HC Deb 12 May 1982 vol 23 cc814-32

'(1) Where any person has been sentenced in any criminal cause or matter the Attorney-General may if he thinks fit at any time within … days of the passing of the sentence at the trial refer the sentence to the Criminal Division of the Court of Appeal on the ground that it was whether wholly or in one or more particular respects inappropriate having regard to all the circumstances of the case and on any such reference the Court if they think the sentence was inappropriate shall quash it and shall pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefore as they think ought to have been passed provided that they shall only have power to pass such sentence as could have been passed by the Court by which the person was originally sentenced and that they shall take into account any part of the original sentence already served.

(2) On any such reference the Attorney-General shall pay the sentenced person's taxed costs of the reference in any event.'.—[Mr. Alan Clark.]

Brought up, and read the First time.

Mr. Alan Clark (Plymouth, Sutton)

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

The House will recognise that there is great and growing public anxiety about the whole area of what is loosely and colloquially defined as law and order. We accept in the quieter atmosphere of Report stage that it would be inappropriate to cast any stain or to blame individuals or parties. However, public indignation is constantly expressed in one sector. I refer to the inconsistency of sentences for the same offences and the inadequacy of sentences for offences that the public find particularly offensive and upsetting.

The purpose of the new clause is to give the Attorney-General the power, if a sentence is, in his judgment, inappropriate, to refer it to the Criminal Division of the Court of Appeal. He will set out the grounds on which it is in one or more respects inappropriate. This will give the Criminal Division the chance to correct the defect.

I do not think that the power would be widely used. There is no question of the prosecution having the right to call for a particular sentence and, if that call is not met, referring to the Attorney-General and pursuing a defendant. The new clause has been drafted to avoid that. It merely gives the Attorney-General the power to respond to a public sense of indignation. He would be the judge of the level of that indignation and the manner in which and extent to which it had been expressed.

The fact that the power is available will, even if only used sparingly, give great reassurance to the public who have been expressing widespread disquiet.

I shall not burden the House, as it would be so easy to do, with examples of sentences that, in the view of the layman, have been inadequate and, indeed, offensive. In some cases this year human life has been taken, including the lives of children, but the defendants for one reason or another have walked free from the court, and the sense of public outrage has been extremely marked.

Every hon. Member, in the course of his service as an elected representative, must have received a number of letters from constituents complaining about sentences awarded either locally or nationally. Hon. Members will know the indignation that is aroused. It is important to go some way towards quietening that anxiety because the frustration arising from inadequate sentences is finding expression in a number of disagreeable and highly dangerous symptons. It is almost impossible to obtain a conviction against a person in a position of authority—a prison officer or a police officer—who has used violence, even to the extent of causing loss of life, against prisoners who are either on remand or have received sentence. Practically no jury will convict in such cases because of an unspoken acceptance by juries and the public that there are many inexplicable cases of really odious crimes. There is a tacit acceptance of rough justice, and of those applying it, when it is applied in unclear circumstances.

The House knows of many cases where injuries of varying degrees of severity have been inflicted on persons who have been convicted, or are on remand for crimes of various scales. Where that has happened those charged with inflicting grievous bodily harm, or even causing death, have always been acquitted.

Mr. Lawrence

How will my hon. Friend's new clause affect the situation if the man is acquitted?

Mr. Clark

Acquittal is the most difficult consideration in these cases. I am surprised that my hon. and learned Friend, with his legal knowledge, should ask that question. As he knows, an acquittal is not a sentence and, although the public may feel that an acquittal is inappropriate, arising from a bad verdict, the new clause does not apply. The new clause refers to sentences, not verdicts. If a person has been acquitted, that is that. No one would dream of suggesting that that principle should be interfered with. We are trying to find some way of allaying the widespread and increasing public indignation about inadequate sentences. I remind my hon. and learned Friend that sentence is pronounced only after a person has been convicted.

The new clause will get rid of a great deal of frustration. People will realise that a measure is available to correct the situation. The sinister and intrusive element—not quite the desire for lynch law—that proper justice under the constitution cannot be, or is not being, applied and that rough justice is, therefore, legitimised by the defect, would be eliminated.

Mr. Michael McNair-Wilson (Newbury)

Perhaps my hon. Friend has in mind the fine of £2,000 that was imposed upon a rapist early in the year. There was much public disquiet and many people felt that a prison sentence should also have been imposed. In such a case, who would apprise the Attorney-General of the public's concern so that he could use the new clause to have the sentence reconsidered?

Mr. Clark

I am flattered that my hon. Friend should be expressing such interest in the new clause. He should only be questioning me about the minutiae of its technicality. I prefer to con lime myself to the text of the clause. However, I remind my hon. Friend that the Attorney-General is a senior Law Officer. He is a political animal and a political appointee. He would be well aware of the scale of public indignation at any given moment. He talks to Government and Back-Bench colleagues and receives a voluminous mail. He has many other sources and contacts from which he should be able to appraise cases in which it would be appropriate for him to make such a referral. Precedents would gradually accumulate.

Laymen have to tread carefully when they draft new clauses and never more so than when they are seeking to amend a lawyer's Bill. I hope that my hon. and learned Friend the Member for South Fylde (Mr. Gardner) will support me and will put the issue in the language of lawyers much more elegantly and persuasively than I could do. However, I am sure that the House would not feel it appropriate that arguments relating to new clauses in legal Bills should be confined to lawyers, much though they would prefer that to be the case. It is natural that hearing laymen stumble their way through legal arguments would offend lawyer's sensibilities.

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I conclude, still in the language of laymen. There is a cosmetic aspect to the new clause. I suggest that it would do great good immediately, because the public would realise that there was a machinery by which inadequate and offensive sentences could be corrected if the senior Law Officer of the Crown decided that that was necessary. That would rid us of certain undesirable new symptoms that are starting to pervade law and order issues.

I shall be satisfied if my hon. and learned Friend the Minister of State will simply give an undertaking to refer my suggestion to the Criminal Law Revision Committee. Indeed, it would be ungracious of him to refuse to do even that, because the suggestion should be seriously considered. The level of public disquiet is strong and we have available a relatively easy curative measure.

The House has heard enough from me in lay language and I hope that my hon. and learned Friend the Member for South Fylde will support the new clause in language that lawyers will find easier to understand and more persuasive.

Mr. Edward Gardner (South Fylde)

I support the arguments of my hon. Friend the Member for Plymouth, Sutton (Mr. Clark) and I cannot help but agree with his description of the growing concern in the public mind about over-lenient sentences and the absence of any power for the courts to deal with such mistaken judgments.

The purpose of the new clause is to identify, and to give the Government the opportunity to consider, what many rightly regard as a serious defect in our appellate system. Harsh sentences can be corrected on appeal, but if by a mischance—fortunately such cases are rare—a judge decides on a sentence that is obviously inappropriate to a particularly serious crime nothing can be done about it.

In 1965 the Morris committee, which looked at possible ways of improving the appellate system, recommended that the Court of Criminal Appeal should become the Court of Appeal criminal division, with additional and reformed powers. The committee examined the prospect of allowing the new court to retain its power to increase a sentence when someone had come before it on an appeal to decrease his sentence.

It was decided, for good reasons, that that would be a wholly inappropriate power, which was unfair to the appellant. It was becoming traditional that if the Court of Criminal Appeal decided that an appeal had no merit it could bring the matter to a swift conclusion by threatening the appellant with an increased sentence if he persisted with his appeal.

The Morris committee decided that the power should be removed from the Court of Appeal, but the removal of that power must not be confused with the proposal in the new clause to introduce a new power for the Court of Appeal to increase sentences where an inordinately lenient sentence has been imposed for a serious crime and it is thought that it should be corrected.

The proposal in the new clause is not a novel suggestion. Many countries, including Canada and a number in Europe, allow their courts to use the power that we suggest ought to be considered by the Government as a new power for the Court of Appeal.

My hon. Friend the Member for Plymouth, Sutton dealt with an important matter in reply to an intervention by my hon. and learned Friend the Member for Burton (Mr. Lawrence) about what would happen in the case of an acquittal. I should make it clear to the House that acquittals would not be affected by the new clause which refers only to sentences.

One should always have in the background when such a reform is suggested the fear that an appellant may be put in double jeopardy, but that fear is removed immediately by the fact that the new clause would apply only to sentences and there would be no question of anyone being put in double jeopardy or of the verdict of a jury being exposed to alteration.

Mr. Keith Best (Anglesey)

My hon. and learned Friend speaks with his usual forceful persuasion. The new clause gives what appears to be an unfettered discretion to the Attorney-General. I do not expect my hon. and learned Friend to try to define how that discretion may be used, but will he tell us what matters he believes would be material in the Attorney-General's mind before he made a reference to the Court of Appeal?

Mr. Gardner

I would expect the Attorney-General to be moved by considerations of the sort that I suspect move the Court of Appeal when it sees that a sentence has caused a sense of public outrage. It always seems that by some happy coincidence a case soon comes before the Court of Appeal which allows it to make it clear, with guidelines if necessary, how such offences should be dealt with in the future. I hope that the same considerations would influence the Attorney-General in deciding whether a case should be referred to the Court of Appeal.

Mr. Best

If that is the case, we would almost certainly have a trial of sentence by the media. It would be the editors of newspapers in editorials who would largely determine whether there were such a public outrage that the Attorney-General should feel that his discretion should be exercised in making a reference within the new clause.

Mr. Gardner

I should be almost as outraged by the Attorney-General acting in that way as I should be by an inordinately lenient sentence. I should like to put my trust in the judgment, experience and wisdom of the Attorney-General. I would have faith in an Attorney-General appointed by either side of the House to exercise that discretion justly. I would fear nothing of the kind that my hon. Friend has anticipated.

Mr. Alan Clark

My hon. Friend the Member for Anglesey (Mr. Best) appears to think that the Attorney-General might succumb to pressure from editorial pages, but there is also the fact that the case will go to the Court of Appeal. My hon. Friend cannot say that it, too, would be influenced by the editorial.

Mr. Gardner

This power, given to the Attorney-General on a discretionary basis, would in my view be used sparingly and rarely. It would, as it were, be a reserve power which could, in certain circumstances, be valuable and could be used to the improvement of our system of justice. I endorse the plea by my hon. Friend the Member for Plymouth, Sutton to my hon. and learned Friend the Minister of State, and through him to the Government, that the problem that is summarised in and solved by this new clause—it is a problem—should be submitted to the Criminal Law Revision Committee. It is all too clear that there are all kinds of peripheral and indeed central, difficulties which attach to any reform of this kind. It would require the careful consideration of a committee such as the Criminal Law Revision Committee. I strongly urge my hon. and learned Friend to help us by telling us this evening that the matter will be submitted to the Criminal Law Revision Committee.

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Mr. S. C. Silkin

When I read this new clause I must confess that I was not strongly disposed in its favour. When I listened to the arguments advanced by the hon. Member for Plymouth, Sutton (Mr. Clark), I became strongly disposed against it. I regret to say that that disposition has not been much lessened by the persuasive words of the hon. and learned Member for South Fylde (Mr. Gardner).

The clause would allow an application to be made where, in the view of the Attorney-General, the sentence was either too severe or too lenient. It is apparent from what has been said by the hon. Member for Plymouth, Sutton and the hon. and learned Member for South Fylde that what they have in mind is that it would be exercised only where it was thought that the sentence was too lenient. There are perfectly adequate powers of appeal that cover circumstances where a sentence is over severe. It would be unnecessary to give such a power to the Attorney-General in that case.

The hon. and learned Gentleman was right in saying that there are jurisdictions in which the prosecution has a right of appeal against a sentence on the ground that it is inadequate. If one follows the logic of his argument, it is difficult to see why he is not suggesting that precisely that power should be applied in our courts. Why suggest that the power should be one that could be exercised only by the Attorney-General?

As I understood it, the hon. Member for Plymouth, Sutton put his case on two grounds. First, that there is from time to time—he said, very rarely—a feeling of public outrage about an inadequate sentence. No doubt there is from time to time such a feeling of outrage, whether justified or not. In my experience, in many cases such a feeling is not justified because the public does not know all the facts that the judge knows. However, there may be the odd case where the judge has been unduly lenient. Secondly, he put what seems to me to be the extraordinary argument that when police or prison officers beat up someone in their charge, juries acquit because they think that judges are too generally soft.

Mr. Alan Clark

I am surprised at the hon. and learned Gentleman employing the device of fore-shortening an argument, expressing in it in a compressed and disreputable form and then shooting it down. I said that the new clause must be seen in the context of a general level of public frustration with law enforcement and sentencing. That level of frustration is so pervasive that it is already beginning to have many undesirable side-effects, of which I gave the example that no jury will convict in cases such as he cited. I did not say that there is a direct link between the two. It is a little unfair to attribute that to me.

Mr. Silkin

I would be the last person to wish to do injustice to the hon. Gentleman, whom I have heard speaking in Committee on the Bill from time to time. I hope that, when I re-read what he said in Hansard, I will find that I did him an injustice. However, I am bound to say that it seemed to me to be a most extraordinary way to put his case. The hon. Gentleman says that he was simply giving an example of the general feeling of frustration. That feeling of frustration to which he referred arises, it is said, because judges are too lenient, whether in particular cases or generally. If that were the situation, and that frustration were justified and general, one comes back to the point that there might be a case for giving the prosecution a general power.

Mr. Edward Gardner

The right hon. and learned Gentleman has raised an important question. Why not give this power to the prosecution? I do not want to see the prosecution involved in the sentencing process. It would be incompatible with the tastes of our people. There i:, no need for it. The alternative solution, which is part of the new clause, provides a satisfactory way of overcoming the objections that the right hon. and learned Gentleman has in mind.

Mr. Silkin

I am delighted to hear the hon. and learned Gentleman say that he does not want the prosecution to be involved. It is fundamental to our system of justice and of sentencing that the prosecution is impartial in the conduct of the trial and should not be placed in the position of demanding a particular sentence. We have rejected the idea of the prosecution demanding a sentence—as app lies in some jurisdictions—and of giving the prosecution a right of appeal against sentence for that very reason. Although the case is slightly different, Parliament also decided that it was wrong to continue with a system under which the court used to have a power to increase a sentence when an appellant appealed on the ground of its severity. The whole trend of our thinking on sentences has gone in the opposite direction to that proposed in the new clause.

The proposed power is to be given to the Attorney-General to get over that difficulty. I do not know how he is to operate that power unless the prosecution tells him the facts of the case. Is it suggested that he should read newspaper accounts, or that matters should be brought to his attention by Members of Parliament saying -Look at this terrible case in which someone has been given only six months when he should have been given five years"? Is that the way in which the matter will be brought to his attention? That does not appeal to me and would not appeal to any Attorney-General.

In recent years, the Attorney-General has been given a power to refer certain matters to the Criminal Division of the Court of Appeal. That power was to apply when he thought that an acquittal by a lower court should be referred because an important question of law was involved. The power was expressly limited so that the name and identity of the defendant were not known and so that nothing that the Court of Appeal did in reaching its decision on the law would have any effect on the acquittal of the defendant.

Therefore, the power is very much restricted and is quite different from that envisaged in the new clause. Under the new clause, a defendant who had been convicted and sentenced would never know whether the matter was to be raised again. To some extent, the matter would depend on popular clamour and so on. The defendant would be at risk because it would be a matter of chance whether a local reporter heard his trial and sentence and passed on the information to the national press, thus creating a fuss. Justice should not be dispensed in that way.

When I held the office of Attorney-General I had to operate many difficult powers. The Attorney-General often knows that whatever decision he takes, he will be criticised and attacked. He takes that in his stride, as he must. If such a power were given to the Attorney-General, I would regard it as the most distasteful power and would never want to exercise it.

Mr. Lawrence

There is certainly no agreement on this side of the House that the new clause should be accepted. I agree with the right hon. and learned Member for Dulwich (Mr. Silkin) that the provision is thoroughly unacceptable, and I hope that my hon. and learned Friend the Minister will completely and utterly reject it.

Of course I endorse what my hon. Friend the Member for Plymouth, Sutton (Mr. Clark) said in his opening remarks. The public are anxious about law and order. There are many things that should be done about that. My hon. Friend and I are in complete agreement about most of those matters and we have often ventilated together our suggestions about what more can be done to improve the criminal legal process to ensure that more of the guilty are caught, convicted and properly sentenced.

However, the new clause is not the sort of proposal that we should consider. In his frustration at the inadequacy of law and order, my hon. Friend the Member for Plymouth, Sutton has proposed a measure that not many of those involved in the legal process will support. The new clause was no doubt tabled with great fervour but as my hon. Friend came closer to moving the new clause, and then while actually moving it, the strength of his adherence to the principle began to wane. Ultimately my hon. Friend the Member for Plymouth, Sutton and my hon. and learned Friend the Member for South Fylde (Mr. Gardner) said, in effect, "Let's throw it at the Criminal Law Revision Committee and let it bite at this bone." That may be a partial solution, but there are more important matters for that Committee to consider.

I shall deal with some of the most glaring objections to the new clause. First, the Attorney-General's power to refer the matter to the Court of Appeal is the power of the highest prosecuting authority in the land. It cannot seriously be argued that the prosecution would not be taking part in the sentencing process. It would certainly be seen as such. My hon. and learned Friend the Member for South Fylde, a sponsor of the new clause, shied away from that. It is clear that that change would be contrary to the cherished principles of our English legal criminal system. It is contrary to the historic principle of English law that a person should not be hounded into conviction or into a longer sentence after conviction.

As my hon. Friend the Member for Plymouth, Sutton waxed eloquent in his cause, he began to drift—as was inevitable—into saying that there were acquittals that should not have been made. That was why I asked him how acquittals would be affected by the new clause, which does not deal with them.

Mr. Alan Clark

I did not say anything about acquittals. The first time acquittals were mentioned was during the extraordinary intervention of my hon. and learned Friend. He asked how the clause would cope with acquittals. The clause is confined entirely to sentence.

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Mr. Lawrence

I intervened precisely because my hon. Friend was dealing with acquittals. He was talking about juries who refused to convict prison and police officers who had done wrong.

My second objection is that once we break into that principle and start to reconsider whether a person has been rightly let off by the inadequacy of the sentence, how long will it be before we are driven to consider whether a person has been rightly let off by the insanity or stupidity of the jury? How long would it be before we were invited to consider—as even now there are rumours—whether the jury system itself is wholly adequate to suit the needs of a modern society where terrorism and lawlessness abide?

Mr. Arthur Davidson

The next course might be not just whether the sentence is inappropriate but whether it is lenient.

Mr. Lawrence

I am going down another path at the moment. How long will it be before we abolish the jury system and substitute the decision of either single or dual judges? How long before it is considered that some of the rules of evidence which we have consistently embraced as being a fair test of a man's innocence or guilt begin to be eroded? How long will it be before judges suggest that defence speeches are too long and repetitious and that cross-examination is too lengthy? Do I strike some chord of recollection in the ears of hon. Gentlemen opposite who even now recall reading in the newspapers of observations by judges who are frustrated at the inadequacy of the existing system to deal with lawlessness?

How long will it be before counsel are frightened to take a case? How long will it be before in a particularly obnoxious case a client will not find it easy to get a counsel to defend him? It happens. It happened in the case of Shcharansky in the Soviet Union. It is difficult for counsel who want to enter a plea of not guilty to expect that they will long remain in their chosen profession under a regime which has slipped away into totalitarianism. It is because that is anathema to our system that we should not begin the process.

My third objection is that the process would savour of vindictiveness and hounding. We are appalled at the prospect of double jeopardy. My hon. and learned Friend the Member for South Fylde was driven to deny that there was any element of double jeopardy in reconsidering a man's sentence. There are many forms of double jeopardy. It is one form of double jeopardy to retry a man who has been acquitted and it is another to reconsider the adequacy of the sentence. The purpose of reconsidering the sentence would be to impose a harsher one. That would be repulsive to the historic principles of English law. It astonishes me that any hon. and learned Friend of mine could seriously put his name to the matter.

I could continue but there are other hon. Ladies and Gentlemen who want to speak, and my view is not the only one. It does appear that this new clause is ill-considered in the light of the effect it would have on the historic attitude and processes of our criminal legal system. It appears that it is impracticable to operate, by virtue of the exchanges we have heard. As the right hon. and learned Member for Dulwich said, there would be difficulties for an Attorney-General having to call in papers, examine transcripts and deal with the matter by reference to newspapers. We know how unbiased they are in their reporting. We know how much trust we can repose in the media because we have had recent evidence of that, particularly with the BBC. I hope that nobody will blame me for taking the opportunity of getting that matter in.

Therefore, I hope that the new clause will be dealt with by the House on its merits—that is, no merit at all—and I hope that we shall not allow ourselves to be a party to the reversal of any of the traditional, historic, well-established and well-regarded principles that are fundamental to our British legal system.

Mr. Arthur Davidson

The hon. and learned Member for Burton (Mr. Lawrence) has painted a gruesome picture of the effects that the new clause could have upon the traditions of the English legal system. I am not sure that I would read quite so much into it, but, from what he has said and from what my right hon. and learned Friend the Member for Dulwich (Mr. Silkin) has said with all the authority of an ex-Attorney-General, I believe that it is an illogical and inappropriate way to deal with inappropriate sentences.

The hon. and learned Member for South Fylde (Mr. Gardner), who is experienced in legal matters, knows that he cannot hide behind the fact that the new clause does not seek to involve the prosecution in the sentencing process, because it is inescapable that that will be the ultimate effect. Neither he nor anyone who has pride in the impartial way in which prosecutors present the case would wish that to happen, but it is not logical to suggest that the Attorney-General should have power to remit a case on the ground that the sentence is inappropriate without discussions with the prosecution and without the prosecution having expressed a view upon it. If the prosecution expresses a view upon it, the logical conclusion is that during the trial the prosecution should express a view about the ultimate sentence. If that were to happen, the whole role and tradition of presentation by the prosecution would be changed, as the hon. and learned Gentleman well knows.

Mr. S. C. Silkin

My hon. and learned Friend is making a very important point. Might not one effect be the prosecution indicating to the judge how the Court of Appeal dealt with a previous similar case in which the sentence was increased?

Mr. Davidson

That is a possible conclusion. For fear that the judge might pass an inappropriate sentence, the prosecution would seek to introduce as much evidence as possible relevant not to obtaining the correct verdict but to obtaining a heavy sentence. That is the inevitable logic of the new clause.

The same would apply to the police. The pressure upon them to gather information that would strengthen the court's inclination to lengthen the sentence would be irresistible. There would be a strong tendency, for which they could not be blamed, to bring forward as much information as possible to obtain the longest possible sentence. They would do that because the hon. and learned Member for South Fylde would have achieved the creation in the police and in the prosecution of a personal interest in the sentence, rather than an institutional one as at present. The hon. and learned Gentleman, in my view, cannot really answer that argument.

My right hon. and learned Friend the Member for Dulwich spoke of the difficulty that an Attorney-General would feel if he were burdened with this responsibility. We in this House know that successive Attorneys-General, on both sides of the House—I include the present Attorney-General—have the ability to walk that tightrope of being political appointees while exercising fairness and impartiality in their decisions as guardians of the public interest.

The danger of the new clause lies in involving the Attorney-General, even if he did not wish it, in overall Government policy on law and order. That would be the irresistible conclusion that the public would reach.

The other conclusion would be this. The hon. and learned Member for South Fylde suggests that if this power were given to the Attorney-General the public would be reassured that inappropriate sentences would be rectified. There is a public concern about that. I accept that, as does everybody else, but I do not believe that that would be the conclusion. In any given case where there was a public clamour in the newspapers for an Attorney-General's reference to be made and the Attorney-General did not make that reference, the public would be even more concerned. They would say that the Attorney-General had not carried out his public duty or even his political duty—the duty which he was elected to carry out. That would dangerously erode the high reputation that Attorneys-General rightly have in the constitution of this country.

There are other more obvious reasons. It would be oppressive and unfair for any convicted person who has had all the torment and horrors of a criminal trial and who has been convicted and sentenced to have hanging over him the fear that his sentence might ultimately be overturned and a heavier sentence imposed. That may not be double jeopardy, but it is certainly jeopardy and is oppressive and in many ways offensive to all our traditions. It is, as it were, single jeopardy or additional jeopardy, as the hon. and learned Member for Burton rightly points out.

If the hon. and learned Member for South Fylde feels that this new clause is necessary, I should have thought that he would at least limit it to cases where the judge has got the law wrong, as he certainly appeared to have done in the notorious rape case by his introduction of the strange doctrine of contributory negligence, but that is not provided for in the new clause either. If this new clause were to be adopted, it would be more logical for the Minister to change the nature of the prosecution system by introducing as a prerequisite a national prosecution agency where the prosecution is seen to be an independent force.

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The added difficulty, which I am sure that the Minister does not intend, is that there could be a tendency for judges to give a longer sentence than perhaps a case merits, which goes against the whole flavour and intent of the measure.

In all the circumstances, the House should feel that, although this has been a useful debate, the new clause should be rejected. If it is not, the traditions of our legal system will be changed for the worse.

Mr. Best

It is clear that the House is against the new clause, but my hon. Friend the Member for Plymouth, Sutton (Mr. Clark) and my hon. and learned Friend the Member for South Fylde (Mr. Gardner) are right to say that there is a sense of public outrage at some of the sentences passed in our courts. However, I am sure that they would be the first to acknowledge that it is wrong to say that there is a general sense of disillusionment with the majority of sentences. The majority are not open to challenge. The new clause is designed to remedy those that cause a sense of outrage.

We must ask ourselves what causes that sense of outrage. Surely it must be, in the majority of cases, the way in which sentences are reported in the press. Sadly, the general public do not have access to all the mitigating circumstances and the details of the trial, or of the offence to which a defendant has pleaded guilty. Therefore—I say it with respect to the general public—they are not competent in most cases to make a definitive judgment as to the validity of a sentence. Those who are competent are the people who sit, in decreasing numbers, in the public galleries of our courts and who hear all the facts and the mitigating circumstances.

Although I acknowledge that both my hon. Friend and my hon. and learned Friend are correct in their estimation that there is a sense of public outrage, they are incorrect about the remedy for it. The remedy must be a better way of reporting court cases so that the general public can have access to the facts that they would have if they sat in the public gallery. I suspect that many hon. Members would say that that is clearly impractical and that it is impossible to publish verbatim in the newspapers all the circumstances, facts and mitigation in a case. They are absolutely right. If that is the case, it means, even more persuasively, that the new clause is not the way to deal with abuse. If I am correct, it is an ill-founded concept in any event.

Mr. S. C. Silkin

I agree entirely with the hon. Member for Anglesey (Mr. Best). It is not only impractical, but in many cases it would be completely undesirable, that all the matters taken into account by the judge, including social inquiry reports, should be ventilated in public.

Mr. Best

The right hon. and learned Member for Dulwich (Mr. Silkin) speaks with great force on such matters, as a former Attorney-General, and he is right. The point that I wish to establish is that because the general public feel a sense of outrage at some sentences, it does not necessarily mean that the sense of outrage is well-founded. If only the facts were available to a wider public, many members of the public would realise that the sentence was absolutely right. I accept, however, that that does not entirely dispose of the argument of my hon. and learned Friend and my hon. Friend. Inevitably, there will still be cases where a judge gets it wrong. Just as a judge can get it wrong in law, so the judge can get the sentence wrong in the opinion of those who sit around the court and feel that the sentence should be other than the one that was passed.

Who is the custodian of the public conscience in terms of sentencing? Is it the judge in the courtroom where the sentence is passed, calling into account all his experience at the Bar and as a member of the Law Society, and all the surrounding circumstances which he understands as a member of the general public as well as a member of the judiciary? Or should the public conscience be, not the judge at the trial, but the Attorney-General in this place? My hon. and learned Friend and my hon. Friend are saying that the Attorney-General should be the final arbiter of the public sense in matters of sentencing, and that it should be removed from the judge—accepting, of course, that the Criminal Division of the Court of Appeal would make the final decision, and not the Attorney-General, on the sentencing.

How will the Attorney-General gauge whether a matter is one of sufficient public outrage that a reference should be made? Surely it can only be by reading the newspapers which express a sense of outrage, either in letters from readers or in editorial comment, and I hope that I have already demonstrated to the House that that is a highly inaccurate way of gauging the true sense of public opinion on a particular case.

If that is so, it must surely be right that the custodianship of the public sense in terms of sentencing should still rest with the judiciary, and not with a political officer in this House, the Attorney-General.

Mr. Alexander W. Lyon

I am completely against the new clause. The hon. and learned Member for South Fylde (Mr. Gardner) was right when he said that the practice that used to obtain, of allowing the Court of Appeal to increase a sentence if the court thought that the appeal was inappropriate, was abolished some time ago. He was in favour of that abolition, and said that it had nothing to do with a proposal of this nature. I accept that.

This is a wholly novel proposal for English law, though it is not the first time that it has been made. It was made by my right hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley) a few years ago, after another rape case. The House voted on it in a Ten-Minute Bill, and rejected it. If there is any possibilty that this proposal will get off the ground, I hope that it will be voted down tonight.

In introducing the new clause, the hon. and learned Gentleman and the hon. Member for Plymouth, Sutton (Mr. Clark) suggested that they would be happy if the Minister sent it to the Criminal Law Revision Cornmitee. I should not be happy about that. In practice, the fact that it has been referred by Parliament to that Committee gives it a start. Because the proposal has been urged by hon. Members, the Committee thinks that a proportion of opinion in the House is behind it. If that were to happen, simply as a means of getting rid of this new clause, it would be disastrous.

The Criminal Law Revision Committee and everybody else ought to know that the strength of feeling in the House is almost completely opposed to the proposal. The reasons have been given by several hon. Members. The best reason has been given by the hon. Member for Anglesey (Mr. Best). There is no such thing as a right or wrong sentence. There is a perception, which is frequently subjective, about whether a sentence was too lenient or too heavy. Where it is thought, by the accused in particular, to have been too heavy he can appeal. The Court of Appeal then takes a view about whether the sentence was too heavy.

To give the Court of Appeal the right to decide whether a sentence was too lenient is to provide that the Court of Appeal might be able to drag up a sentence rather than drag it down. That flies in the face of the mood not only of the House but of people outside in recent years that sentencing on the whole for offences that were not violent has been too heavy and that there should be some degree of shorter sentencing.

If we were to pass this clause it would be an indication to the judiciary that we were reconsidering that mood. I do not want to reconsider it. It is highly desirable that we should get towards shorter sentences as quickly as possible. Therefore, I would not be in favour of the new clause.

Who would be able to estimate whether there was a sufficient head of steam to allow the Attorney-General to intervene? The hon. Member for Anglesey is right. The Attorney-General would decide by reason of the screaming headlines. It would be The Sun or the Daily Express that would decide whether public comment was such that the case ought to go to the Court of Appeal. Those who believe, as apparently the hon. Member for Plymouth, Sutton believes, that judges are not affected by this cannot know what judges are like. Of course they are as affected by criticism in the press as anybody else. The only difference is that those of us in public life who have been subjected to such criticism know better how to bear it. The judiciary feel it strongly. There is no doubt that it makes a difference to their decisions. It has been suggested that after one of these outbursts of public indignation in the newspapers the Court of Appeal can take a certain view; of course it can. It can respond to public pressure through the newspapers. That is not a sensible way to proceed.

If we take rape as an example, it is not right to say that there should never be a non-custodial sentence for the offence of rape. Rape varies in its enormity from one case to another. It can be the most odious kind of violent offence, but it can also be an offence which is only marginally over the border from a woman saying "Yes" to a woman leading a man to the position where he thinks she is going to say "Yes" and at that stage she says "No". It is still rape and the man is convicted of a serious offence. But anybody who believes that that kind of rape requires a custodial sentence is flying in the face of common sense.

If in such a case a judge decides that it is wrong to send a man to prison, he may couch his language in the wrong way. It may be that we would take a different view but he is surely entitled to take a view on all the facts that a lenient sentence is desirable. Then all the pressure groups in society who are concerned about rape scream about that decision and ask that the sentence should be revised. If this clause were enacted, the Attorney-General would feel that he was under considerable pressure to send that case to the Court of Appeal. It is in that sort of situation that injustice could be done.

The hon. and learned Member for South Fylde said that that would not be double jeopardy. I do not know what it would be if it is not double jeopardy. The man has been put before a court and considered for sentence and then he is being sent to another court so that the same facts may be used to justify not a lower sentence, which certainly would not put him in double jeopardy, but a higher sentence, which would. In those circumstances it flies in the face of our whole tradition of sentencing that we should take this kind of step.

I hope that the Minister will make it clear that the Government will not go any distance along that road. If he were to say to those who proposed the new clause that it might be considered in future, we should vote to ensure that it is known that we are totally opposed to that.

9 pm

Mr. Edward Lyons (Bradford, West)

We have a phenomenon in political life where every time the Court of Appeal does something which those on the Left do not like, they attack the judiciary as being biased. Now we see a similar emanation in the new clause. Those on the Right, where there is mistrust of judges who do not make sentences severe enough for their taste, seek to call in aid a member of the Executive branch of the Government to act as a sort of interim court of appeal and to act as a quasi-judge who will consider whether the sentence is too low. If it is, he will use all his authority to pass it upwards to the Court of Appeal.

I deplore what amounts to a vote of no confidence in the judiciary, which is embodied in the new clause. It is a retrograde development to ask a member of the Executive, the Attorney-General, to take a hand in the sentencing process. There is no doubt that when an Attorney-General refers, the Court of Appeal will take the view that he is referring because he thinks that there is something in the charge that the sentence is too low. The Court of Appeal will start from that basis.

I believe that the judiciary alone should be responsible for sentencing and that the Attorney-General should have nothing to do with it. If one starts allowing members of the Executive to interfere in that way in sentencing, one could open a Pandora's Box of other nasty developments. As far as possible we must try to keep the Executive and the judiciary separate. Where we allow the Attorney-General to intervene, it should be on the side of action that deals with points of law or something in the general public interest.

The Court of Appeal criminal division has much work on its hands from people appealing against sentences which, in their view, are too severe. To add to the workload of the Court of Appeal criminal division by producing a flow of work from the other direction—appeals against sentences that are too low—would be expensive. More judges would be required if the Attorney-General were active in pursuit of his references. It would also be expensive because of the cost of transcripts.

An Attorney-General dare not refer unless he has seen a transcript of the case. When a Member of Parliament gets in touch with the Attorney-General and asks him what he thinks of a sentence or when the Attorney-General reads a newspaper proclaiming from the depths of ignorance that a sentence is wrong, the first thing that he must dc to protect himself from criticism is to call for a transcript.

The shorthand writers will have a lovely time preparing all the transcripts at public expense. The poor old Attorney-General, who is already one of the most overworked members of the Administration, whichever Attorney-General is holding the post at the time, will h aye to read large numbers of transcripts, with the aid of a small staff, to see which of the cases justify reference.

Mr. S. C. Silkin

Does it not inevitably follow, despite what was said in support of the new clause, that the Attorney-General would have to ask those who prosecuted at the trial whether they thought the sentence was inadequate? Indeed, who will the Attorney-General use to present the case to the Court of Appeal, if not the prosecution?

Mr. Lyons

The right hon. and learned Gentleman is right. I remember how hard he worked with his small staff when he was Attorney-General. The idea of saddling him with large numbers of transcripts every time the relatives of a victim felt that the sentence was inadequate, or the newspapers or a Member of Parliament decided that a sentence was not appropriate, is horrifying.

Furthermore, there is an old legal maxim—ut sit finis litium—which means that there should be an end to litigation. That maxim is eroded to the extent that we allow persons whose sentences in their view are too severe to appeal. But we should resile from eroding it still further by saying that the matter should be kept open when the sentence is not regarded by the convicted person as being too high.

If the new clause were to be enacted, clever people would wait for the judge to pronounce sentence and then say "If we do not get the press here, how can we put pressure on the Attorney-General?" First, those anxious for a higher sentence would get reporters into court, otherwise, they would not be able to get the publicity that is needed to put pressure on the Attorney-General. Therefore, those involved would be running around notifying journalists who are not often in court when sentences are passed, particularly when there are several courts in the same building. They would say to the press "Come on, you had better get here; if you are not here to hear the sentence we have no means of bringing this before the Court of Appeal." The judge, who may be only a simple humble recorder or a new judge, would suddenly see the press coming into court. He would know why they were there. He would think that they were waiting to discover whether the sentence was too low—a pressure on him to give a higher sentence than he would otherwise think right. Therefore, the new clause has nasty aspects.

Another problem is that the new clause, remarkably and surprisingly, gives an appeal direct to the Court of Appeal criminal division on sentence from magistrates' court. At the moment it is not possible to appeal to the Court of Appeal criminal division on sentence from a magistrates' court. Appeals are made to the Crown court. In cases from the magistrates' court, what should the Attorney-General do? Should he do nothing or should he say that the prosecution has right of appeal to the Crown court and, therefore, in this type of case, he will send it direct to the Court of Appeal? Accordingly, if a sentence is regarded as too high it goes from magistrates' court to Crown court but if it is too low it goes from a magistrates' court to the Court of Appeal. What sort of common sense is that? If this type of new system is introduced, there must be some parity. It is an absurd proposal and I hope that the House will not entertain it for an instant longer.

Mr. Mayhew

This has been a lengthy debate, although hardly a two-sided one. It was important that so radical a change in our procedures should be thoroughly examined. I note at the outset that it seems to be a radical procedure to make in order to deal with what my hon. and learned Friend the Member for South Fylde (Mr. Gardner) described as something that fortunately rarely happens—the sentence that appears to be excessively lenient. I do not underrate the importance of reassuring the public in their anxiety about sentences that appear to be excessively lenient, although I agree with my hon. and learned Friend that such cases rarely arise.

The publicity that such cases attract, when the ordinary run consistent with the normal pattern and tariff of the sentences naturally enough attracts no publicity at all, gives a misleading impression to the public of the general pattern of sentencing in our courts. The general pattern and tariff of sentencing in our courts is not vulnerable to such criticism.

If and when mistakes—if they are mistakes—occur, it is right that we should persist with the present practice whereby the Lord Chief Justice usually manages to find an early opportunity to restate the correct sentencing principles. That is what happens. That is our practice.

When addressing ourselves to the new clause, we must recognise that in practice this will be a right of appeal, admittedly an indirect one, conferred on the prosecution.

My hon. and learned Friend the Member for South Fylde said that it should be for the Attorney-General to be the judge of that public indignation. It is common ground that from time to time public indignation is occasioned by cases of this nature, and we agree that it is a bad thing that the public should be indignant about any feature of our criminal justice system. My hon. and learned Friend said that the Attorney-General should be the judge of that public indignation, but he was anxious to abjure the suggestion that the Attorney-General should be influenced by the newspapers.

My hon. Friend the Member for Anglesey (Mr. Best) suggested that this would be trial by media and that these matters would be dealt with by the publicity that they attracted. Naturally, my hon. and learned Friend was repelled by that idea and said that that would not happen, nor was it the intention.

If the Attorney-General is not to be influenced by what he has seen in the newspapers or on television or heard on the radio, what will enable him to judge public indignation? The answer must surely be the consultations that he has with the prosecution. That point was made by the right hon. and learned Member for Dulwich (Mr. Silkin) and my hon. Friend the member for Anglesey. I do not for the life of me see who else he will consult. It will not be the defence, and if he cannot pay attention to what is in the media, it will be the prosecution.

In those circumstances, I would not blame the Attorney-General for consulting the prosecution, or at least paying attention to what the prosecution says, were he to be given this jurisdiction. However, all of us must have noted what the former Attorney-General, the right hon. and learned Member for Dulwich, said about what he regarded as the most distasteful power that could ever be given to him. He said that he would never wish to exercise it.

One must not conceal from oneself the fact that in practice the new clause would confer, albeit indirectly and through the filter of the Attorney-General, a right of appeal upon the prosecution. There is the additional point, again made by my hon. and learned Friend the Member for Burton (Mr. Lawrence) that the Attorney-General, who would be the recipient of this jurisdiction, is, as he described it, the highest prosecuting authority in the land, in the sense that he directs the DPP.

9.15 pm

We all agree that the prosecution should not have a right of appeal, direct or indirect. My hon. and learned Friend the Member for South Fylde was at pains to say that he did not want that because it was wrong. However, there are others who may not see so clearly that this would be, not only a great departure from our practices and traditions but dangerous. I shall explain briefly why I think that.

The start point must be that it is the judge's responsibility, under our system, to ensure that a balance is kept between the interests of our society and the interests of the offender. Once the facts have been adduced by the prosecution, or have been established by the evidence, the gravity of the offence has been adequately exposed. It is then for the judge to take into account any mitigating circumstances, and any evidence about the prevalence of the offence and then to decide on the appropriate sentence in the light of the material before him. We do not give the prosecution, as happens in some other systems, any function other than suggesting, or demanding, a particular sentence.

As a party in the criminal proceedings, the Crown is only properly interested in the issue of guilt or innocence. It has no interest in the selection of available sentences. As long as the prosecution has no role in the sentencing at first instance, it has no place, and it would be out of place to give it one, in the suggested indirect right of appeal. The judge whose decision was being appealed against would have no opportunity to adduce arguments about why he should have taken a different course.

To give the prosecutor a right to be heard on the question of sentence would be damagingly to blur the prosecution's position as established in this country. These matters must be left to the courts. No doubt from time to time, they will, if one takes an objective view, get it wrong. I agree that it is very rare that they get it wrong. When that happens, it must be left to the courts to reestablish, through the Court of Appeal, the proper sentencing practice.

A right of appeal for the prosecution against a lenient sentence would—this has not been touched upon—introduce an unjustifiable element of uncertainty—whether by the prosecution or through the medium of the Attorney-General makes no difference for the purpose of this argument. Let us suppose that somebody has been sentenced to community service, and indignation has risen, although the order and sentence have been served. Months later, following the operation of the system, when transcripts have been sent for and the attorney has considered all the points, no matter how it was brought to his attention, it would be unjustifiable for the Court of Appeal, following a referral by the Attorney-General, to impose a custodial sentence. That would not be justifiable in our criminal justice system.

Another practical illustration of what would happen is that the police would be regarded by the public as the prosecuting authority. There would be a great deal of pressure to appeal against too lenient a sentence. This would not assist the police in their relations with the public. A filter whereby appeals could be mounted only by the authority of the Attorney-General would not be likely to stem that pressure.

I am not surprised that no hon. Member who has taken part in the debate—there have been numerous speakers on both sides of the House—apart from the two hon. Members who have put their names to the clause, felt it possible to support it. I accept that in a few cases what appear to have been exceptionally lenient sentences have been passed. That is regrettable. We must all do our best to see how that can be mitigated.

This has been a valuable debate, for which I am grateful. I am authorised by my right hon. and learned Friend the Attorney-General to say that I have his support in my view that we ought to keep this small number of cases in proportion and to rely on the judiciary for a corrective outside any formal appeal or referral system, whether direct or indirect. I must therefore decline the invitation to commit my right hon. Friend to submit this suggestion to the Criminal Law Revision Committee. I certainly give no such commitment. I am afraid that I cannot do other than advise the House to withold support from the new clause.

Mr. Ronald W. Brown

The Minister's reply worries me a little. As he knows, am dealing with a tragic case in my constituency where someone was taken to court for misbehaviour and two of my constituents—Mrs. Dodds and her husband—were asked to be witnesses to the occasion. They appeared at court before the magistrates, Mr. Taylor, Mr. Oulton and Mr. Nabarro. The person who was being prosecuted was found guilty. She was fined £50 for having broken her recognisance of an earlier sentence for breach of the peace. The magistrates—these educated, dedicated, idiots—decided to say that they would hind everyone over.

Mr. Lawrence

On a point of order, Mr. Deputy Speaker. Is it in order to carry on debating a new clause that has been withdrawn?

Mr. Deputy Speaker (Mr. Ernest Armstrong)

It has not been withdrawn.

Mr. Brown

I was endeavouring to draw your attention, Mr. Deputy Speaker, to the fact that the magistrates, having decided to find the person guilty, attempted to bind over my two constituents. My two constituents decided not to be bound over as they were only witnesses. As a result, they have been sentenced to 28 days' imprisonment each. They were taken down to the cells, stripped, had all their valuables taken away from them and were then brought back upstairs to the court in the afternoon. They have now been bound over on £50 bail to appear at the Crown court on appeal.

I wish only to put to the Minister of State the argument that the new clause would have helped in that case. The hon. and learned Gentleman says that he cannot help me. The Lord Chancellor says that he cannot help me and that it is the Home Secretary's job to help me. The Home Secretary now tells me again that he cannot help me. I have two constituents who were not involved in a case but who were giving evidence as witnesses and who are both under sentence of 28 days' imprisonment. They have to go to the expense of going to lawyers to fight a case in the Court of Appeal. I want to know what sort of society it is when that sort of thing can happen to ordinary, innocent people. The warning must go out to any witnesses that if they go to this court in Old Street, they are likely to find themselves in prison for giving evidence.

Mr. Alan Clark

I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

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