RIGHT OF CROWN TO APPEAL AGAINST SENTENCES

HC Deb 31 March 1987 vol 113 cc1028-49

'(1) Where a person has been convicted of an offence on indictment the prosecution may appeal to the court of appeal in any case where the sentence is manifestly inadequate.

(2) An appeal lies under this section only with the leave of the court of appeal.

(3) The Court of Appeal in dealing with an appeal against sentence under this section may, if they consider that the sentence is manifestly inadequate and that the defendant should be sentenced differently:

1. (a) quash any sentence or order which is the subject of the appeal; and
2. (b) in place of it pass such sentence or make such order as is appropriate for the case and which the Court below had power to pass or make when dealing with him for the offence.—[Mr. Hind.]

Brought up, and read the First time.

Mr. Kenneth Hind (Lancashire, West)

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

Mr. Deputy Speaker (Mr. Ernest Armstrong)

With this it will be convenient to take the following amendments: No. 60, in page 19, line 17, leave out Clause 29.

No. 61, in clause 29, page 19, leave out lines 19 to 21 and insert `concern, he shall refer the case to the Court of Appeal to obtain a review of the sentence in question'.

Government amendment No. 62.

Mr. Mark Carlisle

On a point of order, Mr. Deputy Speaker. Will we have the opportunity to divide, if we so wish, on amendments Nos. 60 and 61 as well as on the new clause?

Mr. Deputy Speaker

That will be decided when that stage is reached.

Mr. Hind

It will be clear to anyone who reads the Amendment Paper carefully that amendment No. 60 is dependent upon the new clause in that it deletes clause 29, which the new clause is designed to replace. The new clause seeks to impose standards of sentencing upon the courts. It is geared to the guidelines that have been provided consistently by the Court of Appeal and by directions from the Lord Chief Justice, which have been passed on to judges at sentencing conferences.

At present, anybody who receives an excessive sentence can appeal to the Court of Appeal to have his sentence reduced so that it conforms with the guidelines. The same opportunity is not afforded to victims of crime when the accused is given a manifestly lenient sentence. Neither the prosecution nor the victim can draw the attention of the Court of Appeal to that lenient sentence and ask for it to be increased. That was made abundantly clear in the Ealing vicarage rape case. The attention of the public was drawn to the leniency of the sentence that was passed on one of the accused. The guidelines were clearly not adhered to in that case, but there was no remedy.

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The clause extends to the victims of crime the same privilege as is extended to defendants. If a judge continues to give lenient sentences, those sentences cannot be reviewed. New clause 20 deals with that problem. It stresses that the sentence must be manifestly inadequate and that it does not meet the guidelines, before there can be an appeal to the Court of Appeal.

For the first time, a more important role is provided for prosecution counsel. Having called upon a police officer to read out the antecedents, counsel will no longer be able to close his brief and say, "My part in this case is over." He will be obliged to advise the Crown prosecutor of the adequacy or otherwise of the sentence that has been passed. Some people fear that for the first time the prosecution will be involved in the passing of the sentence. It will not be involved in that process; nor will it have to say what sentence it thinks should be passed. It will make sure that the guidelines are complied with and if, in all the circumstances, the sentence is manifestly too lenient, it will have to say so.

Mr. Maxwell-Hyslop

Is my hon. Friend able to advise me, as a non-lawyer, whether subsection (3)(b) of his excellent new clause would include the power to ask that a criminal bankruptcy order be made if the trial judge omitted to make such an order?

Mr. Hind

Yes.

The social inquiry report is a problem. If the prosecutor is not satisfied with the sentence that is passed, he can ask at the end of the case to see the social inquiry report. I stress that he can do that at the end of the case. It is the property of the court. Only convention has prevented the prosecution from having sight of the social inquiry report that is prepared for the benefit of the court.

Once the prosecutor decides that the sentence is manifestly inadequate, he will advise the Crown prosecuting solicitor, who will then submit grounds of appeal to a single judge of the Court of Appeal. If the single judge thinks that it is an appropriate case to go before the Court of Appeal, there will be a full hearing. Under new clause 20 the Court of Appeal would have the power to increase the sentence on the accused if, in all the circumstances, it was seen to be manifestly inadequate.

In a courtroom there are a number of factors that we must consider. The state is there not only to represent the interests of justice and to prosecute the case, but to make sure that justice is seen to be done. In those circumstances, it is important to allay much of the dissatisfaction of the general public by ensuring that sentences are seen to be fair and balanced and that both sides of the courtroom—the defence and prosecution, the state's representatives and the victim's representatives—have the same treatment and equality. In that way we will develop consistency in sentencing and we will ensure that justice is seen to be done on a consistent basis.

Mr. Cash

My hon. Friend's name is the only one attached to the new clause, but I am sure that other hon. Members would want to congratulate him on bringing forward this very important matter.

Mr. Hind

I am much obliged to my hon. Friend.

One of the reasons why I introduced the new clause is that I believe that weaknesses exist in clause 29 as it stands. I commend my right hon. and hon. Friends, the Ministers in the Home Office, for accepting that there is a need to review lenient sentences. My advice to them in the circumstances is that clause 29 does not go far enough. It could be strengthened by the adoption of new clause 20.

I have certain reservations about clause 29. It involves the Attorney-General in a political role that he has not had before. This will mean that should a sentence be highlighted in the tabloid press, hon. Members will receive hundreds of letters asking them to urge the Attorney-General to refer the case to the Court of Appeal. That is an entirely new role for the Attorney-General, and that is a road down which we do not want to travel. It will ultimately lead to questions in the House about specific cases at Question Time when the Attorney-General answers questions. I respectfully suggest that that is the wrong way for us to proceed.

My next point is more fundamental. If an accused person receives a manifestly inadequate sentence, that will leave the victims and, in the case of murder, the deceased's relatives, with a feeling of deep dissatisfaction. They would then press for the case to be taken to the Court of Appeal, and they will hear the Lord Chief Justice of England say that he is very sorry that the sentence passed on the accused was totally inadequate, but there is nothing that he can do about it. That will bring the law into disrepute. It will rattle some of the faith that the public have in the law. I can see that it will result in TV crews on the steps of the courts in the Strand with the victims in tears saying, "How can they do this to me? This is a massive injustice." Clearly, the result will be that the tabloid press will take the matter up and it will become the talk of the day.

Pressure will be placed on the House to achieve the result that new clause 20 sets out to achieve. If that is the position that my right hon. Friend and hon. Friends are seeking they can achieve it in the way that I have just described, or they can achieve it by adopting new clause 20.

I have proposed new clause 20. If the Government do not accept it, I am prepared to put up with clause 29 in the short term. I am sure that many of my colleagues know that in a short time we shall be back here to put on to the statute book a clause similar to new clause 20.

Mr. Alex Carlile

There are three possible positions on this issue. One, which is perfectly logical, has been put forward by the hon. Member for Lancashire, West (Mr. Hind). I do not agree with it, but at least it has the appeal of logic. The other logical position is the one that I would adopt, which is set out in amendment No. 60 and involves the removal of clause 29. The prosecution should not and need not become involved in appeals against sentence to the Court of Appeal. The problems, such as they are, can he dealt with by handing down further guidelines from the Court of Appeal and possibly by strengthening the Judicial Studies Board, as proposed by the Government in their White Paper. I do not understand why they have changed their mind.

The third position totally lacks any kind of logic. It is the one for which the Government have gone. It is a hostage to fortune, because it requires the Attorney-General to make some political decisions on issues which would be unwelcome to any Attorney-General. It asks that there should be a reference to the Court of Appeal in certain cases. One can envisage the Court of Appeal saying, "The sentence should be doubled, but we cannot do anything about it because that is the law that Parliament has provided." It is absolute nonsense. I hope that we are given the opportunity to vote on amendment No. 60, because that is how the law should be. We should not have been troubled with this provision.

Mr. Mark Carlisle

My name is shared by four hon. Members; one spells it differently, but I totally agree with every word uttered by the hon. and learned Member for Montgomery (Mr. Carlile).

I shall speak only on amendment No. 60, but we cannot let the Bill proceed without those of us who feel strongly about this matter saying that clause 29 is nonsense, for the reasons given by the hon. and learned Member for Montgomery. The purpose of clause 29 is to deal with the occasional case of considerable notoriety in which it appears that a court has given a sentence which the public thinks is inadequate. It passes my understanding how one can believe that the public's concern will be assuaged by that case being referred to the Court of Appeal for it to rap the judge over the knuckles and say, "Your sentence was wrong, but we shall not do anything about it."

I go a little further than the hon. and learned Member for Montgomery. One must be realistic and take the cases involved. The hon. and learned Gentleman talked about the case of a person sentenced to imprisonment. Let us say that the Attorney-General takes the view that the sentence is totally inadequate and he refers the case to the Court of Appeal. That court says, "Quite right. It should not have been three years. It should have been eight." But the man serves only three years. How much more so does this affect the person who is given a non-custodial sentence and whose case is referred to the Court of Appeal? The Court of Appeal says, "Quite right. That man should not have been given a non-custodial sentence. He should have been imprisoned for five years. But we shall not imprison him. He can still walk freely around the streets in front of you all." I cannot believe that a reference of that nature can possibly assuage public anxiety about the sentence or see how in any way the Court of Appeal saying that the sentence is inadequate can meet that anxiety.

The provision is wholly unnecessary. If a sentence causes a great deal of concern, in reality the Court of Appeal takes an appropriate opportunity in another case to express guidelines for future sentences. That does not require the charade of referring individual cases to it which it cannot change.

An individual case will not be filed under the name of the individual concerned which, again, is ludicrous. Is it seriously suggested that a case which attracted a great deal of publicity should be given a reference such that the public will not link it to the case that made the front page of the tabloids the previous month? The public will be aware of the case and their anxiety will not be assuaged when the court says that the sentence is inadequate but will do nothing about it.

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As my hon. Friend the Member for Lancashire. West (Mr. Hind) and the hon. and learned Member for Montgomery have said, the Attorney-General is placed in an impossible role. He is responsible and answerable to the House. If he has a power by statute, he can be questioned about it. Under clause 29, if anybody anywhere considers any sentence to be in any way inadequate, he can write to his Member of Parliament who will he entitled to write, and justified in writing to the Attorney-General to ask why he has not referred that case to the Court of Appeal. The Attorney-General will have to face a barrage of letters and will be answerable from the Dispatch Box for his decisions whether to refer a case to the Court of Appeal. We are in grave danger of drawing the Executive into sentencing.

I have spoken for longer than I should have done. I do not know whether it is right to divide the House at this hour, but, to the disappointment of the Government, a similar proposal was thrown out in another place when it appeared in another guise in another Bill and I hope that their Lordships will take a similar view on this occasion.

Mr. Maxwell-Hyslop

I am grateful to Mr. Speaker for revising his provisional selection of amendments and new clauses to include this group.

I shall explain briefly why I much prefer the phrasing of new clause 20 to amendment No. 61. Under amendment No. 61, the power of the Court of Appeal is limited to sentencing. The greatest of the injustices that can fall on an individual victim as opposed to society at large is if the trial court fails to make a compensation or criminal bankruptcy order. My hon. Friend has confirmed that the drafting of new clause 20 would enable such a compensation order or criminal bankruptcy order to be made. Amendment No. 61, on my reading of it, would not enable such orders to he made because that is not technically a sentence. If new clause 20 is pressed to a Division, I shall support it. I would not support amendment No. 61, unless the new clause were defeated.

Mr. Gale

While the hon. and learned Member for Montgomery (Mr. Carlile) in Committee was expounding the case for yet another quango, my hon. Friend the Member for Lancashire, West (Mr. Hind) was making—just as eloquently as he has done tonight—the case for his new clause.

The Government have taken on board the disquiet. caused by certain sentencing practices and have endeavoured to deal with that in clause 21. All the arguments that were voiced against clause 29 in Committee were given a sympathetic hearing by Ministers who are working on the Bill. Those arguments are valid.

Having gone part of the way to recognising the public diquiet, I hope that the Government will take on board the views expressed in the House tonight, which reflect the points that were made in Committee. I hope that this clause will be accepted here or in another place.

Mr. Patrick Nicholls (Teignbridge)

Behind new clause 20 there are two concerns felt by the public. The first is that we are in the middle of an unprecedented crime wave. The second—recently summed up by The Times—is that in some way the villains are getting away with it.

We are not in the middle of an unprecedented crime wave. Last year, the sociology department at Leicester university produced a study entitled "Violent Disorders in 20th Century Britain", which showed that the average Briton's chance of being murdered was 25 per cent. higher in 1860 than in 1980, and that the rate of violent disturbances in the early years of this century was five to seven times the present rate.

That concern is more illusory than real, but the public believe that in some way the villains are getting away with it. The public have seen many cases reported in the newspapers where vastly over-lenient sentences have apparently been imposed. The key word is "apparently". If people believe that over-lenient sentences can be imposed, their respect for the law will be undermined. We must address that problem.

Mr. Chris Smith

The hon. Gentleman seems to base his rather odd statement that we are not in the middle of an unprecedented crime wave on the fact that violent disorder in the streets is less now than it was in the 19th century. Does he not realise that all the evidence from the crime studies that have been conducted over the last few years shows that the crimes of greatest concern to the people of this country are assault on the street, robbery, burglary, and sexual offences against women, not violent disorder or street rowdyism? Those crimes are vastly on the increase.

Mr. Nicholls

The hon. Gentleman has revealed the inadequacy of his argument in referring to the last few year. I am fully aware of the rising crime rate over the last few years and over the last 30 years. The hon. Gentleman will find that the rate of violent disturbance—a composite concept that the sociology department at Leicester university put together to get a much greater over-view of what happened in the early years of this century—which has increased over the last 30 years, is only a fraction, 20 per cent., of what it was in the early years of this century. I appreciate that the hon. Gentleman will find that an inconvenient argument, when he is trying to convince everybody that we are in the middle of an unprecedented crime wave, but it happens to be the truth.

To deal with the sense that people have that over-lenient sentences are being imposed, there has to be some recognition by the House that that matter will be dealt with. The argument, against the prosecution having a right of appeal do not hold any water. The prosecution has a role, and in Crown court, when recorders are about to pass sentence, they will often ask the prosecutor,"In this case, Mr. So-and-so, what powers do I have?"

It is true that the prosecution should never advocate a particular sentence, and the bar's code of conduct makes that clear. However, nobody who supports new clause 20 suggests that prosecuting counsel should advocate a sentence, in the sense that he should use all his powers of oratory to get an appropriate sentence. The prosecution has an interest, in the same way as the defence and society have an interest, in making sure that the sentence is right. I cannot see that the prosecution's role is compromised by making sure that the relevant considerations go before the court. That can be done in a way that falls far short of active advocacy.

Another point that is sometimes put is that it would be unfair on the individual judge if he were to be taken to the Court of Appeal and pilloried because of one error in a decision. There would be protection for many judges if their cases could be taken to the Court of Appeal in the way that new clause 20 contemplates. Often it is clear to a lawyer reading a report of a case that there must have been more to it than meets the eye. Some of us have been involved in cases about which we have read in the newspapers, and, without being inaccurate, such reports have given a wrong impression of what transpired. It would be useful if the public could be satisfied that a case that looked over-lenient had gone to the Court of Appeal and been reviewed. The public would be reassured when they could say, "Well, it looked to us as if this were an over-lenient sentence, but perhaps it is not."

Clause 29 has two things in its favour. The first is the eloquence of my hon. Friend the Minister in putting forward the case in Committee. That is about the best thing that it has going for it. The second is that it is at least the thin end of the wedge. I will not repeat the arguments that have already been made. However, when the public finally realise that a particular case has gone to the Court of Appeal, that a statement has been made that an over-lenient sentence has been given, and then the villain has got away scot-free, they will be distressed. My hon Friend the Minister fairly conceded in Committee that if this approach does not work, the only avenue that will be left is that contemplated in new clause 20.

If I thought that my hon. Friend the Minister had come to the House, after a Damascene conversion, and was prepared to go along with new clause 20, I could welcome that. I do not see any point in forcing a Division on new clause 20 when, in all likelihood, it would probably fail. If the way in which I and my hon. Friend the Member for Lancashire, West (Mr. Hind) have put the case shows that sooner rather than later the Government will be forced to accept the inevitable, I would find that a welcome development.

Mr. Lawrence

I am grateful to Mr. Speaker for selecting these amendments at a late hour, because if that had not happened we would not have been able to debate this important matter. I hope that my hon. Friend the Member for Lancashire, West (Mr. Hind) will withdraw his new clause and allow the House to vote on amendment No. 60, which will enable us to delete clause 29. I support all those who have spoken against clause 29. I do not support my hon. Friends who want to see new clause 20 or amendments Nos. 61 or 62 passed.

Clause 29 is another nonsense, introduced by the Government to show, in a sort of gung ho fashion, that they are doing something about law and order. I repeat that is not necessary because it is patently obvious to anybody with the slightest interest in law and order that the Government have introduced an endless catalogue of measures—[Interruption.]—and if Opposition Members do not accept that, let them read the speech that I made in the debate last Friday, when I dealt with many aspects of Government policy in this sphere, and even then I did not cover the entire catalogue of law and order measures that we have taken. The Government have no need to introduce nonsensical provisions, in the humble belief that they have not done enough to satisfy the people, when they have done more than any other Administration in history to deal with law and order.

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Nearly everyone at the Bar and, I suspect, nearly everyone on the Bench, believes that clause 29 is a load of nonsense. Why have the Government introduced it? It is a hollow pretence and it reminds me of an advertisement for the Today newspaper which I see displayed as I drive to the House each day. It portrays three funny-looking judges and says something about the short and curlies having us in their grip. It is meant to hold the judiciary up to ridicule and make them figures of fun.

There is no need for Today to spend money on expensive advertising to do that. People need only read clause 29. That will hold the judiciary up to ridicule and contempt when the public learn that when a matter is referred to the Court of Appeal for assessment as to whether a sentence should be higher, the Court of Appeal will be able only to say, "Yes, it is a terribly low sentence, but we cannot do anything about it."

The people who will get the kicking are the members of the Government, because the public will ask, "What are the Government doing? This measure sends matters to the Court of Appeal, which cannot do anything about them. What a load of idiots we have governing the country."—[HON. MEMBERS: "Hear, hear."] I assure Opposition Members that that would be a totally wrong conclusion. Anyway, it will not happen, because clause 29 will not remain in the Bill, either because we will vote it out tonight, or, because their Lordships will do with it what they did with it on the last occasion, and remove it from the Bill.

If clause 29 were left in, it would represent a hollow sham which would reduce the respect in which the judges are held. Why should an intelligent Government introduce such an absurd measure? The answer given is that they want the Court of Appeal to lay down guidelines, which is a sensible suggestion. The Court of Appeal should say that in rape, drug, DHSS and other cases the courts should take account of certain parameters when sentencing.

The trouble is that nobody in the Home Office, nor, it seems, in the Government, is aware that we already have those guidelines and that the Lord Chief Justice in every important case lays down guidelines. I have them with me. I hold a book which every judge should have before him when he decides what sentence to pass in a criminal case. I shall refer only to rape, which is one of the most important and worrying matters about which people are saying that sentences are inadequate. In R.v. Billam in 1986 the Lord Chief Justice laid down guidelines, and I shall refer only to the heads of paragraphs: There are … many reported decisions of the Court which give an indication of what current practice ought to he and it may be useful to summarise their general effect. For rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. The Lord Chief Justice goes on to deal with the situation if two men are involved and the situation where the victim is living with the person who has committed rape. He says in the next paragraph: At the top of the scale comes the defendant who has carried out what might be described as a campaign of rape, committing the crime upon a number of women or girls. He represents a more than ordinary danger and a sentence of fifteen years or more may be appropriate. Where the defendant's behaviour has manifested perverted or psychopathic tendencies or gross personality disorder … a life sentence will not be inappropriate. The crime should in any event be treated as aggravated by any of the following factors, and he lists eight factors.

Those are the guidelines and they are there for every judge in a criminal case to see. They are there to be followed. There is no point in referring these matters to the Court of Appeal to establish guidelines, when they are there already.

Mr. Simon Hughes (Southwark and Bermondsey)

Will the hon. Gentleman explain, because as he read that out the Minister of State was saying, "We all know that" and his advice to the Home Office and other Departments must be that that is the case, what is the justification for the Government's acting against what is a fact and must be their own advice? What is his explanation for this ridiculous Government position?

Mr. Lawrence

The hon. Gentleman will no doubt ask my hon. Friend that when he replies and I am sure that he will get a better and more defensive reply than he will get from me.

Mr. Nicholls

My hon. and learned Friend has read out what the guidelines might be in a case such as rape. What would he do about cases where the judges do not follow the guidelines?

Mr. Lawrence

I am afraid that not much can be done if the judges refuse to follow the guidelines. It is up to the Lord Chief Justice to breathe a word in their ears and say that if they go on behaving in that extraordinary way and do not follow the guidelines they are not fit to sit as judges.

I am afraid that it is simply not possible to be sure that., if the Court of Appeal says that the appropriate senence in a particular case was 10 years and not five, the next judge who has to consider it will take any notice of that. If he is not taking any notice of the existing guidelines, he is not going to take any notice of the next lot of guidelines.

Mr. Hind

Does my hon. and learned Friend agree that the proposition that he is putting forward as the status quo can in no way deal with the judge who consistently passes lenient sentences, which both clause 29 and new clause 20 tackle and his position does not?

Mr. Lawrence

I can tell my hon. Friend, for what it is worth—he is a practitioner a t the Bar, as I am—that very often the cases that cause a great deal of concern in the press have been misreported. If they went to the Court of Appeal it would say that the judge was perfectly right to impose that sentence. Too often the public are concerned because a matter has been inadequately reported. I have very often been engaged in cases where the members of the press are there at the opening of the case, they are not there throughout the case, they are there when the verdict is returned, and then they splurge all over the headlines some rubbish that has absolutely nothing to do with the case.

I have a feeling—and this is another problem—that some of the cases will be referred to the Court of Appeal and the judges there will say that the sentence was perfectly adequate and was the appropriate sentence in the circumstances. So it will not always happen that judges who impose lenient sentence will be in the wrong. If they go on and on doing so, they will very soon find that they are not asked by the Lord Chief Justice to sit and will shortly be removed from office. So there is a way of dealing with it.

There is no magic way of making sure that if the Court of Appeal says in a certain case that the appropriate sentence is this and not that, in future, in different circumstances, with a different defendant, at a different time, in a different place and with different facts, the same sentence will be given. That idea is wholly illusory. It will not happen.

There are two positions that can be adopted. Either we say, that is a shame, therefore we will give them the power to change the sentence, or we say—that is a sham, we will get rid of the clause and leave the status quo. I am in favour of the latter step. I am opposed to the new clauses, which would give the Court of Appeal additional powers fundamentally because it would place the person sentenced into a form of double jeopardy which would be contrary to the history and practice of our courts. We have to remember that our courts are not geared to finding the truth. Our courts are geared, under the confrontationary system that we have, to see whether the prosecution can establish guilt. That is a very different matter, and once one starts dismantling parts of the existing system, one will have to dismantle many other things that hang on to it.

Mr. Maxwell-Hyslop

My hon. and learned Friend is a lawyer and I am not, but surely double jeopardy is about innocence or guilt; it is not about sentencing. New clause 20 and amendment No. 61 are about corecting errors of sentence. There is no double jeopardy involved.

Mr. Lawrence

I beg to differ. I think that there is a sort of double jeopardy over whether a man is convicted or acquitted, and there is another sort of double jeopardy over whether a man is put on probation or gets five years or 10 years.

There are all sorts of circumstances in which it is grossly unfair to try a man again. If one puts a man up in the Court of Appeal and the Court of Appeal has not seen the judge, has not spoken to him or heard the circumstances in which he gave the sentence, other than a brief outline, and it has not seen the defendant or the witnesses, it is not in a position to judge anything. The Court of Appeal will be deprived of everything that happened at the trial and the defendant will be assessed by some judges who are sitting on high saying, "We think that the sentence is wrong." It is an inherently unjust system. That is one reason why I oppose it.

If my hon. Friends do not accept the first reason, there is another reason why I oppose it, which is also very important. It would require the interference of the prosecution in the process of sentencing, which is diametrically different from the system that we have followed in the past. In the first situation posed by clause 29, it would be the Attorney-General's life which would be made a misery in this place as hon. Members from both sides of the House, whose names it is not necessary for me to mention, would take up his time asking why the case of Bloggs and Bloggs has not been referred to the Court of Appeal. In the new clause 20 situation, in every case where the sentence was less than a victim had thought, the Court of Appeal would have to look at all the papers. How long would it take to get to the Court of Appeal if it had to look at hundreds of cases where victims were complaining that the sentences were less than they thought were right?

Mr. Gale

The judge should have got it right in the first place.

Mr. Lawrence

The judge may have got it right at the beginning, but it is not easy to persuade a victim or somebody whose daughter has been interfered with and the man has gone to prison for only 10 years instead of life that that was a fair sentence.

I am afraid that it is removed from knowledge, understanding or experience of life to conclude that the situation would be different if the Court of Appeal had the right to make decisions and actually to change things. To involve the prosecution in the process of referring matters to the Court of Appeal is a complete change in our system.

My advice to the Government is the same as it was on new clause 19—leave well alone. If they do not, their enthusiasm will do far more harm than good.

Mr. Peter Bruinvels

I wish to speak to amendment No. 61 which is in my name and that of two hon. Friends. I should first thank Mr. Speaker for putting the amendment back on the Order Paper today.

My amendment will ensure that cases of public concern—I stress "public" concern—shall be referred by the Attorney-General in his quasi-legal, quasi-political capacity to the Court of Appeal to obtain a review of the sentence in question. I do not believe that the floodgates will be opened by the amendment. There will be occasional cases that will be considered outrageous, insufficient, exceedingly lenient and sentences that should be looked at again.

We have to ask ourselves whether sentences today are adequate. What about the deterrent element in our sentencing? Indeed, what about deterrence per se? Clause 29, with which I have great sympathy as far as it goes—although I wish to amend it—establishes a precedent for subsequent cases. The whole of English law is based on precedent and I cannot understand why my hon. Friends are so opposed to precedent, the fact that cases can be looked at again. After all, in some cases all that will be achieved will be good sentencing practice, good sentencing guidelines, presented to this House.

1.45 am

My hon. and learned Friend the Member for Burton (Mr. Lawrence) was critical of the guidelines. He said that we already had them. But let us be frank, few judges accurately follow them. And in some other cases, which my hon. and learned Friend mentioned, there is nothing wrong in getting a second opinion. I think that that is particularly important. What is wrong with its being referred to the Court of Appeal anyway? If we get a second opinion, at least there is a double chance.

Following the Ealing vicarage rape case, which resulted in lenient sentences given by Mr. Justice Leonard of three and five years respectively for the two vicious rapes, nothing was done to satisfy the public's demand for tougher sentences rather than the outrageously soft sentences that will not deter rapists. We must accept that rape is on the increase, and I am particularly concerned to see stiffer sentences for rape. There should be a natural right—whether it is new clause 20 of my hon. Friend the Member for Lancashire, West (Mr. Hind) or my own amendment No. 61—there should be a mechanism for appeal within the Criminal Justice Bill, to redress the balance which gives an unfair advantage to the defence, who could appeal against any sentence if they felt that it was too high, whereas the prosecution could not appeal against a sentence that they felt was too low.

My amendment, I believe, would have given the Attorney-General the automatic right to send any case that he considered to be a matter of public concern to the Court of Appeal for review, when the sentence was a matter of public outcry. This facility could still be supported by the Home Office, whether today or in another place. We do not really need clause 29 in its current form because the public believe that sentences in specific cases will be overturned; yet that is patently wrong and the public must be made to realise quickly that it cannot happen in that way.

Lord Justice Lane prescribed certain guidelines for rape sentences in the case of R. v. Billam of 21 February 1986. It seems to me that his guidelines are being ignored in most cases, as he recommended a term of five years to be taken as a starting point in contested rape cases, and a minimum of eight years when a rape is committed by two or more men. Mr. Justice Leonard felt in the Ealing case that the victim did not suffer, as he put it, "so great a trauma". However, it occurred after the most revolting acts committed on her person. Can he really judge how a young woman suffers—particularly as, I understand, the lady in that case is now receiving psychiatric treatment.

I have undertaken a full survey of rape sentences, looking at the guidelines, and the actual time spent under sentence. I can reveal that in 1985 the average sentence given for rape was three and a half years and the average time actually spent in prison was only 20 months. So much for judges listening to the Lord Chief Justice and the public at large. If we are to stamp out rape or at least reduce it substantially, we must have this right to appeal against excessively lenient sentences. It could even be that we should bring in a minimum sentence of 25 years, without remission, for rape. Rape is not just a sick crime, it is almost as bad as murder.

Let us look at a random study of prison statistics, which shows what sentences have been, and examine the length of sentence in years. If someone is sentenced to three years he spends only 16 months in prison; for seven years it is 46 months; for ten years it is 72 months; and for 15 years it is 109 months. Surely we must give out sentences which mean exactly what they say? We must stop the lenient sentences, so that we halt this massive increase in crime both in London and elsewhere, where sexual offences have risen by 6 per cent. in England and Wales and 7 per cent. in London, and where violence against people has gone up by 3 per cent. in England and Wales. If we could, therefore, have these minimum sentences, and if we could have this right to appeal, we would ensure that a sentence meant precisely what it said.

Crime is on the increase and we have to stop the rot. I raised this matter with my right hon. and learned Friend the Attorney-General in a letter of 11 March in which I expressed the concern not just of myself but of other hon. Friends about the inadequate sentences being given out in cases of rape and in other cases. My right hon. and learned Friend made it clear that he was content with the scope for the provision made in clause 29. I make that point because hon. Members on both sides of the House have been saying that the Attorney-General probably would not like the role that he will have under clause 29 as it stands. He made it clear that he is content with the clause as drafted. However, he did not support any extension of the power which I am asking for in my amendment and which is sought too by my hon. Friend the Member for Lancashire, West.

The Court of Appeal must have the opportunity to overturn a light sentence. We have a rotten situation, with many crimes being committed. There have been some very inadequate sentences in recent months. They have been highlighted not just by the tabloids but by the sensible newspapers. We must get the right of appeal back on to the statute book, if not tonight then in another place. For that reason, I urge hon. Members to support amendent No. 61.

Mr. Bermingham

Once again the hon. Member for Leicester, East (Mr. Bruinvels) seems to have missed the point of our criminal justice system. That is becoming less surprising as the night goes on, because as time passes we learn about the prejudice and the courting of popularity that seems to be taking place on the Government Benches, with some notable and honourable exceptions. The whole principle of our sentencing system is that judges listen to all that is said by the prosecution and by the defence. The whole purpose behind our system is to try to achieve the best sentence possible, bearing in mind all the circumstances.

The one thing we must never have is for the prosecution to have any interest in sentencing. As those hon. Members on both sides of the House who have had the privilege of prosecuting know only too well, a prosecutor must never have an interest in the outcome. He must present the facts impartially, without prejudice or fear. For him to be asked at a later stage to become involved in whether a sentence is right or wrong is to fly in the face of thousands of years of history.

When the hon. Member for Leicester, East talks about the idea of a moral majority, as he did earlier, I become alarmed, because we are allowing emotion to enter into what must be a totally dispassionate exercise. Hon. Members know my views well. What worries me about clause 29 is that we are beginning that dreadful and dangerous process of allowing the prosecution in the form of the Attorney-General to be enticed into entering the whole question of sentencing.

I would not wish to be an Attorney-General—I think that will never happen, in any event—but I would not wish to see any Attorney-General subjected to the pressures that might come from Crown prosecutors who were themselves the subject of pressure, perhaps from clerks in a court or perhaps from police officers, who felt that things were unfair or wrong. In the end the matter might be pushed up the chain to the Attorney. Reality tells us that that would happen. Regardless of what the hon. Member for Leicester, East or others say about the matter—if hon. Members who talked on the subject had a little knowledge of it, it would help enormously—reality says that, because of pressure, prejudice and perhaps ignorance, even the popular press on occasions takes something out of context and begin to pressurise and comment, and so we begin a path.

The art of justice is that those who judge come to the task fresh and impartial. Our system has always been a simple one. It is for the Crown to prove its case and for the defence to prove nothing. It is for the judge to sentence on conviction having heard all the facts and all that has been said for the defendant. Clause 29 seeks to introduce a completely new theory—that somehow the outsider, the person who has not been involved, has not seen the reports or heard the evidence or arguments, can come from afar and say, "This is wrong."

From time to time judges and magistrates are clearly wrong. That is human nature. But are we to take the bad examples and use them as the means of criticising a system that has stood the test of time? The bulk of sentencing in Britain is right. Are we to take the exception, hype it up and use it for political advantage on some occasions as, I regret to say, some hon. Members seek to do? Are we to use it to scream from the rooftops that our judiciary is wrong? Should we not stand back for a little while and simply say that by and large Britain gets it right? Yes, there will be sentences that are wrong. Some may be too severe and those can be corrected, and some may be too lenient and can lead to the Lord Chief Justice, the Court of Appeal or somebody else, issuing guidelines to advise and correct.

If we begin to go down the road of appealing against sentences on behalf of the prosecution, as has been said earlier tonight, we open up a completely new ball game. We destroy a system that has stood the test of time and we begin to allow the popular press, the publicity-hungry politician on occasions to seek to— [Interruption.] I hear what the Minister has just said. I regret it. It does not do him justice.

Mr. Peter Bruinvels

Nor does the hon. Gentleman's speech.

Mr. Bermingham

I hear what the hon. Gentleman says and much of what he says in this place does not do him justice.

Justice is a precious little bird and it can so easily be crushed on the altar of expediency. It can be crushed by people who seek to use it as a means of political advantage or political popularity. Let us not do that in the House tonight. Let us stand by a system that has stood the test of time and let us support the amendment that crushes clause 29.

Mr. Soley

I can be brief, not least because the right hon. and learned Member for Warrington, South (Mr. Carlisle) made the case not only against the new clause but against clause 29. My real anger about the debate stems from the way in which it has arisen. We had a long debate in Committee on an amendment tabled by the hon. Member for Lancashire, West (Mr. Hind), who has also tabled the new clause. He felt so strongly about his amendment that he did not even put it to the vote, and he will act in the same way again tonight. In other words, the debate is purely decorative. We have had it, just as the hon. and learned Member for Burton (Mr. Lawrence) said, precisely because some hon. Members want to show that they are doing something about the crisis in law and order.

I shall not go over that debate again, but there is one matter on which I disagreed with the hon. and learned Member for Burton. We all know that the crime rate has gone up faster under this Government than any other, Labour or Tory, and the clear-up rate has fallen more dramatically under this Government than any other, Labour or Tory, precisely because of the policies that that have ripped apart Britain's social fabric and made it difficult for communities to rebuild, re-identify and develop the natural crime prevention facilities that exist in any well-structured community.

The problem exists in all Western societies, and has done for 30 years. The Government are charged with making a bad situation worse. In doing that, they try to turn to the decorative bits: we have had several this afternoon and this evening. This afternoon, we discussed bringing back the cane and the birch, and whipping—yes, whipping—10 and 14-year-olds for using offensive language. The present debate is designed to show that there is some muscle in the Government's law and order policies, when there is none.

2 am

The hon. Member for Lancashire, West would receive more commendations if he pushed the matter to a vote. But he will not— just as he did not in Standing Committee—because he knows that, as the right hon. and learned Member for Warrington, South and the hon. and learned Member for Burton have demonstrated, the new clause is nonsense. I do no intend to repeat everything that was said by the right hon. and Learned Member for Warrington, South, but he was entirely right. The new clause would drag the Attorney-General into an impossible position. He would be questioned on case after case, and asked why he had not referred those cases.

As a couple of Conservative Members pointed out, when cases were referred to the Court of Appeal and it chose not to increase the sentence, the outcry that was heard before would be heard again; the position would be worse than before. The hon. Member for Leicester, East (Mr. Bruinvels) does not seem to understand—and, by God, his remarks have caused a lot of trouble in this country; he should exercise more responsibility in what he says— that the reporting of crime is notoriously inaccurate. His hon. Friends have referred to that.

Not long ago, we saw some disgraceful reporting in the newspapers, which stated on their front pages that a young man had been given a life sentence for sticking a glass in a publican's face. But it was not even alleged in court that he had committed such an offence. The life sentence had been imposed for an event that took place five or six hours earlier, at a football match. No one was hurt; the young man had kicked out and sworn at a policeman. But the headlines in the British press stated that he had received a life sentence for "glassing" a publican, which the charge did not even mention.

The hon. Member for Leicester, East must take some responsibility for helping to whip up that hysteria. If the reporting of cases were more accurate—as the hon. and learned Member for Burton and the right hon. and learned Member for Warrington, South have said—we would have a little more confidence in the way that those cases were argued later in the courts. As it is, we can feel no such confidence. We must accept that the mood of hysteria encouraged by debates of this kind undermines the very aspects of our society that we are trying to protect. It undermines the whole concept of justice.

I consider that there is a case for a sentencing council, and that the Government have missed an opportunity to provide for such a council. It would not be the answer to all the problems; but, as hon. Members on both sides of the House have said, there will be cases in which inappropriate sentences are imposed. The Ealing rape case is an example. The advantage of a sentencing council is that, as the hon. and learned Member for Burton pointed out—he quoted from a book—it would provide a useful guideline, and would make sensible debates on sentencing possible. We could escape from the highly emotive cases on which the hon. Member for Leicester, East prefers to focus his attention.

There is some discrepancy in sentencing, in terms of both the types of offence involved and the geographical location. The geographical difference is almost more important than anything else. The same offences, with the same background, may attract very different sentences in different parts of the country.

That is not my central point. It is not too late to lose clause 29. It is nonsense, and the other place rightly will not like it. New clause 20 is an insult to those who have bothered to attend the debate, because the hon. Member for Lancashire, West (Mr. Hind) never intended to put it to the vote here or in Committee. Trying so desperately to get the matter debated and pretending that it is vital to justice and then not putting it to a vote is not convincing behaviour. If the hon. Gentleman and those who support him want to prove me wrong, they will have an opportunity to do so in a moment.

Mr. Mellor

Everyone has had such fun in this debate that I wonder whether my presence is wholly necessary. I am unavoidably here and cast in the role of Aunt Sally, so I shall try to don the mantle with as good a grace as I can muster at 2.6 am.

One thing is absolutely clear. Whatever the Government had chosen to do would have been controversial and much derided by many of the voices that have spoken out in the debate. If we had chosen to do nothing, we would have been condemned by the public for failing to deal with a manifest gap in our procedures, and we would have been condemned by many hon. Members for having fallen below the level of events and legitimate expectation.

By proposing clause 29, which I believe to be a principled response to the problem, we are criticised by those who say that we should not do anything and by those who say that it is a milk-and-water measure and that it would be far better to have the red meat of a full-bloooded prosecution right of appeal.

If we had chosen a full-blooded prosecution right of appeal, it is perfectly clear that many would have rejected it. Many have said so in terms—the hon. Member for St. Helens, South (Mr. Bermingham), the hon. and learned Member for Montgomery (Mr. Carlile), there was a guilty plea by my hon. and learned Friend the Member for Burton (Mr. Lawrence), and at best there was cautious rapture from my right hon. and learned Friend the Member for Warrington, South (Mr. Carlisle).

As to the last suggestion that we heard, the hon. Member for Hammersmith (Mr. Soley) is very well-meaning and I do not wish to be nasty to him at 2.7 am, but the idea that a sentencing council gets into the target, let alone hits the bull's-eye of the problem is a delusion. He deludes himself if he thinks that it is a remotely relevant proposal. The kindest thing that one can say about a sentencing council is that it involves a lot of other great and good people in the functions of the judiciary laying down the very guidelines that certain judges are flouting. We would be in exactly the same situation with a sentencing council. If the hon. Member for Hammersmith wants to have quiet nights and to keep his blood pressure down, he must pray that he is never on this side of the Chamber, but remains where he is where he can get away with speeches such as he treated us to tonight.

All of the fair-minded people who are gathered together in the House at 2.8 am will agree that the Government would have been criticised whatever they had done. We must ask whether we have taken an appropriate course. I do not think that doing nothing is a viable option. It is only those who are cloaked in Temple complacency or the irresponsibility of Opposition who can suggest that doing nothing is a viable option.

In 1985 we brought forward a proposal which was roundly rejected in another place, but at least one of those who was prominent in rejecting it, Lord Denning, now regrets the grounds on which he rejected it and proposes to reject it from the other side of the fairway. We are all entitled to change our mind. We responded in 1985 to legitimate public concern about a small minority of sentences for serious offences that were widely publicised and felt by the public, rightly or wrongly, to be objectionably low, with the result that public confidence in the criminal justice system was adversely affected.

After the clause was rejected by the other place, we debated the issue in Committee after the Bill had arrived in this place. I said something that appears to have borne the test of time more than most of the remarks that I make in this place. I said that the other place had rejected the remedy but had not abolished the problem, which would continue to recur. I argued that every few months there would be a case that would cause widespread public disquiet to the extent that the noise would be heard even through ermine earmuffs, and that we would find ourselves in precisely the same situation one year or two years later. I said that the public would not be denied having their legitimate concerns considered within this place. A number of celebrated cases have emerged and there has been great public furore, and legitimately so.

But what has happened? The furore has died away, but what constructive result has emerged from it? What guarantee do we have for those who felt that the way in which cases were dealt with wrongly originally could be rectified? Even more fundamentally, what prospect is there under present arrangements that similar facts recurring in another court would be treated differently by the judge hearing the case? The answer is that we have the worst of both worlds. We do not have the remedy of re-sentencing, for which one or two were crying out, to deal with cases of this sort, and we have no guarantee that change would be made if the case were to be considered again.

My hon. and learned Friend the Member for Burton treated us to a mettlesome stallion of a speech that could have been delivered by an Old Baileyite in an end-of-thepier show. As for his plea in mitigation on behalf of the Government, I found myself as the client sitting in the dock trembling, as I know so many of his clients have done at the Old Bailey. I felt rather like one of the many who have been sentenced to 25 years' imprisonment after a judge has listened to one of my hon. and learned Friend's eloquent speeches. I might not have had much of a case., but a better defence could have been advanced than that which was put forward, which was rather along the lines., "While we were all idiots, we were well-meaning idiots and. did our best, and really we did quite a lot."

The fundamental flaw in my hon. and learned Friend's position was revealed when he read out the guidelines which were laid down in R. v. Billam. I shall quote one instance where the guidelines did not seem to have been followed, and it can be said that none of us was the wiser or even marginally better informed some months after the sentence was passed. The case arose at the Old Bailey in the summer when a man abducted a girl from the highway, pushed her into a shed, had forcible sexual intercourse with her and transmitted to her a venereal disease. He appeared at the Old Bailey, pleaded guilty and was sentenced to four years' imprisonment.

Many people wanted to know— I use that careful formulation because Ministers are not supposed to have opinions on these matters—how that fitted in with the guidelines in Billam. The general understanding of the guidelines was that even if it was appropriate to reduce the sentence for a plea of guilty, the transmission of venereal disease from the rapist to the unfortunate victim was an aggravating feature, and the Lord Chief Justice's suggestion was that the starting point for the sentence in such a case was eight years.

What are we to say six months after all the harroosh has died away? Is the transmission of venereal disease to a victim an aggravating feature, or is it not? Sadly, such an event is not so rare and we ought to know the answer to that question. But we do not know the answer. If a similar case were to occur tomorrow, or the day after, or next month, precisely the same sentence might be passed, and it would be greeted with precisely the same outcry as greeted the sentence that was passed last summer.

2.15 am

The Government's proposals would address that point. The Lord Chief Justice, if he chose to do so, would be able to take up that point in another case. The Court of Appeal would be directly faced with the issue if the matter proceeded on the Attorney-General's reference. The guidelines are not equally robust in every case. It cannot be thought to be mischievous and ludicrous that I should suggest to the House that it would be helpful if the Court of Appeal were to adjudicate.

A further point relates to the equally controversial Ealing vicarage case. Objection seemed to be taken to the apportionment rather than to the length of the sentences. There could have been no appeal on the basis that the sentences were lenient. In total length they were almost certainly not lenient. However, a matter of principle was raised that would be covered by clause 29; whether it is appropriate for a judge to divide one event into two or three bits, or whether he should pass sentence on the gravest offence and then pass concurrent sentences on the rest. The perfectly legitimate harroosh over the Ealing vicarage case has faded away, and none of us is any the wiser about how a court should deal with future cases of that kind. We can only hope that some judges read the newspapers.

Mr. Lawrence

Is my hon. Friend saying that the only justification for referring cases to the Court of Appeal for further consideration would be a technical matter that appeared to be in doubt? That is very different from what is thought to be the effect of clause 29.

Mr. Mellor

My hon. and learned Friend is leading counsel, whereas I, a humble junior, hung up my wig the best part of six years ago. Clause 29 says: If it appears to the Attorney-General that a sentence passed by the Crown Court on a trial on indictment raises a question of public importance"— I pause to say that both of the matters that I have laid before the House are surely matters of public importance— he may, with the leave of the Court of Appeal, refer the case to them to obtain their opinion on the principles which should be observed in sentencing in similar cases in the future. In other words, it is not a witch-hunt against the judge, or even an inquest into what happened. It provides an opportunity to use as a starting point a particular case that has shaken public confidence in the criminal justice system and gives to the Court of Appeal the opportunity to issue specific guidance, if it so wishes—it would be a matter for the Court of Appeal—that would allow the courts to make a better fist of dealing with a similar case if it arose next week. Surely, that provision is not worthy of some of the epithets that have been heaped upon it during this debate.

I am sad that among those ranged against me tonight is my right hon. and learned Friend the Member for Warrington, South, whom I respect more than many others of my right hon. and hon. Friends. I take very seriously the strictures that he has heaped upon the Government. I am very sorry that on this occasion I cannot agree with him; almost invariably we agree. I shall therefore, put a previous conviction to him in the hope that he will see some merit in what I have said.

Looking through my right hon. and learned Friend's antecedents, I discover that for some time he was incarcerated in the Home Office and that in 1972 he introduced a Criminal Justice Bill that contained a provision that could be called the twin of this provision. It dealt with the right of the Attorney-General to appeal if a judge had misdirected himself and thereby committed an error in law that led to an acquittal which, under the rules, could not be appealed against. If the judge had misdirected the jury so that the jury had convicted, there could have been an appeal on a point of law. However, on the assumption that the defendant walked out of the court a free man, but the feeling was that the judge had got it wrong, the opportunity for appeal should be taken for future guidance—I stress for future guidance—so that other courts should get it right. The case could then proceed on the Attorney-General's reference.

It is worth noting that the Attorney-General's notice would specifically not affect and has never affected the result of the case. Even if it has been determined subsequently that the individual was wrongly acquitted because the judge got the law wrong, that individual is not re-indicted. That cannot be very much different from the point that public confidence would be shaken if the public discovered that, notwithstanding the Court of Appeal saying that a sentence had apparently been wrong, the defendant was not re-sentenced. If a defendant has been wrongly acquitted, and is held to have been so, because the point of law taken by the judge is found by the Court of Appeal to be spurious, nevertheless, that individual continues to go free. It was because of the success of that proposal, which has not led to howls of derision for the Attorney-General or the Government and which has worked perfectly amiably for 15 years, that we saw fit to attach this modest proposal to the Bill to include sentencing, not just decisions on points of law.

Mr. Mark Carlisle

I have listened with great interest to the cogent defence that my hon. Friend the Minister has advanced for clause 29. Surely he would agree that there is a substantial difference between the power to refer a point of law, which, once settled, can be used in other cases, and the power to refer a sentence which must always very much depend on the individual case of the person whom the judge is sentencing. That does not create the same effect. Perhaps I was somewhat unfair earlier. I accept that in the words used in clause 29 the Government have deliberately decided to narrow the original proposal that was defeated in another place through the use of the words: a sentence … raises a question of public importance. I still believe, for the reasons that I have given, that it will not assuage public concern. I suggest that there is a distinction between referring matters of law and referring individual sentences.

Mr. Mellor

I accept my right hon. and learned Friend's sincerity on that point. However, there is no doubt that clause 29 is more carefully phrased, with the benefit of hindsight, than the earlier provision. I repeat that clause 29 states that the Attorney-General may refer the case to them to obtain their opinion on the principles which should he observed in sentencing in similar cases in future. In other words, he will take the opportunity raised by a particular sentence. More often than not the argument against a sentence is not that it is just wrong in a vacuum, but that it is wrong in the context of a specific point. That is certainly true about the allegation of the transmission of a veneral disease.

We are entitled to look to the future. I submit that it should not be held against us if we choose to stay our hand and not weave into the proposal the kind of double-jeopardy arrangement that would otherwise exist if defendants were to be re-sentenced.

To my mind the principal and most compelling defence of clause 29 is that we cannot continue to tolerate a position in which an outcry ebbs away without anything positive emerging from that outcry because in the end that outcry has nowhere positive to go.

Mr. Soley

I think that the Minister shares my concern—he did in Committee—about decisions being made in the heightened atmosphere of some of the cases that we have mentioned. Does he envisage that while the process is taking place, the discussion of the case will remain sub judice, or will the sub judice rule not apply as the case no longer refers to a particular person?

Mr. Mellor

I do not think that the sub judice rule need be as tight as when a jury is considering a case. It would not differ from the rule that applies now when cases go to appeal, bearing in mind that they are dealt with by professional judges, not lay people. There could be some discussion on that.

Mr. Soley

Will that Minister clarify that a little? Is he saying that there could be discussion in the press about the merits of the sentence?

Mr. Mellor

The rules that apply to normal appeals would apply here. Some limited discussion—more than is permitted before a case goes before a jury—would be allowed. We would have to accept the guidance of the court, because in matters of contempt, that would be within its remit, not ours.

I hope that I have established at the very least that doing nothing is not an option and that the idea of doing nothing comes only from those whose experiences in the Temple blind them to what the public think about this. They put themselves as I have said, in the position of the doctors in Hilaire Belloc's famous poem: They answered, as they took their fees, 'There is no cure for this disease'. I cannot possibly support that proposition, and I am saddened that one or two experienced hon. Members should have done so.

Mr. Maxwell-Hyslop

Is clause 29(2) meant to be exhaustive merely to give examples of what is covered by the word "sentence"? I am specifically anxious to know. if this is meant to be exhaustive, why it does not include an order for criminal bankruptcy or compensation, which is a form of redress, the absence of which can rightly cause public outrage and a private sense of gross injustice?

Mr. Mellor

Criminal bankruptcy is being abolished in the Bill. Compensation is not technically part of a sentence. Whether it should be is an interesting point, arid I should like to reflect on that.

I shall now deal with those who say not that we should do nothing but that we should have a full prosecution right of appeal. I fully understand why my hon. Friends advance that case, but that would be an unjustifiably overelaborate response to the particular problems that we face. About 89,000 Crown court sentences were passed last year. It is hard to think of more than a handful that excited much public opprobrium. The problem is not that too few people are sent to prison or that they are sent to prison for too short a period overall— that is demonstrable in figures with which I shall not 'weary the House—but the one or two celebrated cases which raise public anguish, especially those crimes of serious sexual violence or other crimes of violence which become news on the principle that they are unusual. The dog biting the man is not newsworthy; the man biting the dog is. We must address that point.

I attach importance to the point raised by a number of hon. Members, that it would change the character of the prosecution. My hon. Friend the Member for Lancashire, West (Mr. Hind) was not particularly convincing when he said that the new clause would not have that much of an impact on the prosecution. The prosecution would need to have its own sentencing policy. It would have to be clear in every given case how the sentence fitted in with its own guidelines. That would he objectionable. If the prosecution had to delve into social inquiry reports, that would also he objectionable. But unless it did so, how could it decide whether the judge had sentenced properly, when he is entitled to take account of matters contained in social inquiry reports in determining the extent of the mitigation. I said in Committee that if we found this proposal did not work, the question of a prosecution right of appeal would have to be high on the agenda. I repeat that as a consolation to my hon. Friends.

I hope that I have not outstayed my welcome, but this was a stimulating debate. Someone had to speak for poor, benighted clause 29. I believe that there is a far better case for it than some of my hon. Friends advanced.

Mr. Deputy Speaker

Before I call the hon. Member for Lancashire, West (Mr. Hind), I should like to deal with the point raised by the right hon. and learned Member for Warrington, South (Mr. Carlisle). Mr. Speaker selected new clause 20 for debate and the House may divide on it. The amendments were taken with it, so there will be no vote on the amendments.

Mr. Hind

I am grateful for the fact that we have had this debate. I hope that hon. Members who participated in it do not share the view of the hon. Member for Hammersmith (Mr. Soley) that it has been theatrical and a waste of time, but agree that we have achieved something. The hon. Gentleman tabled, but has not moved, eight clauses, so the pot is calling the kettle black.

2.30 am

It would be churlish of me and my colleagues who support new clause 20 not to admit that half a cake is better than none. If my hon. Friend the Minister will reconsider the matter, and as we want to see appeals brought forward, clause 29 is better than nothing. Perhaps it is now up to those in the other place, led by Lord Denning and Lord Chief Justice Lane, who expressed his view in a speech at the Mansion House, to debate the matter further. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.