AMENDMENT OF CRIMINAL JUSTICE ACT 1967 (Hansard, 20 February 1991)

§ Mr. Archer
I beg to move, That the clause be read a Second time.
364 This is not the most publicised of our debates and I doubt whether it will be the longest, but I am gratified to see that it has attracted the biggest audience in the Chamber of any debate so far——

§ Mr. Neil Kinnock (Islwyn)
And of the highest quality.

§ Mr. Archer
Indeed.
We are returning to a measure that we discussed in Committee. I am grateful to Prisoners Abroad for having drawn attention to what is clearly an anomaly. Before 1967, when a judge was imposing a custodial sentence on someone who had spent a period in custody while on remand, he "took that into account". He said to the offender, "I take into account the fact that you have spent this period in custody."
In 1967 the position was changed. Section 67 of the Act of that year formalised it. The arithmetic was done for the judge. Provided that the time was spent in custody in respect of that offence, the time was formally deducted from whatever sentence was pronounced by the judge. But no similar provision was made for someone who had been apprehended abroad and who had spent time in custody there awaiting extradition. That situation still obtains.
As a result, if two people are tried at the same time for the same offence but one has been returned from abroad while the other has been in custody in this country on remand, they will be dealt with differently. In the one case the judge will pass the sentence appropriate to the offence and the time spent in custody will be deducted administratively from it; in the other, the judge will have to do the arithmetic—so he will pass two different sentences for the same offence. Experts in the law may not be surprised by that, but when it is reported it will sound very strange to the public. It is clearly anomalous.
I ventured to raise the subject in Committee, where the Minister said that there was a problem. I have noticed that in most Committees in which Home Office Ministers lead for the Government there is a problem with almost everything that we venture to raise. Perfectly straightforward reforms crying out for action always manage to attract problems.
I really commend the ingenuity of the Home Office in finding a problem for every solution. On this occasion, the Minister said that the problem lay with the definition of "custody", because custody can be anything from lying in a dark, dismal and damp cell without access to anyone from the outside world, to house arrest, where people live in their comfortable villas and all that happens is that they are forbidden to move away. That I fully understand. What I do not understand is why it is thought that the Home Office, with all its resources, should not be in a better position to resolve the matter than the judge, if only because the Home Office has time beforehand in which to do it, whereas the judge will have to do it on the spot. I therefore venture to raise the matter again in the hope that the Minister will have had further thoughts about it.
The Minister said in Committee that there was no real problem for the judge: the defendant could tell him what had happened, and he could take it from there. I am not wholly clear why the defendant cannot tell the administrative authorities what has happened. The one thing that I am fairly certain of is that, if we have to rely on the defendant in the dock to tell the judge what happened, when the judge has no means of checking, it will hardly be conducive to the cause of truth.
365 When the Minister says that the defendant's lawyers can find out the circumstances in which he was detained, I wonder if the Minister has given any realistic thought to what happens when his lawyers are acting on legal aid. If they spend a lot of time trying to find out what happened in some foreign part, I suspect that they will want to be paid for it; and I suspect that, when they apply to be paid by the legal aid fund, they will be very disappointed—and this will get around.
It would be very much better if problems of this kind were resolved by the Home Office rather than by the judge on the instant in the court. If that were so, we would not have this anomaly between treatment of prisoners detained on remand in this country and that of prisoners detained abroad and awaiting extradition.
It would be a great event if, just for once, the Home Office listened to a good idea and, without searching for difficulties, agreed to act on it and put matters right. The Minister could be the first of her kind if she seized that opportunity tonight.

§ Mrs. Rumbold
The right hon. and learned Member for Warley, West (Mr. Archer) makes a very persuasive case to the House and it is always a pleasure to hear him do so. I found it, as always, interesting to listen to his argument, which is that the time that people have spent on remand in custody in this country is taken into consideration in the sentence whereas, at present, this is not the case when the custody has been abroad. Very properly, the right hon. and learned Gentleman pointed out that the positions of the respective offenders are not always comparable, and different arrangements can, I think, be justified to take account of different circumstances.
The right hon. and learned Member is aware, I am certain, of section 67 of the Criminal Justice Act 1967, which makes it clear that remand time is relevant only when it is directly connected with any proceedings relating to the sentence that it affects. That is an important principle and it should be reflected in the way in which foreign custody is treated.
It is a little more difficult, as the right hon. and learned Member pointed out, to determine precisely what foreign custody means, because it can vary from one type of custody to its opposite, from a dank cell in a prison somewhere to house custody. The definitions need to be looked at carefully. A variety of factors need to be considered before a decision to reduce the sentence to be served in this country can properly be made. Therefore, it is not right to extend section 67 to take account of foreign custody.
However, the Court of Appeal has made it clear that judges should consider reducing a sentence to give credit for time spent in foreign custody, and that is a sensible and practical arrangement. The judgment about those matters——

§ Mrs. Rumbold
That seems to be a sensible and practical arrangement. A judgment about these matters by the sentencing judge, having regard to the facts of the case 366 before him at the time of the sentence, is the logical way to go about things. I note the right hon. and learned Gentleman's comments about the position of the case as it is presented to the judges, and the importance of taking that into account when the matter is taken forward.
It is unfortunate that I cannot grant the right hon. and learned Gentleman's dearest wish and agree to the new clause. In Committee, my right hon. Friend gave an undertaking to reflect further on the matter, and said that the Government would, if necessary, introduce an amendment or new clause to ensure that nothing in the Bill prevented the courts from using their existing powers to reduce sentence length and to take account of time served abroad awaiting extradition. Such an amendment would also serve to bring to the attention of defendants, their legal representatives and the courts the existence of the power. My right hon. Friend has not forgotten the undertaking, and will think about the matter further in the light of this debate.

§ Mr. Archer
I am grateful for the last few remarks made by the right hon. Lady but, as I said in Committee, however welcome the Minister's undertaking, it bore little relationship to my proposal. It may be that, when the Minister is reflecting on the other matter, he will reflect also on my proposal. For that reason, and because I always live in hope, I beg to ask leave to withdraw the motion.