§ 3.5 p.m.
VISCOUNT ELIBANKMy Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
§ [The Question was as follows:
§ To ask Her Majesty's Government (1) whether they are aware that in the spy trial, Regina v. Kroger, Kroger, Houghton, Gee and Lonsdale, the Lord Chief Justice, in sentencing Houghton on March 22, 1961, said, inter alia: "it is against all our principles that a sentence should be given which might involve your dying in prison"; (2) whether the principle referred to by the Judge is an invariable factor in determining the length of a sentence in circumstances such as were present in this trial; and (3) whether such a principle may in practice be liable to operate very unfairly as between persons of different ages convicted of the same offence.]
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)My Lords, I have seen reports of the remarks made by the noble and learned Lord, the Lord Chief Justice, when passing sentence. The determination of the sentence in any case is, subject to any limitations imposed by Statute, a matter entirely within the discretion of the court, and it would not be right for Her Majesty's Government to attempt to intervene in any way or to comment on the sentence imposed in any individual case. I can, however, say that it has long been recognised by the courts that in determining the appropriate sentence in a particular case it is proper to have regard to the circumstances of the offender as well as to the offence. The age of the offender may well be one of the circumstances to be taken into 872 account, particularly where a long sentence of imprisonment is being considered, and there is no reason why this should result in unfairness to any other person.
VISCOUNT ELIBANKMy Lords, I thank the noble and learned Viscount on the Woolsack for that Answer. With great respect to Her Majesty's Government, I would point out that while our courts are famed throughout the world for their sense of impartiality, fairness and justice, they have not yet been endowed with supernatural powers. Therefore, how on earth can any of them say how long any of us is going to live? But may I ask this further question? Looking to the fact that Mr. Justice Hilbery in the Court of Criminal Appeal cast doubt (and I have his words here) on whether it was right or wrong to include this principle in the determination of a sentence, would it not be more in keeping with public opinion if Her Majesty's Judges dropped this consideration in determining sentences?
§ THE LORD CHANCELLORMy Lord, your Lordships will have noted that the noble Viscount put the Question to Her Majesty's Government, and the position of Her Majesty's Government anent any particular sentence, as I have ventured to point out, is one of considerable delicacy. But the noble Viscount has put the matter generally, and I can only help him so far as I can. The Court of Criminal Appeal have often reduced the length of a prison sentence on appeal on the ground of the prisoner's age, and it has been generally taken that a prison sentence of given length must always appear more severe if the prisoner's age or medical condition is such that he is unlikely to survive the sentence; and it is to be expected that a court would normally wish to leave the prisoner with some prospect of release before death. I hope that the noble Viscount will not press me further on what I consider is a delicate matter. I have tried to respond to the generality of his Question, and I am sure he will not wish me to go into anything which might appear to deal with the details of a particular case.
VISCOUNT ELIBANKMy Lords, certainly I should not wish the Lord Chancellor to do that. But, while 873 thanking him for his Answer, may I, with permission of the House, draw attention to the actual words used by Mr. Justice Hilbery in the Court of Criminal Appeal. He said that
to temper justice with mercy was always attractive to any judge. Not without some doubt as to whether mercy in this case should have resulted in Houghton receiving a shorter sentence than Lonsdale, the court had reluctantly come to the conclusion that the sentence on Houghton should not be increased".
§ THE LORD PRESIDENT OF THE COUNCIL AND MINISTER FOR SCIENCE (VISCOUNT HAILSHAM)My Lords, I think I ought to say that to question the Lord Chancellor upon a matter which affects the Judiciary is not, in my humble submission to the House, a matter of Government responsibility. It would be a very serious precedent indeed if the Lord Chancellor were liable to answer questions about what individual Judges had said in individual cases in the Court of Criminal Appeal. If the House wishes to alter the basis upon which sentences are passed, it is a matter for legislation, but is not the responsibility of the Executive.