HL Deb 27 July 1967 vol 285 cc1125-36

[No. 4]

Clause 30, page 21, line 35, leave out from beginning to end of line 31 on page 22

The Commons disagreed to this Amendment, but amended the words so restored to the Bill as follows:

[Nos. 5–8]

Page 21, line 36, leave out ("for an") and insert ("in respect of one")

Page 22, line 13, after ("of") insert ("corective training")

Page 22, line 27, leave out subsection (6)

Page 22, line 29, leave out ("so made") and insert ("made by the Secretary of State under this section")

[No. 9]

The Commons made the following consequential amendment to the Bill—

Page 114, line 27, after ("words") insert ("thirty or")

11.59 a.m.

LORD STONHAM

My Lords, I beg to move that the House doth not insist on its Amendment No. 4 to which the Commons have disagreed.

Moved, That this House doth not insist on the Amendment to which the Commons has disagreed.—(Lord Stonham.)

LORD BROOKE OF CUMNOR

This is much the more serious part of the Commons Message. No doubt because the Commons are sending this back with further Amendments, no Reason is given for their disagreement. Nevertheless, I think it is plain on the facts and in the light of the debate we had in your Lordships' House. I do not demur at all at Lord Stonham's having moved this Motion without further explanation, because no doubt he wishes first to hear what I have to say. We are here considering suspended sentences. I think I made clear when we were in Committee on this Bill that I was entirely in favour of an experiment which suspended sentences, as were most of your Lordships who spoke from both sides of the Committee, including the noble and learned Lords, Lord Dilhorne and the Lord Chief Justice, and other considerable authorities. But what we could not accept was that a magistrates' court should be deprived of all discretion and should be forced by the Government to suspend any sentence of not more than six months, unless certain conditions were fulfilled which are set out in the various paragraphs to subsection (3) of the Clause.

Because we felt so strongly that the magistrates should have a discretion, and were capable of using their discretion, we in your Lordships' House took out subsection (3) and certain consequential subsections from this Bill, and the Commons now wish to restore them, with a number of, if I am not mistaken, drafting Amendments. No doubt if there is anything more than drafting in the Amendments set out in the Commons Message, the noble Lord, Lord Stonham, will explain them.

It is common ground that we are dealing here with something like 5,900 cases a year, and the Government's intention all the way through has been to ensure that in all such cases, which on past experience amount to about that annual number, the magistrates shall be compelled, even if they do not think fit so to do, to suspend the sentence of imprisonment. The Magistrates' Association, who perhaps are as well qualified as anybody to pronounce on this matter, are opposed to the Government upon it; so is the noble and learned Lord, the Lord Chief Justice, with his great responsibilities and knowledge in this field, and I know that he personally feels most concerned about the action taken in another place yesterday. He is concerned not on any Parliamentary or political grounds but because he feels that this is a blow at the maintenance of law and order, and it is an action to which the Government have been led by administrative considerations, which have overridden the responsibility they should feel for the maintenance of law and order.

As I explained in Committee, we are now going to have the position where a man can be tempted by other wrongdoers with the argument that it will be all right for him to join in with them because he will not get more than six months, and it will not mean going to prison, anyway. That is exactly the sort of situation which a responsible Government ought not to allow to arise in days like these, when, by common consent, crime is far too rife, and far too many weak characters are being tempted by more experienced criminals into criminal ways. What will happen—and I must say this with all the strength at my command—is that in any case where the magistrates are convinced that the man ought to go to prison forthwith and the sentence ought not to be suspended, they will commit him to quarter sessions, who have power to impose a longer sentence. No purpose whatever will be served by compelling them to do that. It will further burden the work of quarter sessions and it will further crowd the prisons, because the accused man will receive a longer sentence.

Again, if the noble Lord, Lord Stonham, suggests that this is only a debating argument, let me remind him that my words on this point were strongly endorsed by the noble and learned Lord the Lord Chief Justice in his speech in Committee. I understand—and I do not think this figure was denied by the Government—that some three-quarters of the 5,900 persons concerned in a normal year would in fact be eligible for a longer sentence. So in no less than three-quarters of these cases it will be open to the magistrates to commit to quarter sessions for a longer sentence, where they are absolutely convinced that the man ought to go to prison immediately and that his sentence ought not to be suspended.

As I said in our earlier proceedings, the right course to be followed here is that strong guidance should be given to magistrates—which I am sure the noble and learned Lord the Lord Chief Justice would be willing to give—and that people should not be sent to prison for short sentences unnecessarily I feel that strongly; and I feel it extremely strongly in the case of people who have never suffered a prison sentence, because I believe that for those who have never been in prison the thought of imprisonment has a substantial deterrent value which ought not to be jettisoned except where the man concerned has behaved so seriously that an immediate prison sentence is unavoidable.

I think, as I have said, that the Government here are marring a valuable innovation by over-enthusiasm. They are granting to the courts this new power of imposing a suspended sentence, and thereby giving greater flexibility to the courts. That, I am sure, is right. But having done that with one hand, with the other they are taking away the flexibility from the magistrates' courts and saying that where the sentence is not more than six months it must be suspended, even though the magistrates who have heard the case are convinced that the man should go at once to prison. I am certain that the courts should have as wide as possible a variety of courses open to them. I am equally certain that neither the Home Secretary, the Government, another place, nor, with respect, your Lordships' House, is as well qualified to say what precisely should happen to a particular accused person who has been found guilty of an offence as the court which has tried him, which has seen and heard him, and which has full knowledge of all the facts known about him, the offence and the circumstances.

If the Government insist on restoring this removal of discretion from the magistrates' court, it must be for one of two reasons: either the Government think that the magistrates are not doing their duty, or are not capable of doing their duty, in a responsible way, or alternatively—and I think this is the real reason—the Government have decided that the prison population must be reduced at all costs, even if this means that justice fails to be done; even if it means that the general public will be exposed to crime from which they might otherwise have been protected. The Government are taking a very grave decision here. I have little doubt that, after some years' experience, it will be clear to everybody that this decision should be reversed in the public interest.

But, in the meanwhile, I do not want to lose the Bill. Nobody wants to lose the Bill. I am anxious for this Bill to reach the Statute Book as soon as possible. Here there is a deep difference of opinion, and I know that, not necessarily my words, but the sentiments which I have expressed, would be endorsed by the noble and learned Lord the Lord Chief Justice, who has expressed to me his personal regrets that he is not able to be present here to-day to say what he thinks about this decision. But the decision must be, I regret, accepted. My words will be on record, and though I think your Lordships must accept the Commons view, I am quite sure that before many years are out it will be necessary to reverse this ill-advised decision.

House adjourned during pleasure and resumed by the Lord Chancellor.

12.11 p.m.

LORD STONHAM

My Lords, I agree with the noble Lord, Lord Brooke of Cumnor, that this is by far the most important of the matters on which the Commons have disagreed with your Lordships. I also agree with the noble Lord in his concluding words, in recommending your Lordships to accept the view the Commons expressed last night. I completely disagree with almost everything else that the noble Lord said, and I will say why as briefly as I can.

The noble Lord said that this, in the main, deals with subsection (3) of clause 30 in the Bill, as we originally considered it. First of all, I want to make the point on this clause that we are not considering people with a criminal record. We are not withdrawing from magistrates discretion with regard to the grant of bail for such people. We are not withdrawing from magistrates discretion with regard to the grant of bail for people who have committed, or are alleged to have committed, the more serious offences. Very briefly, I will read these exceptions to mandatory suspended sentence, the act or any of the acts constituting that offence consisted of an assault on or threat of violence to another person, or of having or possessing a firearm, an imitation firearm, an explosive or an offensive weapon or of indecent conduct with or towards a person under the age of sixteen years". Similarly, the discretion of the magistrates is retained if the accused person has served, or has since the commission of the offence served, a sentence of imprisonment or borstal training. Therefore, it is clear that we are not considering people with bad records. We are not considering people who have committed the more serious offences.

The noble Lord said—and I was not quite clear whether he gave it as his own view or was expressing the view of the noble and learned Lord the Lord Chief Justice—that this is a blow to the maintenance of law and order to which the Government have agreed for administrative reasons. It is true that if this measure of the Government is carried it will have the very desirable effect of reducing the number of people sent to prison for short periods. That is by no means—certainly in my personal opinion—the most important part of this provision. We are agreed—we have been agreed all the time—that short sentences of imprisonment should be avoided if at all possible. No one is more fervently in agreement with that than the noble Lord, Lord Brooke of Cumnor, because of his own experience as Home Secretary. He said so on Second Reading and subsequently. We are all agreed in welcoming the provisions in the Bill for suspended sentences—all of us. They are still in the Bill: that is, discretionary suspended sentences, not just of six months, but up to two years. Everyone agrees with this.

So the only point at issue is the proposal whether or not we should, for certain classes of offenders, withdraw a magistrate's discretion not to suspend a sentence for up to six months' imprisonment, and we want to make it mandatory that he will have to suspend the sentence. This is in the case of a first sentence of imprisonment. The person concerned has not got a record. It is only in the case of a first sentence of imprisonment. The words that this is "a blow to the maintenance of law and order", in my submission, is an abuse of language, whoever used the language.

The noble Lord, Lord Brooke of Cumnor, said that magistrates will commit to quarter sessions because they are absolutely convinced that the people before them should be sent to prison. In 1958 your Lordships passed the First Offenders Bill, which puts on magistrates the duty of not sending to prison first offenders if they can find any other means of dealing with them. But in every one of the eight or nine years since the passage of that Bill, 7,000 first offenders have been sent to prison—not all of them, of course, for short sentences; some first offenders commit serious crimes and have to be sent to prison for long periods. But the great majority of first offenders sent to prison were sent for short sentences. In other words, the magistrates decided, on the severity of their crime, that they should spend that time in prison. The magistrates have had that discretion all those years, and in my view, not the majority of magistrates, but those who have sent people to prison in that way have shown a very poor use of that discretion.

What are the kind of people who get sent to prison for short sentences? They are not all like this, but there was a mother of three children, a first offender, a shoplifter, sent to prison for three weeks. Would any noble Lord think that that was the way a magistrate should exercise his discretion? The woman was guilty, but just think. A railwayman steals a packet of cigarettes: six months. Just imagine the consequences. These things happen. I am quoting actual cases, and you can read of them in the papers every week. If we do not send these people to prison but give them another chance—sentence them and suspend the sentence, so that if during a period of one to three years thereafter they commit another offence they can be obliged then to serve the sentence originally imposed—can it be sensibly argued that this is a blow to the maintenance of law and order? I should have said that it was a step towards a civilised society, and no mean step at that.

The noble Lord, Lord Brooke of Cumnor, said that if the Lord Chief Justice had given strong guidance to the magistrates it would have been effective. In 1948 we had—

LORD BROOKE OF CUMNOR

My Lords, may I just correct that? I did not say, if he had given strong guidance to the magistrates it would have been effective. I was speaking about the future, and not the past.

LORD STONHAM

My Lords, I understood that the noble Lord was speaking about the future, and I apologise if my words in any way created a wrong impression. Let me start again. The noble Lord, Lord Brooke of Cumnor, said it would have been better, rather than to have the measure we want, to suggest or to ask the noble Lord the Lord Chief Justice to give strong guidance to magistrates, and that he thought that would be effective. In 1948 we had another Criminal Justice Bill, which was enacted under a Labour Government, and, greatly to my regret, we provided in that for preventive detention, whereby men get sentences of up to fourteen years for stealing a bottle of milk. We are ending that in this Bill, with the complete approval of every noble Lord in the House, and not least the noble Lord, Lord Brooke of Cumnor.

But it has taken us a long time to abolish preventive detention. As long ago as 1962 everybody realised it was a complete failure, and judges were still sending people to long sentences—a minimum of seven years, a maximum of fourteen years—for utterly trivial offences. So the noble Lord, Lord Brooke of Cumnor, when he was Home Secretary, set up a Committee to consider this, and he adopted their recommendations. All that time men were still going to prison, and the noble and learned Lord the Lord Chief Justice sent out a Practice Guidance. That is the firmest possible guidance that can be given to his fellow judges, and this advised them not to send men to prison on preventive detention. They still do so. Therefore the guidance was not effective.

No, my Lords; the Government think that this mandatory suspension is crucial. It is a vital part of the plans for a reduction of the number of unnecessary short-term prison sentences, and for the enlargement of non-custodial treatment for the reduction of recidivism and the reduction of crime. When a man goes to prison for the first time he is not only contaminated, he is not only well on the road to recidivism, but he is labelled for the rest of his life, and there follow all the social consequences to his family and himself. If he has committed a severe crime he must go to prison, and the other uncovenanted benefits must accrue to him also, but if he is a first offender who has committed a less serious offence then the Government say he should not go to prison. If he merits a sentence of only six months or less, that sentence should be suspended so as to give him another chance.

We have had this nine years' experience of magistrates using their discretion in the matter. Naturally, by no means all first offenders get shorter sentences even if it is a first prison sentence it is not always a short one. The people with longer sentences would not be affected by mandatory provisions. But the substantial majority of first offenders—thousands of them—are sent for short sentences. As the noble Lord said, probably 5,900 people are covered by these provisions, and the mandatory suspension would ensure them a second chance and would keep most of them crime-free for the rest of their lives. We can say that from our experience.

All this is weighed against the single factor of the limitation of a magistrate's discretion to send such people to prison and not suspend their sentences. Surely there can be only one answer; and just as the noble Lord, Lord Brooke of Cumnor, said that his words are on the Record and will be seen in years to come, so my words will also be on the record, and although it may not be given to me to see the result I am confident that those who read my words now and who see the result in 10 to 15 years' time will know that those words were justified.

On Question, Motion agreed to.

LORD STONHAM

My Lords, with the leave of the House, I beg to move that the House doth agree with the Commons in their Amendments, Nos. 5 to 8, to the words so restored to the Bill. As the noble Lord, Lord Brooke of Cumnor, surmised, these are really drafting Amendments, but they must be explained. They are designed to make it clear beyond doubt that the mandatory provisions will apply to cases where a court passes consecutive sentences of imprisonment. I am now speaking to Amendment No. 5. These are cases where a court passes consecutive sentences of imprisonment which are individually for six months or less but which in aggregate exceed six months. It is believed that this is already the position under the Bill as it stands, but Clause 87(2) might appear to put the matter in some doubt. It could be suggested that the mandatory provisions should not apply to consecutive sentences totalling more than six months, but if the provisions were not applied to these sentences there could be a real danger that courts would impose consecutive sentences in order to avoid having to suspend a shorter sentence, and that is something which it is desirable to avoid.

Amendment No. 6 is a drafting Amendment. It is a curious position but in fact it is possible for a person to be sentenced to corrective training without having previously served a borstal or a prison sentence. I am sure your Lordships would agree that it would be inappropriate for such a person to get the benefit of the mandatory provisions for suspended sentences. Corrective training is, of course, abolished by the Bill, with general agreement, but there will still be people who have in the past served a sentence of corrective training but not one of imprisonment or borstal. With regard to Amendment No. 7 the position is that Amendment 167, to Clause 84, provides that any order made under the Bill by statutory instrument, may be varied or revoked by a subsequent order, Subsection (6) of Clause 30 consequently becomes unnecessary. Amendment No. 8 is consequential.

Amendment No. 9 gives effect to a suggestion made by the Magistrates' Association. Section 110 of the Magistrates' Courts Act 1952 empowers a court that has power to commit to prison a person convicted of an offence to order him instead to be detained for one day in the court-house or a police station. The Amendment enables this power to be used in cases where a sentence of imprisonment proper would have to be suspended under Clause 30. I beg to move that this House doth agree with the Commons in the said Amendments.

Moved, That this House doth agree with the Commons in the said Amendments, Nos. 5 to 8.—(Lord Stonham.)

THE LORD CHANCELLOR (LORD GARDINER)

My Lords, if no noble Lord objects, I will put Amendments Nos. 5 to 8 together.

LORD BROOKE OF CUMNOR

My Lords, I have only one point to raise. Thanks to the extreme shortness of time for examining these Amendments I am quite unable to understand why Amendment No. 9 is consequential. I will, of course, accept the statement of the noble Lord, Lord Stonham, that it is, but it seems to me most extraordinary that we have to amend a clause relating to the detention of offenders for one day in a court-house or police station because we have proposed to agree to these other Amendments in Clause 30. Naturally I have not given the noble Lord notice of this question—I could not have done so—and I have not had time to discover the reason for myself. I do not wish to press it now, but maybe subsequently he will let me know the reason.

LORD STONHAM

My Lords, in some ways I am in even greater difficulty than the noble Lord, Lord Brooke of Cumnor. Since we adjourned last night I have been to Sunningdale to talk to the County Councils Association and therefore have not been able to get any papers in regard to this point, but it seems to me this is fairly clear. The position is that under the 1952 Act there is the power, as the noble Lord is aware, to commit to prison a person convicted of an offence but to order him instead to be detained for one day. As I understand it, here would be these difficulties over the suspended sentence which arise from that. If that is still not clear, I will certainly write to the noble Lord about it, but it seems to me a point of detail which has been previously overlooked and which should be put right.

On Question, Motion agreed to.

LORD STONHAM

My Lords, this Amendment is consequential. I beg to move that this House doth agree with the Commons in their consequential Amendment, No. 9.

Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Stonham.)

On Question, Motion agreed to.