquitted and that the presecution case has collapsed? In these circumstances, might he not have advised his client to plead guilty and had the client accepted the advice he would have found himself serving a sentence that he should not have been given?

Mr. Grieve

The hon. Member has put that very attractively. In my professional career there have been many cases in which I have taken the view at the beginning that the man was guilty and he has been found guilty. Also there have been not a few in which I thought that the man was guilty but he was found to be not guilty. Very rarely has this been because the prosecution case has collapsed—

Sir M. Havers

It was due to my hon. and learned Friend's advocacy.

Mr. Grieve

It is nice of my right hon. and learned Friend to say that, but I think that it was more a matter of luck. I remember a case in which I defended a young man on his 21st birthday. When I made that fact known to the jury he was acquitted against all the odds. By and large, counsel are able to form a view at the beginning and to advise their clients, and they do so.

As a result of the legal aid system—and I am sorry to say this, but I feel that it should be said—many people now fight very long cases at the expense of the taxpayer when their chances of acquittal at the end of the day are 999 to 1 against. This particular proposal at least would avoid some of these cases dragging on and some public expenditure. To that extent it is welcome.

Mr. Deputy Speaker

Mr. Fairbairn.

Mr. Kilroy-Silk

On a point of order, Mr. Deputy Speaker. Are you not calling speakers from this side of the House? This is the second time in succession that you have called a speaker from the other side when there were hon. Members on this side wanting to speak.

Mr. Deputy Speaker

The hon. Member will find that the matter will be dealt with satisfactorily in a moment.

Mr. George Cunningham

Further to that point of order, Mr. Deputy Speaker. The practice whereby there is an alternation in the calling of speakers is enshrined —if I may use that word—in "Erskine May". I do not think that "Erskine May" is authoritative, but the Chair does, and two inches down from the top of page 416 in the latest issue it says that the established practice is to call alternately from both sides of the House or of the Question.

Mr. Deputy Speaker

The hon. Member will find that I am not unaware of "Erskine May" and that the matter will be dealt with in a moment. I should add that I did not notice the hon. Member standing on that side of the House.

Mr. Fairbairn

I would happily have given my place to tile hon. Member for Ormskirk (Mr. Kilroy-Silk). I might have had something to say about what he said. But as things are, maybe he can talk about something that I am about to say, and his speech can last a little longer.

I welcome New Clause 4. It is important to adopt, in the modern criminal practice of punishment, the concept and understanding of prison. One can no longer merely banish from society, as if forgotten, into long periods of detention, people who have committed offences, other than psychopaths and those who by nature of their dangerous propensities must be detained for the safety of society.

We still have a wrong belief that the length of time that a person is detained is a measurement of the crime he has committed regardless of the effect that will have on the interests of society. I am always distressed when I hear judges say that sentences must be more condign, and that the court will ensure that sentences are used to stamp out particular offences. One can imagine them saying that where a sentence was previously six years it will now be seven years and where it was previously 12 years it will now be 14 years.

That mathematical concept of the length of periods of imprisonment is false, facile and wrong. It does not deter a single person to get 14 years rather than 12, and no single member of the public would be reassured by the fact that someone got seven years rather than six. Therefore that mathematical approach to imprisonment must be shed. Insofar as this section of the Bill contributes to that philsophy it is excellent.

I agree with the remarks of my hon. and learned Friend the Member for Royal Tunbridge Wells (Mr. Mayhew) that prison should not be long and languid but short, sharp and nasty. If one can show a person to the gates of hell and then take him away again, it is infinitely better than locking him away in a way of life that is not all that different from the way of life outside. It is infinitely better that people should get short, sharp sentences in a place that is unpleasant and corrective.

There are so many offences for which prison is necessary but inappropriate. An example is causing death by reckless driving, and another is offences in which persons are corrupt in one way or another in public office. There are many offences in which prison is all we have, but it is quite inappropriate, and where the length of the sentence is the only way of expressing the measurement of the crime. But we must get away from passing long sentences merely as an expression of public distaste.

There is a great promise in this new clause which could be used to great effect if it were used intelligently and in an enlightened manner. I agree with my hon. and learned Friend the Member for Solihull (Mr. Grieve) that it is all very well for hon. Members to pick out the odd sentence here and there and say that it is too much or too little. If one sits even in the lowest court and passes sentences one after another and hears a series of pleas of guilty to various minor offences, it tests the wisdom of the most rational and sagacious person to get it right all the time, or even relatively right. Therefore, we should not pick on the odd sentence in matters about which we know nothing and criticise on the grounds of severity or leniency.

5.30 p.m.

The Bill contains one provision that was mentioned in the Renton Report. Subsection (2) says: The part to be held in suspense shall be not more than three quarters and not less than one quarter of the whole term, and the offender shall not be required to serve that part unless it is restored under subsection (3) below; and this shall be explained to him by the court, using ordinary language and stating the substantial effect of that subsection. Why should we require the court to explain a statute in ordinary language? We are meant to legislate in ordinary language. The citizen is presumed to know the law, and we are presumed to pass laws which the citizen can understand.

Mr. James Dempsey (Coatbridge and Airdrie)

But do the lawyers know the law?

Mr. Fairbairn

The question whether lawyers know the law is irrelevant. They are paid to look it up. It is a terrible state of affairs that Parliament should legislate on the basis of laws which the citizen is presumed to understand and that we should seek to enact a provision to the effect that the situation is so abstruse that the law will have to be explained to the person who is presumed to understand it. That is an awful comment on modern legislation.

I turn to New Clause 10 which deals with a most important matter. Labour Members should not imagine that all a judge needs to do is to add one-third in such a way as to subtract one-quarter. Under the remission system a judge knows that a defendant who is sentenced to six years will receive one-third remission automatically and will spend four years in prison. The judge does not act as though the remission period will not operate. That is not the way the courts work and that is not what happens.

It is important to understand a much more fundamental fact. If a person pleads not guilty to a crime he knows he has committed in the hope that he will get away with it and is eventually convicted of that crime, he is also, in effect, convicted of the crime of perjury, although account is never taken of it. In other words, a person who has said on oath that he has not committed a crime and who is then convicted, has ipso facto committed perjury. Therefore, a plea of not guilty which results in a conviction is a conviction by the jury not only of the offence but of perjury. For that reason there is an additional element of wrong in the wrongful resistance to an offer to plead.

I have had innumerable cases in which I have advised people to plead and in which I thought it utterly unlikely that the person would be convicted, but in which eventually that person has been convicted. I have also had cases in which I thought it inevitable that the defendant would be convicted, and where that has not happened. Therefore, counsel can never be certain in giving advice to a client. One may tell a client "There are photographs of you committing the crime, your fingerprints are on the knife, eight policemen saw you do it, and 17 witnesses and the victim identify you—but if you want to go to trial, there is a chance. Have you any explanation of these matters?" One is then told "Oh, they are just liars, Sir. The photographs are faked." Theoretically, that is a reply one must bear in mind when acting as the man's counsel, but one gives advice on the ground that if a person says that he has not committed a crime and the evidence is not such to suggest that such a statement is absurd, one accepts the instructions and carries out the defence of that person. But there are many situations in which a person says "If I plead guilty, what will I get, Sir?"

Mr. Christopher Price

Does he say "Sir"?

Mr. Fairbairn

Of course he does, out of respect. We are in the situation of client and counsel and he is asking me to do for him what he cannot do for himself.

Let us be clear what happens in a situation in which one says to a person "Whatever you get will be a quarter less than you will get if you do not plead". If a person gives false evidence and causes witnesses to be cross-examined on the basis that they are telling untruths to the court, and if he causes police officers to be charged with dishonesty when they are shown not to be in that position, it will be reflected in a higher sentence. At present the only advice one can give to a client is "If you insist on that pattern of events, the sentence is likely to be higher." I genuinely believe that if there were a proper commensurate diminution of sentence for a person who had the honesty to admit a crime which he knows he has committed, it would contribute to the administration of justice.

I am glad to say that in Scotland we do not take weeks and months to hear cases. The longest case in which I have ever taken part lasted for six days. However, we do not have the manifest and extraordinary procedures which the English find necessary to carry out their system of justice. The English procedures are so long. Surely anything that can prevent lengthy and unnecessary trials is manifestly in the interests of justice. Furthermore, we should aim at keeping people in prison for as short a time as possible.

Mr. Kilroy-Silk

I am glad to know that the hon. and learned Member for Kinross and West Perthshire (Mr. Fair-bairn) has suffered a conversion. Only recently in Standing Committee he likened prison to a holiday camp. Indeed, I thought that I heard him use that expression in an intervention earlier today. I do not know what the hon. and learned Gentleman has been doing in the past two weeks. Perhaps he has been to the door of hell, about which he spoke earlier, although his pallor does not suggest that that is so. In fact, he looks more as though he has been to Ascot than to the door of hell.

The hon. and learned Gentleman's comments were apposite and I, too, congratulate the Government on New Clause 4. It is clear that the Minister has acknowledged what was said on all sides of the Committee and by many outside the House—not least by the Howard League for Penal Reform, NACRO and the recent interim report of the Advisory Council on the Penal System—to the effect that the length of sentence has little relationship to deterrent effect. In many cases the deterrent to any crime is not so much the fear of imprisonment or what the law says about the length of imprisonment—because most of those engaged in crime have no certain knowledge of the exact consequences that may flow from their actions—as the probability of being caught. The only deterrent effect of imprisonment is the fact of being imprisoned at all, albeit for a short time.

As for longer sentences of imprisonment, particularly in the circumstances of prisons now, with gross overcrowding, substantial numbers of prisoners living two or three to a cell, prisons lacking the ability or opportunity to provide educational courses or associations and where there can be no attempt at any form of so-called rehabilitation or reform, it is clear that to imprison a man for a long period is counter-productive—and six months is a long time unless the imprisonment is necessary for the protection of society. Imprisonment involves enormous public expense and achieves very little in terms of its objectives.

Prison does not deter, reform or rehabilitate. It punishes, but in many cases the punishment does not fit the crime. Therefore the new clause does not have just the motive of reducing the level of the prison population—although that is important— but is intended to give the courts greater flexibility and discretion in their sentencing processes which, in company with the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew), I hope they will use imaginatively. The courts should use the powers available in the new clause to obtain a reduction in the prison population and a far more sensible attitude to sentencing.

In that context, I hope that there will be far more consistency in sentencing among the courts and judges in dealing with similar or identical offences. Among the apparent and rather disturbing anomalies that confront us now are the tremendous discrepancies between the penalties imposed by some courts for some offences and the penalties imposed by other courts for others.

Mr. Grieve

I rise to comment on that matter because it is related to the point that I made to the House a few minutes ago. I ask the hon. Gentleman to bear in mind that it is not possible to say that an offence judged by Court A is the same as that judged by Court B because the circumstances of the offender and the offence—as we who practise in the courts all know well—may be utterly different. No two offences are the same, although when a short excerpt appears in a newspaper, it may seem so.

Mr. Kilroy-Silk

I accept entirely that offences and offenders are different and that one should take the circumstances of the offender into account. The offender is the person with whom the court is dealing and for whom it must have prior regard.

During the past two weeks, suspended sentences of 18 months have been passed on an individual responsible for a silly and trivial poem that appeared in a magazine and on a man found guilty of a disgraceful and an extremely distressing rape. There cannot be any kind of confidence in a judicial system that hands out such sentences, in such quick succession, for what hon. Members and the public would regard as totally different offences warranting totally different treatment.

5.45 p.m.

I could go further and give the example of a woman in my constituency who was charged with and convicted of stealing a pair of tights from a supermarket and who received a suspended sentence of 18 months. The next day a gentleman convicted of smuggling in£1 million worth of jewels was allowed to commute his sentence to a£500 fine. Such discrepancies pervade our judicial system, and I can cite many more direct and relevant than that. This is something that we and the judiciary should consider if the judiciary wants confidence. I am responding here to remarks that have been made by Conservative speakers and the Opposition spokesman. If the judiciary wishes to commend the confidence of Parliament and the general public, it must show itself to be in tune with public opinion and be consistent in its sentencing processes.

My argument comes round the full circle. I accept and welcome the new clause to give the courts a greater degree of flexibility and accept that it is necessary and desirable. However, we must strike a balance between that and, at the other extreme, allowing the balance to be so over-tipped that there are such anomalies and absurd situations as I have described today.

Mr. Neville Sandelson (Hayes and Harlington)

I know that my hon. Friend would not wish to mislead the House—and indeed I do not disagree with the substance of much of his argument about discrepancies in sentencing between one judge and another, though, of course, arguments have already been advanced about why that may occur in most cases. However, I should be grateful if my hon. Friend would allow me to correct him about the earlier example that he gave to the House. My hon. Friend compared the sentence given to the editor of a magazine for publishing what he described as a poem with the sentence given in a rape case. In the former matter, the sentence was not 18 months, but nine months and a fine, and the sentence was suspended. In the latter instance there was an 18-months' suspended sentence. That is a small matter. I want to assist rather than to criticise my hon. Friend and it is for the sake of accuracy that that should go on the record.

Mr. Christopher Price

I should not have intervened in the debate had I not been struck by the extraordinary attitude of the hon. and learned Members for Royal Tunbridge Wells (Mr. Mayhew) and Solihull (Mr. Grieve) in their positive panegyric about plea bargaining. They wish to give the stamp of official approval to something that is now, as they said, going on behind the scenes. I detected in their almost lush phrases and rounded sentences a deep sense of guilt that the adversary system of justice—of which they are so clearly and obviously beneficiaries—is in fact fundamentally flawed. They are trying in this way to paper over the cracks here and there.

I strongly hope that the House will not pass New Clause 10 because I am quite convinced, from people I have come across as the result of the Confait case and from young people in my constituency, that instances of innocent clients being overborne by their counsel into pleading guilty are commonplace in South London. I should not want to put more shots in the locker of the legal profession or the police, because they also come into this, so that they can twist arms any further to persuade innocent people to plead guilty.

Mr. Sandelson

How does my hon. Friend know that they were innocent?

Mr. Price

Because many of them were acquitted.

Mr. Grieve

Surely the hon. Gentleman understands that there is no element of plea bargaining in the advice that a counsel is obliged to give to his client about the possible outcome of a case. That is the first thing that any client desires to know. If the hon. Gentleman read into the statements of my hon. and learned Friend and myself a reference to plea bargaining, he was reading into our words something that was not there. The first duty of a counsel when asked by a client about the prospects of success is to tell him the answer candidly.

Mr. Christopher Price

I do not doubt that the hon. and learned Gentleman gives as candid advice as he can, but there is a string of famous miscarriages of justice that have sprung from counsel advising a client to plead guilty when he was absolutely innocent. One of the most notorious occurred three years ago in Lincolnshire and a television programme was made about it recently. An innocent young man had been forced to sign a confession at a police station and was persuaded by his barrister that the signing of that confession made it so unlikely that he would be acquitted that the best thing for him to do was to plead guilty. That man served his sentence and was given a free pardon when it was later discovered—by accident—that he was innocent.

Such cases are commonplace in our cities and I do not wish to place in the hands of people such as the hon. and learned Members for Royal Tunbridge Wells and Solihull any greater weapon to persuade people who usually come from a class that is wholly alien to barristers and those with whom they are used to dealing. I have nothing against the two hon. and learned Gentlemen. They are probably admirable folk.

I welcome the setting up of the Royal Commission to look into pre-trial procedures, but I am sorry that its terms of reference do not extend to considering our whole adversary system of justice. I regret that the new clause that might have enabled us to debate this subject has not been selected. I am convinced that most people do not want advice from lawyers about the chalices of winning or losing so much as for the lawyers to take the case as it stands and to defend them to the best of their ability.

The debate has been an argument not for tinkering with the system but for making our whole pre-trial and prosecution procedures more similar to those in Scotland where there is considerably more protection for defendants before they come to trial. The last thing that we should do is to put into the hands of our barrister friends in the House the sort of powers that they are demanding in New Clause 10. I hope that the House will have nothing to do with the new clause.

Mr. Hooson

I entirely agree with what the hon. Member for Lewisham, West (Mr. Price) has said about the House rejecting New Clause 10. I shall not follow his argument about the adversary system in our courts except to say that, although I have been brought up with that system, there is a good deal to be said for modifying it to meet modern conditions and particularly for reviewing the pre-trial procedures.

As an advocate, I have found that it is all very well to defend an innocent "person of good character, but the trouble arises when one is defending an "innocent" person of bad character. One of the effects of New Clause 10 would be to bring wholly unjustifiable pressure on an innocent person of bad character.

I reject the view of the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) that there is such a thing as a tariff imposed by judges. I know that certain judges at the Bar believe that there is a tariff. Lord Justice James was an example. But an equally distinguished judge, Lord Justice Shaw, totally rejects the idea, as do many others.

I agree that a judge's job is to interpret public feeling as he sees it in relation to the law and the defendant before him. If there are great discrepancies in sentencing, they are often justified by circumstances and the judge's judgment. That is the sole reason that a judge is there. He is chosen because he is a person of judgment.

Mr. Fairbairn

I agree that there is no such thing as a tariff between crimes of one sort and another, but does the hon. and learned Gentleman not accept that there is a tariff in the mind of every judge to the extent that if a person goes to trial when the evidence against him is overwhelming and is found guilty, the sentence will inevitably be greater than if lie had pleaded guilty in the first place?

Mr. Hooson

That may be so. It is a matter of judgment.

There are other reasons for the rejection of New Clause 10. I have often started a case thinking that if the defendant pleaded guilty, a certain sentence would be appropriate, only to find the whole picture change during the trial and a totally different impression emerge by the end of it.

Mr. Fairbairn

Usually worse.

Mr. Hooson

No. I am reminded of a fraud case in which I was prosecuting. Everyone in the robing room thought that seven years would be the appropriate sentence, but after three weeks, when the defendant was convicted, he was sentenced to two years' imprisonment because a totally different picture had emerged during the trial. How would the hon. and learned Member for Royal Tunbridge Wells deal with that situation?

If we passed New Clause 10, we should appear to be putting a penalty on those who plead not guilty. However we dressed it up, that is how the public would regard it. It would be totally wrong.

Mr. Mikardo

I agree that it would appear to the public that we were doing what the hon. and learned Gentleman suggests. It might also appear that we were doing something not altogether dissimilar from the practice in Fascist, Communist and other totalitarian countries where they give a very large price for confessions, including a big reduction in the sentence and sometimes a total reduction.

Mr. Hanson

I am sure that the hon. Gentleman is correct in his recollection of these matters. The Government are right to reject New Clause 10.

It appears that I am a lone voice in the wilderness on New Clause 4 because I very much doubt the wisdom of the Government in introducing it and the House in passing it. I have listened with great interest to the theoretical arguments that have been advanced, including that for greater flexibility in sentencing. In Committee the hon. and learned Member for Royal Tunbridge Wells advanced a view that he has repeated today—namely, that many people who receive a suspended sentence think they have got away with it. Also, he argued that the effect of the clause, which has been substantially improved, would be to reduce the prison population. The new clause would give courts the ability partly to suspend the sentence and partly to make it operative. It would apply to sentences between six months and two years. That is precisely the same range where it is now thought appropriate for judges to consider imposing suspended sentences.

6.0 p.m.

What will be the effect of the clause? I think that judges will be tempted not to suspend a sentence but to impose one part of it and to suspend the other. The result of the clause will be that those who do not go to prison now will be committed.

Let us consider the practicalities. We have a burgeoning prison population. There are now well over 40,000 people in our prisons. The Secretary of State knows that many prisoners are spending over 22 hours a day in their cells. It is said by the prison staff at Walton Prison, for example, that if they take the action that is threatened the prisoners could be in the cells for 24 hours.

The hon. and learned Gentleman said that he hoped that a means will be found in implementing the new clause to provide a more rigorous regime for the short-term prisoner. How is that to be done with the present prison staffing and the resources that we give to the penal system? Surely it is impossible.

The Government have fallen into a trap. It is possible to present many theoretically attractive arguments for the H.O. It may be argued that if we had much more money to spend on our prison system and better conditions in the prisons there would be a great deal to be said for New Clause 4. However, if we consider the realities we are surely taking a false step in introducing the clause. I believe the result will be that those who would have had a suspended sentence will be given a sentence that is part suspended and part operative. The Government should think twice.

The Minister of State's reaction in Committee was right. He doubted the effectiveness of this proposal when the hon. and learned Gentleman suggested that the result would be to reduce the prison population. If he considers it more deeply, the hon. and learned Gentleman will find that he will be well advised to withdraw the clause.

Mr. Abse

I have always observed that a sudden passion for reform or reforming clauses, or purported reforming clauses, such as New Clause 4, stems not from some new zeal for reform but from the compulsion of economic circumstances, and in this instance from the compulsion that our prisons are a disgrace to the nation. Desperate remedies are sometimes taken that appear attractive or seductive, but they may well result, as the hon. and learned Member for Montgomery (Mr. Hooson) was saying, in quite the contrary effect from what is hoped and intended.

Given the history of penal reform in this country, I do not believe that we can hope that sentences will reflect the intention of the legislature unless we provide maximum sentences for judges and magistrates to impose that are mandatory. History shows that, despite the exhortations of Lord Chancellors and the encouragement of Home Secretaries not to impose sentences that are unreasonable in the light of the current prison conditions, at the end of the day they go up and up. Although I would not be as didactic as the hon. and learned Member for Montgomery, who suggested that New Clause 4 is bound to result in an increase in the number who are sent to prison, I feel that the attraction will be great for many judges to take the view that a short sentence should be given with a period of suspension when otherwise they would not have taken the plunge and put the man in prison.

If the new clause is accepted, I suspect that emphasis will be put on allowing the courts to discover the new theory, namely, that what is required is a short sharp shock. Emphasis will be placed on proffering this new penal theory. It is not new to me. We have had it before at various times. The real position is that we cannot put any more people in prison. Hon. and learned Members should know better than to talk about short sharp shocks when we have prisons in which men are locked up for 22 hours out of 24.

What more can be done to inflict punishment? It is self-indulgence on the part of anyone to talk about making sentences harsher or tougher when we are caging men as though they are animals. Although I realise that the intentions of my right hon. Friend in respect of New Clause 4 are of the best, he will have to allow it to be known through the usual channels that it;Is genuinely hoped that its provisions will not be used as a means of giving short sentences to those who otherwise would have received only a suspended sentence.

As for New Clause 10, I am not surprised by the reaction that it has provoked among some hon. Members who are not lawyers. They begin to wonder what sort of sentencing policies are in existence when such a proposition is seriously presented to the House.

It may have been jejune, but I was brought up to believe that those who appeared before the courts were treated as individuals and that their cases should be considered in the light of all the personal circumstances. Doubtless one has to take into account public opinion, and there are still some people in this century who believe in the theories of deterrence and retribution, but substantially people who are now acting as sentencers should have regard not to any tariff, not to a generalised system, but to the particular circumstances of the case.

It may be that the fine that they would inflict upon a rich man would be very different from that which they would inflict upon a poor man. It may be that they would inflict a different sentence upon someone who commits an offence who is highly intelligent and well endowed from someone who comes from a pathetic background and who is not so endowed. That is self-evident. To suggest that we should institutionalise the worst features of our penal system in such a clause is naturally an affront, and must be so to hon. Members who are not lawyers and who believe that the courts take into account all the circumstances of the case, including the circumstances of the individual who appears before them.

Mr. Mayhew

I think that the hon. Gentleman has misunderstood what I was saying in support of the clause. Of course I was not suggesting that any court should disregard the personal circumstances of the offender and the variants that he has been instancing. Surely the hon. Gentleman recognises that the Court of Appeal exists to put right sentences that are wrong by all proper standards, for example, those that are too severe. He realises that that jurisdiction exists. I am saying that there should be an administrative ability to reduce by 25 per cent. the sentence imposed by a court following conviction on a plea of guilty. That is all I am saying.

Mr. Abse

I do not find the hon. and learned Gentleman's intervention at all persuasive. If he is saying that there should be some form of general tariff and that we can leave it to the appellate courts to deal with the individual circumstances, I do not find that satisfactory.

Mr. Mayhew

That is not my suggestion.

Mr. Abse

It is capable of that interpretation. What is being suggested is the continuation of the notion of a tariff. The hon. and learned Gentleman indicated that there was a body of judicial opinion that found such a system repugnant. That view finds many echoes and resonances in this House. It is reactionary in the fuller sense of the term in that it means that we cease to take sufficient account of individual circumstances.

That was the error into which my hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) slipped. I regret that he is not in his place. There is nothing more foolish than for hon. Members to criticise variations in sentences. If my hon. Friend had more experience in the courts, he would welcome the great differences between sentences, not condemn them. I am sure that he would recognise that the courts take account of the circumstances in individual cases and do not act mechanically. I have no patience with the attitude displayed by my hon. Friend, who wants the self-indulgence of being able to criticise as a lawyer manquéé what the judges are doing.

It is important that we maintain elasticity. The view put forward by the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) provoked hon. Members because of its very arrogance. I do not say that offensively. The suggestion was that when a client goes to his solicitor, he, the solicitor, can make the judgment. All my professional experience teaches me that that is what I must not do. The man who comes to see me presents the facts, but I am not the judge. I am there to defend him, not to make a judgment. Implicit within the clause is the idea that the solicitor or counsel tells the man whether he should plead guilty or not guilty. In addition, the clause offers an inducement to the man to make it administratively more convenient. I find that a piece of judicial arrogance.

Mr. Mayhew

The hon. Gentleman must not mislead the House in that way. This proposal is not and never has been put forward as intending to facilitate the taking of the decision by a barrister or solicitor. It is never for the advocate to say "You must plead guilty". It is for the advocate to set out the probable consequences to the best of his ability and obviously to leave the decision to the man concerned. The hon. Gentleman knows that that is the position.

Mr. Abse

That is not how the hon. and learned Gentleman presented the argument, nor does it follow from the clause. When a man goes to see a solicitor, or when his case is being discussed with counsel, it is important to ensure that he is not influenced in his decision to plead guilty or not guilty by offering him certain inducements. But that is bound to happen under this proposal.

One does not know at the beginning of a trial what the ultimate result will be. How can the solicitor or barrister know what evidence will be available? How does he know whether witnesses will come up to proof in the witness box? How can he anticipate the consequences of cross-examination? All those with court experience know that often the verdict or sentence is different from what the solicitor or barrister expected. Therefore, I believe that this is a dangerous clause. It has authoritarian overtones that I do not like.

Mr. John Lee (Birmingham, Handsworth)

Is it not open to yet another objection? Although a person may realise that he is guilty of something—we know about mens rea—it may not be the offence with which he is charged. A homely example is of the person who may be guilty of some faulty driving—I use a neutral word—and it is arguable whether he is guilty of dangerous driving, which can carry a term of imprisonment, or of careless driving.

6.15 p.m.

Mr. Abse

I agree with my hon. Friend. I do not understand, having read the clause, what the consequences would be for the man who was sent to prison. We want him to behave in the best possible manner—in a way that is not likely to cause greater difficulties for prison officers than they already have. Yet, because the quarter by which the sentence is to be reduced is mandatory, there will be little inducement on his part necessarily to maintain the standards that would make the lives of prison officers easier; therefore, it is desirable neither before nor afterwards. The whole clause is likely to meet severe criticism. I hope that my hon. Friend will reconsider it.

Mr. Roger Sims (Chislehurst)

I wonder whether the Minister of State will make it clear that the decision on the length of the sentence to be served and to be suspended will be made by the court. This is not immediately evident from the wording of the clause, which provides that a court may order that, after he has served part of the sentence in prison, the remainder of it shall be held in suspense. It is not clear to me—I imagine that this is the intention—that the court will decide how much of the sentence will be spent in prison and how much of it will be suspended.

The alternative is for the prison authorities to decide the point at which the offender is to be released. I do not imagine that is the intention. Therefore, it should be made clear in the clause.

I am disappointed that the clause does not cover the 17 to 21 age group. That is a pity. However, the Minister explained why that is not practicable at this stage.

I am more than disappointed—in fact, alarmed—that the Minister should say that there is to be no power for a court to make a supervision order for the suspended part of the sentence. I had assumed that that would be the case. It is automatic with a fully suspended sentence. The court has the power, which it often exercises, to make a suspervision order in such a case. It seems an anomaly that, if the sentence is to be fully suspended, a supervision order can be made, yet, if is to be only partly suspended, there is no power to make such a supervision order.

The Minister of State knows that many hon. Members share his view that there are strong arguments in favour of shorter prison sentences. However, we should not delude ourselves into thinking that those views are necessarily widely shared by some of our constituents. It is one thing to give the courts power to say "We have taken into account your circumstances, the nature of the offence, and so on, and we therefore sentence you to 18 months' imprisonment, of which you will serve six months and the remaining 12 months will be under the supervision of a probation officer." It is quite another thing to say "We sentence you to 18 months' imprisonment, but, after all, you will serve only six months" —full stop.

I do not think that will be acceptable to people outside, who feel that one of the purposes of imprisonment is to afford some protection for the pubic. If the court feels that, having imposed a sentence of 18 months, it could reasonably suspend part of it, it should at least, for the suspended part of the sentence, be able to place the person concerned under some form of supervision.

The Minister referred to the expense of supervision. Of course there is some expense involved in supervision, but very much less than in keeping a man in prison. The object of the exercise is to let the man out of prison at an earlier stage.

There will be an adverse reaction to the proposals in the new clause unless we ensure that the person who receives a sentence part of which is suspended and part of which is served is under some form of supervision for the suspended portion.

One can imagine the reaction when the first offence is reported in the newspapers, when somebody who is made the subject of an 18-month sentence is released after six months without subsequent supervision. I strongly urge the Minister, to consider, before the clause comes before another place, writing in the power to make either a supervision order or a probation order.

Mr. Edward Lyons (Bradford, West)

When the provisions in New Clause 4 were introduced in Committee I was horrified to hear the Minister welcome them and say that he would put something in the Bill on Report. The clause is a recipe for putting more people in prisons and for giving longer prison sentences. Since judges are acutely sensitive to the charge that a suspended sentence allows somebody to get away with it, they will tend to impose a short prison sentence followed by a suspended sentence, namely, three months—a period inside followed by a period outside.

But, more than that, where a judge thinks that nine months is the appropriate sentence he will give nine months just the same. But he will have the power to suspend over a further period to keep the defendant in check. So he will give the same prison sentence as he would have given anyway followed by an additional suspended sentence. The combined sentence may well be much longer than that which he would have imposed under the old system.

The effect will be that if the man offends again he will find himself in prison not only sentenced for the further offence but having added to it the long extra suspended part of the initial sentence. I thought that the object of the exercise was to reduce the population of our prisons because the prisons are teeming with people and we have a prison building programme which, with people three to a cell, cannot cope with present expectations.

Consequently, it seems crazy to introduce legislation of this sort which will produce longer sentences and put more people in prison. I was the only one to say so in Committee, but apparently what I said had no effect. I shall therefore repeat my prophesy. There will be a criminal justice Bill within the next few years in which the Government will be seeking to strike out this new clause.

Mr. F. P. Crowder (Ruislip-Northwood)

I entirely agree with what the hon. and learned Gentleman has just said. Does this state of affairs he has described not fall in with the principle which we have seen over the years in which a judge, knowing that if a man behaves himself he will get one-third remission and wanting him to serve 12 months, gives him 18 months? That has happened time and again.

Mr. Lyons

That may well be so.

Let me add my voice to the condemnation of New Clause 10. It would be terrible to institutionalise the system suggested in that clause. Furthermore, there is something fundamentally unjust in enshrining as a statutory principle that if the proper sentence is, say, 12 months, one gives only nine months

Ninety per cent. or more of people plead guilty anyway. What is proposed is that in future if the judge thinks that, in the interests of the community, X is the proper sentence, he should automatically give X minus 25 per cent. However, the opposite will happen. Nobody can know what sentence is in the judge's mind. Nobody can know, therefore, whether he is allowing the 25 per cent. Since guilty is the normal plea, all sentences will increase in the judge's mind by an appropriate amount, so that the guilty plea will be exactly right and fighting will get one more than one is entitled to.

Mr. Rees-Davies

I agree with what has been said in the very last few moments. The fallacy of the argument of my hon. and learned Friend the Member for Royal Tunbridge Wells (Mr. Mayhew) is that we do not know what the tariff is. It is not set out. We do not know what is in the judge's mind. Therefore, we do not know the X which will be subject to the formula of minus 25 per cent. There are honest judges who know their own minds and have a tariff. There are others who are dishonest, and there are others who have no tariff. The best judges are those who do not have tariffs. It is the purpose of the judge to judge and he should judge on all the circumstances of each case, taking all the factors into account. The greatest of our judges, such as Lord Justices Lawton and Shaw, to name just two of several, can be persuaded that, because of all the differing circumstances a case does not qualify for any particular tariff.

There is another greater argument which, unfortunately, also defeats my hon. and learned Friend's very ingenious clause, which has been attacked far too much in many ways, and undeservedly. It is that I do not think that Parliament can be seen to approve any provision which seeks to encourage a person to plead guilty or otherwise. Certainly it is that at present counsel are put in very grave difficulties in many cases in offering their advice on whether there should be a plea of guilty.

That is predominantly due to one class of case which is increasing and has been increasing in recent years and which involves what are known as the "verbals". In this class of case almost invariably the accused person has previous convictions. He says that he never made statements which the police allege that he made. Till we alter the system of procedure and exclude entirely that to-ing and fro-ing of the "verbals" and provide some system whereby safe evidence can reasonably be given we cannot take the risk that is involved. This is exceptionally difficult. Take a case in which the only evidence of armed robbery is a number of oral statements alleged to have been made by the defendant to a number of police officers, probably in the end partly confirmed by a statement in writing in which he is alleged to have made that confession. In that class of case, if the police evidence is believed, there is absolutely no defence to the charge. If, on the other hand, the accused person is to be believed, he has a very reasonable chance of acquittal.

Those are the most difficult cases. After many years of experience of these cases, I have regrettably come to the conclusion that I am no longer prepared to advise a client one way or the other, whether he should plead guilty or plead not guilty in circumstances which depend upon the "verbals".

A very grave state of affairs exists at the moment because, unfortunately, there have been in the London area, at the Old Bailey, in recent years a number of cases of thoroughly dishonest policemen who have testified that statements have been made, which testimony has turned out to be wholly untrue. It occurs a little, but not very much, in other parts of the country. Only a small proportion of the police force is involved. The overwhelming proportion of the police force tell the truth. Those who, unfortunately, do not and are frequently caught out are allowed to go scot-free.

This makes it exceptionally difficult to decide whether a person ought to plead guilty or not guilty. That is one of the reasons why I feel it is not right to offer a specific deal on the basis of deducting a substantial amount of time from a prison sentence by virtue of the tendering of a plea of guilty.

6.30 p.m.

On the other hand, there may be cases where, for a variety of reasons, the judge may wish to give a substantially lesser sentence. I take the obvious and very proper example of a man who is charged with rape. Here is a case where, inevitably, a judge should give a lesser sentence to a man who contends, perhaps, that he never was guilty of rape but that he was guilty of indecent assault but who, in the end, pleads guilty and saves the woman concerned and other people from having to give evidence in the trial. That must be a case where a plea of guilty warrants a lesser sentence than the case where the accused man insists on all the evidence being heard. In my judgment, at least, that would be a proper factor, but the extent of that factor and the manner in which it is to be dealt with must depend on the circumstances of the case, and that must be left to the judge.

I know that my hon. and learned Friend the Member for Royal Tunbridge Wells has an ingenious and talented mind. He is trying to put forward a proposition which has a lot to commend it. However, for those reasons, I regret that I do not find it acceptable.

I invite the Government to look again at New Clause 4 when the Bill gets to another place to see whether there cannot be a supervision order. I have always wanted to see a position in which a short term of imprisonment could be given, followed by a period on suspension. I do not object to the fact that it might result in an overall potentially longer sentence. I believe that it would be valuable to have short sentences of imprisonment followed by suspension, but it seems to me that there should be, almost automatically, some form of supervision during that period of suspension after the sentence of imprisonment. I hope that that can be considered carefully in another place.

I also share the view, expressed by my hon. and learned Friend the Member for Solihull (Mr. Grieve) and reiterated by a number of my hon. Friends, that we should seek to do something for those between the ages of 17 and 21, and that a custodial order should also be the subject and part and parcel of this Bill.

I draw attention to one small matter which has not been referred to but which I have seen recently in another Bill. I hope that it will be taken out of the new clause and that we shall not see it again. Surely we are not to tell judges or even civil servants that they must speak in ordinary language. It is quite ludicrous. The new clause says: …this shall be explained to him by the court, using ordinary language and stating the substantial effect of that subsection. I do not think that we can ask Her Majesty's judges to be told that they must use ordinary language. I am not even prepared to ask civil servants to do it. How any parliamentary draftsman could have put in these words, I do not understand. I hope that they will be taken out and burned.

Mr. Alexander W. Lyon (York)

I join those who criticise New Clauses 4 and 10. Both were born in the mind of the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) and both suffer from the same flaw, which is that, after they are passed, the level of sentencing will remain roughly the same for the same kind of offence and that this will result in some material diminution in the period that people serve. The experience of suspended sentences indicates that there may very well be a reverse trend. Suspended sentences showed a marked decrease in the prison population for a very limited period. When they were made operative, as they came in breach, the prison population actually grew.

Mr. Grieve

Surely that is because they were used over-optimistically at the outset. Everyone recognised that, and the Appeal Court since has said so in terms over and over again. This was thought of as a way out in very difficult cases, but clearly many recidivists were given suspended sentences when they should not have been. This is a difficulty which has now been overcome.

Mr. Lyon

The hon. and learned Member for Solihull (Mr. Grieve) still sits as a recorder. I am sure that he recognises that, in circumstances which would come before the average court, there would be a temptation in the court to say that the man concerned would get the substantive period of imprisonment that he would get in any event but that, in order to provide a safeguard against the repetition of the offence, the court would add a period of suspended sentence so that the overall effect, if he did not get into trouble again, would be the same, but there would be the safeguard that, if he got into trouble again, the suspended sentence was almost bound to be brought into operation and would be likely to lead to an increase rather than to a decrease in the prison population. I do not believe that that will happen with New Clause 4 and in Committee I was surprised when the Minister responded so readily to the invitation to consider this suggestion and has now brought forward this clause. I agree with my hon. and learned Friend the Member for Bradford, West (Mr. Lyons) that in time we shall have to review the clause. Nevertheless, I have no doubt that it will be accepted by the House.

I hope, however, that New Clause 10 will not prove acceptable. The hon. and learned Member for Royal Tunbridge Wells makes an error, again for basically the same reason. It will increase the amount by which a judge will award a sentence if he knows that for a plea of guilty there will be an automatic reduction of a quarter.

In principle there is a good deal to be said against the proposition. As other hon. Members have pointed out, most cases are pleas of guilty. If a man comes before the court upon incontrovertible evidence which even he cannot deny—where, for example, he has been caught red-handed—it seems a little odd to say that automatically he must have a quarter knocked off his sentence. He has to plead guilty. I agree that there will be the odd example where counsel can argue in mitigation in a debatable case that his client has chosen to tell the truth and plead guilty and that that is urged in mitigation in the hope that the court will pay attention to it and give some diminution of sentence. But, when an accused person comes before the court having been caught in the act, it seems ludicrous to give him 25 per cent. off automatically as a matter of principle.

As a matter of practice I should have thought that what will happen, as my hon. and learned Friend the Member for Bradford, West said, is that the average tariff for pleas of not guilty will simply go up to allow for the 25 per cent. knocked off for pleas of guilty and that again the prison population will go up rather than down.

Mr. Fairbairn

If the hon. Gentleman is right, it will encourage the strange English practice of asking for 98 other offences to be taken into account, because the accused man will get 25 per cent. off all of them.

Mr. Lyon

The mind boggles at what the computer would have to do in court to be able to assess the sentence there. I take the hon. and learned Gentleman's point.

I think that the hon. and learned Member for Royal Tunbridge Wells has perhaps not seen the consequences of his proposal, and I reinforce the suggestion that the only purpose of the clause must be to put pressure upon accused persons to plead guilty. It can have no other purpose and it is bound to have that effect.

Even if counsel gives advice to a client in a dispassionate way, he is bound to tell him that if he pleads guilty there will be an automatic reduction of 25 per cent., and that is bound to be a factor in the accused man's mind. It does not matter whether he is guilty. If he thinks that he will be found guilty, that probably will be a factor in determining whether he accepts the advice that it would be better to plead guilty. In those circumstances the pressure will be increased by this clause.

At the moment there are circumstances in which counsel feel that it is right to indicate to their clients that they are likely to be found guilty and that, if they are, their sentences may be longer because they have pleaded not guilty. But if one can also say that there will be an automatic 25 per cent. discount if the man pleads guilty, that is bound to put pressure on him.

I came across too many cases when I was Minister where a plea of guilty was entered and a finding later of a miscarriage of justice. Now that I am returned to the Bar, I am more careful about giving advice to plead guilty. No one can tell whether a man should plead guilty. We should retreat from the suggestion of putting pressure on a man.

Mr. John

We have had a long debate. There are three aspects upon which the House needs reassurance. First, my hon. Friend the Member for York (Mr. Lyon) needs to be reassured because he was not in the Chamber when I dealt with the subject. This is not the brainchild of the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew). It has been discussed and favoured by the Advisory Committee on the Penal System. It is not a device for increasing the prison population.

I take the argument of my hon. Friend the Member for Pontypool (Mr. Abse) that this should be used instead of the full custodial sentences rather than instead of the full suspended sentences. All steps that need to be taken to draw this to the attention of those who impose sentences will be taken in the interim.

For the reasons that have been amply demonstrated, the Government view is that it is undersirable to accept New Clause 10. I advise the House to reject it.

Mr. Mayhew

I do not propose to put the new clause to a Division. I listened with profound dismay to some of the arguments that have been used against it, based as they are upon a misapprehension of the way in which the criminal law system is operated. On the basis that a good idea will eventually attract support, I shall not press New Clause 10, but I hope that it will prevail in the end.

Question put and agreed to.

Clause read a Second time, and added to the Bill.