HL Deb 14 July 1987 vol 488 cc930-1004

3.5 p.m.

The Earl of Caithness

My Lords, I beg to move that the Bill be now read a second time.

It is not yet three months since we had a similar debate on this Bill's predecessor, whose progress was sadly interrupted by the general election. That debate remains fresh in many of our minds, and your Lordships will not expect—nor indeed wish—me to give you a lengthy catalogue of the contents of the Bill this afternoon. I therefore propose to speak briefly and to concentrate on two respects in which the Bill differs from its predecessor, and several other matters to which the Government are giving attention and to which we may want to return at the Committee stage.

The most important respect in which the Bill differs from its predecessor is that it does not contain the provisions on fraud which were enacted before the dissolution. It was in our view very much to the credit of your Lordships' House that we were able to give these provisions serious attention in those few days before the dissolution, and to bring them on to the statute book improved by our scrutiny.

The other significant difference between the Bill and its predecessor is that we are proposing in Clause 40 that the maximum penalty for offences of cruelty to children should be increased from two years to ten years. The most appalling cases of abuse of children usually involve some more serious violent offence, which can be punished accordingly. But sometimes, where for example the child has been starved or neglected over a long period, the charge of cruelty is the only one that is available. The maximum penalty did not seem to us adequately to reflect the seriousness of the worst cases of that kind.

Child neglect and abuse have been much in the public eye in recent months. Clearly an adequate response to this distressing problem involves the full range of agencies within and outside government; but the increase in maximum penalty is a modest but important step to give the courts the powers they need to combat this evil.

I turn now to other matters. The subject which most exercised your Lordships in our debate in April was the proposal that the Attorney-General should be able to refer sentences which raised questions of public importance for the opinion of the Court of Appeal. This subject is one with which we have wrestled in your Lordships' House on several occasions over the last few years. The problem, as the Government have seen it, is not that sentences are generally unduly lenient, far less that there is any great crisis of confidence which calls for radical changes in our system of sentencing. We owe a debt of gratitude to our judges. Sentencing is a difficult and sensitive task and it is a tribute to them that the vast majority of sentences accord very well with the expectations of the public.

The problem is rather that from time to time, in a serious case where public emotions are understandably engaged, a sentence is passed which arouses widespread concern. That is why we brought forward the proposal which is now in Clause 38. It seemed—and seems—to us a sensible means of ensuring that the issues raised by the occasional sentence which genuinely troubles the public could be taken further, and lessons learnt for the future.

Noble Lords opposite have argued that since the Court of Appeal already takes opportunities to lay down general guidance on sentencing principles, there is nothing to prevent it doing so directly in response to such cases. That is of course true and we have very much welcomed the increasing willingness of the court in recent years, under the leadership of the noble and learned Lord, Lord Lane, the present Lord Chief Justice, to expand its practice in that way. But it is surely rather artificial that the court's officials should have to comb their lists to find a suitable appeal by a defendant, whose case probably has very little in common with the one which has given rise to the concern.

Nevertheless, it would be a singularly impervious Minister who concluded from our debate in April that our proposal had been enthusiastically received by your Lordships. My right honourable friend the Home Secretary has therefore been considering the alternatives. In our debate in April the noble and learned Lord, Lord Lane, supported by several noble and noble and learned Lords who speak with great authority on these matters, argued that it should be possible, when an unduly lenient sentence has been referred to the Court of Appeal, for the court to substitute a more severe one. As the noble and learned Lord, Lord Lane, said, such schemes are by no means unknown in Commonwealth jurisdictions whose systems are comparable to our own.

The Government have so far hesitated to adopt that course, because it would involve the prosecution more directly in the process than under our original proposal. My right honourable friend has never regarded such involvement as objectionable in itself. But he has been conscious that others have seen objections of principle, and has realised that it would be a major departure for our system which would require very careful thought. He has also been anxious to avoid placing on the Crown Prosecution Service a new task which was unduly burdensome at a time when the service is still finding its feet.

My right honourable friend has, however, concluded that the time may be ripe for a more radical change. As I announced in the debate on the gracious Speech, he is looking actively at schemes in which it would be possible for the Court of Appeal to substitute a more severe sentence in a case referred by the Attorney General. I hope to be able to announce our conclusions during the Committee stage of the Bill. We shall want to pay close attention to the contributions which your Lordships make to this debate.

At the same time, my right honourable friend recognises that the whole question of the proper limits on the role of the prosecution in sentencing is one on which opinion is changing and strong views are held. He therefore proposes to publish a discussion paper before very long to stimulate debate on these important matters, both publicly and within the legal profession.

On the central question of lenient sentences, we are convinced that some change—either the provision in the Bill or the more radical possibilities we are now studying—is necessary and inescapable. It greatly weakens confidence if, when there has been a sentence which causes public disquiet, the system appears unresponsive to that disquiet. Our institutions are at their most vulnerable when—however mistakenly—ordinary people feel that they will grind on regardless of what the public thinks. We ignore that kind of feeling at our peril.

I should like to turn now to another matter raised in our debate in April. Several of your Lordships argued that the Court of Appeal should have a wider power than it has at present to order a retrial. The Government have a good deal of sympathy with that point of view, and had in fact issued a consultation paper some weeks earlier. There are several questions which would need to be resolved in framing a wider power. How wide should it be? Should it be a power to order or to authorise a new trial? Should it be possible to add new charges to the indictment? Again, we hope to make conclusions known before the Committee stage, and will take account of any comments your Lordships may make in the course of today's debate.

A problem which is increasingly a source of concern to us is the extent to which offensive weapons are routinely carried and all too frequently used in crime. We are committed to taking action on the sale of offensive weapons which have no legitimate use. My right honourable friend has also set in hand a study of how the law relating to the possession of knives and other sharp-bladed instruments might be reinforced. Your Lordships will understand the difficulty in framing the law in such a way as to deal effectively with the problem while not interfering with entirely legitimate possession—the housewife taking a carving knife home from the shop is the obvious example that springs to mind. We have not yet completed our work on this, but hope that the Criminal Justice Bill may prove an acceptable vehicle for change.

Another issue on which we touched in our debate in April was the arrangements for custodial sentences for young offenders. The Bill contains, in Clause 114, a provision which would allow greater flexibility in the use of detention centres, without interfering with the basic structure which was provided by the Criminal Justice Act 1982. However, there is a growing body of support for the idea that the detention centre order and the youth custody sentence should be amalgamated into a single custodial sentence.

The Magistrates' Association's strong public support for a single sentence is clearly a new factor of some significance. Since magistrates' sentencing powers are involved, we are bound to be much influenced by their views. I cannot yet say whether we shall want to embark on such a major change, but we certainly do not regard the pattern of sentencing powers provided by the 1982 Act as set in concrete. We are giving active consideration to the idea of a single sentence and will return to the matter at a later stage.

I promised not to treat your Lordships to a long speech about the contents of the Bill, and I shall not do so. But it is right that before sitting down I should remind your Lordships of the range and weight of the proposals which—assuming, as I hope, the Bill is granted a Second Reading—we shall be debating in the Committee and which we debated only recently. It contains a major reform of the law of extradition, which I believe is in its essence, if not perhaps in every detail, warmly supported on all sides. It liberalises the law on documentary evidence, and enables children to give evidence through a live video link, thus sparing them the ordeal of attendance in the courtroom. It contains measures to help the victims of crime. It removes peremptory challenge, which has the potential to distort the jury system, and in a whole variety of ways it sharpens and strengthens the courts' powers to deal with offenders.

In our debate in April, several noble Lords opposite argued that the Bill was irrelevant to the attack on crime. I do not believe that argument to be well-founded. One merely needs to look at some of the provisions I have mentioned to realise that their contribution to our efforts against crime will be real and substantial. But, with great respect to those who made it, the premise on which the criticism was made also seems to me to be false. If crime could be legislated out of existence, our predecessors would have done so years ago. In fact it needs to be tackled on the widest possible front, and that is what the Government are doing through their policies on crime prevention, a strong police force and a whole range of other measures.

What legislation can do, and what this Bill does, is to home in on areas where changes in the law would make a real difference—the weaknesses in our present extradition procedures, for example, or the absence of the comprehensive powers which the Bill would create to allow the confiscation of the proceeds of profitable crime. That seems to us to be both realistic and valuable.

In the debate in April my noble friend Lord Campbell of Alloway generously described the earlier Bill as the great criminal procedure reform Bill of this century. I am not sure that I would make quite such a large claim. But I do agree that the changes which the Bill proposes are important and far-reaching in their effects, and in several respects long overdue. My Lords, I beg to move.

Moved, That the Bill be now read a second time.—(The Earl of Caithness.)

3.17 p.m.

Lord Elwyn-Jones

My Lords, I venture to call this a lucky dip of a Bill; there are some good things in it but, unhappily, there are some things which are not so good. From what we have been told by the Minister, this debate is a kind of preliminary canter. I say without complaint that many of the most material matters for decision will be left until a later stage when the House resumes after the Summer Recess. I should like to join with the Minister in recollecting that during the first run of the Bill through this House we at least passed some of the important provisions relating to fraud. I was very happy that co-operation across the Floor made that possible and that it is already on the statute book.

As I see the matter, we are faced with two major problems in the field of criminal justice: first, the rising crime rate; secondly, the dangerously high and rising prison population. I fear that the provisions in the Bill will do little to cope with either of those problems. The Second Reading of the Bill is clearly not the occasion on which to examine the underlying causes of our burgeoning crime. Last year nearly 4 million crimes were recorded by the police. However, I feel entitled to ask this question. Is there any reason to question the conclusions of report after report of commissions—such as those of the most reverend Primate the Archibishop of Canterbury and the Commission for Racial Equality—that the problems of crime are worse in many of our great cities where the conditions breed despair, violence and, in the end, crime; those conditions being poverty, unemployment, slum homes and homelessness.

Turning to the conditions in our prisons, this weekend the number of prisoners in gaols in England and Wales exceeded 51,000 for the first time. Today's press reports that the Association of Chief Police Officers wants immediate steps to be taken to ease the constant drain on police manpower as a result of prisoners being held in police cells because prisons are too crowded. Mr. James Anderton, the Chief Constable of Greater Manchester, has been reported as saying "policemen are not gaolers"; yet vital police resources are still being diverted to this task. A record of 648 remand prisoners were being held in police cells yesterday in spite of a government pledge, four years ago I think, to end their use. It is a serious situation indeed. In my submission, the Bill makes no attempt to reduce it.

In proportion to our population, the United Kingdom has more people in prison than any other European Community country: yet fewer than one in five prisoners have been guilty of crimes involving violence, sex or robbery. That is presumably the field the noble Earl had in mind in discussing the question of leniency or severity, as the case may be. It is to that limited category, if there is a case for making new provision to deal with lenient sentences, that attention clearly has to be directed.

One of the tragedies of the prison scene is that 60 per cent. of male offenders and 38 per cent. of women leaving gaol are back within two years. This is even more likely to happen with young offenders. Two-thirds of them are reconvicted within two years of release. It means that we really need to look deeply into the whole prison scene. As the Home Secretary himself has said, the general idea that a period of incarceration in overcrowded conditions will create a better man is not credible.

The overwhelming weight of research now indicates that longer sentences—I am now talking of the generality of crime and not that limited category I mentioned—do not produce greater benefits in preventing or reducing further offences than shorter sentences. Any impact a custodial sentence may have occurs in the early stages. Those conclusions point to the value of a reduction now, in view of the crisis in our prisons, in the length of sentences except—I repeat this—for the minority of offenders who are a serious danger to the public.

I ask: why was the supervised release scheme introduced by the then Home Secretary, the noble Viscount. Lord Whitelaw, in May 1981, abandoned later that year? Under that scheme, which would reduce the prison population by many thousands, prisoners would serve a shorter period in prison, followed by a period of supervision in the community similar to parole supervision, with the threat and sanction of recall to prison if they misbehaved.

Yesterday's Guardian newspaper reported that the Government are now considering action similar to the Whitelaw proposal, proposing increased remission of sentences and releasing offenders earlier, with the threat and sanction of recall as a means of dealing immediately with this emergency crisis. I ask the Minister: is that going to be done? Perhaps at the conclusion of the debate he will tell us whether that report in the press is accurate or not.

As I have said, certainly the police and most others seriously concerned in this field hope that something like that will be done. In this context I ask: what is the justification of Clause 125 of the Bill empowering magistrates' courts to remand offenders in custody for over eight days and up to 28 days? Is there not a danger, as the National Association of Probation Officers fears, that 28 days will become the norm for a custodial remand? Could not this provision lead to many defendants remaining in custody for excessively prolonged periods in cases where a court reviewing the cases at more regular intervals would have granted bail at an earlier date?

There has already been a dramatic increase in the number of untried defendants remanded in custody from an average of 3,213 in 1974 to 8,170 in 1985, adding to the crowding of our prisons to a very substantial degree. Yet the disturbing fact is that those eventually acquitted or receiving non-custodial sentences averaged 38 per cent. More than a third were dealt with either by acquittal or by means which avoided imprisonment, so that they will have been kept in prison for month after month to add to our problems. Therefore is it unreasonable to assume that a very large number of those defendants imprisoned on remand need not have been remanded in custody at all?

It is said that making remand hearings more frequent will add to the burdens of escorting prisoners to and from the courts; but surely the problem of excessive demands on the prison service of court duties could and should be tackled more effectively by measures which would not erode the rights of accused persons and fill our prisons unnecessarily.

When the House considers the state of our prisons and their appalling nature, as we have done frequently from all sides of the House, is it not high time that a statutory code of minimum standards for penal establishments should be introduced? This has been urged by prison governors and the Prison Officers' Association more than once. Indeed, in June 1982 the Government promised to draw up a draft code of standards for penal establishments, to be published during 1983, as a basis for discussion and indeed for decisions. However, by 1983 apparently the Government had retreated from that decision. Why was that?

Another provision in the Bill which could increase the prison population is that contained in Clause 39, which increases from 14 years to life imprisonment the maximum penalty for two offences under the Firearms Act 1968 of carrying firearms in furtherance of crime. In the view of the police and of others, that provision could have very serious and damaging consequences for them. To provide the same maximum penalty for carrying firearms and for actually using and firing them would disregard proportionality as between one offence and another. The Police Federation—and after all the police are liable to be in the front line in this situation—has expressed concern over that proposal in the Bill, as it may reduce any incentive in the armed criminal to refrain from using his gun and firing it at the police as a means of escape. I submit that it would present the police with fresh dangers.

The proposal to which the Minister has already referred, and which could have the effect of increasing sentences, is found in Clause 38 of the Bill. We discussed this matter on the previous occasion, and as your Lordships may recollect it provides that: If it appears to the Attorney-General that a sentence passed by the Crown Court on a trial on indictment raises a question of public importance, he may, with the leave of the Court of Appeal, refer the case to them to obtain their opinion on the principles which should be observed in sentencing in similar cases in the future". It was clear from the speech of the Minister that this is a matter that will receive further consideration, but it seemed to be the case that far more stringent ideas were now operating and that what may well emerge will be a power to increase sentences where it is thought by the Court of Appeal that the sentence passed was too lenient.

I venture to remind the noble Earl, Lord Caithness, that at Second Reading he said that the Government would hesitate to go down the path of a prosecution right of appeal. In my opinion the Government are indeed right to hesitate. He said: The main reason is that to do so would represent a major change in the role of the prosecution".—[Official Report, 27/4/87; col. 13443.] I agree. A power to increase the sentence in a given and identified case would compromise the longstanding impartiality of the prosecution, especially the Attorney-General, in the matter of sentencing. In this country the duty of the prosecution is to lay all the evidence dispassionately before the court. It is true that some prosecutors do so more vigorously than others. There was one such on my circuit. When defending counsel protested at the vigour and vehemence of his presentation of the prosecution case, he replied, "I have come to this court to prosecute the accused, not to present him with a bouquet". That was rather characteristic of the counsel in question, and the noble and learned Lord, Lord Edmund-Davies, will no doubt understand whom I have in mind.

However, by practice and tradition it has been left to the courts to decide on the question of guilt and on sentence within the limits prescribed by Parliament. The prosecution does not present a partisan view of the sentence that the offender should receive. I concede, as was suggested by the noble and learned Lord the Lord Chief Justice, that there is something to be said for permitting the prosecution to draw the attention of the judge to such statutory provisions as may guide him in his task of sentencing, although I am bound go say that I should not always like to be the counsel who had the effrontery to do so, bearing in mind some of the reproaches addressed by some of the judges in the old days to counsel who ventured upon so dangerous a course. However, there may be something to be said for it.

In my submission on any view we should ponder most carefully whether to bring to an abrupt end the well-established principle in our courts that the prosecution takes no part in the sentencing process and that the principle that a defendant should not be exposed to double jeopardy should be maintained.

On this aspect of the Bill the approach which I commended but which did not find favour in this House was that contained in the White Paper entitled Criminal Justice—Plans for Legislation; namely, that the Judicial Studies Board should be given a statutory duty to assemble and publish for the benefit of judges, magistrates and the public the Court of Appeal's guidelines in a single, regularly updated and effective document. I believe that that would be useful as guidance to the judges. It would also be a corrective to leniency where the protection of the public or the outrageous nature of the crime that had been committed called for severity. On the other side, it would also correct the excessive use of imprisonment when one of the many alternatives to prison would be appropriate.

Lastly, I turn to the right of peremptory challenge, which in view of the long list of speakers in this debate I shall not examine in detail. I oppose the abolition of that right because I believe that its existence makes an important contribution to the perceived fairness and justice of our criminal procedure.

3.36 p.m.

Lord Wigoder

My Lords, I have already made a Second Reading speech on this Bill. It is enshrined for posterity in the columns of Hansard and I know that my words are deeply imprinted on the minds of all Members of this House; so it is totally unnecessary for me to repeat today anything that I said some months ago. All I desire today is to concentrate on one aspect of this Bill in the hope that, as the Minister indicated, it may have some effect on the Government's thinking over the next few weeks. I shall try hard not to make a Committee stage speech.

I propose to devote the few minutes at my disposal to speakng about Clause 38 and the question of lenient sentences; or, to be more precise, excessively lenient sentences, because I ask your Lordships to take the view that every sentence passed by every judge ought to be lenient. It ought to be as lenient as the judge can find it proper to pass in the circumstances of the case. In discussing this issue therefore we must talk not about lenient sentences but about excessively lenient sentences.

Clearly during the next few weeks we shall be discussing at some length what should be done about this problem, so perhaps it would be helpful if we start by considering whether there is a serious problem at all. I say that because all the indications that 1 can find tend to show that the extent of the problem has been grossly exaggerated. When one comes to talk about excessively lenient sentences one word springs to mind straight away; and that is "rape". There is a kind of Pavlovian reaction to the mention of excessively lenient sentences in that one instantly calls to mind the Ealing vicarage case and that nauseating, disgusting, despicable and depraved behaviour.

In relation to that case none of the media pointed out and very few of the public realised that when a judge has to deal with a charge of rape and a charge of burglary he can pass a sentence of five years for the rape and five years for the burglary and make those sentences consecutive, in which case the sentence amounts to 10 years' imprisonment. On the other hand, the judge can pass a sentence of 10 years for the rape and five years for the burglary and make those sentences concurrent, in which case the sentence still amounts to 10 years' imprisonment.

I have a very strong feeling that if the judge in that case, who was a very distinguished criminal judge and not considered to pass excessively lenient sentences, had chosen to pass the full sentence—and the decision was not easy because the practice as to whether to make sentences consecutive or concurrent is somewhat involved—on the rape charge and a concurrent sentence on the burglary charge, one should have heard very little more about that case as a demonstration of excessively lenient sentencing. Indeed, when the case finally came to the Court of Appeal, as it did eventually, the noble and learned Lord, Lord Lane, the Lord Chief Justice, went no further than to say that in total he thought it was possible that the sentences were a little on the light side, not that they were excessively lenient in the way that we are now considering in terms of Clause 38.

Why is it that for some reason it is always the offence of rape that leaps to mind whenever the question of excessively lenient sentences is considered? I think there are two reasons. First, it so happens—I am not crticising the people concerned; of course not—that there are organisations in existence whose members believe passionately that rape is for all practical purposes the only offence of any gravity in the criminal calendar. They scrutinise every offence with care—rightly so—and they proceed to take every advantage they can of getting publicity about the sentence that has followed.

I accept—I say this immediately, I do not want a mountain of anonymous and abusive mail in my letterbox in the next few days—at once that rape can be a disgusting, depraving and very serious offence and that very often it calls for the most severe punishment. I am not departing from that for one moment. At the same time, I cannot help thinking that it is perhaps sometimes wrong to regard the offence of rape, as committed by a young man who has been petting with his girlfriend, has gone too far against her will and has committed the offence of rape, as being quite as serious as that of a young man who has been in a public house, got drunk, smashed a beer glass and put it into someone's face. It just so happens that there are no organisations that stand up for the rights of innocent bystanders in public houses. Therefore, 1 do not think that we should get too far led astray by the publicity that is sometimes given to offences of rape when we come to talk about over-lenient sentences.

I add this, if I may, because I said that there are two factors at work. The other factor is the media. No self-respecting family newspaper would dream for one moment of indulging in pornography. It is therefore with a sigh of relief, I suspect, that it comes across a really disgusting rape case which it can report in great detail and pretend to its readers that it is carrying out a public duty by disclosing every word of something that is going on in our courts of law. I therefore suggest that the amount of hysteria that has been whipped up about over-lenient sentences has been greatly exaggerated and very much increased the true extent of what I suggest is a comparatively small problem.

Assuming that there is a problem in occasional cases—and I can see that there is; I do not pretend that it is not there—what are the possible solutions? One possible solution sometimes advocated by those who perhaps are not thinking very clearly about the matter is to say that, when an appellant goes to the Court of Appeal asking that his sentence should be reduced, the Court of Appeal should have the power to increase it as, indeed, it used to have once upon a time. A moment's thought will make it clear that that is not in any way an answer to-the question of over-lenient sentences. No one who has been fortunate enough to receive an over-lenient sentence is going to go to the Court of Appeal and ask that it should be still further reduced, so the fact that the Court of Appeal may have the power to increase it in such circumstances is quite irrelevant to the problem that the Government are dealing with in Clause 38.

The only effect of giving the Court of Appeal the power to increase sentence to an existing appellant would be that it might act as something of a deterrent to the number of appellants who come forward, often with very frivolous appeals. However, that is not what we are talking about. There is in any event the power of the Court of Appeal to allow time spent in custody awaiting appeal not to count against the sentence, and that is a more than adequate deterrent. The only reason why this course of giving the Court of Appeal power in those cases to increase sentence ever began to be considered in the last year or two was that there was some fears that the European Court might rule as improper the existing practice of the Court of Appeal in ordering time spent in custody not to count pending the appeal. The European Court has not taken that view. I think therefore that that is a matter which we ought not to pursue, and one which should not be confused with the issues that we are considering in Clause 38.

On Clause 38 as it stands, there is perhaps very little that needs to be said on the power that the Attorney-General should have to refer a sentence when an issue of principle is involved for an opinion—an ineffectual opinion—from the Court of Appeal to be obtained. That proposal was defeated the last time that it came before your Lordships' House. It was vigorously attacked last time on Second Reading of the Bill. The Minister indicated this afternoon that the Government are not enthusiastic about going down that line. It was made perfectly clear last time, I think, and accepted by your Lordships' House, that that sort of academic exercise, indicating that a sentence is inadequate but not having the power to increase it, can only bring justice into disrepute and is totally unnecessary, given the power of the court anyway to lay down guidelines for appropriate cases. If I may, I assume that we are not going to hear any more of Clause 38 in its present form when we come to a later stage in the Bill.

What are the Government going to put in its place? The indications are that they are going to put some sort of power in the Court of Appeal to increase the sentence. If that could be done, there are two possible ways of doing it. One way might be to give the prosecution a right of appeal just as the defence has a right of appeal now to enable prosecuting counsel at the end of any case to say: "I regard this sentence as inadequate, I will apply for leave to appeal to a single judge and see whether I can get the sentence increased." Again I doubt very much whether the Government will wish to go down that path. I say that for two reasons. First, counsel involved in conducting cases for the CPS are very often people of limited experience; they are often people who are seeking to make their way as prosecuting counsel by showing that they have zeal and enthusiasm for the cases in which they prosecute. There will be a very real temptation upon those young men to advise appeals in all sorts of cases one after the other. That would be quite disastrous. I think that it would be particularly disastrous so far as the judiciary is concerned because the Court of Appeal does not want to have to deal with this vastly increased number of applications.

The second alternative—and, if the Government are going to choose one of the two, I hope they choose this one—is to give the power to the Attorney-General in one way or the other to be able in the occasional case to approve an appeal to the Court of Appeal so that the Court of Appeal may be invited to increase the sentence. That would at least have the advantage of limiting the numbers of such applications. One could rely upon the Attorney General, whoever he might be, to show considerable discretion.

It would, however, have other disadvantages, which I believe outweigh the possible advantage. First, it is sometimes asked why, if the defence has a right of appeal, should the prosecution not also have the right of appeal, the suggestion being that it is the same thing in principle. I do not believe that it is the same thing in principle. I believe that there is a vast difference in principle. It is one thing to say to a man: "Six months ago you were tried at the Old Bailey, you have been in prison, you were sentenced to two years' imprisonment, but I am happy to tell you that in the Court of Appeal today we take a more lenient view of your offence—you may go today a free man back to your wife and your job".

The alternative, which is what the Government will be proposing if they go forward along this line, is quite another matter. It is that that man will be set free, perhaps given a suspended sentence or fined heavily at, let us say, the Central Criminal Court. He will go back to his wife and children, back to his job, and will start to rebuild his life. Then, six months later or thereabouts, he will be called back to the Court of Appeal and told, "We are very sorry. The trial judge made a mistake and you are to go straight off to prison for 12 months". That I described last time we debated this issue as being a piece of sheer cruelty, and I am sure that that is what it would be. It is the first objection to the proposal that the Court of Appeal should be given power to increase the sentence in any particular case and make that increase effective.

The second objection is the one to which the Minister and the noble and learned Lord, Lord Elwyn-Jones, referred. It involves prosecuting counsel, inevitably, in advising and in arguing merits in order to try to urge upon the Court of Appeal that it should increase a sentence. As the noble and learned Lord, Lord Denning, said in a memorable phrase, it would not be a plea in mitigation; it would be a plea in aggravation of sentence. That is something which I think none of us would want to see.

I come to my third objection to this proposal. I speak now with the disadvantage that it is, I think, some seven years since I tried a jury case, though I am consoled by the thought that many of the noble and learned Lords who are to follow me will have to overcome an even greater disadvantage when they come to address your Lordships today. But my recollection of those cases is that, in a perfectly straightforward criminal case with a plea of guilty, a speech by the prosecution, a speech by the defence and the sentence, it is possible for the Court of Appeal in effect to re-try the case, to look at the documents, to hear counsel and to say, "Yes, we think that the appropriate sentence is twice what was passed at the court below".

But there are a very large number of cases where it would be quite impracticable for the Court of Appeal to take such a view. There are a very large number of cases, particularly long, contested cases and where there is more than one defendant, where the trial judge is the only judge who will be able to pass the right sentence, because he is the only person who has seen the defendant and his co-defendants over a period of weeks or months.

He is the only person who will be able to form an opinion on whether the defendant was perhaps very much more under the influence of one or two of his fellow defendants than might otherwise appear to have been the case; whether some prosecution witness, although basically speaking the truth, has been exaggerating viciously out of some sort of malice towards the defendant; whether the defendant is really sincere in his protestations of his repentance at what has happened. All those issues and many more are issues that a trial judge can adjudicate upon. They are crucial to the length of sentence and it would be totally impossible for the Court of Appeal to adjudicate upon them with anything more than very rough justice.

In those circumstances, I hope that we will take a serious look at whether there really is a problem here of quite the extent that some people are suggesting. If we do that, and then look at the methods that are being proposed to deal with it, I believe that we shall come to the conclusion that no methods that are being proposed are better than our existing system.

I only add one final word. What we are debating on this issue is in many ways one side of the coin, the other side of which has already been referred to particularly by the noble and learned Lord, Lord Elwyn-Jones. It is the extraordinary belief that the British have that if only you can increase maximum sentences beyond what appears to be feasible, if you can only then pass the maximum sentence on the maximum number of people on the maximum number of occasions, you will somehow solve the problems of law and order and crime in our streets. Experience has proved this repeatedly to be wrong, but, my Lords, we never learn.

3.55 p.m.

Lord Allen of Abbeydale

My Lords, it makes me feel what I can only describe as slightly nostalgic when I think of all the previous criminal justice Bills in which I have taken part over the years, starting with one which had to be abandoned at the outbreak of war in 1939. The present Bill has, happily, only had the hiccup of a general election and serves the desirable purpose, like its predecessors, of providing a somewhat mixed bag of what on the whole are very useful reforms.

Unlike previous speakers, I did not contribute to the Second Reading debate on the previous Bill, but out of the variety of subjects which this Bill covers I shall limit my remarks to three. First, I should like to welcome the amendments to the extradition law and to the fugitive offenders legislation—two sets of procedure which are, alas, often confused. But there is one question that I should like to ask on what is not in the Bill. The question—and I appreciate that it was raised at the Committee stage of the earlier Bill in another place—is: what will happen if another country asks for the return of an individual for an offence which in that country is a capital offence? Are the Government able to give us an assurance that they would not be prepared to extradite in such circumstances, unless a guarantee was forthcoming from the requesting state that if the offender were returned he or she would not be liable to execution?

I am well aware that in the United States, for example, the federal government are in considerable difficulties in giving any undertaking about what happens under state law. But there is also the special problem in that country that the protracted legal processes could mean that an offender might have to wait five, six or more years before knowing his fate—a singularly unattractive prospect, given our own traditions. Is it possible for the Government to put on the record some reassuring statement on this issue?

I turn, secondly, to the provisions in the Bill about the criminal injuries compensation scheme and the board. I confess I have the initial difficulty that the various misprints in the Bill and in the schedule—at any rate, in the version I had—made it rather difficult to follow just what was happening, but I think I have worked it all out. I recall that on 14th December 1983, starting at col. 283 of Hansard, I initiated a short debate urging that the scheme should at long last be made statutory, and we now have before us clauses which implement the undertaking then given by the Government that this would be done. For this I am grateful. In general, what is proposed seems perfectly acceptable but I have just one or two points.

In the debate to which I referred, the question was raised as to whether it might be appropriate to provide for the possibility of the Government being able to appeal to the courts if they thought that an award was excessive. But I see that following the conclusion of an interdepartmental working party the Government have decided not to accept this proposal. Perhaps I may ask what would happen if the Government thought that the board had gone wrong on a point of law or had exceeded its powers. Would it then be open to the Attorney-General to go to the courts under some procedure not covered by this Bill?

I say next how much I welcome the provision in a statute—for the first time, I think—whereby the full amount of future social security benefits is to be deducted from an award, as has been the practice under the non-statutory scheme, in substitution for the procedure in the civil courts of deducting half the value over five years. I believe that the Government accept that the 1948 Act under which the courts do that has outlived its usefulness. I remember some comforting words on this point from the noble and learned Lord who was then on the Woolsack and I hope that the precedent established by this Bill will soon be followed elsewhere. At the same time I think that without some of the other changes suggested by the Pearson Commission it will be far from easy to implement these provisions in the Bill with any degree of accuracy. The correspondence that I have had with Ministers and the board does not altogether reassure me.

Mr. Justice Hirst, in the brain damage case in which he awarded £1 million damages the other day, reminded us yet again that an overall review of the law of compensation is long overdue. But I appreciate that that does not fall within the province of the noble Earl and I shall content myself this afternoon with asking him whether he has cleared with the DHSS that, between them, they think that these provisions in the Bill are reasonably workable under the law as it still regrettably remains. Also I cannot resist the temptation to take the opportunity to say that I simply cannot understand why the Government so resolutely continue to refuse even to discuss the possibility of reforming the law of compensation.

I have one other point to make on the criminal injuries compensation scheme. I notice that in its present non-statutory form the scheme provides that in assessing compensation the rate of net loss of earnings to be taken into account is not to exceed twice the gross average industrial wage, but in the Bill the figure is put at one and a half times. That prompts me to ask whether in this or any other way the Home Office hopes to stem what on the face of it looks like an open-ended commitment and in that context is it contemplated that the figure to be specified under Clause 103 as the minimum which can be paid is likely to be the present figure of £500? Finally on this topic, will the Minister say whether the board is having any success in catching up on its considerable backlog?

My third and last point is a more general one and echoes to some extent some of the points which have been made by the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Wigoder. We are discussing the Criminal Justice Bill against a background of rising crime, although it is important not to place too much reliance on the figures of crimes known to the police as conveying an accurate picture of what is happening. I think it is right that increased maximum penalties should be provided for the offences specified in the Bill although I have some sympathy with the point that the noble and learned Lord made about carrying firearms and I for one am sorry that these provisions are not accompanied by much more stringent provisions about shotguns. But in general we have to be very careful about where we are going.

Let us take Clause 38, of which we have already heard a good deal and of which we are bound to hear a good deal more. It raises to my mind one aspect of the future role of the prosecution on which I should like to seek some enlightenment. Does it mean that if this clause or something more on the lines outlined by the noble Earl is enacted it will then be expected of prosecuting counsel that he should remind a court, before it passes sentence in a particular case, that the Court of Appeal passed such and such a sentence in a rather comparable case perhaps a year ago? Are we really beginning to depart from our traditions and move towards the prosecution suggesting to the courts what the penalty should be?

All this comes at a time when the insatiable public appetite for reading and hearing about crime is already tending to encourage a general stepping up of penalties, and not just for the very grave offences which all agree should be severely punished. It is the impact of what the noble Lord, Lord Windlesham, very appropriately referred to in his article in The Times this morning as: the volume and intensity of public protest". The public seems always to need to be anxious about one type of crime. At one stage it was muggings, then rape, then child abuse and now I suppose it will be firearms. The events on Saddleworth Moor drove other news off the front page; and those who have to endure what the BBC for some reason chooses to describe as the "South-East News" between the end of the "Nine O'Clock News" and the weather forecast know that it is mainly and sometimes exclusively concerned with crime. Other things do occasionally happen in the South-East. It is so easy in this tide of opinion for the impression to get around that sending more people to prison for rather longer must be the right course but that is really a counsel of despair.

As regards the individual offender, one has to think of what happens when he or she comes out of prison and returns to the community. There is precious little evidence for thinking that longer sentences for the less serious crimes will lead to more honest lives. As regards the state, it is unacceptable just to go on building more and more expensive prisons to cope with numbers which are already in excess of those in most civilised countries, although certainly our Victorian heritage in respect of the prison world should be replaced.

I think I am right in saying that an extra month on the sentences passed by the Crown Court on adult males of itself means an addition of 1,000 to the prison population. A percentage point on the proportionate use of immediate imprisonment imposed on such offenders represents 350 to 400 more in prison. The records show that there was a five point increase between 1981 and 1985—from 50 to 55—and I feel pretty doubtful whether that trend has been reversed.

The Criminal Justice Bill may do a little here and there to reduce crime but I go along very much with what the noble Earl said in his introduction—that one cannot legislate crime out of existence. I should have been happier if the Bill had been accompanied by a much more vigorous exposition of what non-custodial penalties involve, in addition to the efforts which I can only applaud which are being made to further crime prevention.

In conclusion, I cannot help thinking that the Second Reading of the Bill would have been a very suitable occasion on which to have announced a firearms amnesty. On 26th November of last year in col. 538 of Hansard I asked about the possibility of an amnesty—and there was a good deal of support throughout the House for that proposal—not in the naive belief that hardened criminals would queue up to hand in their sawn-off shotguns, but in the expectation that it must be a good thing to reduce in any way possible the number of firearms at large in the community which are waiting to be stolen and misused. When I ventured to write to the noble Earl reminding him that we were still awaiting an announcement, he very courteously thanked me for being so patient; but now that eight months later the other place has got round to the idea, I hope that the Home Secretary will conclude that it is a step worth taking.

4.10 p.m.

Lord Elton

My Lords, I was sadly not able to take part in the Second Reading debate on the predecessor to this Bill. Nevertheless, I have for my noble friend the Minister a considerable fellow feeling. It is five years and five weeks almost to the day since 1 stood at the same Dispatch Box and asked your Lordships to give a Second Reading to a Bill with the same title and addressed to many of the same problems.

Then, as now, our prisons were under great pressure of population from the flow of convicted prisoners out of the courts and from the increasing crowd of unconvicted prisoners waiting to go for trial in the courts. Not only does my noble friend stand on the same spot and address the same problems; he is subject also to the same conflicting pressures, turned one way by the need to catch and punish more offenders and turned the other by the need to reduce the number of offenders who are sent to prison.

Better than punishment is deterrence. And better than deterrence is the removal of the motivation to commit criminal offences. There is one motivation which is bad not only for criminal statistics but also for the morale of the law enforcement agencies and indeed the blood pressure of the normal public. That is the sight of known and convicted criminals enjoying the fruits of their crimes. I therefore greet with three hearty cheers Part V of the Bill relieving the convicted criminal of the proceeds of his crime. Others will test the detail of that; but there is obvious and satisfactory—one might almost say Gilbert and Sullivan—justice in the principle that we have to applaud.

On the same theme, I am glad to see that we have at last undertaken modernisation of the extradition law. Extradition is a reciprocal arrangement and defects in our own law have prevented other countries signing extradition treaties with us. I hope that my noble friend will tell us that putting Part I of the Bill on the statute book will sweep every bronzed British embezeller off the beaches of the Costa del Crime.

A good deal of the pressures on the prison system comes from the very large numbers of untried and therefore unconvicted prisoners who are held on remand awaiting trial, as the noble Lord, Lord Allen of Abbeydale, has, not for the first time, drawn to your Lordships' attention. Remand prisoners naturally have greater privileges than those who have been convicted, since they may be innocent. Not all of them, therefore, are eager to come to trial. Some of the backlog arises from lawyers acting for the guilty and acting slowly so as to get as much as possible of the inevitable sentence served on remand and with privileges. Their privileges also make such prisoners expensive, in staff terms, to look after. It would therefore be disproportionately helpful to reduce that part of the prison population, even if it is not to be handed over to private enterprise en bloc, as my noble friend Lord Windlesham suggested. I hope that my noble friend will look at that carefully.

The reduction can be made by expediting court procedures, and I am glad to see that the Bill aims to take some of the load off the Crown court. But its approach seems tentative. May I ask my noble friend and his right honourable friend to consider whether the Bill might not go further by, for instance, classifying petty theft as a purely summary offence? That would reduce the Crown court load by no less than 10 per cent. at a stroke.

Nevertheless, given that only about 6 per cent. of remand prisoners are acquitted and that 60 per cent. of them receive custodial sentences in any case, I ask your Lordships not to expect too much from reducing the waiting time in prison for trial. The total yield is limited by those statistics. In fact, I believe that the only really significant reduction will come in a change outside the prison system, in the whole attitude and conduct of our society. It is to that matter that at some stage your Lordships should address your reflections.

There is another matter which has long been before your Lordships and which the Bill at last resolves. I was one of a succession of Ministers who said that it would be resolved when the funds were available. I am glad to see that the undertaking has now been fulfilled. I refer to the putting of the Criminal Injuries Compensation Board on a statutory basis. The board used to have to wait, like somebody's mistress, for non-statutory largess from year to year. I join the noble Lord, Lord Allen of Abbeydale, in congratulating my noble friend on making an honest woman of it. My only regret is that his fellow campaigner, the noble and learned Lord, Lord Gardiner, a former Lord Chancellor, is not here to mark the happy day. I think he became at one stage to criminal injuries what the noble Baroness, Lady Burton of Coventry, has become to airline overcharging. He would be very glad to see this day dawn.

I should not to have departed so quickly from the subject of keeping people out of prison. That is a matter of grave importance. Because of the lack of places to house more prisoners, overcrowding, even in cool weather, can create conditions that are bad for prisoners and bad for the morale of prison officers alike. In the sort of weather we are now experiencing, the conditions can be appalling. There is also the necessity of holding prisoners in police cells, to which the noble Lord, Lord Allen of Abbeydale, referred. That is important and I hope that my noble friend will look closely from time to time at the length of time individual prisoners are kept in unsuitable conditions. But the most important aspect, as the noble and learned Lord, Lord Elwyn-Jones, correctly pointed out, is that nothing makes it more likely that a person will go to prison than the fact that he has been there before.

For most who undergo it, imprisonment is not a constructive experience. It is not a rehabilitating experience, and it does predispose to re-offending. As for its deterrent effect, we can argue about that deep into the night. My firm and subjective opinion is that that is directly proportionate to the perceived likelihood of being caught. Clear-up and conviction rates for imprisonable offences will have to be sharply improved before the present tide of criminality is even reduced, let alone reversed, by that effect. Yet, for as long as we have no effective alternative to custody for serious crimes, we cannot escape from the need to use it.

I beg my noble friend and anyone else who will listen to pursue with the greatest vigour any form of disposal that offers an alternative to custody. That plea is relevant to one of the central issues to which the Bill is addressed. In particular, I ask my noble friend to look with close attention at the range of options known as intermediate treatment, or IT, which at the moment is apparently the concern solely of the Department of Health and Social Security. Bringing a first offender to court and there registering a contract with a social worker or a probation officer, for breach of which contract the penalty is a custodial sentence, offers at that stage the deterrence of a certain loss of freedom if there is a breach. Performance of the contract puts the young person, often for the first time in his or her life, in a structured organisation, engaged in purposeful work and in constant contact with an adult who actually cares about him as a person and who is prepared to offer him counsel as well as the essential discipline.

That course costs the merest fraction of the cost of custodial care. Much of that cost can be borne by voluntary agencies, and experience so far suggests that it results in appreciably less re-offending. I find it difficult to imagine a better definition of what is cost effective. The Government pay less for it, do less of the work and incur fewer subsequent charges as a result. Both economic and humanitarian considerations force us to recognise it as a development of real importance because it not only saves public money but appears actually to save some people from a life of crime interrupted by periods in custody.

Will my noble friend therefore undertake in terms to ask his right honourable friend the Home Secretary to consider how the valuable pilot work done by the DHSS relates to his own responsibility and whether it is not an initiative of which his own department stands in urgent need? Would it not, more widely applied, have a significant impact on his department's Vote? Is there not therefore good reason to consider backing it with the resources of his own department and ensuring that the work done is uniformly of a quality to replace prison sentences in suitable cases?

As I am on the subject of young people, let me turn to younger people still. It is now many years since the tragic and poignant death of Maria Caldwell. Since then to our sorrow and shame other children have also died at the hands of those from whom they had a right to expect only love and protection. Our chief concern, of course, must be with the prevention of these horrors. I am advised that we should await the findings of the Kimberley Carlisle inquiry before we consider what more can be done.

If that were not so, I should want to raise the whole question of access by qualified social workers and others to children at risk of non-accidental injury. To the layman at least, it seems extraordinary that people with a duty to watch over a child can, for long periods, be denied a chance even to see the child. Whether the remedy lies in legislation or training, or both, a remedy there must certainly be.

However, given that such a remedy does not lie within this Bill, we can, I believe, be glad that it goes some way to ensure fair trial after an alleged offence of violence or sexual abuse has been committed. It will let the victims give evidence by television from outside the courtroom so that they do not, by confrontation, reinforce the horrors of the experience they have undergone. If we can go further, and refer to what everyone already calls closed circuit television, as closed circuit television, I am sure that will help the layman to know what we are talking about. Incidentally, that reminds me very much of other technicalities which we discussed across the Despatch Box in earlier legislation. I can promise my noble friend many happy hours' discussion with the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Mishcon, if he is to join us, because of their formidable experience in discussing the tape-recording of police interviews. I am sure that that will be the focus of great interest and difficulty.

It is a feature of the Bill that my noble friend will be addressing not only many of the same issues, but also many of the same people that I addressed in 1982. I am sure he will listen to them with the same close attention that I did, and like me, find that even in the most rigorous of differences with them they almost always have something of value to add to his knowledge, and just occasionally something of value to add to the Bill. I give warning that when noble Lords opposite start referring to a matter as "a non-party issue" that is a sure signal that there is going to be a Division, because it is to encourage people behind to go into the wrong Lobby.

In conclusion, I have said so much about things being the same now as they were in 1982 that I ought to correct the balance in one respect in case noble Lords have drawn the wrong conclusions. For a start, the achievements of the prison service, have been phenomenal. When I was given oversight of it, I could say that more than half the places had been built before this century began and that not one brick had been placed on another in any building designed as a secure prison from the end of the First World War until well after the end of the Second World War—and very few were added then. Since 1982 four new prisons have been opened, with 1,531 places; five more, with a further 2,428 places will be on stream by June of next year. In none of those will there be a need for slopping out. To those 3,959 modern places must be added 1,042 further new places provided by the Department of Works refurbishment programme in 1986, and 1,030 due to be provided by them this year.

Noble Lords will be glad to acknowledge the improvement in conditions that the department has so far achieved by its campaign to do away with the revolting practice of slopping out. At the same time as all this the staff and management of the prison service have come together after decades of bickering to bring into a modern framework the way in which prison officers work and are paid. I take this opportunity to give my warm congratulations to those on both sides who have achieved this improvement, which seemed far off when I left. They will need to continue their commitment to the good of the service in the months ahead if they are to make it finally stick.

There is much else of great merit in the Bill but I have said enough to show why I, in particular, welcome its main provisions. I wish my noble friend luck on referral of excessively lenient sentences. In my day we did not have any luck on that matter. The noble Lord, Lord Wigoder, says that the whole issue has been grossly exaggerated by hysteria in the press and elsewhere. It is necessary for government to sustain public confidence in the judicial system. I will not go into the merits of the case now, except to point out that, if an apparently excessively lenient sentence is so referred and is borne out— in other words, the comment is favourable—surely that does a great deal to sustain the credibility of the judge who gave the sentence. It will bring to light the reasons for which the sentence was given.

I do not wish to be drawn into Committee stage points. My noble friend has my sympathy in the not inconsiderable task in front of him. I remember once going into a restaurant with a hearty appetite, ordering a big steak and then finding, when it was placed in front of me hanging over the edge of the plate, that I lost my appetite. This Bill hangs over both sides of the plate, but it is all good meat. Therefore, I wish my noble friend the best of appetites. It certainly deserves a Second Reading, and for the reasons I have given it will certainly have my blessing, at least.

4.26 p.m.

Lord Irvine of Lairg

My Lords, the House will wish to be especially careful in its scrutiny of criminal justice legislation to ensure that none of our civil liberties is removed unless for sound reason. Part I of the Bill deals with extradition. It plainly aims to remove a civil liberty which has been guaranteed by statute since 1970; that is, the prima facie requirement.

Under Section 10 of the 1870 Extradition Act, the state requesting extradition must produce to the English court such evidence as would, according to the law of England, justify the committal for trail of the prisoner if the crime with which he is accused had been committed in England. The combined effect of subsections (4) and (8) of Clause 6 of the Bill is that by Order in Council made in respect of a specific state the prima facie requirement may be removed. Then, subsection (4) states: the court of committal shall not consider whether the evidence would be sufficient to warrant the trial of the arrested person if the extradition crime had taken place within the jurisdiction of the court". The evidence which the requesting state must put before the English court at present to satisfy the prima facie requirement is such as would justify a reasonable jury, properly directed, convicting of the extraditable crime if the act complained of had been committed in England.

The prima facie requirement has a very long history. It was recommended by the 1868 Select Committee on Extradition. It has been guaranteed by statute since 1870. The protection was approved by the Royal Commission on Extradition in 1878. It is a safeguard which also exists in our extradition arrangements which Commonwealth countries under the Fugitive Offenders Act 1967.

In another place the Minister of State, Mr. Mellor, made it plain when he said that Orders in Council discarding the prima facie requirement would be made in respect of the countries: with which we work within the Council of Europe", but he added: We shall be paying attention to the United States too". The Minister then gave the following assurance when he said: When we decide to conclude a fresh treaty which abrogates the prima facie case requirements, that should be laid before Parliament so that it can by prayed against and debated in the House". The European Convention in Extradiction does not make provision for a prima facie case requirement and it appears that the object of these provisions is to pave the way for the United Kingdom to sign the convention without reservation. It would of course be perfectly possible for the United Kingdom to accede to the convention, while making a reservation on the prima facie case requirement. That is exactly what Israel did. It insists on the prima facie evidence in all cases. On the other hand, Norway and Denmark reserve the right to require such evidence in any particular case.

The intention behind the provisions of the Bill is obviously that the Government are bent on abandoning this requirement, at least so far as concerns extraditions requested by most Western European countries. I invite the Minister when replying to the debate to state the Government's precise intentions and in relation to what countries. What precisely are the Government's intentions in relation to Turkey, which is a member of the Council of Europe?

I am sure we all agree that it is our duty to look critically at any provision which would remove a long-standing civil liberty. First, I shall put before your Lordships the reasons why the prima facie requirement is an important civil liberty and then I shall invite your Lordships to consider the arguments for its removal.

Let us consider what extradition entails. It entails physical removal from the United Kingdom to custody abroad, there to be subject to enforced custody awaiting trial, interrogation, delay and perhaps thereafter conviction and imprisonment in a foreign country. These experiences in a foreign country are distinctly different from and more burdensome than the same experiences in one's own country. I emphasise this, because I am not expressing a "little Englander" disregard for the judicial systems of our European friends or any lack of confidence in their capacity to do justice.

Those who aim to do away with the prima facie requirement claim that we who would uphold it are contemptuous of the judicial systems of others. That is not so. We have a high regard for the judicial systems of our Continental neighbours. We simply say that before this country imposes, particularly upon its own citizens, the burdens of ejection to a foreign country where a foreign language is spoken, with custody interrogation, delay awaiting trial, trial in unfamiliar surroundings and possibly imprisonment there—all experiences which are evidently more burdensome than similar experiences here where lawyers, family and friends are readily at hand to assist—there should be in this country a judicial examination of the evidence to see whether it justifies the imposition of these burdens. I suggest that there may be many Members of this House, whatever party or none, who will be startled once they appreciate that they are being asked to endorse the removal of this safeguard.

A prima facie case was made out in our courts against the football fans who will now have to face trial on manslaughter charges in Belgium. There will be many who will think it entirely acceptable that they should stand their trial in Belgium, where the English courts have decided after examining the evidence that there is a prima facie case against them. The tragedy at the Heysel stadium raised the strongest public feelings in Belgium, and naturally so. But since Belgium is one of the countries for which we can expect an Order in Council doing away with the prima facie requirement, I submit that public opinion in this country would be utterly opposed to a law which allowed Belgium, in a case where there is such strong public feeling in Belgium, to have extradition on demand of those British citizens whom it would have to do no more than identify and name, as well as specify the crime alleged; that is, manslaughter.

It is no answer to submit that there will be no extradition for political offences, nor where the request is made for the purpose of prosecution or punishment by reason of race, religion, nationality or of political opinions. Neither is the discretion of the Home Secretary any answer. There will simply be no evidence put forward on which he could exercise any discretion.

Therefore, none of these protections meets the point that no one should be extradited from this country and exposed to a foreign legal system unless a judge in this country is persuaded that there is evidence against him that amounts to a prima facie case. If these amendments go through, what we are doing is sanctioning the extradition of our citizens to foreign countries on the executive request of these countries, without any requirement on these countries to state the evidence on which they rely so that it can be judicially scrutinised here. All that the requesting state essentially has to do is name its target and give bare particulars of the extradition crime alleged.

I appreciate that it will be said that every time an Order in Council is to be made abrogating the prima facie requirement in the extradition arrangements between the United Kingdom and a particular country, Parliament will be given the opportunity to say no. This procedure is subtly designed to suggest that the only relevant question will then be whether the legal system of the country in question can be trusted. This is simply not the point. The point that I respectfully put before your Lordships for consideration is whether the prima facie requirement, because of its obvious merit, should continue to apply to requests made for extradition by all countries with which we have extradition arrangements, including our European neighbours.

Every extradition treaty made by this country since 1815 has been on terms requiring the production of evidence against the accused sufficient to justify his committal for trial had the offence been committed in this country. The experience of the United States has been the same. The fact that similar provisions have applied since 1843 between the United Kingdom and the Commonwealth countries demonstrates that the rule does not reflect any distrust of foreign judicial systems. It applies equally to Commonwealth countries, which share our common laws and institutions. The question simply is whether we should sanction what is effectively extradition on demand or continue to say no, only after a judicial examination of the sufficiency of the evidence to see that there is a real case to answer.

The prima facie requirement applies to every domestic criminal prosecution in England. For my part, I am wholly unpersuaded that our citizens should be granted a lesser standard of justice when a foreign state requests their extradition than is their right when facing criminal prosecution here. Therefore, what are the reasons advanced for removing this important civil liberty on a country-by-country Order in Council basis?

I have read what the Minister of State, Mr. Mellor, said in another place on 5th March about the equivalent provision in the previous Criminal Justice Bill. He said: whether we like it or not, our law on extradition is resented to a degree by our near neigbours and causes us the gravest embarrassment". He went on to assert that one Western European country which he did not name had, not submitted a single extradition request to the United Kingdom for 10 years because of the prima facie requirement". He continued: Let us compare our extradition traffic with that of West Germany from 1980 to 1985. West Germany received 1599 requests for extradition, of which 1486–93 per cent.—were successful. During the same period, the United Kingdom received only 153 requests, of which 101–66 per cent.—were successful. So the United Kingdom dealt with one-tenth of the number of cases, but with a failure rate of more than four times that of West Germany".—[Official Report, Commons, Standing Committee F, 5/3/87; cols. 938–9] None of the assumptions on which that kind of argument is based can he accepted. Extradition traffic is not to be equated with trade so that the more, the better. If the figures show that it is easier to be extradited from West Germany than the United Kingdom, this says nothing whatever about which system is preferable. What is plain, we say, is that the Government have decided to submit to pressure from foreign governments to lower our standards of justice by removing an important civil liberty. I acknowledge that some governments complain that the English test is too hard to satisfy. If they have evidence to make out a prima facie case they can satisfy the requirement; and if they do not there should be no extradition. British citizens should not be extradited to languish in foreign gaols while the case against them is being prepared.

The Criminal Bar Association has condemned these provisions in a conspicuously well argued paper, which I commend to the House. I read two passages from it: The crucial question … is whether the UK, like the Commonwealth and the United States, is to continue to regard extradition as a judicial process whereby persons are to be surrendered by one country to another for trial, or whether it is going to allow it to degenerate into an executive act, presided over by the Home Office and used for the purpose of furthering criminal investigations abroad". The paper concludes: An English citizen and a foreigner, at least one not of the requesting state, will have a justifiable sense of complaint if he is surrendered merely on the statement of a requesting officer of what is alleged against him. It may be entirely unsupported by evidence. It may have been issued at an early stage with a minimum of investigation. The abolition of the rule may lead to requests solely for that purpose. If the proposal is adopted, the requested state will have no means of knowing whether there is in fact evidence, or of examining the factual basis of the request and be powerless to refuse extradition on that basis.". For my part I would endorse all that. The Minister of State in the other place did not. He said: A deeply conservative position has been taken by the Opposition. They have fallen hook, line and sinker for the lowest common denominator of Temple caution". Not so, my Lords! An important civil liberty is at stake and is about to be removed for insufficient reason. The Criminal Bar Association has got it right and the Government have got it wrong. I regret that I cannot give these provisions the general welcome which the noble Lords, Lord Allen of Abbeydale and Lord Elton, have afforded to them. Perhaps they did not have this point in mind.

In opening the debate the Minister said that the extradition provisions were, he understood, in essence if not in every detail supported on all sides. I have been speaking on what is surely a major issue of principle, not detail. There is emphatic opposition to the principle of the provisions. I hope that many noble Lords from all parts of the House will be ready to unite to defeat a change of principle so obviously inimical to our civil liberty.

4.42 p.m.

Lord Hutchinson of Lullington

My Lords, it is always a pleasure to follow the noble Lord, Lord Irvine. Perhaps for those noble Lords who have not entirely followed the very learned dissertation that he has given on the law of extradition I may bring it down to the simple situation which may obtain if this law goes through. A noble Lord in this Chamber may go off on a holiday, on a package deal. He may stay in room 62 in a nice Spanish hotel. The gentleman who is staying in room 63 fills up his trunk with the hotel linen, knives and forks, and perhaps even commits an indecent assault on the chambermaid. If the manager makes a mistake in identification, if he looks at a photograph of the gentleman who was in room 62 and thinks that it was the gentleman in room 63, it will be no good any noble Lord in this Chamber coming to me and saying, "Please represent me at Bow Street. This is a terrible injustice". It will be extradition on demand. The noble Lord will receive a notice to say that he shall appear at Bow Street. If the papers are in order, if there is some evidence on a piece of paper in Spain, saying, "I have looked at this photograph and this is the gentleman," he will be whisked off to Madrid. There he will be incarcerated for some weeks before he employs a Spanish barrister—and good luck to him. That is the simple situation. I hope that all noble Lords will read the words of my noble friend Lord Irvine in Hansard.

The contents of this Bill have been debated at length in this House and in the other place. We on these Benches welcomed much of it. It would be a waste of valuable time to rehearse yet again the powerful arguments for the abandonment or amendment of those clauses which many of us have already indicated are unacceptable in their present form: the abolition of the hearsay rule, the abolition that has been referred to of judicial examination of evidence in extradition, the right to challenge jurors, the criminalisation of truancy; and the 28-day remand, to name but a few. Sitting under his umbrella somewhere north of Inverness during the Recess the noble Earl will have many a long week in which to brief himself thoroughly to meet the arguments with which he must now be only too familiar. However, I hope that in particular he will read and digest the words which have fallen from the noble Lords, Lord Wigoder and Lord Allen of Abbeydale, both of whose speeches seemed to me to be admirable in every way.

When we discussed this Bill some three months ago some of us were reproved for speaking about the omissions from the Bill instead of concentrating on what is in it. Yet when the heavy artillery on the Cross-Benches was wheeled out calling for new powers for the Court of Appeal the Minister ran for cover. Today the noble Earl tells us that the Government are considering bringing forward new provisions to give judges the power to increase sentences at the behest of the Attorney-General. In the face of the Cross-Bench barrage on that occasion they look as though they are ready to sweep away at a stroke what the Minister in the other place described only a few months ago in these words—and they are not the words of the noble and learned Lord, Lord Elwyn-Jones— as: the long established and proper principle of the English criminal justice system, that the prosecution concerns itself only with an objective presentation of the facts and it does not interest itself in the question of sentence". Those are indeed strange words if, as the noble Earl said this afternoon, the Home Secretary himself could see no objection in principle to the prosecution taking part in the question of sentence. The Government's attitude looks as though it is, "Hands up and surrender to the heavy artillery"—the alleged posture, according to Saatchi & Saatchi, if I remember rightly, of the party on my left during the election campaign.

In 1986, 89,000 Crown Court sentences were passed. As the Minister then pointed out, the Crown Prosecution Service would have to have its own sentencing policy if this retrograde power were given. It would have to consider every sentence and see how it fitted in with its own guidelines. It would have to delve into the social inquiry reports which, in the word of the Minister for the Government at the time, would be "objectionable", and it would have to weigh up the mitigation put forward to the court by the defence. It would create, I would suggest, an unacceptable and entirely inappropriate further burden on the CPS—which, as it is, is still in very great disarray.

The Minister spoke of public emotion as lying behind this change of view. Surely public emotion is no basis for legislation of criminal law. I cannot help but feel that one strong reason for the demand for this increase of power is that the judges, who cannot reply to criticism, want some method of being able to do so. I cannot help feeling also as has already been mentioned by noble friend Lord Wigoder, that it would have the spin-off effect of greatly reducing the lists in the Court of Appeal. With the delays in hearing appeals stretching out to many months, would it be desirable or proper to indulge in a resentencing exercise that involved the dragging back of defendants—settled once more into society, with their families, and in employment—and imposing on them perhaps a year after the trial a sentence of imprisonment? The effect of granting such a power will of course be to increase the length of sentences all round because judges will wish to avoid being the subject of appeal. The Minister would surely be the last person to want such an effect.

The big guns demanded even more. There were further rounds in their locker. The Bill makes no mention, it was said, of a power to order a new trial—a power not to be exercised only when fresh evidence has come to light (which, very properly, should be assessed by a new jury) but when a defendant has had the misfortune to be tried by a judge who has messed up his summing up.

The noble and learned Lord, Lord Ackner, hoped that such an amendment would sail through the House unopposed. I remember the noble and learned Lord at the Bar in the old days as a reformer. He was a great trade unionist. He was one who never was frightened of standing up to the establishment. It saddens me greatly that in his two contributions in this Chamber so far he has so quickly become a conformist. Indeed, I suspect that he is a strong candidate for the job of shop steward to the Lords of Appeal in Ordinary.

The general power to order a retrial would indeed require the closest scrutiny in Committee. To order the rerun of a trial months or years after witnesses have given evidence, to have a rejigged prosecution case based on knowledge gleaned at the previous trial, is indeed a daunting power and one that can so easily lead to a dreadful miscarrige of justice, and all because of a mistake for which the defendant carries no whit of blame himself. My plea to the Minister is to listen with equal attention to what I might describe as the light artillery, the light brigade, the machine gun fire which emanates from this side of the House, even if—as I must admit at the moment in an airy internecine sort of way—the fire seems a little wayward.

When we assisted the Minister to get his Bill through the House, in relation to fraud we negotiated some important concessions. I very much hope that he will adopt an equally conciliatory non-partisan stance without the incentive of an impending election. We too have suggestions for a much improved Bill. We too consider that there are important omissions. The Government are about to launch an intensive crime prevention campaign, a very welcome initiative.

For the past 10 years NACRO, the national association concerned with the care and resettlement of offenders and the prevention of crime, has put crime prevention in the forefront of its programme. I hope that the Government's first act in their campaign will be to allocate new resources to NACRO's tested and highly successful projects in this field and to build upon them.

I ask the noble Earl what contribution is made to crime prevention by abolishing the hearsay rule, incarcerating truanting children, increasing the time of remands in custody and abolishing jury challenges. I suggest that the first target in a campaign for crime prevention should be the under-21s. In this country the peak age for all offending is 15 for males and 14 for females. Over 20 per cent. of the prison population is under 21 years of age. In 1985, 54 per cent. of all indicatable offences were committed by persons under 21. Only five of the 139 clauses in the Bill deal with young offenders and not one of those clauses is directed towards the prevention of crime.

What is needed is a coherent strategy for dealing with young offender crime. In every local authority there should be a crime consultative committee bringing together in one unit all the relevant agencies to attack the problem as one—the police the magistrates, the teachers, the social workers, the probation service, the non-statutory organisation— to co-ordinate and to keep under constant review an agreed prevention policy. The purpose would be to get at the very roots of crime and to keep young people out of the courts, because, as has already been said this afternoon, once they get into the courts and are sent into custody the reconviction rate is about 80 per cent. At present the Home Office has no power to make grants to voluntary organisations which run crime prevention schemes. A clause to make this possible could so easily be added to this Bill.

Surely we could legislate to prohibit once and for all the scandal of remanding juveniles to adult prisons and remand centres and to introduce—I was very glad to hear what the noble Earl said about that in his opening words—a single generic sentence for young people. Indeed, should we not prohibit once and for all the sending of any person on remand to a police station cell? Yesterday 650 such people were kept in police cells. In London alone 80 of those people were women refused entry into Holloway.

All debates on criminal justice lead in the end to the question of overcrowding and the plight of the remand prisoner. I should have liked, if I had had time, to discuss the suggestion of the noble Lord, Lord Windlesham, about the privatisation of remand homes and hostels. Although I personally am opposed in principle to any form of privatisation of institutions where people who have been convicted are held, to solve an appalling problem which the Government have shown themselves totally unable to solve the privatisation of remand hostels or remand homes for members of the public who have not been convicted of anything, and who in the eyes of the law are innocent persons, seems to me to be a suggestion very much worthy of discussion and consideration.

The heavy artillery has not ventured very much on to the battle grounds of the Central Criminal Court or of the Crown Courts round the country, nor is its experience of the penal institutions in any way superior to that of those of us of the light brigade. I ask the Minister to listen to the suggestions that have been made and which will be made from this side of the House and to bring some of them before the House at the Committee stage on his own initiative. If he is not prepared to do that, perhaps he will look upon such amendments as we may put down with a favourable and impartial eye.

4.58 p.m.

Lord Roskill

My Lords, the Minister must, I venture to think, resemble a jockey in the Grand National as he starts to go round the course the second time remembering what were the dangers last time round. But happily for him, for the noble Lord, Lord Benson, and for myself some of the riders have been excused from the second round, for with cooperation between the Opposition Front Bench and the Government a great part of the recommendations of the Fraud Trials Committee are happily already on the statute book. That is a matter for great congratulations. But there is much more still to be done.

I ventured to say on the occasion of the Second Reading of the now extinguished Criminal Justice Bill that nothing that had happened since we reported in January 1986 had diminished in one single respect the need for an effective, efficient and swift criminal law to get the guilty convicted and to ensure that the sentences when people are convicted are adequate, drastic and deterrent.

A moment ago the noble Lord, Lord Hutchinson, asked why it was necessary to alter the hearsay rule. Let me give him in as short an explanation as I can the reason, though if he has read the Fraud Trials Committee report it is there staring him in the face. I want him to imagine that there is a prosecution involving the most appalling Lloyd's fraud or fraud on investors and that there is in the hands of the prosecution a perfectly good copy of a bank account from some salubrious island in the West Indies where laundered money so often ends up. The noble Lord is perhaps appearing for the defence. He will object to that copy being used. "This is hearsay", he will say. And yet every businessman would act on it and every court ought to he able to act on it.

It is common knowledge—I am very surprised that the noble Lord does not know this or, if he does, that he has not revealed his knowledge—that a very large number of badly needed Lloyd's prosecutions have not taken place for the simple reason that the original documents cannot be brought to this country and proved. People will not come; they cannot be forced to come. And the guilty, the obviously guilty, escape.

One of the tasks arising from the report that remains to be done—reaction from criminal lawyers must not be allowed to prevent it—is to simplify and modernise our rules of evidence in the criminal courts. That is what we recommend. That is what I hope these clauses achieve. I trust that the Government, without fear or favour, will press on so that prosecutions which have been delayed and which it is still not too late to bring may be effectively brought and the guilty punished.

I venture to add a word of congratulations to the new Director of Public Prosecutions and the new director of the Serious Fraud Squad. I have long experience of both. Mr. Allan Green is one of the most effective prosecuting counsel in serious fraud cases at the Bar. We had much help from him on the Fraud Trials Committee. We also had much help from Mr. John Wood when he was assistant Director of Public Prosecutions. The noble Lord, Lord Hutchinson, had a gentle crack at the alleged inexperience of Lords of Appeal in Ordinary in the criminal law. Perhaps their experience is not as out of date as the noble Lord likes to think. Some of us have kept closely in touch with that law in one form or another. I earnestly hope that the remainder of the provisions which we recommended will go through, including the provisions regarding jury challenge.

I know that many people have a warm sentimental regard for jury challenge. My noble and learned friend Lord Elwyn-Jones is among them, dating from his days in Wales. I can only say—the noble Lord, Lord Hutchinson, may remember this from the days when he used to appear in front of me at the old Hampshire Quarter Sessions—that in 22 years as either chairman or deputy chairman of those sessions, I do not think I recall a single case of jury challenge. You go to the Old Bailey and it happens in almost every case.

I have a vivid recollection, as a fairly new Queen's Bench judge, quite a long time ago, of Lord Parker sending me to do a very long fraud case at Bury St. Edmunds. There were seven or eight prisoners. There were seven challenges in those days and virtually a whole panel was challenged before we could get to trial. Mr. Sebag Shaw, as he then was, prosecuted and the present Lord Chancellor was junior counsel for the prosecution. In the end there was only one wrong acquittal. Jury challenge is out of date. It distorts the pattern of jury service. Before noble Lords become influenced by sentimental considerations, I urge them to look at what was said about this in the Fraud Trials Committee report and to realise how the present system of challenge hopelessly distorts and defeats the whole principle of random selection.

Enough of that, my Lords. Without usurping what I know my noble and learned friend Lord Ackner is going to say on new trials and increasing sentences, I want, if I may, to say a word or two about that. I am not sure that I am properly described as being "wheeled out" now that I am no longer a Lord of Appeal in Ordinary or whether I am "a big gun" or "heavy artillery". But whatever the right pejorative term to be used in the language of the noble Lord, Lord Hutchinson, one has had some experience of this. With respect, that is as real as it is profound. I venture to doubt whether the noble Lord, Lord Wigoder, is right in saying that this problem is very small.

It is a good many years now since I spent a lot of my time presiding in the Court of Criminal Appeal during the lamented illness of the late Lord Widgery. But at that time it was a real problem. One saw not only inadequate sentences about which one could do nothing but also inequality of sentences which is another difficulty. Jones is tried at Maidstone, Robinson at Southwark and someone else at one of the north London courts—the same crime, different judges, different sentences. The first accused gets a year; he is lucky. The next gets three years. He comes along and says "Oh, but the other chap only got a year. It is most unfair".

The whole purpose, contrary to what the noble Lord seems to have suggested, is not a judicial desire to get sentences increased. The whole purpose is to get the right sentence in the right way, in the right place, at the right time. Many of us have spent a large part of our judicial lives trying to reduce prison sentences. The idea that the judiciary at any level is always anxious to pass the maximum sentence is nonsense. It is axiomatic. If you are trying crime and passing sentence and you decide that an immediate custodial sentence is necessary, you should start by asking yourself, "What is the least sentence I can properly pass?" and then pass that sentence.

I had the privilege 21 years ago of helping the noble Lord, Lord Hunt, to start the Parole Board. I was the first judge to join it and I had the privilege of being his first vice-chairman. The noble Lord, Lord Windlesham, has carried that torch since. The parole system at that time was very different. In a debate earlier this year, the nole Lord, Lord Windlesham, complained that there was nothing in the Bill about parole. That is true. The system now is under attack. It must, I fear, be questionable whether, ever since parole became available and there was equalisation for practical purposes of sentences between 18 months and six months, the system, as the noble Lord, Lord Hunt, and I used to know it, is still workable in anything like its present form. But it is essential that we should have a system that will help reduce sentences when people are fit to go back into the community. It is essential that we should have a system whereby, if a judge makes a mistake, the accused does not take advantage and get away with it and that the right sentences should be passed at the right time.

As I think some of your Lordships know, I spent the months of May and June in Australia. My visit had nothing to do with the criminal law though the fact that I was there enabled me to renew many old friendships and make some new ones and to have a number of discussions with members of the judiciary on their problems. Do not let it be thought that horrific crime is the sole prerogative of England and Wales and Scotland! You cannot open a newspaper in Melbourne or Sydney without reading accounts of crimes that are every bit as horrific as those we suffer in this country. Indeed there were two cases in Sydney while I was there of which the cruelty and horror involved beggar description.

It so happened that on two successive days, reading the Melbourne paper, The Age, I observed that the Court of Criminal Appeal in Victoria had increased sentences and had done so very substantially. I ventured to ask the Chief Justice, Sir John Young, how that system worked. He said that they did it with reluctance but he regarded it as absolutely essential that the power should exist. They do not have a mandatory life sentence for murder; nor, I think I am right in saying, do any of the states. The result is that you may get comparatively short sentences for murder in horrific circumstances or for rape. It is a power which I have no doubt would be exercised with care if it were given to the Court of Appeal. I have no doubt that if it is left to the Attorney-General who has to get leave before he can move, he will exercise the power of seeking leave with great care.

However, I am quite convinced from my own experience, and from what I have observed in travels in other parts of the Commonwealth, that this is a power that is sadly needed, and that we shall never get a proper administration of the criminal law so long as the Court of Appeal has its hands tied behind its back and is unable to put right that which is so manifestly wrong.

It is not because judges fear criticism. Anybody who has been on the Bench for a long time has had his fair share—and possibly his unfair share—of criticism. It is no use accepting judicial office unless one is prepared to accept the criticism when it comes. No one worth his salt worries too much about the criticism unless it is grossly unfair.

But one way of stopping the criticism is to restore a media-built lack of confidence in the judges because from time to time sentences are criticised as inadequate. Sometimes they are, sometimes they are not, but the power to put right what is wrong is of the essence of the administration of justice, and that is the power that should be sought now. I urge your Lordships, when the Government come up with a considered proposal, to take these thoughts well into account.

5.11 p.m.

Lord Hailsham of Saint Marylebone

My Lords, anyone who takes part in a Criminal Justice Bill has a choice between two alternative courses. He may take a canter round the whole field of criminal law, and nobody can complain if he does. My maiden speech in the House of Commons in 1938 pursued that very course. This one is intended to confine itself to a single issue which has already been ventilated by different speakers and in different senses.

I would only say to the noble Lord, Lord Hutchinson of Lullington, who described himself, I think, as a light cavalry man, that although the charges of the Light Brigade may excite admiration for their rashness and courage they usually end by them having to admit that someone has blundered, and they turn out in practice to have really no ability to get much blood out of the heavy guns when they really come into play.

I do not think that anybody after listening to the speech of my noble and learned friend Lord Roskill would doubt that those on the Cross-Benches who speak from a lifetime of judicial experience really have the variety, the humanity, and the sheer professionalism to be able to take on noble Lords like the noble Lord, Lord Hutchinson of Lullington, any day of the week and beat them silly.

I propose simply to say a word or two about the much-discussed Clause 38 of the Bill. I do so because it seemed to me that on the last occasion, when I sat silent for about five hours in another geographical position within this physical Chamber, the case had not really been fully argued. Anybody reading the Hansard of that debate would, I think, come to the conclusion that the proposal, in its slightly different but broadly similar form, had been greeted with a chorus of disapproval and hardly a word was spoken in its support. But this disregards what took place.

The critics of the clause formed two quite inconsistent clauses. There were the doves, represented by the noble and learned Lord now sitting on the Front Bench of the Opposition; there were the doves as represented by the noble Lord, Lord Wigoder, now sitting on the Bench of the Alliance (if it can still so be called); and there were the hawks represented by my noble and learned friend Lord Roskill and the noble and learned Lord the Chief Justice who gave us a valuable contribution.

However, nobody pointed out that although they all criticised what is now Clause 38 of the Bill they did so for precisely opposite reasons and for exactly opposite objectives. The doves objected to it, broadly speaking, for reasons I shall not rehearse in detail but on the basis that it was unfair to the successful accused and it would interfere with the traditional role of the prosecution. The hawks did so for the reasons that we have just heard cogently expressed by the noble and learned Lord, Lord Roskill, who said that it was important to see that justice was done in the shape of imposing an adequate sentence for an adequate crime.

I tend to be more favourable to my noble and learned friend than to the doves, but I occupy a position not exactly intermediate between the two but without going to the extreme length of either. As I see it, the case for Clause 38 can be argued round three broad issues. The first is judicial independence; the second is the role of the prosecution; and the third is consistency of sentence.

As regards judicial independence this is a subject upon which I can give evidence. For some reason, which I think totally inadequate, the attack upon judicial independence normally takes the form of letters by Members of Parliament from all quarters of the other place to the Lord Chancellor of the day. This is a new and, I may say, unwelcome development because it assumes, what is not the case under our constitution, that the Lord Chancellor has some responsibility for disciplining judges who are insufficiently severe in cases of various kinds.

I must say to the noble Lord, Lord Wigoder, whose speech I listened to with great respect, as I always do, that in fact although he spoke strongly of the hysteria of the media and of the concentration on the part of some of them and of some Members of Parliament on emotionally sensitive issues like rape, in fact one of the reasons for the hysterial attacks on judges for undue leniency is precisely that there is no remedy open to anybody. Our constitution is based on the independence of the judiciary. That is a rock upon which it has been built ever since 1702, and before 1702 it was a failure to recognise its importance which largely led to the abdication of James II.

The fact of the matter is that the only people who can control sentencing policy, which is essentially a judicial function, are the judiciary themselves. If, as is the situation in a minority of cases, the Lord Chancellor, or whoever it be, is in receipt of complaints of undue severity it is quite easy for him to reply that that is a matter for the Court of Appeal, Criminal Division. That disposes of the matter, and I suppose it is for that reason that the complaints of undue severity are relatively rare; I should think about one in 10.

The others are complaints of undue leniency. The Lord Chancellor, or whoever it is, then has to reply, "Well, unfortunately this is a matter for which nothing can be done because I, the Lord Chancellor, am not responsible for the behaviour of judges or for their judicial decisions, and you, the Members of Parliament, must not try to substitute your own emotive concepts for a proper hearing in front of an adequate court of law".

Therefore, what is to be done? In my judgment the independence of the judiciary requires that they should have some say when cases of undue leniency are alleged. I agree with the noble Lord, Lord Wigoder, that the instances in which a sound case of undue leniency can be made are relatively rare. Complaints are relatively frequent. They are relatively frequent because there is no remedy even though they be rare.

I would not agree with the noble Lord, Lord Wigoder, that they are mainly concentrated on rape. I shall give an example later in my short remarks which has nothing whatever to do with rape but has something to do with fraud, although rape certainly enters into it. Until there is some means of looking at the allegations of leniency in front of a properly constituted court the business of hysterical condemnation of the judicial Bench will continue.

What is to be done? It is wrong to suppose that nothing is done. The noble and learned Lord the Lord Chief Justice, when he spoke on a previous occasion, made it quite clear that on occasions guidelines can be given. I remember that in one of his previous speeches the noble Lord, Lord Wigoder, said as much. Guidelines are valuable in their way but they are not enough. To begin with, they can be given only when some unfortunate criminal makes a complaint to the Court of Appeal, Criminal Division, on the basis of undue severity. No criminal who has been treated with undue leniency is likely to go to the Court of Appeal with a claim of undue severity. However, that is the only way in which the matter can be dealt with.

It is also the case that when a judge, notoriously and to the knowledge of his fellow judges, habitually undersentences, perhaps out of fear of successful appeals against his judgment to the Court of Appeal, Criminal Division, and knowing that no appeal can be made against cases of arguably undue leniency, he has been known consistently to err. As the noble and learned Lord the Lord Chief Justice said, this is certainly not enough. The rebuke, if it is such, is never administered in public and it is of doubtful value in encouraging others to see the error of such ways.

The truth is that the only way in which a body of case law can be built up, indicating what the proper lines of sentencing should be and imposing a degree of consistency of sentence, must lie in the direction now proposed. There must be a way in which the Court of Appeal can have seisin of cases where it is arguably true that serious questions ought to be discussed in public, and ought to be analysed in public in the light of an actual matrix of facts presented by an actual case. That is what is presented here. Whether one adopts the hawkish position of the noble and learned Lord the Lord Chief Justice, or whether one adopts the intermediate position recommended by the Government, there must be a means of bringing a concrete case, or occasional cases where the case is arguable, before the Court of Appeal so that the two sides may argue and point out what are the relevant factors of the sentence in a particular class of case.

It so happens that this happened in one recent case, which would have been ideal from the point of view of Clause 38. I mention it with a blush on my cheek because it was a rape case, and in particular it was the Ealing rape case to which one speaker from the Alliance Benches made reference. It only came before the Court of Appeal because a third or fourth defendant, I forget which, who had nothing whatever to do with the rape, appealed on the grounds of the excessive severity of his sentence. That enabled the noble and learned Lord the Lord Chief Justice to do exactly what is proposed here; namely, to analyse the facts of the case and to say, as I think the noble Lord, Lord Wigoder, suggested, but which he obtained from the noble and learned Lord the Lord Chief Justice, that when dealing with three or four different charges all for serious crimes, the real point of the case was how to allocate the sentences between concurrent and consecutive sentences.

I believe that the noble Lord, Lord Wigoder, with the noble and learned Lord the Lord Chief Justice joining the heavy brigade on this occasion, hit upon the right answer. There would have been relatively little complaint had the sentence for rape been 10 years, which would have been precisely the same as the totality of the consecutive sentences, and had the other sentences been adequate but concurrent. As to whether the sentence was adequate—the noble and learned Lord the Lord Chief Justice thought it was not—or whether it was about right, I shall express no opinion because it is not relevant to the line of argument that I am pursuing.

The other case to which I promised to refer, but to which I must do so with greater trepidation, is the recent case of Collier at the Old Bailey. To my mind it is perfectly clear that a great deal of public disquiet was expressed at the time that that sentence was passed. I make no comment as to whether the disquiet was well-founded or ill-founded. It is not my business to criticise sentences and I hope it never will be.

However, the fact is that disquet was expressed on the ground of general public importance—that if one is serious about repressing fraud it is not right to suspend any part of the sentence on the first occasion on which a serious case comes before one. If Clause 38 had then been in place, instead of being only a blush on the Government's cheek, the situation would have been that the Attorney-General could certify that a general question arose, the court could have had seisin of the matter as to whether it gave leave to ventilate the general question, and we should have had an authoritative ruling which would be valid as part of the case law for future sentencing policy.

That leads me to comment upon the situation of prosecuting counsel. I agree with every word which fell from the Minister of State in another place. I have prosecuted in a vast number of cases since 1932—I think that my first murder case was in 1934—and I have never once departed from the tradition of the Bar, which is that it is not for prosecuting counsel to suggest to the judge what sentence he should impose.

On the other hand, the House will recollect that in his speech on the previous occasion the noble and learned Lord the Lord Chief Justice made clear the fact that that duty of prosecuting counsel had not been rightly stated from the Liberal and Alliance Benches. It was rather more restricted than was generally thought. It is the business of prosecuting counsel to draw attention to relevant facts and principles. From my own experience I can say that when one is prosecuting in a Companies Act case, one sometimes draws the attention of the court to the various options which may be open to it without suggesting which options should be taken; for instance, the disqualification of a director. I have known that happen, I have done it myself and I think that it is perfectly proper.

When a Clause 38 reference comes to court, it will be the function of counsel for the Crown simply to lay out the facts, point to any general issues of principle and ask the court for its guidance as to which way that should be exercised in future cases.

I should like to add one comment on the subject of the intermediate and the hawkish positions. As regards the hawkish position, it is important that the criminal should serve the sentence which is said to be right after discussion by the Court of Appeal. I confess to a certain sympathy with both the Government and the noble Lord, Lord Wigoder, on that point. I do not like cat and mouse. I do not think that it matters what happens to the particular man, but it matters that for the future the courts should pursue a straight course in their sentencing policy.

I shall sit down after having commented on the impartiality of the judiciary and its independence of the media, Members of Parliament and, I add with a sly glance at the Government Bench, of some Members of the Cabinet. That independence is at the foundation of our constitution and this proposal, or some other proposal on like lines, is a necessity because we cannot go on as we are. Secondly, I do not believe that the role of the prosecution is being seriously upset. Thirdly, as regards consistency of sentencing policy, guidelines and quiet rebukes are not enough. There must be the open ventilation of issues calmly and objectively expressed, in front of a properly constituted tribunal, which is the Court of Appeal, Criminal Division.

5.30 p.m.

The Earl of Longford

My Lords, I rise with some trepidation, speaking after four eminent lawyers and preceding three others. I hasten to say what a pleasure it is to debate, after so many years, on more or less equal terms with the noble and learned Lord, Lord Hailsham. I say "more or less equal terms" because someone who has performed the duties of Lord Chancellor for a record number of years and with the utmost distinction is not quite on the same footing even now as the rest of us, but he comes among us untrammelled and is perhaps, I think, all the better for that. Of course it was Gladstone who said, "I come among you untrammelled". After admiring the noble and learned Lord for 65 years or more, with every year that passes I think he resembles Mr. Gladstone more and more, and I say that by way of a very high compliment.

Lord Hailsham of Saint Marylebone

My Lords, an old man in a hurry!;

The Earl of Longford

However, my Lords, we are discussing this Bill and my attitude towards it has been most effectively explained and expressed by the noble and learned Lord, Lord Elwyn-Jones. I have no doubt that anything he left unsaid that I should wish to say will be dealt with effectively by the noble Lord, Lord Mishcon, when he replies. I also take this opportunity of saluting the very expert addition to our ranks in the form of the noble Lord, Lord Irvine.

I have tried to put myself in the position of the Home Secretary, in fantasy of course. I never came within 100 miles of that office although the late Evelyn Waugh, a great friend though rather a caustic gentleman, seemed to be under the impression that there was some danger of that. When the noble Lord, Lord Wilson, then Mr. Wilson, was about to form his government he wrote a letter to the wife of Lord Dalton saying he was glad I was not going to be Home Secretary: otherwise we should all have been murdered in our beds. So it would appear that I was perhaps regarded as a potential menace. However, we must come to the situation as we find it.

People have been talking about lifelong experience and that sort of thing. I first became a prison visitor in Oxford 50 years ago and there were then 10,000 people in prison. That was about the time when the noble and learned Lord, Lord Hailsham, was becoming very active at the criminal Bar. When I opened the first debate in this House 30 years ago there were 20,000 people in prison. Now for the first time there are over 50,000; so from that point of view perhaps I cannot be said to have been a very successful penal reformer but it has not all been my fault. That is the story of the last 50 years of penal reform.

We are fortunate in having the situation faced very starkly by the present Home Secretary, and I shall quote one thing that he said in a speech about 10 days ago. He said: The main reason for the recent surge in prison population has been the increased volume of cases handled by the courts and a rise in the average period of custody handed down". I hope I am not disturbing confidence in the judges, which is clearly one of the deadly sins, if I say that that is a lamentable reflection upon the judges having passed these more severe sentences. I am glad that the noble Lord who spoke earlier said he did not mind criticism so long as it was not malicious, or words to that effect. Here it seems that the Home Secretary was apparently complaining about the increased sentences—and if they have not been passed by the judges I do not know who has passed them. I am afraid that must be laid at the door of the judges; so let us consider the matter in the light of that.

We can rely, I hope, on the Home Secretary to do what he can about it. He went on to say: It is not my job to tell judges what the right sentence in any one case should be". I must emphasise that he said he was not referring to any particular case; but having issued that warning to himself he went on not exactly to ignore it but to speak in a rather different sense. The Home Secretary gave some very positive guidance and said, among other things; For less serious offences custody should be used sparingly and as a last resort … I hope the courts will make increasing use of these tough but constructive sentencing options". That is the official sentencing policy, stated recently by the Home Secretary. It has a rather ironic ring for some of us old-timers in this House because we remember in 1981 the then Leader of the House saying much the same thing. I do not know whether the same speechwriter was at work but at any rate the old things were said and said quite often by the noble Viscount, Lord Whitelaw, in 1981. It is perhaps rather cruel to labour the point now but after that he went before the Conservative Conference and got the bird. I do not think that in recent times anybody has got the bird quite so blatantly as he did. The whole policy was abandoned; and then came the unfortunate Mr. Brittan, who had to deal with other troubles later; and I do not want to hit him when he is down. The fact is that he introduced a new policy more suited to the temper of the Conservative Conference, and we have discussed that often enough in this House. We now have a Home Secretary who is showing some signs at least of returning to the earlier wisdom of the noble Viscount, Lord Whitelaw.

I am glad to see the noble Lord, Lord Windlesham, in his place. It pains me to say this because I have expressed several times, publicly and privately, my high regard for the noble Lord, who is chairman of the Parole Board. But I am afraid I found his last report profoundly depressing. It appears that now it is being made harder, I suppose by deliberate policy, to obtain parole. The noble Lord is sitting there and if he thinks that is an incorrect statement I will give way to him, although he may feel inhibited in taking part in this debate by virtue of his office; but the Minister may speak for him. That must be the clear meaning to be placed on his words and on the report.

To take only one figure, in 1985 63 per cent. of prisoners were released on parole. In 1986 this figure had dropped to 60.7 per cent. That seems to be part of a trend, so far as I can study it, over the past year. At the same time as we have the Home Secretary making these enlightened noises, we are having the Parole Board—which is very much under his control: let us not beat about the bush—stating precisely the opposite policy. It was once said of a philosopher that, having started from both ends of the road at once, he never met himself in the middle. I am afraid that seems to be the unhappy situation at the moment of the Home Secretary. I sympathise with and respect him—

Lord Elton

My Lords, if the noble Earl will forgive me, I do not think my noble friend can intervene in this debate. He has put his name down to speak and he occupies an office. But if the noble Earl is suggesting that the Home Secretary has the policy of the Parole Board at his beck and call, I can assure him that he is wrong.

The Earl of Longford

My Lords, I think "beck and, call" would be exaggerating but nobody who knows the situation as well as the noble Lord would deny that the Home Secretary very great influence over the policy pursued by the Parole Board. I am afraid I cannot accept any contradiction of that statement after many years of debates in this House and elsewhere. If the noble Lord wants to go on about it—

Lord Elton

My Lords, the noble Earl says he cannot accept it. I have observed the relationship fairly closely. It is a very sensitive one, and the Home Secretary is not in a position to dictate to the Parole Board: nor in fact to steer it.

The Earl of Longford

My Lords, in fact, as the noble Lord must be well aware, the policy introduced by Mr. Brittan when he was Home Secretary had a big effect on what the Parole Board did and on the course of action it pursued, so to say that the two things are moving quite separately, if the noble Lord will forgive my saying so, is wildly remote from reality.

However, let me just return and finish quickly. As I say, I am full of respectful sympathy for the Home Secretary, a man with a brilliant academic record. He is a Newcastle scholar, like the noble and learned Lord, Lord Hailsham. I do not know whether there are any more Newcastle scholars here—or scholars from Newcastle or from anywhere. If so, let them rise and compare their records with those of the noble and learned Lord, Lord Hailsham, or the Home Secretary. He is a Christian, like the noble and learned Lord, Lord Hailsham and like the noble and learned Lord, Lord Denning, who is to follow. That may be the case with everyone else who is speaking, of course. Here he is, enlightened and knowing exactly what ought to be done, yet how far is he in a position to do it?

On the one hand, there is public opinion, so called, which has been stirred up in the most odious way by the tabloid press. In February I opened a debate in this House to call attention to the general deterioration of the tabloid press. Anyone who has read those newspapers in the past few days cannot fail to be aware that I understated the evils that they represent in our present society. That is one part of the Minister's trouble: the tabloid press inflaming public opinion in some cases and indeed generally.

On the other hand, we have a Prime Minister who is in favour of hanging. I am not inventing that opinion; she has declared herself to be in favour of hanging. Poor Mr. Hurd has come out against hanging. He is caught between the upper and the lower millstones. He is an object of respectful sympathy, but we must leave him for the moment.

Like the noble and learned Lords, Lord Hailsham of Saint Marylebone and Lord Denning, and other noble Lords, I approach these matters from a Christian standpoint. That does not mean that all wisdom is delivered to Christians in these matters. No individual has done so much for penal reform in our time in the domain of policy as has the noble Baroness, Lady Wootton. Anyone who believes she is a Christian was not here when I introduced her into this House and she asked for the alternative form of words to take the Oath. It was a long time before they could be produced. She has a wonderful record and my thoughts go out to her at this moment because she has not been well for some time. She has a wonderful record but she is not a Christian—not yet, anyway, so far as I have heard; but there is time. It is possible to be a great humanist and a great penal reformer.

Other great Christians, such as the noble and learned Lords, Lord Hailsham and Lord Denning, will not agree with me about the application of Christian principles in any kind of detail, nor perhaps even on what is called principle. They will not agree with me on how Christian ideas can be translated into effective action. However, if they have any conception of what the founder of Christianity stood for, they and everybody in this House must agree that He would find the state of our prisons today absolutely intolerable. I regard the present state of our prisons, the conditions for our prisoners and the sentences passed on our offenders a disgrace to a society that still tries to be Christian.

5.42 p.m.

Lord Denning

My Lords, when the Bill came before your Lordships' House on a previous occasion we all welcomed it. Indeed, there were only a few outstanding points of difference to be discussed. Perhaps this evening I may mention two or three important points that have been raised so far.

On the subject of sentencing, the question has been asked whether there ought to be a power of appeal against over-lenient sentences. I was most impressed as I listened to the arguments put forward by the noble Lords, Lord Wigoder and Lord Hutchinson of Lullington. I thought that they must be right. However, I then heard the speech of my noble and learned friend Lord Hailsham of Saint Marylebone, which brought me right round again, as he has so often done when speaking from his long experience.

In fairness to the judge there should be the procedure available of an appeal to the Court of Appeal—only with leave of course and on the application of the Attorney-General. I should not for one moment allow the prosecution to have any say in the sentence. The prosecution should present the facts objectively and leave the sentence to the judge. Nor should the judge be tempted to ask the prosecutor for his views on what the sentence ought to be. The prosecution should not be permitted to answer any such question.

There have been two cases in my experience which I should like to relate to your Lordships. I tried a case at the Old Bailey in which the driver of a big Rolls-Royce (I think it was an ambassadorial car), a man of great reputation and distinction, overtook another car on the wrong side of the road and in doing so killed two young girls. I listened to the plea in mitigation, I saw the sorrow and repentance on his face and I sentenced him to nine months' imprisonment. That evening I asked myself whether I had been right. I came to the conclusion that I had been wrong and that I had not had sufficient regard to the victims of that manslaughter. I for one would have welcomed an appeal to the Court of Appeal, with leave of course, if it was thought proper. That was one case.

Another point arises in connection with the Ealing vicarage case and from reading the newspapers with their sense of outrage and condemnation of the judge, as though he were an ignorant man doing an injustice and not someone administering justice. Indeed, he was one of the most experienced judges of the Central Criminal Court, who had given reasons for his sentences which he hoped would be satisfactory. I should have welcomed a power of the Court of Appeal to hear that case in justification of the judge, and for the Attorney-General, with leave, to have been able to bring it to the Court of Appeal. I rather fancy that the Court of Appeal may have pronounced that the sentences were right in the long run but that the judge did not apportion them properly.

In another recent case concerning insider dealing, the press came out with expressions of outrage that the sentence should be suspended so that the offender did not go to prison at all. One of our best and most capable judges, experienced in the criminal law, tried that case and gave the man a suspended sentence. Having been so criticised by the media, in fairness to the judge would it not have been right for that case to have gone before the Court of Appeal so that the confidence of the judge and the confidence of the people in the judges could have been restored? For those reasons I have been swayed by the words of my noble and learned friend Lord Hailsham of Saint Marylebone.

I should like to say one or two words on other matters. Peremptory challenges must go. They are long out of date. It is most welcome to see them proscribed in this Bill. As regards retrial it is right that the Court of Appeal should have the power to order a retrial in some circumstances but it must be in carefully defined circumstances, because occasionally the accused goes free on a technicality, which is not right. There should be a power for the Court of Appeal to retry cases.

I come to my main point. I congratulate the noble and learned Lord, Lord Roskill, and his committee on their report and I am sorry that the Government do not intend to implement one of its most important recommendations; namely, that in cases of complicated fraud there should be a special tribunal consisting of a judge and two expert laymen to sit with him. Looking at the matter in principle, the report points out the complexity of such cases. On page 153 it states: The complexity lies in the fact that the markets, or areas of business, operate according to concepts which bear no obvious similarity to anything in the general experience of most members of the public, and are governed by rules, and conducted in a language, learned only after prolonged study by those involved". Are these cases such as can be tried by 12 jurors who are selected at random, ignorant and unlearned?

In the old days, before the Juries Act 1974, there was a qualification for jurors. They had to be householders. It was a rough and ready test. Nevertheless, it meant that on the jury one had tradesmen, businessmen and the like, who were capable of understanding figures and so forth. I tried a complicated fraud case in the Old Bailey many years ago. I do not know how it happened but I expect whoever was arranging the panel was able to look down the list of occupations, and in this way there were accountants, bank clerks, insurance clerks and so on. It was a first-rate jury that could understand and try the case. After six weeks it came to what I thought was a completely right decision.

Now that has all changed. Youngsters of 18 and 19, or even older people who have not the first understanding of accounts and figures, market dealings, what happens on The Stock Exchange, insider dealings, Lloyd's and the like, are jurors. No wonder the prosecution hesitates to prosecute when the case is to be tried by a jury—I do not say this offensively—of ignoramuses, who will not know anything about it.

That is why Lord Morris's committee in 1965 said that it was essential that jurors should understand the English language and be able to speak it. That is the only qualification. There is no need for them to be able to read or write, to understand figures or accounts, to pass their O-levels or A-levels—or to have failed them all. There is no qualification of education, literacy or accountancy for any juror. In the United States many states have tests of education, literacy and so forth. In our country there is no test whatever.

A random jury selected as it is now from those on the electoral role is quite an unsuitable tribunal to try complicated fraud cases that require expert knowledge. That is why I suggest that the recommendation of Lord Roskill's committee is right and that there should be a special tribunal of a judge and experienced assessors for these complicated fraud cases. However, as the Government have not taken it up, I suggest that it is for some of us to say something.

The judge himself—he is allowed to do this and does so—should make a few inquiries of each juror—"Can you read? Do you understand accounts? Can you add up or substract? Do you know anything about the Stock Exchange? Do you know anything about bears and bulls, the insurance market, the premium that has to be paid?". I suggest that in the case of nearly every juror called to the Old Bailey in a complicated fraud case the answer would be no; he is just an ordinary chap like the rest of us, never did arithmetic at school, never passed any examination, but can do his job all right, whether it is driving a lorry or whatever else it may be. For these complicated fraud cases there should be a jury or another tribunal that can understand the evidence and the accounts and come to a just and right conclusion upon them. If there is not a special fraud tribunal, a judge at least shall be able to make inquiries of the jurors as they come up as to whether they are suitable to try the case.

I beg that these matters be reconsidered when we reach Committee stage.

5.55 p.m.

Lord Campbell of Alloway

My Lords, I ask your Lordships to be good enough to accept my apology for not being in my place for the opening speeches. I shall of course read in Hansard everything that has been said.

While I welcome the Bill, I rise to suggest that there are four omissions of importance. First, there is no power to increase an over-lenient sentence—I speak of course of the sentence imposed. There is no power to order a retrial where the interests of justice so require and, I say in the broadest terms, in the interests of justice. There is no provision to curb the growing menace of jury nobbling, which saps the essence of the due administration of justice. There is no amendment to the criminal law proposed to accommodate the assumed jurisdiction of the High Court to authorise the sterilisation or the termination of pregnancy of a woman unable to give her informed consent or informed refusal. This is a matter of general public importance and of special importance to the medical profession, having regard to the provisions in particular in the Abortion Act 1967 and the incidence of criminal assault.

There are problems arising under what is now Clause 30—the former Clause 21—about video links in child molestation cases. There are two matters upon which some assurance is sought to avoid a conflict between the Executive and the judiciary on two aspects of extradition.

The problem of over-lenient sentencing and consistency of sentence is of course the lodestar for reform—reform based on actual case law decisions building up a body of precedent. There is no substitution for the actual case. Of course, the only body that can control sentencing is the judiciary itself. It has only to be stated by my noble and learned friend, but, once stated by him, it is axiomatic. It is equally axiomatic that that is the only effective way in which the independence of the judiciary, which is so thoroughly essential, is to be maintained.

It appears that Her Majesty's Government have moved away from the paper placebo proposals reflected in the former Clause 29 and now in Clause 38 and, if so, in this they are much to be congratulated. Last time round I gave notice to oppose Clause 29 and introduced an amendment in substitution, then Amendment No. 62, on which I gave notice that I should, if necessary, take the opinion of your Lordships' House. It was designed to enable the Court of Appeal to increase the sentence if over-lenient either on referral by the Director of Public Prosecutions or on any appeal by the accused against conviction or sentence. The argument appears in Hansard at col 1299 and other passages. This is no occasion for repetition to weary your Lordships. Rather, I wish to put down a marker for an amendment in precisely the same terms as the original Amendment No. 62, and to express the hope that the Government will withdraw Clause 38 and will introduce their own amendment to give full effect to the principles embodied in the amendment. Listening to the noble Lord, Lord Hutchinson, which is always a very great pleasure, and from my understanding of the speech of the noble Lord, Lord Wigoder, which I unfortunately missed, it would appear that whatever amendment is proposed it is inevitable that the opinion of your Lordships' House will be sought on this issue and, if so, so be it.

On the power to order a retrial, there is no provision in the Bill. An amendment to this effect—former Amendment No. 66—will be tabled. That amendment, which is the marker for the new amendment to be tabled in the same form, provided that the conviction must be quashed on grounds of misdirection or procedural irregularity, and I accept that perhaps "procedural" was an unnecessary qualification of irregularity.

Secondly, the power by order of the court was to authorise a new trial—not to order a new trial, but by order of the court to authorise a new trial—and it was only exercisable if the interests of justice so required. The power to order a retrial by reason of fresh evidence would of course be retained. But, if the conviction were quashed on grounds of misdirection or irregularity, fresh evidence would be taken into account as affecting the interests of justice as required for the authorisation of the new trial.

The new indictment on re-trial could include counts upon which the accused had not been charged, counts on which he had been arraigned and to which he had pleaded, but which by leave of the court were not to be proceeded with until further order, or counts identical or similar to those charged in the first indictment. Such was the effect of the former Amendment No. 66 and of the amendment which I propose to table.

But it is well understood that the Home Office might well wish to produce a more comprehensive draft, having regard to such representations as have been received and to the form of such amendments as may be tabled between now and the middle of October. If at Committee stage the principle were to be acceptable with a view to carrying in a Government amendment, there would of course be no question of taking the opinion of the House.

I am delighted and relieved to see the noble and learned Lord, Lord Ackner, in his place, as there is a complication because, as I understand it, a view is taken that the first element— that the conviction must be quashed on the grounds of misdirection or irregularity—should be excluded, but if an amendment were tabled to that effect I should respectfully suggest that it went far too wide. On the other hand, if an amendment tabled were to limit the indictment only to the original charges, I would suggest with respect that the amendment was far too narrow.

Quite clearly, there ought to be some time limit for re-trial. I should be against any statutory provision as to limitation, but would think that the Court of Appeal should be given the duty to order some time limit when authorising a new trial, leaving it entirely to the discretion of the court as to what that time limit should be.

On jury nobbling, on Second Reading on the previous occasion I drew the attention of your Lordships to the evils of this menace. Since then your Lordships will have read The Times of 2nd July, page 1, which reads: Millions paid to nobble … juries. Police say Mafia money used to subvert justice. The article set out in some detail the views of Mr. John Dellow, the assistant commissioner of the Metropolitan Police. It is a very serious subject. I said before that I do not know the answer. I have thought about it a lot since and spoken privately to many noble Lords and still do not know the answer.

All I know is that some steps must be taken as a matter of some urgency and if in this Bill, directed to assist in the fight against rising crime, it is not possible for the Government to introduce an appropriate amendment, then perhaps this question could be referred as a matter of extreme urgency to the Law Commission for consideration and report. In the meantime, some provision might be made to supplement police manpower and to provide extra financial resources to ensure that jurors are protected in those trials, particularly down in the Old Bailey, where protection is not only appropriate but totally necessary.

On video links, time runs on and I merely wish to suggest that the law of corroboration simply must be changed as regards child molestation cases; that the law on admissibility of complaints in these child molestation cases must be changed, but that never should the accused or his counsel be deprived of the right to cross-examine the child, for children are susceptible to suggestion—whether or not, as in some cases, these curious models are used—and children can build up a picture based on suggestion which they believe to be true in all sincerity, but which is untrue and is not founded on any recollection of fact.

We have always to know in court what happened between the time of the alleged assault and the time when the child gives the video recorded evidence. Why? To make sure in fairness to the accused, who, after all, is innocent till found guilty, that the video recorded evidence, which has the total semblance of veracity because the child believes it, is truly founded upon recollection of fact.

Lastly, I come to extradition. The provisions of Clauses 96 to 113 of the first Bill are now reflected in Part I, Clauses 1 to 26, but there has been a very substantial redraft and a very considerable improvement. The provisions bring our law into line with the European Convention of Extradition, and that is much to be welcomed.

There are, however, two questions, and only two questions, arising. Is there provision to ensure that the Secretary of State may not consent to extradition where the magistrate has ordered a fugitive's discharge? Article I of the convention in this context precludes extradition for the questioning of a suspect.

Secondly, is there provision to ensure that the Secretary of State shall not be able to consent to prosecution of a non-indictable offence? It would be preferable to carry safeguards into the Bill rather than to rely on habeas corpus or judicial review.

I conclude with one point on the problem of the criminal law and the new jurisdiction. That is a form of extended jurisdiction which is exercised now, for example to declare that the termination of a pregnancy may be lawful in the case of an unfortunate woman who can give no informed consent or refusal. This is a very sensitive grey area where age or wardship creates anomalies, where the inherent jurisdiction is in doubt and the statute is not explicit. I refer to Section 34 of the Mental Health Act, the guardianship provision, and Section 8 of the Act of 1983. If it is not possible to include in the Bill some provision to regularise and define that situation, could consideration be given to referring this matter also to the Law Commission?

6.12 p.m.

Lord Ackner

My Lords, repetition is not the spice of debates although it is often unavoidably a common ingredient. When I had the privilege of addressing your Lordships' House three months ago on this very subject I made two points. I shall refer to them again with the minimum of repetition and I shall devote my comments to seeking to repel some of the criticisms that they have caused.

The first suggestion was that there should be a right given to the Court of Appeal to order a retrial and that that should not be limited as it is now only to those cases where there is fresh evidence. Those of your Lordships who have had the privilege and pleasure, as I have, of hearing the kindly observations made by the noble Lord, Lord Hutchinson, will appreciate that he is one of my oldest friends at the Bar. That impression will be reinforced if your Lordships turn to the issue of Hansard in which his compliments on my maiden speech are recorded. That speech was devoted, in wholly uncontroversial terms, to criticising the then Lord Chancellor for his dealing with criminal legal aid for the Bar.

I was not aware that that speech showed deep establishment mindedness, but perhaps in time things change. I had hoped that the noble Lord might have used part of his retirement from a busy practice at the Bar to travel and broaden his mind, or at least to read about what happens in other countries, since he must have time.

Had he done so, either by travel or by merely reading the excellent report produced by the Law Commission, whose function is reform—something for which my zeal is meant to have evaporated—he would have learnt the following, which is stated in the report.

So far as can be ascertained, in every jurisdiction that was within the former British Empire the criminal appeal court has the power to order a retrial where appropriate. This includes every state in Australia, every province in Canada, New Zealand, India, South Africa, Nigeria, Kenya and Hong Kong. It seems of particular significance that in these jurisdictions the power existed well before 1907 and at a time when the common law of the Empire was controlled from London. The power also exists in every state in the United States and in the Republic of Ireland. The position in England and Wales seems now to be unique.

Moreover, it would now be impossible to say that there is a principle of the common law that once a jury has given its verdict a man cannot be subjected for a second time to the ordeal of a criminal trial. If there is such a principle, it is limited to England and Wales. The near-unanimity of other common law jurisdictions on the point may tend to the conclusion that what has on occasion been perceived as a principle could now more accurately be described as a peculiarity. It has been perceived as so much of a peculiarity that in the 25 years since the matter was debated in this House that power has been given to Scotland and to Northern Ireland.

If my attempts, with others, to seek that is the very reverse of reform, then the noble Lord, Lord Hutchinson, and I speak a different language. It is a great privilege to be categorised by him as a member of the heavy brigade. Lighter I am no doubt in avoirdupois, in age and in seniority in your Lordships' House. Perhaps the noble Lord may ascribe to me weightierness in thought.

The reason for the desirability of this change is quite simply that in the recent past a sensible process has grown up where, if there is an issue as to the interpretation of a statute or the admissibility of evidence, the ruling of the judge is taken at the earliest stage. If the ruling is adverse to the defendant he changes his plea, is convicted and then has a right of appeal. If he succeeds in that appeal there can be, as it stands at present, no retrial.

There was such a case recently in your Lordships' House, the case of R v. Hunt, where a man was clearly in possession of drugs that he should not have had. The analysis report was accepted in evidence but it did not set out the exact proportion of the morphine that he had in his possession. There was a technical submission at the end of the prosecution case that it had not proved its case. The judge rejected that, a plea of guilty was entered and then a subsequent appeal was made to the Court of Appeal, which dismissed it. But we in your Lordships' House were obliged to allow it. It was a pure technicality and in no other country would that nonsense have been permitted.

I now turn to the suggestion that the prosecution should have a right of appeal against inadequate sentences. I do not follow the strictures of the noble Lord, Lord Wigoder, that there is a significant difference between giving a right of appeal to the defence against an excessive sentence and giving the prosecution a right of appeal against an inadequate sentence.

Perhaps I may quote the words of a judge who is now the Chief Justice of Australia but who was then Mr. Justice Mason. In 1984 he said: Just as consistency in punishment—a reflection of the notion of equal justice—is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion in the public confidence in the integrity of the administration of justice". If the noble Lord, Lord Hutchinson, had travelled further than Spain, he would have discovered that in Australia, Canada and New Zealand for years (in Canada, for over 60 years) the right of appeal has existed without any complaint and without any suggestion that the prosecution fails there to carry out its obligations as they are carried out in this country.

Let me deal now with the specific criticisms which have been made. It has been said by a number of your Lordships that such a proposal would involve a departure from the traditional role of the prosecution not to play any part in the sentencing process. With deep respect, that is a misunderstanding of what the prosecution does at present. The prosecution takes a very material part in the process of sentencing. From the outset it decides what charges are to be brought. For example, it decides whether the charge should be the serious offence of wounding with intent, which carries a sentence of life imprisonment, or the lesser offence of unlawful wounding.

Secondly, it is the prosecution that puts the facts before the judge upon which the judge acts in all cases—which is the majority of cases—where there are pleas of guilty. If the facts are not acceptable to a defendant who is going to plead not guilty, then the judge has to determine those facts. Many years ago, I had to try a case at Winchester. The plea was to an offence of indecent assault. The prosecution case was that it was a near rape. The defence case was that it was technical indecent assault and should warrant the smallest possible punishment. There was nothing to be done but for me to invite the prosecution to call the evidence upon which it relied and to allow the defence to cross-examine and call whatever evidence it wished. It was the prosecution that set out to establish the seriousness of the offence and, as I recall, it did so.

Thirdly, the prosecution puts before the court the antecedents or criminal record of the accused. That is not merely limited to a catalogue of the offences committed. It frequently involves leading evidence via the police officer as to the precise circumstances of the last two or three offences. Those circumstances may be very relevant indeed to whether the accused is a danger to society or whether he has learnt his lesson to any extent.

Finally, the prosecution may call evidence with regard to the medical position. In your Lordships' House we recently had a case upon which we are due to give judgment this week—although not on this point—in which a person was convicted of manslaughter. After the conviction, the prosecution not only called evidence as to the criminal record of the accused but also called a doctor to put before the court the proposition, through medical evidence, that the accused suffered from gross personality defects (although not psychiatrically ill) and that he was a danger to women. As a result of that evidence, which was challenged by the defence, the judge in the case had to ask himself: "Do I impose a determinent sentence of so many years or an indeterminent sentence of life?" He decided the latter on the basis of the medical evidence, because he could not be satisfied that if he imposed a determinent sentence the accused would either not be in too long or not long enough, depending on his medical condition.

As your Lordships know, from time to time the Lord Chief Justice lays down sentencing guidelines. For the life of me, I cannot see that there would be any objection if the trial judge, realising that there had been a recent statement of guidelines on a particular offence, turned to prosecuting counsel and said: "Mr. Brown, I believe that there has been a recent pronouncement by the Lord Chief Justice on this type of offence. Can you remember its name and tell me where it is reported?". I cannot conceive that defending counsel could get up, either with the support of the judge or his professional society, the Bar Council, and validly object to such a request.

The principles have been laid down and they have been published. Why on earth should the judge not inquire what the principles are if he realises that they may be relevant? To take that a stage further, which is all that this proposal would do, counsel could say to the judge: "My Lord, there are some sentencing guidelines on the subject. No doubt your Lordship knows them. If not, I have a copy of the report here". Neither I, nor the Lord Chief Justice, who spoke on the last occasion, nor anyone else suggests for one moment that the prosecution should suggest to the court a particular sentence or the quantum.

The next point, which I think is easier to deal with, is the point made by the noble Lord, Lord Morton of Shuna, with such persuasiveness that the noble Earl, Lord Caithness, thought that it merited consideration. It has been made again by the noble Lord, Lord Wigoder. It is the question of how the Court of Appeal can deal with increasing a sentence by looking at the papers, the transcript of what was said and the reports. As your Lordships have been told, there were 90,000 convictions in the Crown Court in 1985, the last year of criminal statistics. There were 1,100 successful appeals against sentence. No one has suggested that the Court of Appeal is not capable, merely by looking at the papers and hearing submissions, of reducing the sentences. I cannot see where the problem arises in regard to increasing them.

The noble Lord, Lord Morton, said that the judge would not have the benefit of seeing and hearing the witnesses. Neither does he in every case where there is a plea of guilty, which is the majority of cases. Where it has been a case which has been fought, of course the Court of Appeal would have the greatest respect for the observations of the judge and for the fact that he has had the pleasure—doubted or undoubted—of presiding over a lengthy trial.

The next matter, which was raised by the noble Lord, Lord Wigoder, on the last occasion (although not in such a harrowing way as on this occasion), was his experiences, which some of us have shared, of appearing before the former Lord Chief Justice, Lord Goddard, in the optimistic frame of mind that his Lordship might be inclined to reduce the sentence, only to go away with the sentence increased. I do not suggest for one moment that that power should be retained. However, I suggest that if there is an appeal, it should be open to the Attorney-General, with the leave of the Court of Appeal (Criminal Division) to put in a cross-appeal. The appellant would then know perfectly well that he was at risk and could proceed accordingly, and the traumatic shock which the noble Lord, Lord Wigoder, and I suffered from time to time could not occur.

The last point, which was made both by the noble Lord, Lord Meston, on the last occasion, and by the noble and learned Lord, Lord Elwyn-Jones, on this occasion, was that there was some element of double jeopardy. With the deepest respect, that is to misunderstand a well-established phrase. The double jeopardy principle is that you cannot be punished twice for the same crime. But if an adequate sentence is substituted for an inadequate one, that is being punished only once and punished properly. That is no more double jeopardy than a person who has been convicted and whose conviction has been quashed being open to a new trial.

Finally, with regard to new trials perhaps it will reduce some of the strictures of the noble Lord, Lord Hutchinson, if I merely say how the suggestion was received by the noble Lord, Lord Wigoder, on the last occasion. I read from Hansard, Vol. 72, col. 1337, where the noble Lord said: The other matter upon which I wish to say one word is that much has been said about one omission from the Bill, and that is the possible power of retrial that should be given to the Court of Appeal. It has met with widespread support, particularly from the noble and learned Lord the Lord Chief Justice and from the noble and learned Lords, Lord Ackner and Lord Denning. I entirely agree, if I may very respectfully do so, that the Court of Appeal should have an extended power of retrial. But we must draft that power with some care". I finally take my departure of my main critic on this matter by saying what many have said of him: Habit with him was all the test of truth. It must be right, I've done it from my youth". I apologise to your Lordships for not being able to stay for the whole of the debate as previously but I have a long-standing commitment.

6.32 p.m.

Baroness Faithfull

My Lords, I speak briefly on four matters concerning children and young persons and their families. Under the definition of speakers given by the noble Lord, Lord Hutchinson, I do not know whether I am lightweight, middleweight, or heavyweight!;

However, I profoundly agreed with him when he said that we should have a positive policy for prevention of juvenile crime. I believe that the principles of child care, which should surely include inculcation of a sense of responsibility on the part of each and every child and young person; of support and encouragement for parental and family responsibility and to instil a sense of responsibility to and by the community for young people should be incorporated in a policy for children and families.

In considering these principles I refer to the breach of supervision order requirements in Clause 113 and Schedule 7 referred to by both the noble Lord, Lord Hutchinson, and my noble friend Lord Elton. The Criminal Justice Act 1982 gave courts the power to include specified activities in supervision orders on juvenile offenders. As my noble friend Lord Elton said, these specified activities included intermediate treatment projects. However, in this Bill a breach of the supervised activities orders gives courts the power to send a child into custody for the breach.

I hope the Minister will reconsider this clause because surely we should be working against sending children into penal custody, which in my submission tends to perpetuate crime. This is shown both by research and by experience. If the courts, probation officers and social workers feel they can take a child back not for an offence but simply a breach of the supervision order, then very possibly in some cases a number of children will go into custodial care when, with a lot of effort, patience and thought, such children could be kept out of custodial care. I hope very much that the Minister will reconsider this matter.

Secondly, in his opening speech the Minister spoke about the single custodial sentence. Again, he said that the Government were reconsidering this matter. There are social workers, probation officers and, as the Minister said, magistrates, who now plead for a single custodial sentence. This would give a wider sphere. Many young people would be able to be placed nearer to their homes and so be visited by, and kept in contact with their families. Furthermore, it would do away with the detention centres—the short sharp shock—which have not proved to be the success it was hoped they would be.

I am not sure from my noble friend's opening speech whether or not the Government are still unsure which way to jump. I hope very much, and I am sure I will be supported by the noble Lord, Lord Hunt, that the Government will have the one custodial system.

Thirdly, I hope to move an amendment at Committee stage for a change in the juvenile justice system. For many years we have looked at the Scottish system with envy. We have felt that the Scottish panel system has been a success and has helped parents to feel their responsibilities. Although it may not be possible to introduce that system in its entirety to this country because of our legal system, nevertheless we hope that the principles may be considered.

Lastly, I refer to a matter mentioned by the noble Lord, Lord Campbell of Alloway, concerning child abuse cases. The Government have already accepted the closed circuit television principle for cases appearing before the court. Video-taped interviews are in dispute at the moment. Of course, we believe that children must be treated with humanity, a humane attitude, and with methods which will not disturb them. We also believe that justice for the defendant must be seen to be done. Having dealt with many such cases myself I should say that children change over the years over time. Usually they tell the truth directly an event has occurred. They do not make it up; they simply repeat it.

Between an event occurring and the time a child appears before the court, time passes. During that time the child is treated therapeutically and medically. I submit that gives a different picture. If we adopted the video-taped interview that would give us a true picture of what in fact happened. There again, it would be up to the courts to say whether or not they accepted the video-taped interview. The principles and practices of videos and closed circuit television are in their early stages and I have to congratulate Her Majesty's Government for the money they are spending on research. I hope that this will be incorporated into the Bill so that we are able to perfect the methods by which small children who have been sexually and cruelly abused can be given a fair hearing and at the same time be treated with humanity while also ensuring that defendants receive justice.

6.41 p.m.

Lord Gifford

My Lords, on considering any criminal justice Bill we are concerned with trying to strike a balance between the interests that society has in securing conviction of the guilty and an appropriate sentence for them. On the other hand, there are the interests of society in securing a fair trial that avoids conviction of the innocent and also avoids the oppressive treatment of those who have been found guilty.

I shall concentrate on three areas in which I believe that balance is going to be seriously changed, or may be changed, against the interests of the individual and in favour of the interests of the state. The first is the abolition of the right of peremptory challenge. I feel a certain responsibility in speaking on this issue. In the course of my own professional practice, I exercise frequently on behalf of clients the right which they have of peremptory challenge. I do so after consultation with them as to the principles on which that might be done. I believe that it frequently assists in the obtaining of a fair trial, normally—I shall come to the exceptional cases later—without objectionable features.

To try to illustrate the matter, I want to show the difference between cases involving only one defendant or a small number of defendants and those where there are many defendants on trial. Where there are one or two defendants, there can be two reasons why it is important to consider the exercise of the right to challenge. The first is to rectify imbalances which inevitably arise through the exercise of the random selection of jurors in the community. Those are imbalances of age, sex or race. It is quite wrong to suppose that defence lawyers habitually challenge everyone over 50, or everyone wearing a tie in order to obtain an ignorant jury. Recently, in a serious case of conspiracy to murder involving prolonged investigation of documents, I recall looking at the reserve jurors who had not been picked to see if I could find people of age, experience and apparent education in order to provide a more random sample than those who had been selected.

In the case of a woman on trial, there might be an initial panel of eight, nine or 10 men, and it can be seen among those who have not been selected one, two or three women. Surely it is right to have some means of rectifying imbalances of that kind. Where a black defendant is on trial in a racially mixed area and where the knowledge and experience of black people in that area is important, it is quite common not to have any black jurors on the initial panel but to see among the reserve jurors one or two who could be added to that jury. With the greatest respect to the noble and learned Lord, Lord Roskill, that is not distorting randomness; it is often restoring randomness and restoring a fair selection of people to exercise that right.

The second type of occasion on which a right of challenge might be exercised is where, for some reason or another, one's client or oneself believes, rightly or wrongly, that the person coming into the jury box will be unable to give a fair hearing of the case. Some people swagger into the jury box, obviously wanting to be foreman and thinking they know all the answers. Sometimes people seem to be so frightened by the whole appearance of the proceedings that one feels that they will be overwhelmed by the majority and will be unable to exercise any independent judgment. Those beliefs can be right or wrong; they are only ascertained from superficial appearances. But if the belief is correct the right of challenge will have resulted in securing a more open-minded jury. If the belief is wrong, it will still assist the fairness of the proceedings by enabling a defendant not to have to stand trial before someone whom he may, for good reason, feel is biased against him.

Of course, it is a rough and ready method, but I am not one of those who wish to go into more sophisticated ways of questioning jurors, as happens in the United States, in order to secure some perfect impartiality. I believe that if we do away with the right of peremptory challenge it is inevitable that there will be more challenges for cause and challenges to the array in cases where the initial panel selected conspicuously does not represent either the age balance, the racial balance or the sexual balance of the community.

I have referred to another kind of case—that in which there are many defendants on trial. I remember some years ago one case where there were 15 defendants. The present right of three challenges per defendant allows defence counsel, if they get together, to change completely the composition of the initial jury. There seems to be an anomaly in that possibility which could, and sometimes does, distort the randomness of the selection process.

If the Government proposed that in trials of between one and four defendants the present right of three peremptory challenges should remain; in trials of five or six defendants, two peremptory challenges should be allowed per defendant; and in trials of more than six, one peremptory challenge, so that in virtually no case could one completely overturn the initial panel or create a completely new panel, that would not be a grave departure from the present procedure. There would be some basis of rationality behind it. It would be dealing with those cases where it is possible to create an imbalance by the use of many challenges in a single trial.

Please, let us not throw out the whole idea of the peremptory challenge. When, with one person on trial, one sees that the first 12 of 15 people coming into the court room are unbalanced in ways I have suggested, it does conduce to confidence in the proceedings—not solely on the part of the defendant but, I suggest, society as a whole—if this very limited right to challenge three people is retained. In theory it is three, but in practice usually two because one is never quite sure what the third challenge might bring.

I pass to a second area where the balance is being shifted. I start at Clause 21 where the Government desire to widen greatly the power of the courts to receive as admissible evidence matters which are contained in documents. As I understand it—and I say this with the greatest respect to the noble and learned Lord, Lord Roskill—in Part II we are not talking of the kind of situation which he described where a bank statement emanating from the Cayman Islands could not be put in evidence, as evidence of the account, unless the person from the Cayman Islands came to court. My understanding is that that situation has already been dealt with by Parliament in the Police and Criminal Evidence Act 1984. Section 68 deals specifically with documents which form part of records compiled by people acting under a duty in circumstances where, among other things, the person who compiled the record is outside the United Kingdom and his attendance cannot practically be secured.

This Bill introduces the possibility of documentary evidence being used as evidence of the truth of its contents without calling the maker of the document in far wider circumstances than that. Section 22 allows for statements in documents to be admissible if the document was either created or received by a person in the course of a trade or occupation. With a complaint received by the police or any other public agency—no matter how full of rumour and malice it might be—the documentary complaint could be put in evidence without calling the maker of the complaint if it was, in the opinion of the court, in the interests of justice so to do. It cannot, and should not, be left to the courts to decide whether such statements should be admitted or not.

There was to my knowledge a recent case where Mr. Justice Kenneth Jones was asked to admit statements which were hotly disputed, made to the police by people who had avoided being subpoenaed to come to court, who had escaped from the jurisdiction. He had no powers to allow that application as the law then stood. He refused it. However, the spectre was raised, and is raised by this Bill, of people being tried on the basis of documentary statements made by people who cannot be cross-examined.

I add my voice to those who are urging the Government not to go further than the provision in Clause 38 in giving power to the courts to increase sentences in specific cases. In my view, Clause 38 as it now stands would not in any way tilt the balance unfavourably against individual liberty.

I was very persuaded by the arguments of the noble and learned Lord, Lord Hailsham. I may have the freedom to go a little further than him in my comments upon the Collier case. I was very disturbed by the sentence in the Collier case. There was certainly much legitimate public concern expressed at the fact that someone who made large sums of money by insider dealing was able to retain his liberty while people who made equivalent sums by other forms of dishonesty normally do not. It was a sentence which cried out for some kind of review. However, I do not want Mr. Collier hauled back from America, or wherever he may be, in order to face the ordeal of an appeal from which he might then be sent to prison.

That situation is not right for three reasons. First, it gives far too much scope to the press not just to raise issues of public concern but to hound particular individuals until first, the Attorney-General and later the Court of Appeal are put under enormous pressure to put those individuals behind bars. If the Attorney-General and later the Court of Appeal stand out against a clamour from the media to send to jail someone who has allegedly been leniently treated they will be accused of being out of touch with public opinion. If they give way to that clamour the process of justice will not, I suggest, be enhanced by the spectre of a press campaign against an individual leading eventually to the overturning of a non-custodial sentence in favour of a custodial one.

Finally, the introduction of such a power as may be envisaged by the Home Secretary is wrong because it is unhuman. The argument was well expressed by the noble Lord, Lord Wigoder. On grounds of humanity, it is not just those cases where there is a successful appeal by the Attorney-General and someone who has been released goes into prison. There is the suspense felt by everybody whose case would be treated in that way.

I have seen the Continental jurisdictions at work where almost as a matter of routine public prosecutors appeal against sentences to appeal courts. There is never any finality. The person who has been through the ordeal of a trial never knows until the final appeal court what his sentence will be. I believe that we should stay with the much more rational and reasonable proposal contained at present in Clause 38 where it is possible for an issue to be considered without the emotion and pressure that would be involved in the suggested change.

References by the Attorney-General have been useful in dealing with cases where there has been a suggestion of a conviction obtained after a wrong direction in law by the judge. It is not suggested that that power should be extended into a right of a prosecution appeal against an acquittal. In the same way the Attorney-General's reference could have a limited place in considerations of sentence.

6.55 p.m.

Lord Hunt

My Lords, I rise with a sense of modest pride as a member of the Light Brigade, always on the assumption that my noble friend Lord Hutchinson in introducing this military analogy into our discussions had in mind the glorious and effective operations of riflemen fighting on their feet and brigaded as the Light Brigade in the Peninsular War and not the glorious follies of the mounted cavalry in the Crimea. I hope that my noble and learned friend Lord Roskill will assure his noble and learned friend Lord Hailsham—whom I hope I can call in a very special sense my noble friend as well—that he, representing the heavy brigade, never saw me off (if that was the expression of the noble and learned Lord, Lord Hailsham) during our years of happy co-operation and combination on the Parole Board.

I propose to comment only on Part IV of this Bill, which bears on sentencing policy, and, risking the reproaches of the Government and the Cross-Benches, on one omission in that part of the Bill. The Bill in that part is strong on retribution, and I hasten to say quite rightly so, in regard to certain prevalent and heinous crimes such as the carrying of firearms in pursuit of other crime, corruption, insider dealings, cruelty to children, and trafficking in drugs. I use the word "retribution" advisedly because I most certainly believe, in the right circumstances, that retribution is appropriate rather than a deterrent, about which I have strong doubts.

In the whole history of crime and penal policy there is quite insufficient evidence that stronger punishment in the form of very long sentences on the UK model are an effective deterrent to others. This Bill is woefully deficient in one crucial aspect of penal policy. It fails to address the most serious product of our whole prison system: the results of excessive resort to imprisonment. I do not need to expatiate on what has already been said by other Members of your Lordships' House this evening and before, and so often outside this House, about the crisis created in our prisons. That is due in no small measure to our penal policy, to the appalling conditions in our local prisons and remand centres as a result of gross overcrowding—about which I can speak with some authority—and to the resultant prolonged detention of numerous untried prisoners in police cells.

All these have been mentioned this evening. The nation has had enough warning from a number of prison riots and lesser disturbances, from the statements of prison governors and staff, from many bodies and individuals who are closely informed about the situation, and not least by the chief inspector of prisons in all five of his annual reports to date. Recently I have made a number of prison visits with colleagues on the All-Party Penal Affairs Group. We asked one prison governor at the end of one of those visits what improvement in the service he would most like to see made. His answer came out immediately. There are Members of your Lordships' House present who can confirm that. It was: "Keep more offenders out of prison. Shorten the time they spend inside".

There is really no excuse for the Government to ignore all this testimony. I am very glad that the noble Lord, Lord Mishcon, dealt so effectively with the subject during his address on the gracious Speech. I was glad to hear the most reverend Primate take a strong moral stand about it recently when he was talking on this subject. It is deplorable that the Government should be reluctant—in fact, I am looking at the noble Earl and challenging him—to display the necessary political courage to tackle it in the way it should be tackled.

The Government are not afraid to risk public displeasure on other policy matters, so why not on this one? It is not good enough for Ministers to fall back on public emotion stirred up by the press, nor on the well-accepted fact that the judiciary is independent from the executive and legislature, and should be, and simply to go on building more and more prisons at vast public expense. It costs between £250 and £350 per week per prisoner to keep pace with the decisions of the courts.

Given that the perpetrators of a great range of lesser offences comprise the majorty of inmates of our prisons; given that imprisonment for most of them is not only ineffective, as the noble and learned Lord, Lord Elwyn-Jones, has said, but counterproductive as the noble Lord, Lord Elton, also said; and given the logjam in our local prisons created by ignoring these facts, it surely is the duty of any government—I am not only pointing at this one—to have the courage to change course, even at the cost of some public popularity, and to amend the law so as drastically to reduce the maxima for most prison sentences (I do not say all but most) and to extend the range of offences which are not imprisonable while at the same time making more provision for measures to deal with offenders within the community. The noble Lord, Lord Elton, gave a very good example when talking about intermediate treatment, about which he and I know a great deal and on which we are totally in agreement. Incidentally those measures taken within the community would cost far less to the community at large.

I shall not expand on all this. It has been said so many times with so little effect that I anticipate that amendments to the Bill will be moved designed to reduce resort to imprisonment and the length of prison sentences. From these Benches I shall not spell them out now but we shall gladly support amendments to the same end from whatever quarter of your Lordships' House they may come.

In conclusion, I hope that the noble Earl will not only have listened—which he has most assiduously throughout this debate— but will heed what has been said about the need for a radical rethink of our penal policy, bearing on imprisonment, and consider sympathetically amendments to that end which will be put to your Lordships' House.

7.4 p.m.

Lord Benson

My Lords, the tentacles of this Bill are widely spread, but I wish to speak to only a small part of it. I had the privilege of being a member of the Roskill Committee. I am pleased to observe that some of the recommendations made by that commitee have been incorporated in the Bill. If they are carried into effect they will help to streamline the criminal procedures of this country and to bring them towards the present century. The effects will be three in number in that area of the Bill. The first effect will be to enable documentary evidence to be brought before the court much more readily than has been the case in the past. This will help the cause of justice and save a great deal of time and cost.

The second effect is that instead of dragging evidence out word by word and sentence by sentence orally, rather like the plucking of Sir Winston Churchill's porcupine, quill by quill, it will at last be possible to present evidence to the court and the jury by modern methods. This means that there will be available experts' written reports, charts, diagrams, summaries, glossaries, videos, overhead projectors and all the modern equipment which is necessary if it is to be possible to explain to a jury and to a court how complex fraud cases were committed, where the crime took place, and to help them to remember the basic facts on which they will have to make a decision.

The third effect will be to make it much more simple to make evidence available from abroad. In the past the prohibitive cost of bringing witnesses to this country, the objections to their coming and the refusal to come were great impediments. When the provisions of the Bill come into force in this respect it should ease that position a great deal.

If the Bill is put into force in this form together with the Criminal Justice Act there will be wide implications. I do not think it has been recognised yet in this country that serious fraud is a prosperous industry and it is a growth industry. Particular steps are necessary to deal with it. Three administrative matters will have to be taken in hand. First, our criminal procedures will have to be tightened. Secondly, judges, barristers and solicitors will need an intensive period of training in commercial matters and in the preparation and presentation of cases. Thirdly, the judges allocated to these cases will require to have special qualities. It would be pleasing if we could have some assurance that the radical changes in administrative procedure which are necessary will be brought into force so that the effect of the Act and this Bill can be made to apply properly.

It was also pleasing to observe that the right of peremptory challenge is, I hope, to be abandoned. The law is slow to change. Some might even feel that it is sometimes reluctant to change. This particular right is shrouded in cobwebs. It dates from the time when an accused person had no right to be represented by counsel and when he himself was unable to give evidence on his own behalf. It began with the accused person being allowed to have 35 peremptory challenges. In the year 1509 that was reduced to 20. In 1974 it was reduced to 7. In 1977 it was reduced to three; so that in accordance with the long tradition of the law progress has been slow, but some at least might feel that it has been steady.

We examined this matter with great care on the Roskill Committee and we found after looking at all the facts that this right of peremptory challenge can be and sometimes is abused. We looked at all the other factors and came to the conclusion that it was time to abolish it. I have no wish to argue the point now. I am merely expressing a wish that when we come to the Committee stage Clause 107 will not be tampered with so that one more anachronism can be exterminated from our criminal proceedings.

I conclude by saying that I hope the Bill and the other measures which are necessary to bring our procedures up to date will be pursued with all dispatch.

7.10 p.m.

Baroness Macleod of Borve

My Lords, the hour is late. Unfortunately I was not able to take part in the first of the Second Readings of the Bill. Perhaps I may begin, and I shall be brief, by thanking my noble friend Lord Caithness for so lucidly explaining the Bill to us. It is one of the most difficult and wide-ranging Bills to come before your Lordships for some time. It is also one of the most important. I shall not be long but there are one or two points which I should like to take up. I hope that I shall not be treading on anybody's toes.

As the noble Lord, Lord Benson, has said, it is very important that the right of peremptory challenge should be done away with. However, having sat with Crown Court judges, I would make one stipulation. It should be beyond all doubt that every member of the jury understands the language which is spoken in the court. This is by no means always so and when some years ago it was suggested that the oath should be done away with I thought it was the worst thing that could possibly happen. If one is sitting on the Bench and one can hear a juror read an oath rather than repeat it, one at least knows that he has some semblance of knowledge of the English language or the language in which the court is being conducted.

I agree most sincerely with what the noble Lord, Lord Wigoder, said about Clause 38. When we come to the Committee stage we shall once again have a long argument on Clause 38. I am a dove on the issue and I shall have an opportunity to speak on it at Committee stage. It is interesting that only two cases which might possibly have come before the Attorney-General under Clause 38 have been mentioned today. Those were both well known cases but I submit that the media are very much responsible for whipping up the public's sympathy and support. Perhaps the media had nothing else to write about at that time. I was asked by the BBC to comment on the judges ruling. I absolutely refused because I had not been in court and nor had I read verbatim what has been said in court. I therefore felt that I could not possibly take part. In any case, as a humble magistrate, I would never criticise a judge.

Clause 30 deals with children's evidence, and the noble Lord, Lord Hutchinson, and my noble friend Lady Faithfull were particularly helpful on this. As a former chairman of a large and difficult juvenile court I realise that children frequently experience great difficulty in being brought into a large room where they have never been before. When we are talking about these particularly difficult circumstances I feel that the Government are on the right track. I wonder whether one could make more use than is perhaps envisaged of one-way mirrors which would enable people to see what was going on in the next room without the child being aware of it.

With regard to Clause 39, I warmly welcome life imprisonment as a maximum for possessing firearms or carrying them with criminal intent. If a man goes out carrying a firearm and he is then arrested, it is likely that he thought to himself when he went out, "I might need a firearm either in my defence or to attack somebody". If he is arrested for carrying a firearm with intent, part of the deterrent is that he might be sent to prison for life.

Clause 40 increases the maximum sentence for the offence of cruelty to children. I also agree with the idea of a single placement for juvenile offenders. Over the years it has been very difficult to know where a juvenile offender might fit in best serving a sentence away from his home. It would be an enormous help to have one well regulated and well organised placement. I have been asked by the Magistrates Association to assure the Government that magistrates will comply with Clauses 32, 33 and 34 to the best of their ability, which means that at least common assault and battery will be triable at the magistrates' court. I agree with my noble friend Lord Elton that petty theft should be included in this provision.

I am sure that, like me, noble Lords who have had the doubtful privilege of trying to administer justice in the fairest possible way have asked themselves, "What is a deterrent? What deters people?" When I was on the Parole Board I felt sincerely that if an eye for an eye had been a possibility it would certainly have deterred many of those who took other people's lives. I came to the conclusion that the greatest deterrent was the loss of liberty and being cut off from the outside world.

I proved I was right only once in all my many years of trying to adjudicate. I put a child into a remand home for three weeks because I wanted reports on his home conditions. This procedure is frequently used, as your Lordships will know. I remember the boy very well. I said "Billy, how did you manage the last 21 days on remand?". He said "Oh, very well thank you, Miss, it was a lovely place. We had a beautiful swimming pool and lots to do. It was lovely". I asked, "You're telling me that you really enjoyed being on remand?" He replied, "Oh no, Miss, I didn't enjoy it at all". "Why not?" I asked. "I missed Mum's cooking", was the reply. Whether missing Mum's cooking will be a deterrent to a child in the future I do not know, but taking someone away from home and putting him in prison behind walls is one of the things that one could perhaps think about. I warmly support the Bill.

7.20 p.m.

Lord Monson

My Lords, after so many compelling, fluent, and indeed brilliant legal expositions this afternoon, any layman who rises to his feet must do so with some trepidation. Perhaps I may start by congratulating the noble Earl, Lord Caithness, for his clear exposition of this lengthy and wide-ranging Bill. Leaving aside the obvious need to scrutinise in great detail something which is so comprehensive, a number of major changes are proposed in the Bill, some of which are clearly going to be fiercely contested; so we are demonstrably in for a long, hot autumn, in this Chamber at any rate.

Parts of the Bill are virtually non-controversial and, as such, can be warmly welcomed. One thinks of Parts II, III, VI and IX dealing with evidence, compensation, and probation respectively. Some other parts of the Bill I shall reserve judgment upon for the time being. However, I should like tentatively to dip my oar into the controversy inevitably surrounding Clause 107, which provides for the abolition of the right of the defence to challenge jurors.

It may be worth pointing out, despite all the evidence to the contrary this afternoon, that this is not strictly a party political matter. Indeed, one of the most powerful speeches opposing abolition made in another place earlier this year was the speech of the honourable and learned Member for Burton, who is of course a Conservative. As a blundering layman, I wonder whether a compromise solution might not only be possible but positively desirable as the best option.

Suppose that defence counsel were limited to making only one or possibly two peremptory challenges, instead of three as at present, for an experimental period of, say, two years. If this were to produce a marked improvement from the point of view of the administration of justice, then the arrangement could be made permanent. If, on the other hand, it failed to produce the desired effect then the Government could proceed to abolish the peremptory challenge in its entirety. This cautious style, this experimental step-by-step approach, is after all the way in which this Government have carried out their trade union reforms so successfully.

Having got this excursion into Part VII off my chest I should like to concentrate on Part IV, which deals mainly with sentencing policy. Some of the proposed changes are logical, modest and non-controversial: for example, Clause 50, which increases the maximum fine for the illegal burning of crop residues other than straw or stubble. But some of the other proposed changes do not seem so logical and are certainly less modest. For example, in Clause 32 the maximum sentence for taking another person's motor car is reduced to only 16⅔ per cent. of the previous maximum, while also in this clause and in Clause 33 the sanctions against driving while disqualified, or causing up to £2,000 worth of criminal damage, are effectively and substantially reduced. In sharp contrast the maximum penalties in Clauses 40, 41, and 42 are raised by a staggering three and a half to five times.

There is no real evidence that the first group of offences are becoming less prevalent or the second more so, despite the current transient media obsession with the latter group. Nor, with one exception, is there any correlation between the reduced or increased maxima for these offences and the degree of individual suffering caused to the victims. Taking and in the process quite possibly wrecking somebody's new car, smashing up a person's house or driving while disqalified and hence uninsured and then knocking somebody down surely causes more individual suffering than does insider trading.

The one exception is Clause 40, which covers that aspect of child cruelty which does not involve physical violence, because physical violence is already covered by other statutes. Without a doubt two years must be too low a maximum for such an offence and some increase is clearly necessary, yet are not most of the perpetrators of such crimes educationally subnormal if not actually mentally defective? If so, one wonders whether 10 years—six years and eight months with full remission—in a conventional prison is the appropriate sentence.

As to Clauses 41 and 42 surely the right response to white-collar crime, other than white-collar crime which causes enormous loss and suffering to individuals—for example, the Cameron-Webb and Norton Warburg swindles—is not long and hence costly prison sentences, but massive fines combined with a short, sharp non-suspended custodial sentence. Anything else must be wasteful and unnecessary.

As to the extraordinary proposal in Clause 39 that the maximum sentence for carrying but not using a gun should be exactly the same as that for killing somebody with that gun, a more powerful incentive for criminals to shoot their way out of trouble could hardly be imagined. The noble Lord, Lord Harris of Greenwich, who I see is not here today, powerfully argued against this last time round, and no doubt we shall return to it with a vengence at Committee stage.

Suspicious people—among whom, of course, I am not numbered—might be forgiven for wondering whether all these astronomically higher maximum sentences not only in this Bill but in much other legislation passed since 1979 may not be wholly unmotivated by populist considerations; in other words, that the Government are essentially trying to show how macho they are, to demonstrate that "something (with a capital S) is being done (with a capital D)".

In fact these sharply higher maxima—I do not object to some increase—to the limited extent that they are actually utilised contribute to the present severe prison overcrowding to which the noble and learned Lord, Lord Elwyn-Jones, referred while seemingly doing little, if anything, to reduce the present crime wave. The noble Lord, Lord Wigoder, made the point much better than I can.

I very much agree with the noble Lord, Lord Elton, that we ought to be looking to alternatives to long prison sentences. There are many interesting innovations being tried out in the United States at this moment. Your Lordships may have read within the last 48 hours of an American slum property owner who has just been sentenced to spend 30 days in one of his rat-infested apartments. That is a far better, and cheaper, punishment, one would have thought, than sending him to prison.

This brings me to one of the few regrettable omissions from this Bill. There may be legitimate differences of opinion over the desirability of longer prison sentences for people convicted of causing death by reckless—and I stress reckless rather than careless—driving, if only because of prison overcrowding. But surely nobody would dispute that people, whether they be drunk, drugged or sober, who kill other road users by driving recklessly ought to be kept off the roads for a very long time indeed.

Bearing in mind that the principle of a minimum disqualification period is already well established by earlier legislation, I intend to move an amendment at a later stage—assuming this Bill is given a Second Reading—to provide for a longer minimum period of disqualification, which I hope will be acceptable to the Government, and if not to the Government then possibly to the House as a whole. I know that there will be plenty of support in another place for such a move. In particular the honourable Member for South Staffordshire, Mr. Patrick Cormack, feels just as strongly as I do on this subject.

There is another omission from the Bill which ought to be rectified. Three years ago there was strong and on occasion passionate opposition in all quarters of your Lordships' House to some of the intimate search powers conferred on the police by what has now become the Police and Criminal Evidence Act 1984. As a result of your Lordships' protestations police powers in the matter of intimate searches were whittled down and a good many useful safeguards were introduced. However, all this time, unbeknown to most of us I suspect, Her Majesty's Customs and Excise were carrying out intimate searches on an enormous scale and strip searches falling short of intimate ones on a more massive scale still. The great majority of those subjected to this humiliation, discomfort and, in some cases, danger were found to be wholly innocent of any crime. Your Lordships may have recently read of the Customs officer who threatened intimately to search a baby if the baby's mother refused to be searched intimately. I hope that your Lordships will agree that those abuses must be curbed and that more stringent safeguards and monitoring must be introduced.

There is one final omission from the Bill which may be worth mentioning, even if by its very nature it is incapable of being formally included in the Bill. It seems to me that over the past few decades the Continental doctrine of the crime passionnel has insidiously crept in to English law, in practice if not in principle. All kinds of killings which 15, 20, 30 or 40 years ago would have resulted in a murder charge and probably a murder conviction now result in a manslaughter conviction, either because that is all that the accused are initially charged with or because juries refuse to convict for murder and instead bring in a verdict of manslaughter. This is despite the abolition of capital punishment many years ago. The sentences subsequently imposed are often, if not always, surprisingly low. I am talking not only of crimes of sexual jealousy but also those which arise from boundary disputes, the worrying of livestock by dogs, the reactions of children against domineering parents and so on.

This major development may be a good thing, or a bad thing: I for one cannot make up my mind. However, it seems strange that it has occurred without any parliamentary debate, without any debate in the press, as far as I know, and without any public debate. It is curious to think that if Ruth Ellis had been born 30 years later and had done today exactly what she did 30-odd years ago, far from being hanged she would probably spend no more than three or four years actually in prison, the majority of that time quite possibly in an open prison.

With the sanctity of human life in mind, one cannot help wondering if perhaps we have swung from an unacceptably harsh extreme—and the execution of Ruth Ellis was certainly an unacceptably harsh extreme—to an unacceptably lenient extreme—unacceptably lenient for the purpose of restraining or discouraging people from giving violent physical and sometimes fatal expression to the passions, tensions, frustrations and resentments that we all feel from time to time.

7.33 p.m

Viscount Brentford

My Lords, I welcome the Bill, although I am intrigued by the fact that the planners of the programme decided that we should discuss prisons on Bastille Day. I am not quite sure of the implication of that.

I should like to emphasise what the Minister said in his opening. As I see it, this is a Bill not to eradicate crime but to improve the workings of justice in criminal matters. It is important that we should arrange matters so that the general public will be able to see more clearly that justice is being done in criminal cases. I therefore particularly welcome the confiscation provisions of Part V, together with the stiffening of financial penalties. All too often financial penalties are so small as to be irrelevant. I hope that these increases are going far enough in the right direction.

I agree with the wording of Clause 39 in respect of the carrying of firearms. In the light of the arguments made that it is wrong that the same penalty of life imprisonment is imposed for carrying or for using a firearm, it seems to me that the person carrying the firearm will not be scrutinising Clause 39 while he is doing so, but will have a gut reaction that the penalty will be worse if he uses it than if he does not. I believe that the extra flexibility which this clause gives to the judge is well worth while.

I should also like to endorse the point made by my noble friend Lord Elton, and upon which other noble Lords commented in relation to taking further steps to cut back the jam in the Crown Courts. He suggested making petty theft a summary offence, and if that could be considered it would be advantageous. He also said that there could be more scope for intermediate treatment. I firmly believe, particularly in the case of young offenders, that if they find somebody who will care for them and show that, it may make all the difference between an individual living a life of crime and not doing so. The more the Government can do to encourage that the better.

Finally, I am unhappy with a few words in Schedule 8, which removes the protection of the City of London probation service. It is an effective, efficient and economic service for the community. I hope that the Minister will reconsider paragraph 2(b) of the schedule and perhaps delete it.

7.36 p.m.

Lord Mishcon

My Lords, I was denied the pleasure of listening to the opening speech of the noble Earl, and also to subsequent speeches, until that which was made by the noble and learned Lord, Lord Hailsham. I should like to apologise to the Minister, who knows that I was engaged on certain professional matters. I know that your Lordships will also accept my apology.

I had the pleasure of listening to the speech of the noble and learned Lord, Lord Hailsham. He seems to me to have been completely rejuvenated, and some 10 or 15 years seem to have been taken off his age since gracing the Privy Council Bench. The noble and learned Lord made a spirited defence, as one would expect, in regard to a certain position relating to a clause that, without any doubt, is one of the most important and controversial in the Bill that we are now discussing.

I am glad that the noble and learned Lord, Lord Denning, is back in his place. If we are to be guided by the views of the noble and learned Lords in our midst, we shall find ourselves in some difficulty in obtaining a constant view as to what will be achieved by Clause 38, and the old Clause 29, or any amendment to it. I noticed that on this occasion the noble and learned Lord, Lord Denning, said that he had listened to the speeches from the Front Bench of the Alliance Party and to the somewhat more spirited speech of the noble Lord, Lord Hutchinson, from the Back Bench of the Alliance Party. He said that he had listened and agreed with them until the noble and learned Lord, Lord Hailsham, spoke, but suddenly changed his mind as a result of that speech.

I happen to have a memory of the speech made by the noble and learned Lord, Lord Denning, on the Second Reading of this Bill during the last Session. On that occasion he said: on balance and in order to keep the confidence of the public in the administration of justice in the face of attacks by the media, I have changed my mind and now think, as does the Lord Chief Justice, that there should be a right of appeal".—[Official Report, 27/4/87; col. 1324.] On another occasion when he graced your Lordships' House with a speech he said, at col. 1322 of Hansard on 27th April: I must say that like my noble and learned friend Lord Ackner I have altered my mind about the question of appeals by the prosecution when it is said that too lenient a sentence has been passed". I hope that at the Committee stage when my noble and learned friend Lord Elwyn-Jones and I address your Lordships—I much more humbly than my noble and learned friend—the noble and learned Lord may change his mind for a third time. Then of course, if I may say so, we shall have a conclusion devoutly to be respected. It suddenly occurred to me that I know in our legal history we have had somebody who was called the hanging judge. The noble, learned and merciful Lord, Lord Denning, could never have that title but he is in danger of having the title of the swinging judge.

Clause 38 and the old Clause 29 have not been looked upon with the greatest of favour by the noble and learned Lords who sit in your Lordships' House, and deservedly so, in a judicial capacity and indeed by those who have sat in that capacity and who sit in your Lordships' House to guide us. They have been dealt with very trenchantly in the past.

If I may turn again to the Second Reading of the Bill in your Lordships' House in the previous Session, looking at col. 1295 the noble and learned Lord, Lord Lane, a very respected Lord Chief Justice, said: The present Clause 29 has the inestimable disadvantage of providing the worst of both worlds. It will draw attention to faults without remedying them". The noble and learned Lord, Lord Ackner, also referring to this clause, said at col. 1207: I shall spend little time on the merits of Clause 29 because I cannot find them. It is a hollow, empty clause". So the clause which reproduces Clause 29 in the present Bill—namely, Clause 38—seems to have incurred a great amount of judicial disfavour, if I may put it that way. One obviously asks: is there any necessity at all to change a situation which seems to have gone on for quite a few centuries without too much trouble? As I understand it the Minister did not regard as a terribly serious or frequent problem too lenient sentences being given by our judges. I believe I am correctly quoting him. I have a note of what he said although I did not have the privilege of hearing him. He said: Sentencing is a difficult and sensitive task and it is a tribute to them [referring to the judges] that the vast majority of sentences accord very well with the expectations of the public. The problem is that from time to time in a serious case where public emotions are understandably engaged, a sentence is passed which arouses widespread concern". Is it really necessary to alter that old tradition and have an entirely new situation about the power of the Court of Appeal to increase sentences in individual cases purely because of the odd case that might turn up where indeed the media, the public or the Attorney-General think that too lenient a sentence has been imposed?

If we had example after example of inconsistent sentences, I should be moved to say that the consideration of this House ought to be given after all this length of time to an alteration; but as I understand it in your Lordships' debate two cases in recent history, and two cases only, have been brought to your Lordships' attention. Indeed, if I remember correctly the part of the debate I had the privilege of hearing, in one case it was said, "Ah, yes, the sentence might well have been right and everyone would have thought it right if you look at the consecutive sentence that was given—a total of 10 years—and you do not look at the individual sentences that were given".

In regard to the other case, which if I may say so respectfully also caused me some concern—that of Collier—I wonder whether the learned judge had in mind, rightly or wrongly—but nevertheless it is a very reasonable thought—that insider trading was not a criminal offence in this country until a matter of a year ago when with some pride from our Benches here, and supported throughout the House, we said it was about time that it was made a criminal offence; and indeed it has been made a criminal offence. He might well have thought: "This is something which has gone on for years, where people have made dishonest fortunes out of insider trading and here is the first man who has come before the court convicted of what was not previously a crime. I wonder whether he ought to be sent to prison or whether he should have a suspended sentence".

Your Lordships may not agree with the conclusion that was reached but I hope your Lordships will be reasonable enough to say in your own minds that that was not a completely unreasonable thought for the learned judge to have. So we are in no crisis whatsoever but are merely tantalisingly—as on occasions it must be for many judges—the victims of so many editorials and headlines in the national press, which talk about unreasonable and wrong sentences without, as the noble Baroness, Lady Macleod, said so rightly, having been present in court in many or nearly all of the cases, to see the demeanour of the defendant, to hear the evidence and to hear the plea in mitigation.

Is it right that in throwing aside the old Clause 29, which is Clause 38 in the new Bill, we introduce for the first time—and this to me is the most powerful argument of all—the dreadful sword of Damocles hanging over a defendant's head? He has had his case tried. He may have been honourable enough to plead guilty and someone has pleaded in mitigation on his behalf. The judge has said, "I am not going to send you to prison" and he has gone back home, hopefully to say, "I can go back to work and make a new start". But some lawyer has got to say to him, "Be careful: you may not be able to tell your employer that, you know. The prosecution may appeal against the sentence and you may be sent to prison". And is there not another thought that ought to be in ourminds?—

Lord Hailsham of Saint Marylebone

My Lords, that is not in Clause 38 as it stands. The noble Lord is fantasising about what is in Clause 38.

Lord Mishcon:

My Lords, I thought I had made it clear—though possibly not to the noble and learned Lord, for which I apologise—that I was finished with Clause 29 and Clause 38 with the remarks that had been made by his colleagues, the noble and learned Lords who have spoken, that it is not even worth criticising because it is such nonsense that it achieves no end at all. I was dealing with the alternative—and I said it quite clearly—that if you set aside Clause 29 or Clause 38 and you put as an alternative the power of the Court of Appeal to increase sentences in individual cases, are you not doing something terribly wrong in the face of a problem which is almost non-existent?

I was going on to ask whether that is the tradition that we want. I am not moved by the fact that other courts do things differently in other countries. I well remember addressing the noble and learned Lord, Lord Hailsham of Saint Marylebone, when he sat in his exalted place—and we shall always think of him as sitting there. I tried awfully hard to prove to him that there was something much more sensible north of the Border than there was south of the Border in our own land. He reprimanded me and said that Scots law was one thing and English law another and that our experiences were very different. On that occasion I thought that he was not very much in favour of Scots law. I shall not necessarily be moved by what happens in Canada, New Zealand or elsewhere. I am content with our own great tradition which people throughout the world have regarded as the leading tradition in the cause of justice.

With that in mind, I turn to the judge. One can imagine him, moved by various humane considerations, saying to himself, "I do not think that I shall send this man to one of our overcrowded prisons, and that for more than one reason. Mind you, if I don't give him at least a short sentence, I have an idea that in a case of this kind the prosecution will appeal. I don't want an appeal for the sake of this man and possibly for my own credit as a judge. I had better give him a short sentence of imprisonment". Is that what is wanted?

Perhaps I may finish the point with one more thought. Are we really possessed of judges who are not capable of observing guidelines? During the course of this debate it has been suggested that before sentence is passed prosecuting counsel should have the right to refer the judge to the guidelines that exist. I say amen to that, and I believe that my noble and learned friend, Lord Elwyn-Jones, in the light of his vast experience will also say amen. In those circumstances what is the problem and what are we talking about?

I turn very briefly, because it is late and in a winding-up speech one ought to have some consideration for the Minister who is to reply, to the issue of peremptory challenge. I add only one thought which I do not believe has been expressed; and if it has been mentioned I am sorry not to have had the privilege of hearing it. It is that very often embarrassment results from having to challenge for cause.

It has been mentioned many times in the course of this debate that the defendant may think that he will be unfairly tried by a jury. It seems to me wrong that if I am white there should be seven members of the jury who are black and if I am a defendant who is black that there should be nine members of the jury who are white and only three who are black. 1 do not know why it is wrong, but so it seems. It takes a great deal of courage and may even cause the greatest embarrassment to the challenger, quite apart from the person who is the recipient at the end of the challenge, to have to say, "I am objecting to the jury consisting of so many black and so many white people". Is that the way to improve race relations in this country? Should we not rather keep the right of peremptory challenge and not have to give the cause for challenge?

Before I sit down I should like to make one final observation. The House always listens with great respect to the noble Lord, Lord Benson, especially when he talks with such distinction about matters of fraud. He has sat on many government committees and we listened to him tonight with great respect. The serious fraud squad is a very necessary element in our criminal administration. In the main we were happy to support that part of the Bill which dealt with fraud and which was passed as an Act during the previous Session.

I made a plea then to the Government and I repeat it now: do not make the same mistake as was made when the very desirable prosecution service was set up. If one wants really experienced people who are able to deal with serious fraud investigations, pay proper salaries to retain them so that they do not use the service as a training ground possibly for subsequent practice in my own profession or entry into accountancy, in order to earn very much more.

There are many parts of this Bill that deserve the favour of the House. I hope that I shall not be misunderstood in drawing attention to those parts of the Bill which ought not to meet with favour in this House.

Lord Campbell of Alloway

My Lords, before the noble Lord sits down, perhaps your Lordships will allow me to say a few words. I think that on one aspect quite inadvertently the noble Lord was not quite fair to the noble and learned Lord, Lord Ackner, who is not in his place. The noble and learned Lord, Lord Ackner, suggested only that if the judge wanted assistance he might ask counsel to provide him with a reference to the guidelines. He went no further than that. In case the noble Lord, Lord Mishcon, thought that he went further, in fairness to the noble and learned Lord I thought it was right for me to rise.

Lord Mishcon

My Lords, I am most grateful to the noble Lord, Lord Campbell of Alloway. The noble and learned Lord, Lord Ackner, is the last person in the world to whom I should want to be unfair. I did not refer to him in my speech. When I mentioned guidelines being brought to the attention of the judge by prosecuting counsel, I spoke in favour of it and said that I personally support it. I thought—and happily I had a word of assent from behind me—that my noble and learned friend Lord Elwyn-Jones, with his vast experience, would also support it.

7.57 p.m.

The Earl of Caithness

My Lords, any fears that may have arisen that this debate, coming so soon after the Second Reading debate on the earlier Bill, would not match the distinction of its predecessor have been dispelled by experience. It has been a fresh, lively and thought-provoking debate and I am grateful to all noble Lords who have participated. I am grateful not least for the willingness of many of those who have spoken to respond to the comments that I made in my opening speech about those matters on which our minds are not yet fully made up. It has been immensely useful to me, and I know it will help my right honourable friend the Home Secretary, to have the views of so many Members of this House.

Perhaps I may deal first with the subject that has most diverted our attention this afternoon; namely, the reference to the Court of Appeal of unduly lenient sentences. That matter is dealt with in Clause 38 of the new Bill. I have listened with great care to everything that has been said today about the treatment of lenient sentences. There has been a powerful and memorable speech in defence of Clause 38 as it stands from my noble and learned friend Lord Hailsham, who was ably supported by the noble Lord, Lord Gifford. The noble and learned Lords, Lord Ackner, Lord Roskill and Lord Denning, and my noble friend Lord Campbell of Alloway have made eloquent speeches in favour of a power for the Court of Appeal to increase sentences.

The noble and learned Lord, Lord Elwyn-Jones, and the noble Lords, Lord Wigoder, Lord Hutchinson of Lullington and Lord Mishcon, have expressed misgivings. They were supported by my noble friend Lady Macleod of Borve. Of course we have to take those misgivings seriously.

I set out the Government's present position at the beginning of the debate and noble Lords will not expect me to respond in detail to the arguments that have been put forward, even if there were time to do so. I shall simply respond in particular to the comments made by the noble Lords, Lord Wigoder and Lord Mishcon. The noble Lord, Lord Wigoder, asked bluntly whether there really was a problem. My right honourable friend and I are in no doubt that there is, not in the sense that many sentences are unduly lenient but, as my noble and learned friend Lord Hailsham of Saint Marylebone said, because the absence of any remedy whatever when something goes wrong does great damage to public confidence.

I turn now to a subject which receives my daily attention; namely, prisons. Several of your Lordships—the noble and learned Lord, Lord Elwyn Jones, supported by others—referred to the difficulties with which we are now faced due to the rising prison population. Your Lordships will not expect me to go into detail; nor do I wish to comment on recent press speculation. However, I assure your Lordships that my right honourable friend and I are keeping the matter under close review. In the short term, our efforts have been concentrated on making best use of the existing prison estate, where necessary by changing the functions of establishments so as to improve the match between the accommodation available and the composition of the prison population. In addition, the building programme progresses. As my noble friend Lord Elton said, five new prisons will be available in the next year.

For the longer term, I agree with much of what my noble friend Lord Elton, in particular, said today about the importance of developing and encouraging the use of satisfactory alternatives to custody. The intermediate treatment schemes supported by the DHSS have great achievements to their credit in dealing with juveniles; so, too—lest my noble friend's comments be interpreted otherwise, as I am sure he would not wish—do the various schemes that the probation service has developed for older offenders.

My right honourable friend and I deeply regret the need to hold some prisoners in police cells. We readily accept that these are inadequate for prolonged detention of prisoners. I am conscious that prisoners held in police cells do not receive the full range of facilities to which they would be entitled in prison although I am aware that the police are doing everything possible in most difficult circumstances to provide the best conditions they can. The need to hold prisoners in police cells is a direct consequence of the steady rise in the prison population, especially in the South-East. Of the 1986 average prison population of nearly 47,000, 8,500 were untried prisoners. Their number has more than doubled over five years because 40 per cent. more people spend some time in custody before trial: on average, they spend 50 per cent. longer there. Since 1980 the average period in custody for males has risen from 36 to 57 days.

A major factor in this increase is the high proportion of business taken in the Crown Court. Between 1979 and 1985 the number of cases coming before the Crown Court generally rose by as much as 65 per cent. The rate of committals for trial disposed of per day has risen from 0.8 in 1979 to 1.2 in 1986 and average waiting times between committal and trial have been reduced in this period. It was there that I thought the suggestion of my noble friend Lord Elton backed up by my noble friends Lady Macleod of Borve and Lord Brentford, about taking petty crime out of the Crown Court into the magistrates' court might help to ease some of the backlog. I noticed that the noble Lord, Lord Wigoder, shook his head in disgust.

Lord Wigoder


The Earl of Caithness

If the Crown Court is under such pressure, what one can try to do to alleviate that without impairing our system of justice must be considered. The point raised by my noble friend I should like to discuss with my right honourable friend the Home Secretary.

As I said in debate on the earlier Bill, I cannot accept my noble friend Lady Faithfull's argument that the widening of the range of sanctions for breach of the requirements of a supervision order as proposed in Clause 113 would lead to greater use of custody for young offenders. The power to re-sentence will be available only in relation to a narrow category of supervision orders used directly as an alternative.

The noble Lord, Lord Hutchinson of Lullington, was under a misapprehension about the scope of the power. It would not apply to education requirements; so his reference to the incarceration of truanting children, colourful as it was, is somewhat wide of the mark. The present sanctions are indeed inadequate. We hope that by providing wider sanctions we may encourage the courts to make greater use of supervision as an alternative to custody. That is something that we all ought to applaud where it is appropriate.

The noble and learned Lord, Lord Elwyn-Jones, raised the possibility of a supervised release scheme. The idea of a scheme along the lines of that described by the noble and learned Lord, was, as he knows, considered by the Government in 1981 but not then taken forward. We decided instead to activate an existing power to impose partly suspended sentences and to reduce the minimum qualifying period for parole. But these are not matters on which our minds are irrevocably closed. They will be able to be considered in the course of the thorough review of parole to which we are committed.

Lord Elwyn-Jones

My Lords, a great deal of publicity was given to an apparent announcement of intention to give effect to those supervisory release proposals. Can the Minister not go a little further? This is beginning to sound like one of those programmes of the two civil servants. "Giving it consideration" means that he lost the file.

Lord Hailsham of Saint Marylebone

My Lords, I do not think that he lost the file!;

The Earl Caithness

My Lords, I assure the noble and learned Lord that that is not the case. It is a matter that can be properly taken into account in the parole review, promised in our manifesto.

Before leaving prisons, I was heartened by a welcome given to our thoughts on the single generic sentence for young offenders. I should like to thank particularly my noble friend Lord Elton for his kind remarks about the prison service. Whatever the difficulties and the overcrowding at present, the fact that the prison service is now holding over 3,500 prisoners more than at this time last year is a tribute to the whole of the service and, indeed, to the civil servants at headquarters. I shall gladly pass on my noble friend's remarks.

I listened with close attention to what the noble Lord, Lord Benson, the noble and learned Lord, Lord Roskill, and the noble Lords, Lord Gifford and Lord Hutchinson of Lullington, said about the Bill's proposals for readier admissibility of documentary evidence. These are matters that we can discuss in geater depth in Committee. However, there are one or two points that I might make by way of immediate reponse.

I do not believe that the proposals threaten the oral tradition on which our system of trial is based. Their purpose is to make it more likely that relevant first-hand "historic" documents, by which I mean those, like a murder victim's diary, which have not been prepared with criminal proceedings in view, and "business" documents will be capable of being received and evaluated by the court. In each case the court will have discretion to exclude particular documents if it thinks it ought to do so in the interests of justice. Its attention will be directed to a range of relevant factors, including any likelihood of unfairness to the accused if the document is admitted. Where the document has been prepared in connection with criminal investigations or proceedings —a statement to the police is a good example—the presumption will be against admissibility.

I believe that, taken together, these proposals strike the right balance. They will not alter the fundamental character of the English criminal trial as an occasion on which witnesses give evidence in person from their direct experience and can then be cross-examined on it. However, the proposals should allow relevant material, including the business material which, as the Roskill Committee noted, was so crucial in fraud trials, at least to be received by the court and given the weight that it deserves. I hope that the noble and learned Lord, Lord Roskill, and the noble Lord, Lord Benson, who served on the committee with him, will be present for the Committee stage to give us the benefit of their knowledge. The noble Lord, Lord Benson, welcomed another part of the Bill to make evidence from overseas easier to obtain.

On evidence, my noble friend Lady Faithfull mentioned video evidence by children. As she acknowledged, allowing evidence to be given by child witnesses by live video link is a substantial step forward. That is contained in Clause 30. The discussion paper we issued in May invites views on the admissibility in evidence of a video recording of a child. The Bill will permit such recordings to be admitted in certain circumstances as documents, and we have asked for views on whether it would be right to go further, as my noble friend suggested. We will be reflecting carefully on the comments received. I can confirm that our minds are by no means closed on this important subject.

I turn to peremptory challenge. I cannot follow the noble and learned Lord, Lord Elwyn-Jones, in his argument that the abolition of peremptory challenge would constitute the removal of an important right of defence. The noble Lord, Lord Gifford, suggested a compromise, as did the noble Lord, Lord Monson, and I should like to look at both of those when I see them in the Official Report. I accept immediately that the ability of the defence to remove jurors without giving reasons has a long history. In the early 16th century, each defendant could challenge up to 35 potential jurors. This was reduced to 20 in 1509 and in the late 19th century an attempt further to reduce it to 12 was unsuccessful. In 1948, the number of challenges was reduced from 20 to seven per defendant and in 1977 from seven to three.

These figures are in themsleves significant, because they illustrate the extent to which there has over the years been a move away from peremptory challenge as a natural part of the system of selecting jurors. In earlier times, the defendant was often on trial for his life, the jury was drawn from a very narrow section of society and—contrary to our present way of thinking—there seems to have been an assumption that the members of the jury would be personally known to the accused. Consider the position now, my Lords. The capital penalty has effectively gone. The privilege of jury service is open to virtually the whole adult population under 65, and in this Bill we are increasing the upper limit to 70.

We must ask ourselves in these circumstances whether it makes sense to keep peremptory challenge. We must also, I think, ask ourselves whether an instrument which is so arbitrary and uncertain in its effects is actually a protection for the defence. Times have changed and I would suggest to your Lordships' House that the reasonable expectations of the public—and indeed the accused—have changed, too. I was pleased to note that we were supported in our view by the noble and learned Lords, Lord Denning and Lord Roskill, the noble Lord, Lord Benson, and my noble friend Lady Macleod of Borve.

The noble Lord, Lord Allen of Abbeydale, raised the question of extradition to countries which retain the death penalty. This is a matter to which, as he said, much thought was given while the Bill was under consideration in another place. The Bill allows the Secretary of State to decline to extradite someone charged with a capital offence to a country which retains the death penalty. It would, in our view, be wrong to go further and preclude extradition in such cases. This would offer the real prospect of allowing those accused or even convicted of murder to go free.

I can, however, give the noble Lord the assurance which I understood him to seek. At present, our practice is to seek assurances in such cases that if the offender is extradited the death penalty will not be imposed. In response to arguments in another place, we considered whether the Bill might be amended to preclude extradition where satisfactory assurances had not been received. But the difficulty here is that the United States and one or two other countries are limited by their constitution in the sort of assurances they can give. These assurances have in practice proved satisfactory, but if the procedure were enshrined in law it is doubtful if the courts would regard them as a sufficient basis for a decision to extradite.

Various noble Lords expressed concern that the increased penalty available for carrying firearms in furtherance of crime provided by Clause 39 may weaken the deterrent against pulling the trigger. We think that that understandable fear is misplaced. Again, 1 was supported by my noble friends Lady Macleod of Borve, Lord Brentford and, indeed, the noble Lord, Lord Hunt.

The life sentence is a maximum applying only to the worst case. It may be only accident or swift police work which prevents the actual discharge of the gun and the offender may have a record of using firearms. But courts will no doubt continue their existing practice of passing longer sentences where a gun has been used and where it causes injury; and of course, for murder, life imprisonment is a mandatory penalty. Such considerations also weigh heavily with the Home Secretary and the Parole Board in authorising the release of such offenders from the long prison sentences they will receive. So there will still be a deterrent against pulling the trigger even if the criminal is carrying a gun. The proposal serves rather to increase the incentive not to carry one in the first place.

The noble Lord, Lord Irvine of Lairg, raised the question of extradition, but as he is not in his place perhaps at this stage I may say only that I thought his maiden speech on the last occasion very much clothed what was underneath. He has shown this afternoon that he has sharpened his claymore, but my targe will be burnished when we come to Committee stage.

My noble friend Lord Campbell of Alloway referred the House once again to jury nobbling, emphasising what an extremely serious matter this is, because it strikes at the integrity of our system of criminal trial. There are few of us in this House tonight who would not agree with him. Those who try to interfere with juries commit the offence of attempting to pervert the course of justice, the penalties for which are unlimited. The law therefore seems to us to be equal to the task of dealing with jury nobbling, where it is detected. But it is by its very nature difficult to detect.

I noted that my noble friend suggested that the matter might be referred to the Law Commission. As I have said, I rather doubt whether the law itself is in need of change. I am therefore not entirely sure that there is an issue which could usefully be the subject of a reference to the Law Commission, which, as it happens, considered the matter some years ago. I should like to read exactly what my noble friend said when it appears in the Official Report. But I acknowledge the helpful spirit in which my noble friend's suggestion was made, and my right honourable friend and I will reflect upon it.

My noble friend Lord Brentford drew attention to the provision in Schedule 8 which would enable the City of London to be combined with the Inner London Probation Area. My right honourable friend the Home Secretary has received representations from the City and, following a meeting with the then Lord Mayor towards the end of last year, he asked HM Inspector of Probation to arrange for an inspection of the City of London service. My right honourable friend is considering the report arising from that inspection. My honourable friend the Minister of State will shortly be meeting the honourable Member for the City of London and Westminster South to discuss this matter, and at Committee stage we might be able to take it a stage further.

I hope that I have covered the more significant of the matters raised by your Lordships. But the debate has ranged very widely and, if I have failed to pick up any particular points which seem to call for a reply, I shall try to do so in a letter. Although there are clearly several issues on which conflicting views are strongly held in different parts of your Lordships' House, I am encouraged by the degree of support which the debate has shown for so much of what we are trying to achieve.

As I said in opening the debate, the Bill is, I believe, a hard-headed attempt to identify and correct weaknesses in the law as it stands. The improvements it makes are real and should sharpen our efforts to tackle crime and improve the position of those who suffer as victims at the hands of criminals. I am sure that the constructive spirit that has informed our debate today will be present when in Committee in the autumn we go into the provisions of the Bill in greater detail. For my part, I very much look forward to doing so and I ask your Lordships with confidence to grant the Bill a Second Reading.

On Question, Bill read a second time, and committed to a Committee of the Whole House.