HC Deb 14 February 1978 vol 944 cc242-9

3.36 p.m.

Mr. Jack Ashley (Stoke-on-Trent, South)

I beg to move, That leave be given to bring in a Bill to amend the law relating to appeals on sentences for criminal offences; and for connected purposes. The object of this Bill is to end a longstanding anomaly in British law. I am aware that many people are concerned about the effects of this change.

I wish to bring some justice into me situation thrown up by the existing rules in criminal offences when an appeal against sentence is legitimately made. If a convicted criminal believes that a sentence is excessive, he can appeal, and it is right and proper that he should do so. However, under existing legislation the Court of Appeal is unable to increase the sentence. Under existing legislation, the prosecution is unable to appeal if it considers that the sentence is too lenient.

I am not suggesting that there should be uniformity in sentencing, because I appreciate that every case is different, but what I am proposing is that there should be a second look at all sentences where there is grave public concern about whether a sentence is too lenient. That is the essence of the Bill. Judges are only human and make mistakes. I believe that public confidence in the judiciary can be eroded if a second look is not taken at what the public regard as excessively lenient sentences.

There was a recent case involving the killing of a policeman that caused a great deal of public concern. The man concerned was charged with manslaughter and was given a one-year sentence. A petition has been drawn up on that case. It is in two parts, the first asking for an inquiry into the sentence and the second requesting the right of appeal for the prosecution. I do not want to deal with that case or to reopen all cases, because I do not believe in retrospective justice. If my Bill were to be accepted, it would involve only future cases. The fact that no fewer than 150,000 people signed the petition because of what they regard as unduly lenient sentences is an indication that we should at least have a second look at the matter.

What is wrong with a second look? If the case goes to the Court of Appeal and there are mitigating circumstances in regard to a lenient sentence—and there may well be—that is fine, because public anxiety is thereby allayed, but if there is no reason for a particularly lenient sentence, in equity that sentence should be corrected. That is the impeccable logic of the need for a change in the law.

Some people argue that the object of the Bill may not be mercy, but vengeance. That is a nonsense. I am all for the exercise of the prerogative of mercy. It is important that mercy should be applied. But it is interesting that although the opponents of the Bill talk about mercy when a person who has been convicted of a grave crime appeals against his sentence, they talk of vengeance when society seeks to appeal against an unduly lenient sentence. It is not a question of mercy or vengenance; it is a question of justice. Defendants and society should have the same right to apeal.

The independence of judges has also been brought into play, but this does not arise from the Bill. When a convicted criminal appeals, his appeal is heard by the judges in the Court of Appeal. If the Bill were passed, an appeal by the prosecution would also be heard by those judges. The independence of judges is not in question.

The final objection that is sometimes put forward is that the prosecution should play no part in sentencing policy, but that objection is based on a complete myth. The prosecution is closely involved now in sentencing policy. The prosecution selects the charges, and that has an effect on sentences. The prosecution must decide whether to ask for summary trials or committal, and that must have some relevance to sentences. Even after conviction, it is the duty of the prosecution to bring forward evidence that may affect the sentence, even though that evidence may not have been acceptable in the trial itself.

The system of the prosecution having the right to appeal has worked abroad. It is accepted in France, Italy, Germany and the Netherlands. All the objections have been found to have no substance. Even in countries such as Canada and Australia with common law systems, the prosecution has a right to appeal. I suggest that in cases where there is acute public concern about an unduly lenient sentence, the prosecution should be able to apply to the Director of Public Prosecutions who, alone, will have the power to seek leave to appeal.

If an appeal were made, public anxiety would be allayed because the Court of Appeal would be able to explain why a lenient sentence had beeen given and why the prerogative of mercy had been exercised. If it were a case of an eccentric judge having given an eccentric sentence—and this has happened—that sentence could be corrected.

I believe that the Bill would reduce disparities in the law. That is its essence. It would ensure a greater understanding of, and consistency in, sentencing policy for criminals and thereby assure greater public confidence in the law.

3.44 p.m.

Mr. Nicholas Fairbairn (Kinross and West Perthshire)


Mr. Speaker

Order. Is the hon. and learned Gentleman seeking to oppose the Bill?

Mr. Fairbairn

Yes, Mr. Speaker. I oppose the Bill on certain important principles.

No one is more concerned than I am with the diminution, eradication and prevention of crime and its proper and condign punishment and no party has been more concerned with punishment and the maintenance of law and order than the party to which I belong.

The Bill is not about an issue in which those who favour savage penalties are against those who favour soft penalties, and to present it as such is false and misleading. It may be appropriate since, although the hon. Member for Stoke-on-Trent, South (Mr. Ashley) spoke about British law—which does not exist—the Bill applies only to England, that a Scotsman should be opposing it. It may be particularly appropriate now that England is, thank goodness, about to adopt our impartial and humane system of prosecution, which is infinitely more in the interests of justice.

The Bill arises from a major misunderstanding of the functions and methods of our courts. It arises from a contusion over the functions in this country. The Crown, in the form of the prosecution, is properly interested only in conviction and has no interest in sentencing. Equally, we appoint judges and magistrates whose function is to judge cases impartially and to impose what they regard as appropriate sentences. The sole concern of the Crown is conviction and, given the presumption of innocence, it is a proper tradition that the prosecution is fairly and not vindictively prosecuted. Let us never forget that presumption of innocence.

A court is appointed to promote and employ sentences. The House is not that court, though some hon. Members seem to wish that they were. There is a most dangerous practice growing up of hon. Members, not confined to one party, taking it upon themselves to criticise the individual words of a judge of whatever rank, the individual verdict of a court of whatever form and the individual sentence in particular cases.

If I may draw an analogy to show the importance of the principle, it is not for spectators, even if they are members of the rules committee, to object to the individual judgments of the referee in particular instances. That does great harm to the system which, thank God, we still have, of an independent judiciary which is neither a slave of Parliament nor an extension of the Executive. It is only in dictatorships that courts are a department of the State where the prosecutor carries out State policy and asks for a sentence which the State demands.

I hope that we never have a situation in this country in which the prosecution takes this one-sided view, asks for a particular sentence and then criticises other appointees of the State, namely, the courts, when they do not give the sentence which, in the prosecution's view alone, is appropriate.

Specific cases come before the court, which hears all the facts and, according to the lights of its capability, exercises a judgment. Each case differs, and to talk as the hon. Gentleman did, of equivalent sentencing policy is to say that sentences should be equivalent in every careless motoring case. The facts in every case are different, whether they are the record of previous convictions or the defendant's involvement in an offence. They vary so much that the only person who can properly pronounce sentence is the judge who has sat in judgment of the witnesses and the evidence he has heard.

If an aggrieved citizen cares to challenge him, he can, in Scotland, risk having his sentence increased, though it can also be decreased. In England since 1968, alas, the sentence can only be decreased. If there are reforms to be made, a change here would be an appropriate reform.

It would be improper for a person to appear before a court, to receive a sentence of probation or five years' imprisonment and not to know until the prosecution had decided to appeal, first, to the Court of Appeal or perhaps even to the House of Lords, whether that was the sentence that he was to suffer. Equally, it would be improper if aggrieved persons or aggrieved prosecutors were for some reason entitled to appeal.

Let us think of the implications. First, the prosecution sees only one side of the picture whereas the court has to judge both sides. Secondly, think of the lever of plea bargaining. Let us think of prosecutors being able to say "If you plead guilty to this charge, we shall not appeal against the sentence if it is not one of imprisonment." Consider how improper that would be. Let us think of the position of the judge who, knowing the prosecutor and his propensities, has to sentence according to the likelihood of the prosecutor appealing and not according to the merits of the case.

There is also the difficulty of the clamour from this House, which is so anxious to be the appeal court. If it is a flying picket case, the prosecution in the House appeal that the sentence is too high. In the case of a rapist who is a guardsman, the prosecution appeal that the sentence is too low. The Bill seeks to introduce a dangerous principle into our constitution.

In the last year for which figures are available, there were 1,988,679 cases in England—nigh on 2 million—on indictment and other cases. Of those 2 million cases there were only 1,542 appeals against sentence. Of those appeals only 517 were confirmed. The other 1,025 were either quashed, which was associated with the appeal against conviction, or altered. That puts the matter in perspective.

The public have an absolute right to be concerned about the abominable level of crime. They have an absolute right to expect that there is appropriate sentencing. The powers that Parliament has given to the courts give them more than adequate scope for adequate sentencing. If any hon. Member does not think so, let him argue on any Act that the fine should be stiffer or that the penalty of imprisonment should be longer.

We have a duty in this House. We have an important duty as the guardians and the trust of the institutions of our constitution. It is one in which the prosecution is independent and the judiciary

has a separate function. I should hate to see the day when they were regarded as having the same function and having anything in common.

I believe in protecting individual members of the public against crime. Nothing could be worse than that the prosecution should have a hand in sentencing. In the House we have a trust to protect the judiciary, the independence of the courts and the right of the citizen to be sentenced by an independent judge who is not partial in any way. Therefore, I ask the House to reject the Bill.

Question put, pursuant to Standing Order No. 13 (Motions for leave to bring in Bills and nomination of Select Committees at Commencement of Public Business):—

The House divided: Ayes 30, Noes 293.

Division No. 109] AYES [3.55 p.m.
Ashley, Jack Holland, philip Selby, Harry
Ashton, Joe Hoyle, Doug (Nelson) Spence, John
Bowden, A. (Brighton, Kemptown) Lewis, Arthur (Newham N) Spriggs, Leslie
Boyden, James (Bish Auck) Lipton, Marcus Swain, Thomas
Canavan, Dennis McCartney, Hugh White, James (Pollok)
Carter, Ray McCusker, H. Wilson, Alexander (Hamilton)
Carter-Jones, Lewis MacFarquhar, Roderick Young, David (Bolton E)
Crowther, Stan (Rotherham) McMillan, Tom (Glasgow C)
Evans, Gwynfor (Carmarthen) Ogden, Eric TELLERS FOR THE AYES:
Garrett, W. E. (Wallsend) Parker, John Mr. Ken Weetch and
Hardy, Peter Price, David (Eastleigh) Mr. Ian Campbell.
Atkins, Rt Hon, H. (Spelthorne) Butler, Adam (Bosworth) Drayson, Burnaby
Atkins, Ronald (Preston N) Butler, Mrs Joyce (Wood Green) du Cann, Rt Hon Edward
Atkinson, David (Bournemouth, East) Callaghan, Rt Hon J. (Cardiff SE) Dunlop, John
Atkinson, Norman Callaghan, Jim (Middleton & P) Durant, Tony
Baker, Kenneth Cant, R. B. Elliott, Sir William
Banks, Robert Carlisle, Mark Ellis, John (Brigg & Scun)
Barnett, Guy (Greenwich) Castle, Rt Hon Barbara English, Michael
Barnett, Rt Hon Joel (Heywood) Chalker, Mrs Lynda Ennals, Rt, Hon David
Bates, Alf Channon, Paul Evans, Fred (Caerphilly)
Bean, R. E. Clegg, Walter Evans, Ioan (Aberdare)
Beith, A. J. Clemitson, Ivor Fernyhough, Rt Hon E.
Benn, Rt Hon Anthony Wedgwood Cockroft, John Fisher, Sir Nigel
Bennett, Andrew (Stockport N) Cocks, Rt Hon Michael (Bristol S) Flannery, Martin
Bennett, Sir Frederic (Torbay) Coleman, Donald Flannery, Alex (Edinburgh N)
Bennett, Dr Reginald (Fareham) Concannon, J. D. Fletcher, Ted (Darlington)
Benyon, W. Conlan, Bernard Fookes, Miss Janet
Berry, Hon Anthony Cooke, Robert (Bristol W) Foot, Rt Hon Michael
Blaker, Peter Costain, A. P. Forrester, John
Body, Richard Cox, Thomas (Tooting) Fowler, Gerald (The Wrekin)
Booth, Rt Hon Albert Craig, Rt Hon W. (Belfast E) Freeson, Rt Hon Reginald
Boscawen, Hon Robert Crowder, F. P. Freud, Clement
Bottomley, Rt Hon Arthur Cryer, Bob Fry, Peter
Bottomley, Peter Cunningham, G. (Islington S) Gardiner, George (Reigate)
Boyson, Dr. Rhodes (Brent) Davies, Bryan (Enfield N) Garrett, John (Norwich S)
Bradley, Tom Davies, Rt Hon J. (Knutsford) Gilbert, Dr John
Braine, Sir Bernard Davis, Clinton (Hackney C) Gilmour, Rt Hon Ian (Chesham)
Brittan, Leon Deakins, Eric Gilmour, Sir John (East Fife)
Brotherton, Michael Dean, Joseph (Leeds West) Ginsburg, David
Brown, Sir Edward (Bath) Dempsey, James Golding, John
Bryan, Sir Paul Doig, Peter Goodhart, Philip
Buchanan-Smith, Alick Dormand, J. D. Goodlad, Alastair
Buck, Antony Douglas-Hamilton, Lord James Gould, Bryan
Budgen Nick Douglas-Mann, Bruce Gower, Sir Raymond (Barry)
Graham, Ted MacKay, Andrew (Stechford) Rodgers, Sir John (Sevenoaks)
Grant, George (Morpeth) Maclennan, Robert Rooker, J. W.
Gray, Hamish Macmillan, Rt Hon M. (Farnham) Rose, Paul B.
Grieve, Percy McNamara, Kevin Ross, Stephen (Isle of Wight)
Griffiths, Eldon Magee, Bryan Rost, Peter (SE Derbyshire)
Grimond, Rt Hon J. Mallalieu, J. P. W. Rowlands, Ted
Grocott, Bruce Marks, Kenneth Royle, Sir Anthony
Hamilton, Michael (Salisbury) Marshall, Jim (Leicester S) Sandelson, Neville
Harper, Joseph Marshall, Michael (Arundel) Sedgemore, Brian
Harrison, Col Sir Harwood (Eye) Marten, Neil Sever, John
Harrison, Rt Hon Walter Mates, Michael Shaw, Arnold (Ilford South)
Harvie Anderson, Rt Hon Miss Mather, Carol Shaw, Giles (Pudsey)
Haselhurst, Alan Mawby, Ray Shelton, William (Streatham)
Hastings, Stephen Maxwell-Hyslop, Robin Silkin, Rt Hon S. C. (Dulwich)
Hattersley, Rt Hon Roy Mayhew, Patrick Silvester, Fred
Havers, Rt Hon Sir Michael Maynard, Miss Joan Sinclair, Sir George
Hayman, Mrs Helene Meyer, Sir Anthony Skeet, T. H. H.
Healey, Rt Hon Denis Mikardo, Ian Skinner, Dennis
Heffer, Eric S. Mitchell, David (Basingstoke) Smith, Cyril (Rochdale)
Horam, John Moate, Roger Smith, John (N Lanarkshire)
Hordern, Peter Molyneaux, James Smith, Timothy John (Ashfield)
Howe, Rt Hon Sir Geoffrey Monro, Hector Spearing, Nigel
Howell, Rt Hon Denis (B'ham, Sm H) Montgomery, Fergus Speed, Keith
Howells, Geraint (Cardigan) More, Jasper (Ludlow) Stallard, A. W.
Hughes, Rt Hon C. (Anglesey) Morgan, Geraint Stanley, John
Hughes, Robert (Aberdeen N) Morris, Fit Hon J. (Aberavon) Steel, Rt Hon David
Hughes, Roy (Newport) Morris, Michael (Northampton S) Stoddart, David
Hunter, Adam Morrison, Charles (Devizes) Stokes, John
Jackson, Miss Margaret (Lincoln) Morrison, Hon Peter (Chester) Stott, Roger
James, David Moyle, Roland Stradling Thomas, J.
Janner, Greville Mudd, David Strang, Gavin
Jenkin, Rt Hon P. (Wanst'd & W'df'd) Mulley, Rt Hon Frederick Summerskill, Hon Dr Shirley
John, Brynmor Murray, Rt Hon Ronald King Tapsell, Peter
Johnson, James (Hull West) Neave, Airey Taylor, Mrs Ann (Bolton W)
Johnson Smith, G. (E Grinstead) Neubert, Michael Taylor, Teddy (Cathcart)
Johnston, Russell (Inverness) Newens, Stanley Tebbit, Norman
Jones, Alec (Rhondda) Oakes, Gordon Temple-Morris, Peter
Jones, Arthur (Daventry) O'Halloran, Michael Thomas, Ron (Bristol NW)
Jones, Barry (East Flint) Onslow, Cranley Thorne, Stan (Preston South)
Jones, Dan (Burnley) Ovenden, John Thorpe, Rt Hon Jeremy (N Devon)
Jopling, Michael Page, Rt Hon R. Graham (Crosby) Tinn, James
Judd, Frank Page, Richard (Workington) Tomlinson, John
Kaufman, Gerald Palmer, Arthur Townsend, Cyril D.
Kelley, Richard Park, George Tuck, Raphael
Kerr, Russell Parkinson, Cecil Varley, Rt Hon Eric G.
Kershaw, Anthony Parry, Robert Wainwright, Edwin (Dearne V)
Kimball, Marcus Pendry, Tom Wainwright, Richard (Colne V)
King, Tom (Bridgwater) Penhaligon, David Wakeham, John
Kinnock, Neil Percival, Ian Welder, David (Clitheroe)
Knight, Mrs Jill Peyton, Rt Hon John Walker, Rt Hon P. (Worcester)
Knox, David Prentice, Rt Hon Reg Walker, Terry (Kingswood)
Lamond, James Price, William (Rugby) Ward, Michael
Lamont, Norman Pym, Rt Hon Francis Watkins, David
Latham, Arthur (Paddington) Rathbone, Tim Watkinson, John
Latham, Michael (Melton) Renton, Rt Hon Sir D. (Hunts) Weatherill, Bernard
Lawson, Nigel Renton, Tim (Mid-Sussex) White, Frank R. (Bury)
Le Merchant, Spencer Rhodes James, R. Whitelaw, Rt Hon William
Lester, Jim (Beeston) Richardson, Miss Jo Whitlock, William
Lewis, Kenneth (Rutland) Ridley, Hon Nicholas Williams, Alan Lee (Hornch'ch)
Lewis, Ron (Carlisle) Rifkind, Malcolm Williams, Rt Hon Shirley (Hertford)
Litterick, Tom Roberts, Albert (Normanton) Woof, Robert
Lloyd, Ian Roberts, Gwilym (Cannock) Younger, Hon George
Luce, Richard Roberts, Wyn (Conway)
McDonald, Dr Oonagh Robinson, Geoffrey TELLERS FOR THE NOES:
Macfarlane, Neil Roderick, Caerwyn Nicholas Fairbairn and
MacGregor, John Rodgers, George (Chorley) Mr. Ian Gow.

Question accordingly negatived.