HL Deb 21 July 1977 vol 386 cc497-513

65 Leave out Clause 43.

65A The Lord Wigoder to move, That this House do disagree with the Commons in their Amendment No. 65.

6.5 p.m.


My Lords, I beg to move that this House doth disagree with the Commons in their Amendment No. 65. I do so, while first assuring your Lordships that, so far as I can see, in no way can this be regarded as a Party political issue. Certainly I hope that my noble friends ort these Benches will vote entirely on the merits of the argument and with no other considerations in mind. Secondly, may I suggest that it is desirable that the other House should have an opportunity to reconsider this matter because of the rather unfortunate circumstances in which it comes before your Lordships today. Your Lordships passed an Amendment at the Report stage which was considered in Standing Committee in the other place where it was defeated by one vote, there being absent one Member of the Standing Committee. I am sorry to have to say that it was the Liberal Member who would, in fact, have voted for your Lordships' Amendment. It is, therefore, in a sense accidental that the Amendment which your Lordships passed was thereby defeated in the other place.

Amendment No. 65A is not in itself very informative. Amendment No. 65 merely reads: "Leave out Clause 43". That is not very informative, either. Clause 43 simply reads that: Section 3 of the Criminal Justice Act 1961 … is hereby repealed". That, in its turn, is not particularly informative. Therefore your Lordships will perhaps forgive me if I indicate that what we are now dealing with are the merits or demerits of Section 3 of the Criminal Justice Act 1961, which prescribes that: … a sentence of imprisonment shall not be passed by any court on a person within the limits of age which qualify for a sentence of borstal training except—(a) for a term not exceeding six months; or (b) … for a term of not less than three years". Then there is a futher provision, that in certain circumstances where a young person has already served a borstal sentence the sentence should be 18 months rather than three years. In other words, I am seeking to urge upon your Lordships that that provision is harmful and should be repealed. It is a harmful provision because it has fettered the discretion of the courts, which wish to deal as leniently as possible with young people who are in trouble.

I hardly think that it is necessary to rehearse all the arguments. Your Lordships heard them at both the Committee and Report stages. Your Lordships heard the noble and learned Lords, Lord Dilhorne, Lord Hailsham of Saint Marylebone, Lord Morris of Borth-y-Gest, Lord Salmon and Lord Edmund-Davies all speak in support of this proposition. The position is that if a young person has committed an offence and borstal is clearly not an appropriate sentence, the law as it stands compels the judge to make the decision that the sentence of imprisonment, if he decides that that is inevitable, has to be either six months or less, or three years or more. What the results are it is not easy to discover by any kind of statistical analysis. There are, no doubt, certain cases in which, faced with this section, judges have sent a young man to borstal rather than to prison. I doubt whether there are very many cases of this kind. I venture to think that most judges take the view, on the facts of the case, either that imprisonment is or is not necessary or that borstal is or is not necessary, and that they are unlikely to be influenced by this section in preferring borstal to imprisonment.

Secondly, there are certain cases in which a court, dealing with a young person and deciding that imprisonment is necessary, feels that a sentence of nine or 12 months is appropriate but, because of this section, passes a sentence of six months' imprisonment. That is desirable, and to that extent one can commend this section.

Thirdly, it is within the experience of everyone who practices in the criminal courts or who tries cases in the criminal courts, that there have been any number of cases in which young people have been convicted of serious offences for which the appropriate penalty might be one of 18 months or 21 months or two years, but the judge finds himself impelled by this section to pass a sentence of three years' imprisonment. One can state that categorically as a fact because the Law Reports and the Court of Appeal Criminal Division are littered with cases in which people have been sentenced to three years' imprisonment simply because of the terms of this section, the judge having specifically said that he would very much rather have passed a lesser sentence.

I put the case for repealing this section in a very simple way. In passing sentence, the golden rule is never to send a person to prison for one day longer than is absolutely necessary. This section compels judges over and over again to send young people to prison for substantial periods in excess of the appropriate sentence. In those circumstances, I hope your Lordships will agree that it would be desirable that the other place should be asked to reconsider their opposition to your Lordships' Amendment. I beg to move that this House doth not agree with the Commons in their Amendment No. 65.

Moved, That this House doth not agree with the Commons in the said Amendment.—(Lord Wigoder.)

6.12 p.m.


My Lords, I am glad the noble Lord, Lord Wigoder, tabled this proposed rejection of the Amendment made in the other House. The House will remember that this subject was initially raised by my noble and learned friend Lord Morris of Borth-y-Gest, and he has asked me to say how very much he regrets that, owing to his having an important public duty to discharge in the country tomorrow, he is unable to be here this evening. He has asked me also to say that if he had been here he would have spoken in support of the noble Lord, Lord Wigoder, and indeed he has handed me very full notes of his speech, but I will not attempt to deliver it.

We have debated this subject now twice in this House and, despite encouragement from the noble and learned Lord, Lord Hailsham of Saint. Marylebone, I do not propose to repeat what I have said. I should like to summarise one or two things. It is the fact, and I do not think it can be disputed, that Section 3 of the Criminal Justice Act prevents the proper administration of justice. The noble Lord, Lord Wigoder, spoke of the golden rule of not passing a day longer sentence of imprisonment than was absolutely essential. That is only one side of the golden rule; the other side is that you do not pass a sentence of imprisonment if there is any possible alternative.

Under this particular section passed in 1961 the judge, in the exercise of his judgment, passing what he considers to be the appropriate sentence for a young offender, is completely restricted. If this Amendment by the Commons is rejected it will indeed restore—to use the words of the noble Lord, Lord Harris of Greenwich—the freedom of judges to relate the length of a sentence more directly to the particular offence. I do not think it can be disputed that this particular section of this Act does impede the proper administration of justice, and in fact in its operation does lead to injustice.

It is no use criticising Her Majesty's judges for passing unduly light sentences when by Act of Parliament that really is the only thing they can do. If in a case you are faced as a last resort with sending a young person to prison, your choice is either a sentence of up to six months or one of more than three years. If a man under 21 is a member of a gang and the gang crime has been so serious that the others ought to go to prison for, say, two years, you cannot send the young one to prison for two years, although perhaps it would be unfair to send him for six months and the others for two years. So in all the cases that fall within this bracket the judge is faced frequently with the choice of either passing a sentence which he regards as being too light, or of going to the other end of the scale and passing a sentence which, if it errs at all, errs on the side of severity. That is the position which will remain if this section of the 1961 Act is retained.

What are the arguments for its retention? They boil down to the simple proposition that the view of the Home Office is that it will lead to an increase in the prison population. That is worth examining. As a secondary argument it is said that it will lead to some people being sent to prison who would now go to borstal.


Hear, hear!


My Lords, when the noble and learned Lord, Lord Gardiner, says "Hear, hear", he ignores Section 3 of the Criminal Courts Act 1973, which provides that no court shall impose imprisonment on a person under 21 years of age unless the court is of opinion that no other method of dealing with him is appropriate. It may be that in years gone by, in 1961, in some cases some young persons were sent to prison who might have been sent to borstal; but in the light of this statutory provision we must rule out the possibility of a borstal sentence being adequate before any question of sending to prison ever arises for consideration. It is only if there is no alternative that a prison sentence can now lawfully be considered and, if it is considered, as the law now stands, and will stand if the Commons Amendment is accepted, the sentence of imprisonment is restricted in that way.

Taking this into account too, I approach the question: Will this change in the law by the repeal of Section 3 of the 1961 Act increase the prison population? People can speculate about that. I think the noble Lord, Lord Harris of Greenwich, answered a Question for Written Answer about it the other day. It really is impossible to predict the answer with any certainty at all. It may be on balance it will do so slightly; it may be that it will not do it at all. It is no use looking, as the Home Office repeatedly do, simply at the case of those who might be sentenced to nine or 12 months' imprisonment instead of now being sentenced to six months. We have to look at the other end and consider the case where the judge, knowing it is a very serious crime, would, if left to his own choice, perhaps pass a sentence of 21 months, but says: "As I have to choose between three years on the one hand or six months on the other, and as three years really is not an impossibly heavy sentence, I will give him three years"; yet if he was free to do so, he would give him 21 months. I give that as an illustration, my Lords, because it is quite impossible to say how this would work out in practice.

I raise this other proposition. Let me assume for a moment that it increases the prison population. It really is not the judge's exercise of his powers to administer justice which brings about the great increase in prison population which we see recorded on the tape this afternoon. In these days it is because of the prevalence of serious criminal offences. That is the cause, and it really is ridiculous to try to restrict the judicial powers of punishment to suit the punishment to the offence with a view to relieving the prisons of a possible increase of population. That is all it is.

We are told that some who are engaged in penal reform would regard this as a retrograde step. I have no doubt there are such people, but I do not think your Lordships would find a single judge who has had experience in administering the criminal law who would agree, or indeed my noble and learned friends who sit in this House with me, some of whom have had great experience of that aspect of the law, including my noble and learned friends Lord Edmund-Davies, Lord Salmon and Lord Diplock. I do not think that one will find any judge experienced in the administration of criminal law who does not think that Section 3 is a great blot on our system and that the sooner it goes the better our justice will be.


As I think the noble Lord, Lord Wigoder, indicated at the beginning of his speech, we have been around this track, not once, not twice, not three times, but four times. Therefore, I hope that my speech, too, will be mercifully brief. I shall try to cover slightly different territory from that which I covered on the last occasion. However, I point out to the noble and learned Viscount, Lord Dilhorne, that he will not be altogether astonished to learn that the conclusion I have reached is rather similar to the one I reached on the previous occassion.

I say at the outset that we are facing an extremely difficult situation. I can certainly understand people coming to a different conclusion from the one that I reach, but I must ask the House directly to examine what the real effect would be on the prison population if the Amendment were to be carried. I agree with the noble and learned Viscount, Lord Dilhorne, that there can be no certainty in this matter. The noble and learned Lord, Lord Morris of Borth-y-Gest, put down a Written Question to me on this matter last week. He asked what evidence the Government had to show what the effect would be upon sentence lengths. Of course, there is no evidence. I, no more than the noble Lord or noble Viscount, can precisely predict what the judicial reaction would be to a future, hypothetical event. However, that is not the central issue. What is clear is that repeal is likely to lead to a displacement of borstal sentences by prison sentences, as borstal ceases to be the mandatory, medium-term custodial sentence for this age group. If I am right in what I have just said, and I think that I am because it was generally accepted by most of those who participated in the debate in another place—


Before the noble Lord, Lord Harris of Greenwich, leaves the point he is making about borstal and ignores that section of the Act, I would point out that one cannot, without breaking the law, send a person to prison if one can send him to borstal for an intermediate term. In view of those provisions, it is really a nonsense to say that this will affect the numbers who go to borstal.


With respect to the noble Viscount, Lord Dilhorne, I do not reach the same conclusion as he reaches. It is a matter of judgment. I understand the Statute to which he is referring me, but it is a matter for the judge at the trial. It is a matter of fact and not of argument that borstal will cease to be the mandatory medium-term custodial sentence for this age group. That must be right. That being so, there will be an effect on the size of the borstal population; fewer people will be sent to borstal. However, the gains here will be wiped out in a matter of days because the borstal system, like the young offenders system as a whole, is overflowing. For example, in the North of England there is a queue of young people already sentenced to borstal training who are lining up in the remand and allocation centres to await the first vacant borstal places. Most of the gaps left in the borstal system, will, in this situation, be wiped out within a matter of days.

The situation in the young prisoner sector is a great deal worse. Here it is not a question of young people queueing up for places in the young prisoners' centres, but an acceptance of the fact that a substantial proportion of young prisoners will never see at any stage in their sentence the inside of a young prisoners' centre, but will serve their sentences in overcrowded local prisons. On 30th June there were 2,157 young prisoners in custody, but only 927 were in young prisoners' establishments—just about a third. The remaining, 1,230 were mostly in very congested local prisons or remand centres. That means that the majority are serving their sentences in establishments designed neither to receive them nor to cater for their needs. I shall give way to the noble Viscount, Lord Dilhorne, in a moment, but with respect I must have an opportunity to deploy my argument. If Section 3 is repealed, that majority will, in our judgment, further increase.


Is it not the case that the Home Office is responsible for there being an inadequacy of accommodation?


With great respect to the noble and learned Viscount, Lord Dilhorne, that question is unworthy of him. Of course, there has been a substantial increase in the prison population. The Government of which the noble Viscount was a member and the Government between 1964 and 1970 must accept a measure of responsibility for the inadequacy. However, the fact is that that is the situation with which we are now confronted and it would be many years before we could provide extra places in these establishments.

What we must do at present is consider what would be the effect of a change in the law of the kind which is being advocated by the noble Lord, Lord Wigoder. As I have indicated, if Section 3 were to be repealed in our view the pressure in the young prisoners' centres would get worse and there would be more young prisoners who would spend their sentences in already grossly overcrowded, local prisons.

Although it is true that in the local prisons every effort is made—and I know that it is—to segregate young prisoners from adult prisoners, the conditions in which they have to be held are, frankly, in many cases highly unsatisfactory. They are not only severely overcrowded; they are often without the opportunity of work or association and are locked up in their cells for the greater part of the day, seven days a week. Let me quote some concrete examples. The young offender wing at Wormwood Scrubs Prison in London has places for only 38 young prisoners. However, on 30th June there were over 100 there. Additional cellular accommodation has had to be made available at the expense of other sections of the population of that prison, but there is still severe overcrowding and insufficient work for all. While some have part-time education, others are locked up nearly all day, with association for just one hour on only two evenings a week, and none at all at weekends. That is the situation in one London prison.

This situation is repeated up and down the country. At Leeds on 30th June, there were 112 young prisoners in unsuitable conditions with wholly inadequate workshop facilities. Only 20 can have association on any one evening and there is no association at all at weekends. That means that they go out of their cells for a meal and for a short period of exercise and that is all. At Birmingham, on the same date, there were only 47 young prisoners, but it was not possible to provide any of them with work and, apart from a short daily educational period and association about twice a week, they spend the rest of their sentence locked up.

I am only too well aware of conditions of this kind when I visit prisons myself. A few months ago I went to Winchester. I was appalled to see the degree of overcrowding among the young offenders in that establishment. At that time there were over 100 offenders, almost a third of whom were sentenced young prisoners, in cellular accommodation designed for 62. It does not require must imagination to see what life is like in overcrowded conditions with totally inadequate facilities in one establishment after another within our prison system.

In my judgment that situation will become worse if the Amendment is carried. These are not spurious arguments which have been worked out in a backroom of the Home Office in order to defeat the will of this House. They are facts and figures about a flesh and blood situation with which we are confronted at the moment. If we believed for a moment what the noble Lord, Lord Wigoder, said at the beginning of his speech, that passage of this Amendment would lead to a reduction of the pressure in our prison system, we would, of course, re-examine the situation at once. What we are confronted with at the moment are dangerously over-crowded prisons, with no immediate prospects of improving the situation, and what I must say with the utmost emphasis to your Lordships is that in our judgment passage of this Amendment will make that situation worse.


My Lords, this is a matter which has occupied the attention of your Lordships' House on a number of occasions, certainly since 1972 when, as I said before, it was the very first thing I ever moved in your Lordships' House. I do not think that this is an argument which can be continued very much further. Almost everything has been said which can be said. Sometimes it has been said more than once, and sometimes it has been said more attractively than at other times.

It seems to me that there are three real reasons why this Amendment, which commended itself to the House on Report, should be sent back to the other place. I accept, of course, the arguments of the noble Lord, Lord Harris, about the overcrowding in prisons and so on. I am bound to say it is an argument which we have not heard made quite so vociferously before. I am sure it is not spurious; I do not think that for a moment. But it is obviously made as a justification to the reforming zeal in all our bosoms, that we should perhaps think twice before we do what, if we look at the matter calmly, we can see is our plain duty.

My first reason for making these remarks is this. The system at the moment, as any practitioner or any judge will agree, is manifestly unfair to the defendants themselves, certain people who come before the court for sentence. On many occasions, if borstal for one reason or another is inappropriate, the sentence of the court should lie somewhere between the six months and the three years which are at the heart of Section 3. One asks why it is that this unfairness on these young people should continue a moment longer than is absolutely necessary. I fully concede that at the time when the original Act came to be passed it was a good idea and it was passed in the way that it was with the best of intentions. I think that period has long since gone.

Secondly, this section acts, as I regard it, as a totally unjustified fetter on the judges and the Judiciary. There seems to me very little point in having judges if they cannot be trusted to get on with the process of sentencing. Again and again they have said—and, let us face it, they should know better than most—that they have to undertake a course of action which they are disinclined to take bringing to bear their judgment, as they are supposed to do; because of this particular section they are enjoined to do it and they have to do so.

Thirdly—and this, I think, is almost the most important matter—so far as the administration of justice is concerned this has now become a highly unsatisfactory way of going about sentencing these people. So often, as has been said, you get defendants of different age groups, or defendants who are in varying different ways blameworthy according to the part that they may have played in the crime with which they are jointly charged. It may be that because somebody is over 21 the judge can deal with him in a way which is fair and which is seen to be fair. But because a young person is beneath that age this fetter is placed on the judge, and he has to take a course of action which is not only unfair on the young person himself but is also something which is a source of great aggrievement so far as joint defendants are concerned.

How often one sees—and the newspapers, unfortunately, these days are very quick to point out what they consider to be the shortcomings of judges when it comes to sentencing—that judges are accused of either being soft or, indeed, being hard, when in fact all they have been doing is carrying out Section 3. That is something which the public does not understand and quite rightly questions, because it thinks the Judiciary are out of touch with what they are meant to be doing or else somehow are not fulfilling their duties.

As I say, I can see the argument of the noble Lord, Lord Harris. If one thought that the abolition of Section 3 was going to lead to a large increase in the prison population, one would think very hard twice and thrice before pressing for its abolition. For myself, nothing that he has said has convinced me that in fact we are going to have the difficulties which he describes. If I may say so, he has put up the best argument he possibly can. He has put up an argument that Ministers of State from both the main political Parties have put up with varying degrees of charm and forcefulness from time to time. On the last occasion I was sitting somewhere near where the noble Baroness, Lady Wootton, is now sitting. I complained to my noble friend Lord Colville that he was trying to exercise justice by cash register and he got very angry. I at least am consistent. I intend to go on being consistent, and I hope a number of other noble Lords will agree. I do believe that my noble and learned friend Lord Hailsham agrees, and I hope that a few others do as well.


My Lords, anyone listening to the noble Lord, Lord Wigoder, the noble and learned Viscount, Lord Dilhorne, and the noble Earl, Lord Mansfield, will hear an impeccable academic case and I would not dispute it for one moment. Nobody in their senses, writing Statutes within the four walls of the rooms of the Parliamentary draftsmen or within the four walls of this Chamber, designing the pattern of Statutes, makes a distinction of this kind, that you could only send persons of a certain age to prison for three years, and for a serious offence you would have to do something else with them. I notice the something else has been very little referred to.

Most of the speeches have made very little reference to the fact that custodial sentences for these young people are possible. It is true that they are not very satisfactory at the moment, but they are a sight more satisfactory than what we optimistically call the young prisoner centres. The young prisoner centres at best tend to be wings attached to ordinary prisons, and at worst, as my noble friend Lord Harris has said, they are simply local gaols which are not different from adult prisons at all. If you cease to perform an academic exercise, and you put this exercise against the realities of the present situation, you do see that you are doing a monstrous thing by unnecessarily putting young people into prisons when they could go into institutions, which, though overcrowded, have at least been designed for people of their age.

The difference between custodial sentences at borstal and custodial sentences in prison is that prisons, even those with young prison centres attached to them, have been designed by and large for the regime, and with, at one time adequate, but now inadequate, accommodation for grown-up men. Borstals at least were designed for people of the age group we are discussing. Though they are also overcrowded and also working under great difficulties, they at least are geared to the needs of this section of the population. If an offence is so serious that it necessitates detention for quite a long time, a borstal can keep an inmate for two years. If an offence is less serious, they can keep him for a shorter period, something between six months and two years. When noble Lords say that these people are not suitable for borstal, one wonders on what ground they have decided that prison is right and borstal is wrong, and one wonders how up to date is their acquaintance with these various institutions.

It is a year or two ago since I visited most of the borstals in this country and also a number of the so-called young prisoners' centres. I was absolutely convinced that it is totally wrong to send anyone who, I admit, must be kept in custody but who has not committed a very serious offence—such offence perhaps requiring a sentence of three years for reasons of public safety—to a prison establishment when there are borstals which are geared to deal with that kind of person.


My Lords, as a humble magistrate, may I say that I have always looked up to the Judiciary. I am very surprised to hear tonight that the noble Lord, Lord Harris of Greenwich, obviously does not do that. In fact, as far as I can make out, he is suggesting that not only the Home Office, but he himself and others do not trust the Judiciary.


No, my Lords; with great respect, that overstates very substantially the case that I put.


My Lords, perhaps I should say "trusting the judgment of the Judiciary". They have very wide experience—far wider than any member of the Home Office or any Member of this House, apart from those who actually preside as judges. If they want the repeal of this clause I. for one would support them.


My Lords, it is apparent to your Lordships House that, however long this matter is discussed, there is practically no point of contact between those of us who wish to see this clause repealed and the Home Office who wish to see it maintained. The law is that no court may send a young person to prison unless no other way of dealing with him is appropriate. If that law is abided by then, whether this clause is repealed or not, the number of people who finish up in borstal cannot be affected.

In those circumstances much of the appalling statistical information which has been given to us by the noble Lord, Lord Harris of Greenwich—interesting though it is—is quite irrelevant to the discussion. With great respect to the noble Baroness, Lady Wootton of Abinger, equally, argument about the merits of demerits of borstal and prison as penal institutions becomes irrelevant to this discussion.


My Lords, would the noble Lord say where the young people who are now sent to prison and who the Judiciary think perhaps need 18 months in custody now go while this provision lasts?


My Lords, the present position is that if a court comes to the conclusion that imprisonment is necessary and there is no other way of dealing with a young man except by a sentence of imprisonment, then a sentence of imprisonment has to be passed.


My Lords, that is not an answer to my question, if I may respectfully say so. My question was: If a custodial sentence of something like 18 months is thought to be necessary, what do they do with them now?—they send them to borstal.


My Lords, no; they send them to prison for three years, and that is precisely what we want to stop. There is really little point in pursuing the matter. I venture to say that I am perhaps the only Member of your Lordships' House who has the distressing task for four or five weeks a year in a Crown Court of sentencing people who have committed offences. One sees young people, and I assure your Lordships that no judge would ever send a young person to prison unless it was absolutely necessary. What is an impossible burden is that, having come to the reluctant conclusion that it is absolutely necessary, one's hands are then tied and one is unable to impose the appropriate sentence.

6.44 p.m.

On Question, Whether this House doth disagree with the Commons in their Amendment No. 65.

Their Lordships divided: Contents, 80; Non-Contents, 58.

Resolved in the affirmative, and Commons Amendment disagreed to accordingly.