§ 56 After Clause 37, insert the following new clause:
§ Prison sentence partly served and partly suspended
§ ".—(1) Where a court passes on an adult a sentence of imprisonment for a term of not less than six months and not more than two years, it may order that, after he has served part of the sentence in prison, the remainder of it shall be held in suspense.
§ (2) The part to be held in suspense shall be not more than three quarters and not less than one quarter of the whole term, and the offender shall not be required to serve that part unless it is restored under subsection (3) below; and this shall be explained to him by the court, using ordinary language and stating the substantial effect of that subsection.
§ (3) If at any time after the making of the order he is convicted of an offence punishable with imprisonment and committed during the whole period of the original sentence, then (subject to subsection (4) below) a court which is competent under this subsection may restore the part of the sentence held in suspense and order him to serve it.
§ (4) If a court, considering the offender's case with a view to exercising the powers of subsection (3) above, is of opinion that (in view of all the circumstances, including the facts of the subsequent offence) it would be unjust fully to restore the part of the sentence held in suspense, it shall either restore a lesser part or declare, with reasons given, its decision to make no order under the subsection.
§ (5) Where a court exercises those powers, it may direct that the restored part of the original sentence is to take effect as a term to be served either immediately or on the expiration of another term of imprisonment passed on the offender by that or another court.
§ (6) 'Adult' in this section means a person who has attained the age of twenty-one; 468 and 'the whole period' of a sentence is the time which the offender would have had to serve in prison if the sentence had been passed without an order under subsection (1) above and he had no remission under section 25(1) of the Prison Act 1952 (industry and good conduct in prison).
§ (7) Schedule (Matters ancillary to section (Prison sentence partly served and partly suspended)) to this Act has effectwith respect to procedural, sentencing and miscellaneous matters ancillary to those dealt with above in this section, including in particular the courts which are competent under subsection (3) above.
§ (8) This section and paragraphs 1 to 6 of Schedule (Matters ancillary to section (Prison sentence partly served and partly suspended)) to this Act and the Powers of Criminal Courts Act 1973 shall be construed and have effect as if this section and those paragraphs of the Schedule were contained in that Act.".
§ 4.48 p.m.
§ Lord HARRIS of GREENWICH
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 56. I should like to speak at the same time to Amendment No. 95 and to the related new Schedule which is Amendment No. 122. The new clause and the related Schedule introduce a new form of sentence of which part should be served in custody and part held in suspense, to be activated if the offender is convicted of an imprisonable offence committed during the period of sentence. Courts already have the power, in relation to prison sentences of up to and including two years, to order that the sentence shall not take effect unless the offender is convicted of a fresh imprisonable offence. In that event, the original sentence must be activated in full unless the court decides that it would be unjust to do so—in which case it may impose a lesser term or make no order. There is at present no power to suspend part of a sentence, and that, of course, is what we now have before us.
The new sentence differs from full suspension in several significant aspects. To start with, the offender serves the first portion of his sentence in prison, whereas a defendant made subject to a fully suspended sentence will not, unless he reoffends, go to prison at all. Secondly, partial suspension is only available for those over 21 years of age. Young prisoners under 21 are released from prison on licence, under the terms of which they may, of course, be returned to prison if they misbehave. It would not be right for 469 a young prisoner to be subject on release from prison to the requirements of a young prisoner licence and also to the liability to activation of the suspended portion of a partially suspended sentence. A young prisoner licence is, from some points of view, very close indeed to partial suspension.
Thirdly, the sentence may be suspended only for its nominal length and not, as in the case of full suspension, for longer. Finally, there is now power for courts to make a supervision order on the suspended portion of the sentence. Partial suspension is different from full suspension; the experience of prison gives the offender an extra incentive not to commit another offence during the suspended portion. If courts see the need for supervision as paramount in a particular case, then I hope that they will continue to use their present powers of full suspension.
Partial suspension will not apply to sentences of more than two years—the present limit for full suspension—so as not to overlap with the requirements of the parole system. The minimum sentence is six months, which means that the shortest period which may be ordered to be spent in custody is six weeks. A period shorter than that would, in our judgment, present a number of practical difficulties. Both the maximum period which could be suspended and the minimum to be spent in custody on a sentence of less than six months would really be too short to be worthwhile. By making a sentence of six months available, the new order is within the range of sentences which may be used by magistrates' courts.
The new sentence will, in our judgment, enlarge the scope of the sentencing power of courts. It should provide a salutary check to a number of offenders who will not only see how disagreable deprivation of liberty can in fact be but will also be given an extra incentive to keep out of trouble. I have taken rather more of the time of the House on this particular Amendment than on others, because I think that it will generally be agreed that this is an important matter which deserves the attention of the House. I beg to move.
§ Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)470
§ 4.52 p.m.
§ Baroness WOOTTON of ABINGER
My Lords, far be it from me to throw a spanner in the works on an Amendment which my noble friend is prepared to accept, but I do think that we ought to realise that we are getting into an extremely complicated situation. If we accept this Amendment, there will be three different sets of circumstances in which persons can be released from prison before the end of their nominal sentence. First, there is the normal one-third remission. In each of these three sets of circumstances, they will come out under different controls or no control. If they come out after their ordinary remission, they will be free men, as free as anybody here or outside this House who has never been convicted of anything. If they come out on parole, they will be on licence, and will be liable to be recalled, so long as their nominal sentence lasts, if they break the conditions of their parole. If they come out on this partially suspended sentence then they will be liable, if they should commit another offence, for so long as the suspended period continues, to serve the remainder of the sentence that has been suspended, plus anything they may be given for the subsequent offence.
So we have three sets of circumstances and three kinds of possible release. I think we shall all, both those on the Bench and those in the dock, need to take to court our little calculators and computers. I do see that this has been carefully designed so that there should not be an overlap with parole in the sense that the same person may be eligible both for parole and for a partial suspension, but do we really need a totally new sentence for this? That, I think, is arguable.
What may also be important is not just the complications but the fact that this will be a temptation, particularly as it is available to magistrates' courts. The words "over six months" would have put a different complexion on it and would have confined it to the Crown Court, but the words used are,not less than six months and not more than two years.The "not less than six months" brings it into the purview of the magistrates' courts. In magistrates' courts, sentences are decided by the common view of several 471 magistrates, usually three. One magistrate may say, "I think this chap ought to go inside for three months". Another magistrate may say, "No, I think he ought to have a suspended sentence for six months". After a certain amount of discussion, the third magistrate, probably the chairman, will say, "Let us have a compromise; let us give him six months and suspend half of it", or, "Let us give him a four months sentence and suspend two months of it." This is a temptation which may lead courts to put into prison for very short terms with a suspended period afterwards, a lot of people who would never have gone to prison before. The one thing we do not want to do, surely—even if we think a taste of prison may have a salutary effect—is to clutter up the prisons with a lot of "ins and outs" with very short sentences, which will add enormously to the prison burdens.
If we really want to release people after a shorter period than at present provided by parole, which is either after one year or a third of the sentence, whichever is the longer, a simpler means to the same effect would be to alter the conditions of parole. We are now inventing a new variety of suspension in order to cover what must be a very small number of people—those who are not eligible for parole because their sentences are not long enough, and those for whom we do not feel able to fix a term which would be satisfactory for them to spend inside. I do not want to resist this Amendment, but I do want to point out that it creates certain risks and immense complications.
§ Lord WIGODER
My Lords, I welcome this new clause because it is a further weapon in a range, which should be as extensive as possible, in the hands of the Judiciary in passing sentence. At the same time, I am bound to echo the fears expressed by the noble Baroness. I can quite see that there will be cases in which a court may feel that the appropriate sentence is one of, let us say, two years' imprisonment, but that it is not necessary that the defendant should serve the whole of the sentence, although it is not possible to suspend the whole of the sentence.
§ Baroness WOOTTON of ABINGER
My Lords, if I may intervene, why is the two years necessary if it is not necessary 472 to serve it? Why do we have to say two years when we mean half that period?
§ Lord WIGODER
My Lords, I accept that. I am only seeking to point out that I can see that there are certain circumstances in which this clause might be used, and as a result a person might go to prison for a shorter period of time than he otherwise would; so to that extent the clause will serve its purpose. But I have a very real anxiety that the opposite situation may also arise. It very frequently happens that a Crown Court judge is faced with a situation in which he feels that the appropriate sentence is one of 18 months or two years, and he is genuinely undecided as to whether that sentence should be suspended or not. As the law stands at present, I think more often than not the judge who is anxious to be lenient would suspend the sentence and the man would not go to prison.
I think there is a very real danger that under this clause a compromise would be reached, by the judge deciding that he would still pass the sentence and suspend a certain part of it. I would suggest to the noble Lord, Lord Harris, that the most careful scrutiny will have to be given during the next year or two to the way in which this clause operates, to ensure that it is serving its purpose and not leading to more rather than fewer people being put into prison.
The other matter I would raise is this. Is it really necessary, where a part of a sentence is ordered to be served, that it has to be as much as a quarter of the whole term? I raise that question for this reason. There is a very substantial and growing school of thought which believes that the effective part of a prison sentence, at least upon a person of good character, is what is sometimes referred to as the "door clanging behind him syndrome". It is the first few days of realising that he is in a situation in which he has lost his liberty and contact with his family and friends and is finding life extremely unpleasant.
There is much to be said for the view that a short sentence, actually served, of perhaps two, three or four weeks, might be more than sufficient to ensure that a first offender in those circumstances is extremely unlikely to offend again. Therefore I wonder whether, at least in due course, though obviously not at this stage, when one sees how this provision is 473 working, it may be possible to consider combining it with a situation in which very short immediate custodial sentences might be passed as part of a long-term suspended sentence.
§ The Earl of MANSFIELD
My Lords, I too welcome the new Clause, and for similar reasons to those given by the noble Lord, Lord Wigoder. It provides a new part of a judge's or bench's armoury which I think, especially in the case of a short, sharp sentence, will be very welcome. I see the noble and learned Lord, Lord McCluskey, in his place, and I hope it is not an abuse of the procedures of the House to say—and I say this in my capacity as president of the Scottish Association for the Care and Resettlement of Offenders—that I hope he is following what is going on (I do not say that rudely) and that he will talk to the Lord Advocate about it. If the present Government are in power next Session—and of course I hope they are not—and we do not have a very full legislative timetable, I hope that something of the same nature might be considered for Scotland, where as yet we do not even have suspended sentences.
§ Baroness MACLEOD of BORVE
My Lords, I welcome the new clause and think it will help magistrates. However, I am wondering why an adult has to be 21 because, as we know, the rate of crime from 17 to 21 is escalating, as it is in the juvenile courts. I think it would be more helpful if this provision could apply directly the juvenile becomes an adult. I agree with the noble Baroness that unless something further is laid down for magistrates it is quite likely that more use will be made of sending some people to prison whereas now suspended sentences are given, and that would in some cases be defeating the object of the Bill. With the proviso of hoping that the age limit may be reduced to 17, I welcome the new clause.
§ 5.4 p.m.
§ Lord HARRIS of GREENWICH
My Lords, I am grateful to all noble Lords who have spoken. I do not find myself in a great deal of disagreement with the noble Lord, Lord Wigoder, or indeed with my noble friend Lady Wootton. This is a difficult matter and it would be foolish to make any firm predictions about what the courts will do with this 474 power. Our view—and certainly we should not have favoured the Amendment had we not come to this view—is that it will, on balance, lead to a reduction rather than an increase in the size of the prison population. However, this is a matter in which it is perfectly possible to have two views and we will certainly study the matter with the greatest care. As my noble friend Lady Wootton said, it is indeed a complicated matter. There is, as she rightly said the, question of one-third remission; but of course the one-third remission will apply to this sentence as well, as it does to parole cases too, and now there will be the partially suspended sentence.
The noble Baroness, Lady Macleod of Borve, raised the question of the under 21s. The point here is that an under 21 offender who comes out of prison, comes out on the basis of a YP licence and, as I said earlier, it is not in our view appropriate to have both a partially suspended sentence and a YP licence affecting the same people. It would be incredibly complicated and in my view would lead to an unsatisfactory situation; therefore, we have taken the view that it should be 21 and over.
As for the point made by the noble Lord, Lord Wigoder, on the 25 per cent. figure, again the position is the very difficult one of balance. What would be the effect of following the noble Lord's advice? Our view is that, on balance, it would lead to a possible increase in the size of the prison population. I accept that it is perfectly possible to take a different view. Nevertheless, on balance we have come to the conclusion that this provision is desirable in order to ensure that the whole thing does not get out of hand. Again, my thanks to noble Lords who have participated in this short and interesting debate, and I can certainly undertake that we shall keep the closest watch on how this new sentence works out.
§ On Question, Motion agreed to.