§ Consideration of amendments on Report resumed.
§ Clause 41 [Life imprisonment for certain firearms offences]:
§ [Amendment No. 47 not moved.]
The Earl of Longford moved Amendment No. 48:
After Clause 41, insert the following new clause:
§ ("Parole Board review of life prisoners who have served ten years.
The following subsection shall be inserted after section 61(1) of the Criminal Justice Act 1967—
(1A) Without prejudice to his earlier release under subsection (1) of this section, the Parole Board shall advise the Secretary of State on the release on licence of every person serving a sentence of imprisonment for life after he has served ten years of his sentence and thereafter at intervals not exceeding five years".")
§ The noble Earl said: My Lords, I do not think that anyone will complain that up to now I have taken up too much of the time of the House and, therefore, I hope that I shall be allowed to open this amendment slowly. I emphasise that I am speaking on behalf of the All-Party Penal Affairs Group, unless I am told otherwise.
§ The Earl of Longford
My Lords, subject to the views of any of the members of that group who happen to be present, I am speaking on behalf of the All-Party Penal Affairs Group, which is a solid body. I do not want anyone to think that this is a personal whim of mine. My old friend Evelyn Waugh, 20 years or more ago now, when Harold Wilson was forming his Cabinet, wrote to the mother of the noble Lord, Lord Donaldson—
§ The Earl of Longford
My Lords, I see that the House is in a boisterous mood today, and that is good. Evelyn Waugh wrote to the wife of the noble Lord, Lord Donaldson. He said that he was glad that I was not going to be Home Secretary because otherwise we should all have been murdered in our beds. There is the danger that noble Lords might associate me with that position. I shall make certain that this is considered to be a solid amendment by reading a passage from the report of the All-Party Penal Affairs Group. It is long, but the noble Earl, Lord Caithness, is accustomed to hearing speeches much longer than any that I shall make. One of the report's conclusions was:(a). A life-sentence prisoner's 'consideration for review' should always take place when he or she has spent three years in custody. It 366 should be carried out by a joint committee of representatives of the Home Office and of the Parole Board, in consultation with the judiciary".I am not concerned with the details. But:(b) If the 'consideration for review' does not fix an earlier date for review by the local review committee and Parole Board, the prisoner should first be reviewed"—I come to the point of the amendment—after 10 years in custody, and should subsequently be reviewed at least every five years, with more frequent reviews whenever appropriate".There now comes a point that I have just mentioned to the noble Earl, and he may not have had time to consider it. It is important:'Reviews should be in two parts—first, a decision on whether the prisoner can be given a date for release; and, secondly"—I emphasise this point—an examination and consideration of the prisoner's condition and 'career plan'.It is not just a question of saying that the prisoner should or should not come out after 10 years and be placed on parole or licence. Consideration of the prisoner's future is to be part of the task. It then states:The prisoner should be informed of the reasons for the review's conclusions".which of course we have demanded many times in the House.
I suppose that I have been associated with parole for as long as anyone here. I have been involved with it in a pre-natal position. That takes me back many years. The committee of which I was chairman led to the establishment of parole. I have always defended the principle of parole and always will. That does not mean that I have been inhibited from criticising it.
I recommend the book of the noble Lord, Lord Windlesham, to everyone. That is free publicity. He may do the same for me on some occasion. It is an impressive book, not that I agree with most of it, of course. However, it is well worth reading. He was in charge of the Parole Board. We have all these other chairmen of the Parole Board. They make an impressive collection of witnesses. I support the Parole Board. That does not mean that I am incapable of criticising it. I shall do so again. I am not concerned tonight with general criticisms of the Parole Board. I am thinking only of life prisoners.
Life prisoners present a problem for even the most convinced and idealistic supporters of parole. There are many reasons for parole, including control of the prisoner after he comes out. It is usually said that its main attraction is that it holds out hope for the prisoner. I think that there is a little more to it than that. It holds out to the prisoner the prospect of earlier release as his moral character improves. It is a tremendous inducement to the improvement of the moral character of these fallen brothers—those who have gone wrong. That I think is a tremendous moral argument for the parole principle.
Parole of course conflicts with the idea that judges should have the last word. When a man comes up for some awful offence, they say that he should serve so many years, and that cannot be altered. Parole provides that after a certain number of years, the prisoner's moral behaviour will affect his release. That is a tremendous argument for parole. However, 367 with life prisoners it is not easy to say at what moment parole should be considered. It is easy enough if a man is a train robber, although 30 years ago the parole system had not come in. However, let us take the train robbers. Their 30-year sentences were cut to little more than one-third. It is easy enough to do that with long sentences.
There is undoubtedly a problem with life prisoners. At what moment is it right to consider them for parole? That matter can be gone into in great detail. No dispassionate person hearing our earlier discussions could think that the parole system was satisfactory. We are told that it is entangled, in a mess and so on. However, I am not concerned with that point now.
There are about 2,000 life prisoners. How can we do justice to them and treat them in a Christian way? When I say "Christian", I am using the term broadly. We all remember Lord Attlee's reply when, towards the end of his life, he was asked whether he was a Christian:I accept the Christian ethic. Can't stand the mumbo-jumboI am interpreting the Christian ethic. Some people call it the Judaeo-Christian ethic. It is a basic system of humane treatment. It is treating people, even the so-called outcasts, as all part of the same human race as ourselves. Anyone who starts from that premise, is on the right path. I am not just thinking of the courts. I defer to the great judges who sit sentencing people to life imprisonment. No doubt they do it quite correctly, I am sure from high motives. I submit a thought in passing to any high judges present in the Chamber that anyone who sentences a person to life should look him up some years later to see how he is getting on. I think that judges would pass rather different sentences if they made closer contact with the prisoners whom they had sentenced. However, that is an irrelevance.
We have then the sentence and we have the prisoner, a man who has probably done something absolutely awful. Many years later, what hope is held out to him? I should say that the very least hope that one can hold out to him is that after 10 years his position will be looked at and considered dispassionately. I do not count it as dispassionate consideration if some Home Office official looks at his papers and reports to the Home Secretary that there is nothing much to be done about him at the moment. There should be a dispassionate consideration; the local review committee would start there and then would come the machinery of the Parole Board. All that must come at some time; the question is when.
There is no magic in the figure 10. If anything, I think that 10 years is rather too long. I am trying to be conciliatory. A society cannot possibly call itself Christian even in the broadest sense if after 10 years it is not prepared to look at a human being whom it has sentenced to life imprisonment. I therefore plead for this as a minimum.
It may be said that it is bad luck on the prisoner and is not very kind to him if he gets a rebuff. I always suspect that argument. I think that it is like the people who say that for a prisoner to remain in prison is in his own interests. On that subject I think that one 368 must consult the prisoners. As to whether prisoners would be ready to take their chance of not being released for many years but at the same time being considered for parole, I am sure that 99 out of 100 would wish to be considered for parole. I stress one point that I made earlier: under the proposals of the all-party group, a look would be taken at the prisoner and consideration would be given as to how he would be treated in prison.
Those are the main arguments in favour. The noble Lord, Lord Hunt, is more qualified to speak on the matter. I have had this long experience of prisoners. I have listened to the high legal luminaries who understand the legal process so much better than I do, but one's mind goes to the prisoners, the people serving these long sentences. I implore the House to make provision for more humane treatment. I beg to move.
My Lords, I am happy to support the amendment of the noble Earl. He has spoken in moving terms about the human aspect of the matter. While I am entirely in sympathy with the case that he has made, I wish to say a brief word about the practical angle of the matter. I speak of the matter of management of life sentence prisoners in our prisons. Anyone who has served in a disciplinary capacity, in a social welfare capacity, indeed, in whatever capacity, in one of Her Majesty's prisons containing lifers—Kingston Prison at Portsmouth contains only lifers—will endorse what I say when I tell your Lordships of the difficult job that they have to manage men and women serving life sentences. There may be a lack of co-operation, there may be violence and there may be misbehaviour of one kind or another borne of sheer despair in their situation. In some there may be deep depression and apathy. I am not trying to express undue sympathy for people who have committed appalling crimes when I say that this creates serious management problems.
To that one must add the human aspect of the matter expressed to your Lordships by the noble Earl. The two together cannot be coped with adequately without keeping hope alive. On that one essential there is unanimity throughout the prison service. The governor grades, the main grades of the prison service, the prison medical service, the probation officers and the social workers who work in the prisons are unanimous on the problem and on the need to keep hope alive.
Your Lordships may forgive me if once again I drag in my own experience, which I know is that of my noble friend Lord Harris of Greenwich as erstwhile chairman of the Parole Board. This goes back a long time. When I became the first chairman 20 years ago, there were a great many such forgotten men. That is the key expression: "forgotten men". Their files lay piled up in the office of a certain senior Home Office official—this is ancient history—and they were forgotten. That is the background of which I dare say the noble Lord, Lord Windlesham, is aware.
I went to the then Home Secretary with my vice-chairman, the noble Lord, Lord Rothschild. We persuaded the Home Secretary to set up a joint committee of officials of the Home Office and members of the Parole Board to clear up the backlog 369 and deal efficiently and logically with the cases of life prisoners. It had a remarkable effect on the morale of the people serving life sentences in our prisons. I say that only from the practical point of view. It made the difficult task of the prison staffs and everyone working in the prison context that much easier. That committee has since been abolished. As my noble friend Lord Harris of Greenwich said earlier in other words, more's the pity. But that is water under the bridge.
There is no question, in my view, that markers need to be set down for men and women who have committed no matter what dreadful crimes. They need markers to which they can look forward. I think that it is right that they should be looked at the first time and know that they will be looked at 10 years later. It may well be that the Parole Board will ask for another formal review earlier than five years ahead. That is another marker put down. These people will then know where they stand and will look forward to that next occasion.
I respectfully disagree with the Minister, who in Committee said that it was cruel to keep them in this kind of uncertain situation. Of course they are in an uncertain situation if they are serving an indeterminate sentence. They need landmarks of hope to help them look forward to the next stage. It may be that in the long run very few will come to terms with the fact that it will be a very long time, if ever, but at least for the time being they will work and hope for their eventual release. Quite apart from the humane aspect, it is the practical aspect that I wish to emphasise. I am one of those who believe that the destruction of hope should have no part in the otherwise perfectly proper element of retribution in our criminal justice system.
§ Lord Morton of Shuna
My Lords, I support the amendment. My noble friend Lord Longford and the noble Lord, Lord Hunt, have said in terms more eloquent than I can what is to be said in favour of the amendment.
The Scottish Parole Board has been very critical of what might be called the moving of the goal posts. It is clear from the recent troubles in Scotland that the changing of the rules about parole and the abolition of hope for prisoners on long sentences has been a factor, though not perhaps the decisive one, in the trouble in prisons in Scotland, of which there has unfortunately been too much recently.
§ 9 p.m.
The Earl of Caithness
My Lords, listening to the debate this evening some of your Lordships may have gained the impression that the Home Office did not have a structured organisation to deal with this particularly important matter. It might be helpful if I set out the present situation.
In every case the present practice where a formal review date is set for several years ahead is that full reports are submitted by the prison to the Home Office at least every three years so that the prisoner's case can be considered. In addition, prison governors are asked to report at any time any special circumstances or exceptional progress made by the prisoner. At all stages, if reports suggest that there 370 might be grounds for bringing forward the review date, this will be carefully considered by my right honourable friend the Home Secretary.
When a prisoner has been detained for 10 years the prison reports are always considered by a Home Office Minister. I do not think that this careful process could be described as throwing away the key. In fact it ensures that the cases are fully considered and indeed more frequently than the noble Earl's amendment envisages.
The noble Earl would substitute for this system—or graft on to it, I am not sure which—a system whereby the case would be automatically referred to the Parole Board after 10 years of sentence and at least every five years thereafter. I do not think that that would improve the prisoner's prospects of release one iota. The system of regular reports from prisons and the referral to Ministers at the 10-year point is very well able to determine whether there is a realistic prospect of early release. If there is, consideration will be given to bringing forward the formal review date.
If there is absolutely no prospect surely it is positively damaging to the prisoner and to his family to institute a formal review. I know that the noble Earl and the noble Lord, Lord Hunt, have reconfirmed their view today that they do not share this view. I do not expect to be able to persuade either of them tonight. I strongly believe it because of the many letters I receive from the families of prisoners who have been formally considered for release on licence but turned down.
The noble Earl said in his Committee speech that to deny hope to long-term prisoners is a grievous sin. I do not quarrel with that. I think it is wrong to encourage hopes which are not firmly pinned to reality. If the release of a prisoner cannot even be contemplated after 10 years' imprisonment that is hard for him to accept. But it is better that he should be under no illusions about it. That applies even more strongly to his family, who will quite understandably grasp any ray of hope. It is bound to cause distress if an unrealistically early review is put in train.
We have to recognise that the abolition of capital punishment would inevitably mean that some prisoners will serve very much longer sentences than people have normally experienced in our penal system. That is a price which has to be paid. However painful and distressing it may be to some people, we must bear in mind that our society expects to be protected by its parliamentary representatives on this matter.
To answer the specific point raised by the noble Earl when he mentioned the All-Party Penal Affairs Group's recommendation about the review of a life-sentence prisoner's conditions and career plans, these are factors which are bound to be taken into account in the consideration of such cases by the Parole Board. I do not believe that they can be sensibly looked at independently of the question of release. It seems to be bound to be an empty exercise if release is not foreseeable in the near future or where there is not a reasonable prospect.
The noble Earl has pursued this matter with patience and persistence for many years. Indeed this 371 evening he put his case with deep personal conviction. His commitment to the cause is not in doubt. Your Lordships will have the pleasure in some 28 minutes' time of seeing that for yourselves on television. He will be there to show your Lordships. I am equally persistent and I regret to say that I oppose him on this matter.
§ The Earl of Longford
My Lords, I am very grateful to the noble Earl for the splendid tone which I have always encountered from him. I gave him hardly any notice. I suppose I might have hoped at the back of my subconscious that his department would have examined carefully the report of the All-Party Penal Affairs Group. I doubt whether that has been so. There was the idea that the review should include an examination and consideration of the prisoner's conditions and career plans. That is something of which the noble Earl certainly has not had very much notice. Therefore I do not expect him tonight to deal with it thoroughly.
As General MacArthur said, "We shall return", and quite often and quite strenuously, to these ideas. I do not know that tonight there is much more for me to add. If the noble Earl really wonders whether prisoners would like to take the chance of coming before the review board and possibly bring turned down more than once, all I can say is let him put it to the test. I know the answer that he will get and it will not be the answer he has given to the House this evening. However, we shall come back to these matters. Now I can do no more than ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Henderson of Brompton had given notice of his intention to move Amendment No. 49:
After Clause 44, insert the following new clause:
§ ("Reduction in eventual custodial sentence.
§ . At the end of subsection (6) of section 67 of the Criminal Justice Act 1967 shall be added the words "except for such periods of time as his liberty has been restricted under section 21A of the Child Care Act 1980".")
§ The noble Lord said: My Lords, it might be for the convenience of the House if, before formally moving the amendment, I ask the noble Earl whether he can say that his Amendment No. 113A is substantially the same as Amendment No. 49. If that is so, I will not move my amendment and he can deploy his arguments when we come to Amendment No. 113A.
§ [Amendment No. 49 not moved.]
Lord Harris of Greenwich moved Amendment No. 50:
After Clause 46, insert the following new clause:
§ ("Annual parliamentary approval for holding prisoners in remand or in penal establishments.
§ .—(1) Subject to subsection (2) below, where a person is in the custody of a constable whose duty it is to take him to a prison, remand centre or young offender institution in which his detention is authorised by law, the person may not instead lawfully be detained overnight in the custody of a constable unless it is impracticable by reason of distance or weather conditions to take him to the prison, remand centre or young offender institution until the following day.372
§ (2) The secretary of State may by order made by statutory instrument provide that subsection (1) above shall not have effect in an area specified in the order for a period not exceeding twelve months.
§ (3) No order under subsection (2) above shall be made unless a draft has been laid before and approved by resolution of each House of Parliament.").
§ The noble Lord said: My Lords, this is an issue which we debated at the Committee stage. I said then that we would certainly come back to it and that is what we are doing now. This amendment raises major questions of principle and I propose to deal with the matter in some detail. The background of this problem can be set out fairly briefly. I dealt with it in Committee, but nevertheless I think it is right to remind the House of the background of the problem.
§ It was very nearly unknown for prisoners, whom I will describe as Home Office prisoners, to be kept in police custody before the time when the noble Viscount, Lord Whitelaw, became Home Secretary. There were a few occasions when women prisoners from, say, rural parts of West Wales might have been kept overnight in police custody for obvious operational reasons but, by and large, it did not happen.
§ The noble Viscount was then confronted with a dispute organised by the Prison Officers' Association. He asked for the co-operation of the police, which he secured, in making police cells available for Home Office remand prisoners. Indeed, the situation was in some respects so serious that in some parts of the country chief officers of police were asked in certain circumstances to take control of a local prison if prison officers walked out. They undertook to do that and in my view it was right for the Home Secretary to ask for that degree of co-operation and for the police to respond in the way they did. So much for the period of office of the noble Viscount.
§ We then come to Mr. Brittan. We still had Home Office remand prisoners in police stations for a variety of reasons. By now it was not an industrial relations problem. The situation was caused by the chronic overcrowding in local prisons. I shall not burden the House or, indeed, the noble Earl, Lord Caithness, by reminding him of the terms of Mr. Brittan's celebrated article. We can very nearly quote it verbatim. It was an article by Mr. Brittan in The Times newspaper in January 1984 when he proudly announced that there would be no more remand in police custody save in the most exceptional circumstances. As we all remember, and there is some dispute as to whether it was within 24 or 48 hours, Home Office remand prisoners were soon back in police custody. That pledge from Mr. Brittan lasted for a remarkably short time.
§ This situation has continued until the present day. The number has gradually increased, month by month, with some periods when there was a check in the numbers and, indeed, sometimes a small reduction. When we last discussed this matter, it was in the midst of, or very nearly at the end of, a further industrial relations dispute involving the Prison Officers' Association, which had withdrawn co-operation. I cannot remember the precise phrase used to justify its wholly unacceptable behaviour. Nevertheless, as I made clear in the House on the last occasion, I do not believe that there was the slightest 373 justification for the campaign then waged by a number of local branches of the POA. They were, in my view, disgracefully irresponsible and caused nothing but grief to prisoners and their wives.
§ Therefore, on that issue I have total sympathy with the Government's view. I believe that the Government were then right to ask for the co-operation of chief officers of police, which they secured—not only of the Metropolitan Police but a large number of chief officers in police forces in other parts of the country.
§ The Wandsworth dispute then came to an end and we all welcomed that. Indeed, we can see from the numbers that when the dispute ended it had an immediate effect. That is true. Unhappily, although that dispute at Wandsworth ended, accompanied as it was by a number of disputes at other prisons including Wormwood Scrubs, the numbers in police custody remained astonishingly high.
§ That situation is disclosed in a Written Answer given to me by the noble Earl today which presumably will appear in Hansard tomorrow. Incidentally, I am grateful to his officials for having secured a prompt answer to this question. I realise that they inconvenienced themselves considerably and as the result is not altogether helpful for the Government I am even more grateful. It was a very honourable course. My question asked for the number of people kept in police custody since 1st September this year. The reply shows that the number peaked on 20th October this year at 1,320 men—a staggering figure—and 15 women kept in police custody.
§ The House should be aware of what being kept in police custody means. It means that London remand prisoners were being sent to Cleveland, County Durham and South Wales. One can just imagine—and the noble Lord, Lord Mishcon, who is here will I am sure agree—the problems facing a legal adviser trying to construct a defence in those circumstances. However, as I have indicated, that was the problem which in my view, was brought about by the action of the POA. As soon as that dispute came to an end there was a sharp reduction in numbers.
§ However, the numbers of men in custody now are more than twice as high as they were on 1st September this year. On 1st September this year there were 315 males in custody. On Tuesday this week, 17th November, there were 753 in custody—an increase of about 140 per cent.
§ The noble Earl and I had a slight exchange in Committee when we discussed the number of women prisoners. He said that at one stage they had fallen to zero, and indeed the figures show that that is true. But, unhappily, on Tuesday the figure was not zero; it was 57. That number of 57 is the highest for the last three months. As I indicated in Committee, many of these women prisoners, as we know perfectly well, are seriously disturbed and distressed women who are being kept in custody because courts have absolutely no idea what else to do with them. In many cases reports are being requested from psychiatrists and others and these women are being kept in conditions which the metropolitan police have disclosed are wholly deplorable. We have had the position where, 374 as I indicated in Committee, divisional commanders and others in the metropolitan police have been inviting the press and television to look at the conditions in which remand prisoners are being kept in their police stations. Cells intended for use for prisoners for perhaps seven or eight hours are now being used for periods of three, four or five weeks—in one case a man was kept in custody for 41 days—and the conditions have been described both by the police and by members of the boards of visitors as really disgraceful.
§ I repeat the point. Conditions are not only as I have indicated, but they are being experienced by people who have been convicted of no criminal offence whatever. It would be no excuse if they had been convicted, but the fact that they have not been, and many of them will not be, convicted, or, if convicted, will not be sentenced to a period of imprisonment, makes the situation even worse.
§ I have dealt with the position with regard to the living conditions of the prisoners. I have also indicated the amount of indignation caused to many chief officers of police at the deplorable misuse of police resources. Police officers are being taken off the streets in order to act as gaolers. I do not think it is possible to exaggerate the degree of indignation felt by a number of chief officers who have expressed their feelings to me. They do not have the slightest doubt that they are being asked to do other than run a permanent second prison system. It has now continued for four years and to many of us it is beginning to look remarkably permanent.
§ There is then the second point with which I dealt a few moments ago of the situation confronting many lawyers. We are talking primarily, although not wholly, about remand prisoners. There have been a number of cases where sentenced prisoners have been kept in custody as well, but by and large it is a remand prisoner problem. I raised the question with the noble Earl, as he will remember, during the Committee stage of the Bill. I spoke to his private office on 5th November. Once again they were extremely helpful to me. I asked them to assist me by giving me the answer to the question that had been raised by the Law Society; namely, why was it that its members were constantly trying to find out where their clients were, and finding great difficulty in getting through to the prison department of the Home Office for its answer to that question? I may say that they made no complaint—quite the reverse—about the courtesy with which they were treated when they eventually got through. However, the problem that they encountered in simply getting someone to answer a telephone was remarkable.
This is what the noble Earl says in his answer to me in a letter dated 9th November, dealing with a number of other matters:
As you probably know, the Metropolitan Police provide a public enquiry line at their B11 base to supply information on the whereabouts of prisoners in their custody. This ad hoc arrangement, never intended to be permanent, comprises one operator, one telephone and one computer terminal. It does get very busy"—
says the noble Earl. I am sure that that is true—
sometimes making contact difficult. But given that all concerned are striving to end the use of cells, the police are understandably reluctant to make any further investment of equipment or manpower for this
temporary facility. As the numbers drop the difficulties you have described should ease".
As I have indicated, that is said in the context of the easing of a problem described by the noble Earl in which there has been a 140 per cent. increase in the number of remand prisoners and nine times more women prisoners being kept in custody than there were on 1st September this year.
§ I do not blame the Metropolitan Police for the attitude they are adopting, because why should they add to their manpower and resource problems for what is in reality entirely a Home Office problem? I do not believe that it is right—and I am sure it was not the intention of the noble Earl—to stand behind the cover of the Metropolitan Police to explain why members of the Law Society cannot get through on the telephone for a simple answer to the question, "Where is Mr. X, a client of ours who has been remanded in custody?". In my view it is clearly the responsibility of the prison department of the Home Office, as I am sure the noble Earl will, on reflection, agree.
§ The complaint made by the Law Society is not against the Metropolitan Police. It is the sheer problem of getting through on the telephone to the officials who are dealing with this problem in the prison department. These people are overwhelmed, I am sure, and why should they not be given this astonishing increase in numbers? People are being remanded constantly for relatively short periods of time and they are being moved often from police station to police station, as chief officers of police have confirmed to me.
§ In short, I look forward to hearing from the noble Earl when he replies to this debate—quite apart from all the other considerations we are talking about—why this problem still continues to cause so much anxiety to the Law Society and to many solicitors in London. What does he propose to do about it?
§ The purpose of the amendment is clear cut. It permits the use of police cells in any future problem arising from an industrial relations crisis in the prison department by the use of the affirmative resolution procedure. In fact the Home Secretary would be enabled to act in an emergency situation of the kind faced by the noble Viscount, Lord Whitelaw, at the beginning of his period of office and by the present Home Secretary only a few weeks ago. Secondly, it permits the use of overnight accommodation in police stations where it is clearly necessary to use that for operational reasons. That is as it should be. It is the only way of guaranteeing that we do not face a problem should this method become a permanent feature of our penal system.
§ The only answer for the noble Earl—I had better not say the "only answer" because he was courteous enough to deal with a number of other issues on the last occasion—but the only argument of substance used by the noble Earl on the last occasion was when he asked, "What is the point of having the affirmative resolution procedure because Parliament would never deny the Home Secretary powers of this kind?". I tried to point out to him—I shall deal with 376 this matter fairly briefly—that this has not been the experience in similar use of the affirmative resolution procedure. One only has to look at the very special situation—and special it is—of the Prevention of Terrorism Act to see the number of inquiries that the Home Office has instituted to allay parliamentary anxiety before the renewal of those annual resolutions. We only have to consider the inquiries of the noble Lord, Lord Shackleton, the noble Earl, Lord Jellicoe, and the noble Viscount, Lord Colville of Culross, all of whom were asked to look into the situation in order to deal with anxieties expressed in Parliament. If we were to get anything of this kind on to the statute book Home Office Ministers would be far more concerned to allay parliamentary anxieties than is the case at the moment.
§ Finally, I must make it clear that if we do not start to take in Parliament a much tougher line on this whole range of issues, the problem of people being kept in squalid conditions in police cells will become a permanent feature of our prison system, a system in which there is no independent oversight of what is going on and no boards of visitors of the kind that exist in normal prisons to deal with the problems of remand prisoners. The Government should also face the fact that not only is there deep disquiet among many Members of this House but there is also growing anger in the police service about what it is being asked to do. No soft words expressed by Ministers will turn away that wrath. I beg to move.
§ Lord Mishcon
My Lords, it is distressing that at this hour and in a not too crowded House a matter of such importance is being discussed. Because of the lateness of the hour all I shall say is that I have listened attentively to the noble Lord, Lord Harris. From these Benches I wish to support what he has said and I re-echo the words that he used in regard to the anxiety of members of the Law Society as to the position in which they are continually being put as a result of these matters, the hardship that it entails and the injustice, very often, that is entailed too.
§ Lord Donaldson of Kingsbridge
My Lords, I feel that this is such a serious matter that I must rise to say that I agree with what my noble friend has said. It is a deteriorating situation and that is always frightening. I do not want to be difficult with the noble Earl, who is as fully aware as we are of the troubles. I want him to realise that for better or worse matters are becoming too serious to be left. We shall have to come back again to this. We shall watch it very carefully. It cannot be allowed to go on as it is. I very much hope that the noble Earl will have something to say to comfort us but I am not at all clear what that could be.
§ 9.30 p.m.
The Earl of Caithness
My Lords, the noble Lord, Lord Harris of Greenwich, gave notice in Committee that he would return to the matter of prisoners in police cells. I know that this matter greatly troubles him and other noble Lords and I fully understand and sympathise with the arguments he has put forward so persuasively both in Committee and today. For his part, I hope that he accepts, as I have 377 always sought to make perfectly clear, that the Government do not consider, and never have considered, that it is right and proper to put sentenced or remand prisoners into police cells.
In regard to police cells, we have a prison governor on permanent duty with the B-11 branch of the Metropolitan Police at Lambeth. While prisoners are in the hands of the police, however much we might wish it otherwise, surely the police are in the best and in fact the only position to provide the information as to prisoners' whereabouts.
When speaking to his amendment in Committee the noble Lord put forward a memorable argument, which I hope he will not mind my quoting here. He said:I believe that were there to be a requirement of this kind on the Home Office it would have the most remarkable effect in terms of concentrating minds in that department of state".—[Official Report, 27/10/87; col. 521.]That caused more than a little surprise in the prison department where minds have been greatly concentrated on this issue for some time.
I mentioned in Committee the bold measures taken earlier this year, including the opening of a temporary prison in an army camp and the reduction of some 3,000 in the prison population as a result of the change in remission rules for short-sentence prisoners. They had been preceded by and were succeeded by continuing efforts by management and officials to squeeze the last measure of capacity out of the prison estate.
It is a process I have supervised very closely but in the end we are faced with facts like this: our local prisons and remand centres are holding over 21,000 prisoners in accommodation designed for fewer than 15,000. The amendment slightly gives the impression that this is a problem which could be solved if only there were the will; that if we only pulled the magic lever our police cells would be empty tomorrow. I do not think that the noble Lord, Lord Harris, really believes that, but perhaps I may be permitted to set this debate in the context of the long-term issues of the prison population.
We must be clear that we are not talking about a new or short-term problem. The prison population has been growing fast since the end of the war. Our prisons are now holding twice as many inmates as in the late 1950s. Recent years have seen unprecedented growth. In 1982 we were planning what we would do if the unthinkable happened and the population were to reach 46,000. In July this year we had over 51,000–4,000 more than the previous year.
Recent years have seen even bigger surges than that. Between 1984 and 1985 the population leapt by 5,800. My right honourable friend the Home Secretary's measures on remission in August this year reduced the population by 3,000. It has increased by 1,000 since then. And what of the future? Our projections of 1,100 a year based on long-term trends are nowadays looking decidely optimistic. We could be facing increases of 3,000 to 4,000 annually. How does one deal with numbers like that? Your Lordships might be forgiven for wondering why we do not have even more prisoners in police cells than we do now. The fact that we do not is entirely due to 378 the supreme efforts which this Government and the prison department have been making to find room for the relentlessly soaring population.
We have implemented one change after another in ingenious ways of making the best use of all available space. At this moment for example we are in the process of converting a youth custody centre in the north of the country to serve as a remand centre providing places at Risley and Manchester which will enable police cells to be cleared in the North. In the South we have drafted more staff into Ashford Remand Centre, and 171 extra places are now becoming available. We are creating new places at Brixton; we are squeezing the last measure of capacity out of our prisons in the South East. We have been moving prisoners from one part of the country to another. We are leaving no stone unturned in our efforts to meet the demands placed upon us by the courts.
At the end of the day the only way in which to cope with more prisoners coming from the courts is to provide more prison places. That is why we have embarked on the biggest building programme in history. With the new additions announced this year we shall have 18 more prisons in six years' time than we have now. We are looking forward confidently to reaping the fruits of our major investment in prisons. The first fruits have already been plucked. Others are ripening on the vine. Four new prisons will open next year at Little Hay, the Mount, Swaleside and Garth, providing nearly 2,000 places. Full Sutton has recently opened, and there are others on the way.
Our efforts are of course not confined to providing more prison places. We must attack the problems of remand in particular in other ways. That was pointed out in Committee by several of your Lordships, including the noble Baroness, Lady Seear, who spoke about the need for more bail hostels. I referred then to the serious effort my right honourable friend the Home Secretary and I were making in this area, and I am pleased that I can now tell your Lordships the outcome of our endeavours.
My right honourable friend the Home Secretary has been able to secure additional provision for both bail hostels and hostels run by voluntary organisations in the after-care field. Taking bail hostel provision first, my right honourable friend the Home Secretary has decided to expand the existing network of probation and bail hostels by creating nine new bail-only hostels in the next three years. Currently there are 102 hostels providing 1,861 places. The majority are available to people on bail. They handle about 3,500 a year. When complete the new hostels will add about 200 places to those currently available, and if, as we confidently expect, the new hostels can match the occupancy level of existing hostels, it should mean that about 900 people a year who might otherwise have been remanded in custody will be able to remain in the community, albeit under supervision, while they await their trial.
I have described some of the substantial measures the Government are taking for the long term and the short term to attack the problem of prisoners held in police cells and the growing prison population more generally. Perhaps I may now invite your Lordships to consider what contribution this amendment would 379 make. The procedure it proposes would be both unproductive and unnecessary. It would be unproductive because it would not contribute in any way to solving the problem of overcrowding which leads to the use of police cells. It would not provide one single prison place. All it would achieve is to provide an additional opportunity for Parliament to debate the issue at intervals. But it is not necessary to secure legislation for that. Your Lordships do not lack the ingenuity to secure a debate on such an important matter.
The noble Lords, Lord Harris and Lord Donaldson, referred to the fact that the subject would be brought before your Lordships again. I find the idea of an annual set-piece debate a supreme irrelevancy in the present difficulties. The amendment raises, but does not offer a solution to, some considerable difficulties.
The noble Lord's amendment acknowledges the need to use police cells to hold the occasional prisoner overnight where the court is some distance from the prison establishment or where weather conditions prevent the offender from being moved until the following day. That only meets part of our difficulties. We have seen how quickly events such as industrial action on a limited scale can lead to a build-up of prisoners outside prison. The recent industrial action took its toll. During the Recess, it would not have been possible, short of recalling Parliament, to lay a statutory instrument.
I must put this question to your Lordships: what would we be expected to do with prisoners whom we could not get into prison nor hold in police cells? I find no answer in his amendment. We are in the business of finding answers. We are working very hard at it. The noble Lord and I are working to the same end. This amendment wills the end but it does not will the means. The Government are resolute about providing the means.
§ Lord Harris of Greenwich
My Lords, obviously I welcome the announcement which the noble Earl made. Indeed, it was not an announcement; it was a re-repetition of the Statement made by the Home Secretary the other day in relation to bail hostels. I welcome that. I remember that one of the first decisions I made in the Home Office was to increase the number of bail hostel places. The then government inherited a difficult problem so far as bail hostels were concerned and acted fairly expeditiously in dealing with it. Certainly there is nothing between the present Government and ourselves on that. Inevitably one can make the point that it could possibly have been done some substantial period of time ago; nevertheless it is welcome and I do not in any way wish to diminish the importance of the matter.
The noble Earl's speech was, I am afraid, a totally despairing performance because at least in January 1984 Mr. Leon Brittan did indicate that he was actually going to stop this practice totally. He wrote his article with the full authority of the Home 380 Secretary. However, the speech made by the noble Earl tonight is an indication, that this practice is now becoming very nearly a permanent feature of our penal system. He made no suggestion, no prophecy, no indication whatever, that this burden was going to be removed from the police. Has he told the Association of Chief Police Officers that this is the position of the Government? I do not think he has. I think a number of chief constables, were they to read the noble Earl's speech and note the general language used in that speech would be extremely apprehensive about how long this problem was going to continue. So much for that.
Secondly, the noble Earl asks, "What can we do?" We could presumably do something about Rollstone Camp, using that just as an illustration. No doubt the noble Earl can tell me subsequently by correspondence. He announced at the time of the Wandsworth crisis that something was being done at Rollstone Camp to take some of these prisoners. I do not know whether that has been proceeded with or not.
The Earl of Caithness
My Lords, I can clarify that. Rollstone Camp was opened on a temporary basis, as the noble Lord knows, for about three months. It took category C prisoners. It is not suitable for taking remand prisoners. My Lords, we have been able to disperse those category C prisoners around the other establishments. Therefore, Rollstone Camp has now been closed and the staff have been distributed elsewhere. Some have been distributed to Ashford, which I mentioned would take 171 prisoners.
§ Lord Harris of Greenwich
My Lords, if this power had been on the statute book, I suspect that Home Office Ministers would have found it possible to make Rollstone Camp a remand prison. It would have taken them some time to achieve it but it would not have been as difficult as the noble Earl suggests. However, he and I can continue that argument in the future. We face the problem that the noble Earl's response is to deny the assertion that this amendment would concentrate the minds of Home Office Ministers more thoroughly than would be the situation were it not to be passed.
If the noble Earl and his right honourable friend had to come to Parliament once a year and justify a continuance of this wholly disgraceful situation, both he and his right honourable friend know perfectly well that fairly dramatic steps would be taken to alleviate the problem. It may well be that the Treasury would also be in a more accommodating mood. However, the noble Earl informs the House that this debate would be an annual set-piece irrelevance. As Miss Mandy Rice-Davies said on a celebrated occasion: "He would say that, wouldn't he?" I beg to move. We propose to vote on this matter.
§ 9.42 p.m.
§ On Question, Whether the said amendment (No. 50) shall be agreed to?
§ Their Lordships divided: Contents, 13; Not-Contents, 44.
|DIVISION NO. 3|
|Airedale, L.||Houghton of Sowerby, L.|
|Bonham-Carter, L.||Hunt, L.|
|Carter, L.||Longford, E.|
|Donaldson of Kingsbridge, L.||Mishcon, L.|
|Harris of Greenwich, L. [Teller.]||Morton of Shuna, L.|
|Ponsonby of Shulbrede, L. [Teller.]|
|Henderson of Brompton, L.|
|Arran, E.||Hives, L.|
|Atholl, D.||Hooper, B.|
|Balfour, E.||Joseph, L.|
|Beaverbrook, L.||Kitchener, E.|
|Belstead, L.||Long, V.|
|Boardman, L.||Lucas of Chilworth, L.|
|Brabazon of Tara, L.||Lyell, L.|
|Brentford, V.||Mersey, V.|
|Brougham and Vaux, L.||Monk Bretton, L.|
|Caithness, E.||Morris, L.|
|Caldecote, V.||Napier and Ettrick, L.|
|Cameron of Lochbroom, L.||Nelson, E.|
|Carnock, L.||Romney, E.|
|Davidson, V. [Teller.]||Saltoun of Abernethy, Ly.|
|Denham, L. [Teller.]||Simon of Glaisdale, L.|
|Dormer, L.||Skelmersdale, L.|
|Dundee, E.||Stanley of Alderley, L.|
|Elliot of Harwood, B.||Strathcarron, L.|
|Elton, L.||Trafford, L.|
|Goold, L.||Trumpington, B.|
|Gridley, L.||Vaux of Harrowden, L.|
|Hesketh, L.||Windlesham, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 9.15 p.m.
Lord Henderson of Brompton moved Amendment No. 51:
After Clause 47, insert the following new clause:
§ ("Tighter criteria for prison sentences on adult offenders.
§ .—(1) Where a person aged 21 years or over is convicted of an offence, the court may not pass a sentence of imprisonment on him unless it is satisfied—
- (a) that the circumstances, including the nature and the gravity of the offence, are such that a sentence of imprisonment is appropriate; and
- (b) that he qualifies for a sentence of imprisonment.
§ (2) An offender qualifies for a sentence of imprisonment if—
- (a) he has a history of failure to respond to non-custodial penalties and is unable or unwilling to respond to them; or
- (b) only a sentence of imprisonment would be adequate to protect the public from serious harm from him; or
- (c) the offence of which he has been convicted or found guilty was so serious that a non-custodial sentence for it cannot be justified.
§ (3) Where a court passes a sentence of imprisonment on a person aged 21 years or over, it shall be its duty—
- (a) to state in open court—
- (i) that it is satisfied that he qualifies for a sentence of imprisonment under one or more of the paragraphs of subsection (2) above;
- (ii) the paragraph or paragraphs in question; and
- (iii) why it is so satisfied; and
- (b) to explain to the offender in open court and in ordinary language why it is passing a sentence of imprisonment on him.").
§ The noble Lord said: My Lords, I beg to move Amendment No. 51 and ask the leave of the House to consider with that Amendments Nos. 52 and 53. They are not at all dissimilar—in fact, they are very alike—and Nos. 52 and 53 are only minor variants of No. 51. I attach very great importance to this amendment, and I most sincerely hope that the noble Earl will be able to give some comfort at the end of the debate on this amendment when he comes to reply. I do not propose to speak for long, but I hope to persuade him that this amendment is merely the culmination of a process which has been going on ever since 1982.
§ The new clause seeks to lay down tighter criteria for imposing prison sentences on adult offenders, and they are very similar to the criteria already contained in Clause 114 of the Bill in relation to young offenders. I should like to substantiate what I said a moment ago about this being a continuation of a process which has been going on since 1982.
§ The truth is that in 1982 the Government themselves brought in a provision for restrictions on courts on sentencing juvenile offenders to prison. When the Bill came to this House, the noble Baroness, Lady Faithfull (and I am very glad to see she is in her place) expanded on the original content of the Bill and made it into what is now Section 1(4) of the 1982 Act. That has, I think, been welcomed by all and sundry as a very remarkable step so far as juvenile offenders are concerned.
I should like to give just one illustration. An editorial in the journal Justice of the Peace welcomed the clause and said that they found it much clearer and that it was,
an emphatic and structured approach to the task in hand. one which we would guess the courts would find easier to operate".
It has proved to be easier to operate and in the interval the All-Party Penal Affairs Group has worked hard on providing material for what is now Clause 114 in this Bill. As I said, it is substantially the same as my Amendment No. 51 for adult offenders.
§ The first question which I should like to ask the Minister is this. Why, if it is appropriate to have Clause 114 in the Bill, it is not also appropriate and logical to extend the same terms to apply to adults? If he would only agree to do that, perhaps not in the very wording which I have proposed here, then I think he would be extending in a perfectly logical and progressive way a provision which was initiated by a Conservative administration in 1982, has been expanded in Clause 114 of this Bill, and would logically extend to adults by accepting an amendment such as I propose. That is the historical approach that I hope will appeal to the noble Earl.
So far as I can recall, when this matter was raised in Committee the main objections of the noble Earl were that this was the kind of thing that was being done already and that it was not necessary because,
We should prefer to give emphasis to the guidance of the Court of Appeal on the sparing use of custody and on the energy and imagination of the probation service in developing demanding alternatives to custody and ensuring that the courts are fully aware of their existence".
Those are impeccable sentiments with which I of course agree but none of them should preclude what I am proposing. They are not strictly alternatives.
They are all reinforcing each other. I am proposing another development which would help to reinforce those sentiments, together with the proposals that the noble Earl detailed in Committee, and fewer adults would be sent into custody.
Here I must recall the words of the noble Lord, Lord Elton, with his experience as Minister of State in the Home Office. At the beginning of the proceedings today he said:
Nothing—but nothing—is more likely to send a person to prison than the fact that he has been to prison before".
One of the great effects of this amendment would be that the courts would have to be very chary of sending particularly first offenders to prison. They would have to give their reasons for not doing so. So this is yet another means of sending fewer people to prison and therefore helping to ease the current very serious prison population problem. On those grounds too I should have thought that this is yet another tool in the hands of the Government and of the courts to proceed with the process which we all wish to see proceeded with from all different angles: from the court itself, from the probation service and from anyone else concerned with the offender.
§ As regards matters of detail, the noble and learned Lord, Lord Denning, said in Committee that it was not proper to give instructions to the higher judiciary, as this clause seeks to do. I would not of course presume to give any instruction to judges as regards what sentences they pass. That would be quite improper but it is proper—on reflection I would hope that the noble and learned Lord would agree—for Parliament to lay down in statute the overall powers of sentencing in courts and, if they see fit, to lay down statutory guidelines governing the use of those powers.
§ Out of deference to the noble and learned Lord I have put down Amendment No. 52, which only applies to magistrates' courts and not to the higher courts. If that was the only objection that the noble and learned Lord, Lord Denning, had I should be very happy to see Amendment No. 52 incorporated instead of Amendment No. 51.
§ I have purposely taken only a short time to move this amendment because I very much hope that if none of these three variants on the theme which I am proposing is agreeable to the noble Earl he can go away, think about it and come back with a government amendment of his own on Third Reading. I beg to move.
My Lords, I am very glad to give support to my noble friend Lord Henderson of Brompton in moving this and the related amendments. Any part that this Bill can be made to play in addressing the most chronic problem in our penal system, which is the excessive resort to imprisonment and the excessive length of prison sentences, is bound to be welcome. These amendments are aimed at that end through statutory guidelines, which should impose constraints on resort to imprisonment for adult offenders. It is logical that the same criteria applied to juvenile courts, already agreed by the Government, should be applied when considering disposal by the courts of adult offenders.
384 The other important point about the amendment relates to consistency. In Committee the noble Earl admitted, in mild terms that consistency of sentencing by magistrates' courts leaves a little to be desired. That is masterly understatement. We must take the opportunity provided by the Bill to do something about the use of imprisonment by the courts and not merely think in terms of building more custodial establishments to cater for the courts' decisions.
The Bill is proceeding with little so far having been conceded to that end by the Government. If we fail to put something into the Bill effectively to deal with the problem, we shall be seen by history to have failed to take the opportunity. I therefore support the amendments.
§ 10 p.m.
§ Baroness Faithfull
My Lords, I support the noble Lords, Lord Henderson and Lord Hunt. I moved an amendment to the Criminal Justice Bill 1982 which recommended stricter and more consistent criteria for custodial care. That has proved to be a success. There has been a drop in custodial sentences from 7,900 in 1981 to 4,500 in 1986. That is a drop of 3,400. If we could have a drop of 3,400 in those in custodial care in our prisons it would greatly help us.
I shall make two points from a social worker's point of view. Prison officers, social workers and probation officers consider that there are a number of people who should not be in prison and who could be dealt with outside prison. That is something that must be thought about.
I shall take up the point about consistences made by the noble Lord, Lord Hunt. I have talked to my colleagues in different parts of the country, and they say that the criteria by which custodial care is meted out is different in different parts of the country. That gives rise to a great feeling of injustice, especially if prisoners from different parts of the country are put in the same prison. For those three reasons, I support the amendment.
§ Lord Morton of Shuna
My Lords, from these Benches I also support the amendments. The history of advice coming like confetti to instigate magistrates to use compensation orders is an illustration of how such advice does not work and how it has been necessary to introduce legislation. It is also common sense to have guidelines. Guidelines are laid down by the Court of Appeal in England. We do not have sentencing guidelines in Scotland.
It is remarkable that we sentence more people to imprisonment than any other country in the democratic world. We are the only English-speaking country which is not undertaking a review of sentencing policy. This is a small measure. I hope that it is one that the Government can accept. I also hope that they may be able to indicate that a general review of sentencing policy instead of a sporadic increase in sentencing powers will be the Government's policy in future.
The Earl of Caithness
My Lords, as your Lordships are aware, the Government are not persuaded that restrictions of the kind proposed in the amendments are as effective as some of your Lordships have argued. During the course of the Criminal Justice Bill 1982, we accepted amendments introduced by my noble friend, as she said, relating to restrictions on the sentencing of young offenders. I cannot agree that those restrictions should be extended to those over 21 years of age.
Of course the argument for avoiding a custodial sentence where possible applies to all offenders, but I think your Lordships recognise that it must apply with special force to young offenders. That is why we were able to agree to the provisions in the 1982 Act which are now extended and developed in the Bill. That is the crux of the difference between us. We think that it is important to put an extra spotlight on young offenders. We should lose that if we were to accept the amendment.
I turn to Amendments Nos. 52 and 53. I understand the noble Lord's reasoning for singling out magistrates' courts to receive the guidance that he envisages. However, I am not at all convinced that Amendment No. 52 would achieve the consistency that he desires. I certainly share the noble Lord's objective that we should be seeking a greater consistency in approach to sentencing, but I cannot see how the amendment would help in that regard. Much valuable work is already being carried out by magistrates. This is something that concerns not just your Lordships tonight; to their credit a number of magistrates are looking at their own practices and consulting locally to try to ensure a more consistent approach to sentencing. That must surely be the right way to tackle this. I do not believe that a statutory framework is either necessary or desirable.
Amendment No. 53 deals with those who have not previously received a custodial sentence. I agree entirely that the Government should reflect carefully before sending someone to prison for the first time. I am sure that this is what already happens. Each case must be looked at individually. It is very important that the courts should not be fettered in their discretion to deal with each offender as the circumstances demand.
Your Lordships will be aware that the law already contains one statutory restriction on the use of custody for adults. That is in the precise area with which Amendment No. 53 deals. The noble Lord, Lord Henderson of Brompton, stressed what my noble friend Lord Elton said earlier, and indeed the noble Lord, Lord Morton of Shuna, referred to guidelines. I refer both noble Lords to Section 20 of the Powers of Criminal Courts Act 1973, which precludes the imposition of a prison sentence on a person who has not previously served a sentence of imprisonment,unless the court is of the opinion that no other method of dealing with him is appropriate".I cannot see that it is necessary to add to this in the way that the noble Lord, Lord Henderson of Brompton, suggests. The law already recognises the special position of those who have not previously 386 been to prison. I am satisfied that Section 20 of the 1973 Act deals adequately with this.
I appreciate the strength of feeling of the noble Lord, Lord Henderson, on this issue. I assure him that I understand the motivation behind the amendments and agree with him in principle. However, I believe that the provisions of the 1973 Act already meet one of the amendments and that there is a difference in the principle that we are employing between young offenders under 21 and adults.
§ Lord Henderson of Brompton
My Lords, can the noble Earl spell out what that difference of principle is? That is what I find difficult. I cannot see why what is effective for young offenders cannot be effective also for adult offenders.
The Earl of Caithness
My Lords, we are all very concerned about anyone going to prison for the first time and we are particularly concerned about those under the age of 21 who might be sent to prison for the first time. We therefore thought that it was right to accept the amendments of my noble friend to the Criminal Justice Act 1982 which put the extra spotlight on young offenders in order to keep in the minds of us all that they require something a little special. Some of the spotlight that we have put on them would be dimmed if we were to extend it to adults also. That is the difference. It is for that reason that I am not persuaded that either of the changes are required or that the steps which the noble Lord has proposed will be the right ones to meet our objectives.
§ Lord Henderson of Brompton
My Lords, I still do not see that there is any principle stated. If one extends the purport of Clause 114 to adults it is suggested that one would somehow dim the spotlight which is on young offenders. It does not seem to me to dim it in the very least. It seems to me to be really a logical progression to move from the original 1982 provisions to Clause 114 and then to extend it to adults as I have suggested.
The noble Earl, very kindly referred to my feelings or my motives. It has nothing to do with me. The expression of opinion has come from all around the House, including from the Benches behind the Minister. This is not a personal matter and it is not a party matter. It is something which has been considered by the All Party Penal Affairs Group. The group considers it to be a reasonable progression of a slow process which has been taking place since 1982. It would be well for the Government to accept the thinking on these lines and to carry on the process which the group initiated. It has facilitated the spread of this way of thinking and this is an opportunity for taking one step further.
I very solemnly ask the noble Earl if he will read again what has been said tonight to see if he can conceivably try to persuade his right honourable friend the Secretary of State to think again about this matter and to extend these criteria to adult offenders. It is late at night and I do not intend to divide the House. I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 52 and 53 not moved.]387
§ Clause 55 [Increased periods of imprisonment for default]:
§ Lord Harris of Greenwich moved Amendment No. 54:
§ Page 35, line 25, at beginning insert—
§ ("(1) In the Tables in section 31(3A) of the Powers of Criminal Courts Act 1973 and paragraph 1 of Schedule 4 to the Magistrates' Courts Act 1980, for the entries relating to amounts not exceeding £10,000 there shall be substituted—
|An amount not exceeding £50||5 days|
|An amount exceeding £50 but not exceeding £100||7 days|
|An amount exceeding £100 but not exceeding £400||14 days|
|An amount exceeding £400 but not exceeding £1,000||30 days|
|An amount exceeding £1,000 but not exceeding £2,000||45 days|
|An amount exceeding £2,000 but not exceeding £5,000||3 months|
|An amount exceeding £5,000 but not exceeding £10,000||6 months|
§ The noble Lord said: My Lords, this is a matter which we debated at the Committee stage. On that occasion the noble Earl began his speech by saying that there was nothing between us on the issue. Although at the end of that debate it looked as though there was a chasm between us, I am glad to say that there has been a bridging of the gap. As I understand it the Government are now not proposing to oppose this amendment. Indeed, they intend to support it.
§ Perhaps I may briefly give the background to this matter. As I said during the Committee stage of the Bill on an amendment not precisely in the same terms as this—
§ Lord Denham
I wonder whether the noble Lord will give way. I understand that my noble friend is accepting this amendment. It is quite late in the evening and I am wondering: is it really necessary for the noble Lord to speak to this if it is going to be accepted?
§ Lord Harris of Greenwich
I propose to speak briefly to it. It is essential for the record to point out when the Government make a concession which has an effect on the prison population. It is necessary to explain why we have now reached this degree of agreement. I will be brief but I intend to make the case to explain why it is we attach great importance to this question. These are important matters and it is right that they should form part of the permanent record.
The situation is that the average number of fine defaulters in prison on any day last year was 511. That amounted to somewhere in the region of 11 per cent. of those in prison serving six months or less. I think it is generally accepted by all of us that it is essential that there should be as a final penalty a prison sentence for those who wilfully decline to pay their fines. That, indeed, is what we said on the last occasion and I emphasise that particularly in the context of some of the debates earlier this afternoon.
The Home Office indicated in a letter to me, signed by the noble Earl, that it believes this amendment would have the effect of reducing the average daily prison population by about 150 and the effect would be greatest in the local prisons where overcrowding is at its worst. I believe that this is a modest but useful amendment and I am grateful to the noble Earl for being so accommodating. I beg to move.
The Earl of Caithness
My Lords, as the noble Lord said when he started his speech, there is nothing between us.
§ On Question, amendment agreed to.
§ 10.15 p.m.
Lord Stanley of Alderley moved Amendment No. 55:
After Clause 61, insert the following new
§ ("Amendments to Game Act 1831.
- (1) In section 30 (penalty on persons trespassing in the daytime upon lands in search of game, etc.) for "level 1" there shall be substituted "level 2" and for "level 3" there shall be substituted "level 4".
- (2) In section 31 (trespassers in daytime in search of game, etc., may be required to quit the land) for "level I" there shall be substituted "level 2".
- (3) In section 32 (penalty in case of five or more persons found armed in daytime in search of game, etc.) for "level 1" there shall be substituted "level 4".").
§ The noble Lord said: My Lords, in Committee I moved an amendment to give magistrates and police greater powers to deal with poachers. Although I received support from your Lordships, and sympathy from my noble friend, I accepted that my amendment was not quite right and might involve police officers chasing lurcher dogs round the countryside.
§ However, where I failed the noble Lord, Lord Irvine, succeeded for me when he moved his amendment to Clause 59 in Committee on the problem of lack of powers of forfeiture by the magistrates. I am pleased to note that his concern is being dealt with tonight in Amendments Nos. 57 and 58, to which my noble friend Lord Caithness has put his name. In fact, Amendments Nos. 57 and 58 would solve 90 per cent. of the problems I raised in Committee concerning lurcher dogs.
§ I ask my noble friend, who kindly wrote to me, to explain either now or on Amendments Nos. 57 and 58, why he felt it best to deal with my problem in Amendments Nos. 57 and 58. In particular, I wonder if my noble friend could explain why in his interpretation of the Police and Criminal Evidence Act a dog is an "anything" and a field or a wood is a "premises".
§ I repeat my thanks to the noble Lord, Lord Irvine, and indeed to the Government for dealing not just with the problems of the noble Lord, Lord Irvine, but also mine. Despite my noble friend's concession, I suggest that this tidying Amendment No. 55 is necessary and I ask your Lordships to give it your consideration.
§ The amendment increases the fines that the magistrates' court can impose. I propose that for a number of reasons. First, Sections 30, 31 and 32 of the Game Act 1831 are totally out of line with corresponding legislation. For instance, while the 1831 Act allows only level 1 fines, which must be under £50, the Night Poaching Act decrees level 3 fines of £400. The Firearms Act imposes level 4, and, indeed, imprisonment. The Public Order Act imposes levels 3 to 5 and imprisonment, and the Deer Act imposes level 4, imprisonment and confiscation. I could continue but I shall not further delay the House.389
§ If my noble friend does not like my amendment I should be particularly interested in his reasons as to why the Deer Act allows the magistrates so much greater latitude as regards punishment. Secondly, by setting the lowest level of fines for those offences, the result is that the prosecution try to catch an offender under another Act; for example, Section 20 of the Firearms Act or, indeed, Sections 4 or 5 of the Public Order Act. Indeed, I suspect that my noble friend Lord Caithness may produce these Acts as a reason for not accepting my amendment. So be it. However, I ask the Government to bear in mind that that puts these poaching offences, which should be dealt with summarily by the Bench, into the Crown Court. That, if I can use an agricultural phrase, is an extremely bad thing to do, and it is extremely bad law. For instance, it delays the operation of justice by putting it into the Crown Court, it costs the taxpayer a lot more and it overloads the courts. I am sure noble Lords will agree that the magistrates' court is the correct place for these offences to be dealt with.
§ Section 30 of the Game Act, about which I am talking, allows fines up to the level 3 but only if five or more are trespassing. I totally fail to understand why, if only four appear, it is reduced to level 1. Why, if they are carrying a gun, and they are charged under Section 32, can the offender, or offenders, again be charged only up to level 1? All in all, I think it is a fairly marvellous mystery.
§ Finally, I repeat that poaching today is not what it was in 1831 when the 1831 Act was enacted. It is now organised crime for profit, sometimes large profit. It destroys the peace of the countryside, and that of my sheep, causes cruelty and often leads to rustling and other crimes. I hope that noble Lords will agree that the magistrates should be given more latitude in dealing with these offences, as suggested in my amendments. I beg to move.
The Earl of Caithness
My Lords, I share my noble friend's concern about poaching which has prompted this amendment. I know that there are a lot of people in the countryside who come onto farmers' land, search for game and often behave in a threatening manner when approached. Obviously the law must give sufficient protection against the worst excesses of their behaviour, and I think it does. Nevertheless I think I can advise your Lordships to accept only part of my noble friend's amendment.
The first two parts concern Sections 30 and 31 of the Game Act 1831, which deal with offences of trespassing on land with intent to search for game and failure to give a name and address to an authorised person. Trespass is not in itself a criminal offence. I do not condone the activities of trespassers in these situations, but these sections do not deal with the chief mischief which concerns us all—the taking of game. The law already provides a higher penalty of £400 under the 1828 Night Poaching Act and, as my noble friend will also know, it is covered in the 1862 Poaching Prevention Act. Sections 30 and 31 of the Game Act deal with less serious matters and I do not think an increase in penalties is either necessary or desirable. For those reasons I ask your Lordships to reject the first two parts of the amendment.
390 The third part concerns those who are armed with a gun and use threatening or intimidating behaviour while trespassing in search of game. Threatening anyone with a firearm is a most serious offence, as I am sure the House will agree. I am sure that all noble Lords are aware of the strength of the Government's determination to crack down on firearms. In practice the police and courts are already able to deal with armed trespassers under Section 20 of the Firearms Act 1968, with penalties of a fine up to £1,000 and/or three months' imprisonment. But as a general principle it must be right that all offences in the statute book should attract an appropriate penalty, and for this reason I am able to accept the third part of the amendment in principle. If my noble friend is content to withdraw his amendment today I should be happy to discuss with him between now and Third Reading a form of words to give effect to the third part of it.
I should like to deal quickly with the additional question posed by my noble friend. During the Committee stage my noble friend raised the question of the power of the police to seize dogs or vehicles belonging to or in the control of persons apprehended on suspicion of poaching. The discussion touched upon the question of the police powers, given under Section 19 of the Police and Criminal Evidence Act 1984, which enable them to seize items needed as evidence. My noble friend asked whether the power extended to fields or woods, and also whether dogs could, where appropriate, be seized. It may be helpful to your Lordships if I briefly clarify the position on those two points.
First, there is the question of the place where seizure may occur. Section 19 of the Police and Criminal Evidence Act 1984 refers to the powers of seizure of "premises". The word "premises" is defined in Section 23 of the Act as "any place". I am assured that this definition allows seizure in fields or woods; in fact anywhere a poacher may be.
Secondly, there is the question of seizure of a dog. Section 19 of the 1984 Act empowers a constable to seize "any thing". It will not surprise my noble friend if I say that "any thing" means just that and it allows a poacher's dog or dogs to be seized in appropriate circumstances. I hope that this brief explanation will he helpful and reassuring. I fully appreciate the concern of my noble friend that the powers of the police to deal with this should be adequate and I am satisfied that they are.
§ Lord Harris of Greenwich
My Lords, will the noble Earl deal with one point? I welcome the fact that he is not attracted by subsections (1) and (2) of the amendment, which I think many of us would have found difficult to support. I do not wholly understand why he is endorsing an approach which leads to this extraordinary increase from level 1 to level 4 in the last subsection of the amendment. Will he deal with that point?
The Earl of Caithness
My Lords, with leave of the House, perhaps I may respond to the noble Lord. I thought that I had covered that. We wish to discuss that with my noble friend between now and Third 391 Reading on the basis of the general principle that it must be right that all offences in the statute book should attract an appropriate penalty. As we are dealing with firearms—we consider it to be a very serious matter when somebody goes equipped with a firearm to commit any crime, whether it be trespass or going for game—we believe that a suitable penalty should be in the statute. At the moment we do not consider the penalty to be adequate. That is why I wish to consider this part of my noble friend's amendment.
§ Lord Stanley of Alderley
My Lords, I thank my noble friend for accepting the last part of my amendment. I am disappointed that he cannot look at the other two parts.
To answer the noble Lord, Lord Harris, the concession that my noble friend has given me is no more than I could obtain from Section 20, Part II of the Firearms Act, which no doubt the noble Lord knows better than I do. It is not really a concession and I am rather surprised that the noble Lord asked that question.
I graciously accept the concession that my noble friend has given but—
§ Lord Harris of Greenwich
My Lords, the reason that I asked the question was that if there is a provision in existing legislation there is obviously no need for the amendment.
§ Lord Stanley of Alderley
My Lords, I wish that we could pass the whole amendment, as the noble Lord will realise. Unfortunately my noble friend can give me only a little, but a little is better than nothing, I suppose. That is all the more reason why we should consider the other two points. I know that my noble friend is very busy between now and Third Reading, but I hope he will look again at the points I have made. I am trying to give the magistrates more power and taking work off the Crown Court. However, bearing that in mind, I beg leave to withdraw the amendment in the hope that my noble friend will bring something forward at Third Reading.
§ Amendment, by leave, withdrawn.
Lord Monson moved Amendment No. 56:
After Clause 61, insert the following new
§ ("Causing death by reckless driving—increased minimum disqualification period.
§ "(1A) Where a person is convicted of an offence under section I of this Act, the court shall order him to be disqualified for such period not less than two years as the court thinks fit unless the court for special reasons thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified." ").
§ The noble Lord said: My Lords, three weeks ago in Committee I moved an amendment to raise the minimum period of disqualification for persons convicted of causing death by reckless driving from one year to three years. The amendment attracted a good deal of support, and the view was expressed that, if anything, three years was too short a period for disqualification for an offence so catastrophic in its consequences.392
§ However, there were contrary objections both from the Government and the main Opposition Front Benches, who argued that a three-year minimum was too long. I therefore reluctantly withdrew the amendment with a view to coming back with a compromise amendment designed to attract the widest possible consensus and support. This is the amendment we are discussing now.
§ The two noble Lords who spoke against the amendment three weeks ago argued that a three-year driving ban was too long for those convicted individuals whose jobs depended on driving; for example, heavy goods vehicle drivers or commercial travellers. Although that is a somewhat difficult proposition to agree with, I have tried to meet the objectors half-way by reducing the minimum disqualification period to only two years. We are, after all, talking about a very serious offence. We are not talking about death caused by mere careless driving. We are talking about drivers, whether drugged, drunk or stone cold sober, who have killed a fellow human being or human beings by driving recklessly. In other words, we are talking about manslaughter in all but name.
§ Most of us would agree that non-suspended custodial sentences are nearly always justified for this kind of offence, and possibly longer sentences than have generally been awarded hitherto. The important point is that those whose reckless driving has produced such appalling consequences should be kept off the road for as long as possible. It seems quite wrong that such a serious crime should attract a minimum period of disqualification no longer than one applicable to a very much less serious offence.
§ The objections raised against my amendment three weeks ago were essentially based on the argument that a longer period of disqualification would be unfair to those "killer drivers", as the tabloids would describe them, whose jobs necessitated the use of a car or commercial vehicle. But even supposing that people in that position were lucky enough to escape prison, they would still have to find a non-driving job anyway, given that the law as it stands at present requires them to be disqualified for a minimum period of one year.
§ I submit that to be kept away from a steering wheel for an additional 12 months hardly constitutes an unacceptable hardship in the circumstances. I beg to move.
§ 10.30 p.m.
§ Lord Brougham and Vaux
My Lords, I should like to support the amendment of the noble Lord, Lord Monson, and in doing so say that my society, RoSPA, is also fully behind the amendment. RoSPA has openly expressed its concern on more than one occasion.
There are many cases of drivers causing death by reckless driving and in most cases the driver gets a fine and a ban, but only occasionally a prison sentence. The longest prison sentence on record for reckless driving is two and a half years. In many hundreds of cases each year where death has resulted from irresponsible behaviour at the wheel of a car, the degree of culpability is such that if any other 393 weapon had been used—such as a gun, a knife, a broken bottle or even bare hands—the killer would have been charged and convicted of murder or manslaughter, for which the maximum penalty is life imprisonment. When the weapon is a car, however, the most horrendous acts of violence go virtually unpunished. It is as though a killer with a motor vehicle has become an acceptable form of homicide.
It is imperative that penalties imposed by the courts should reflect the severity of the crime. In June 1984, the Lord Chief Justice, the noble and learned Lord, Lord Lane, stated that the courts were treating the crime of reckless driving as less serious than it was, than Parliament intended it to be and than the public regarded it. I hope that if my noble friend cannot accept the amendment tonight he will seriously consider it before Third Reading.
§ Lord Houghton of Sowerby
My Lords, I shall not delay the House more than one minute. I want to make one single point. I have never understood why those whose livelihood depends on driving and who are convicted of reckless driving on killing a person expect leniency from the courts. Surely anyone who is dependent on driving for a livelihood should bear this in mind all the time he is driving. They cannot afford to take reckless risks; still less can they afford ever to kill somebody on the road on that account. I have no sympathy for those who look to the courts for leniency when they are convicted when what is needed is more care by those who face the greatest risk of losing their livelihood.
§ Lord Harris of Greenwich
My Lords, I very much agree with what the noble Lord, Lord Houghton, has said. We are very much in debt to the noble Lord, Lord Monson, for having put down this amendment, albeit in a slightly different form from one that appeared at the Committee stage of the Bill. Parliament, politicians, journalists and many others have for a long time—and indeed sometimes judges too—had an over-relaxed attitude towards people who kill others while driving cars, and even when they are sometimes very nearly insensibly drunk at the time that they do so.
The reason why politicians of all parties tend to talk about taking "a tough line" when it comes to firearms offences and many others is often the fact that they do not see themselves in the position of ever being involved in an armed robbery or anything of that kind. But they do see themselves all too often in the position of being the driver of a car who might unfortunately kill someone.
To be frank, most of us know perfectly well—those of us who drive cars and drink, and I would imagine that most of us are in both those categories—that from time to time we have driven a car when we have been dangerously near the limit, putting it as delicately as possible. It seems to me that these double standards have applied—double standards which have been increasingly causing public concern.
We have had this tragic spectacle of this gentleman and his children sitting down in Downing Street after the death of the mother of the family. We have had increasing public disquiet expressed both in the 394 newspapers and on television recently. We have had a major campaign in the United States on exactly the same issue. The least we can do where a driver deprives somebody else of his or her life is to say that they should be disqualified for a period of two years save in special circumstances where the court believes that it is right to apply a lesser sentence. I think that is the right way to approach this, and I very much hope that the Government will accept this amendment.
§ Lord Mishcon
My Lords, I rise only to make two points, and that quickly. The first point I would make is that I would disagree with the noble Lord, Lord Harris, fundamentally if the view were taken as a result of his speech that Parliament either in this House or in the other place has ever taken a lenient view of drunken driving. In my judgment whenever there has been a discussion in your Lordships' House or elsewhere people have risen from all sides of the House to condemn it, to point out its dangers and to say that people who do it are criminal.
I do not know what the activities are of the people on the Alliance Benches, for whom I have a great respect. But talking on behalf of my own Benches, and I hope on behalf of others Benches in this House. I do not think that it is the common practice for Members of your Lordships' House or of another place to imbibe and then drive afterwards. I hope we have a more responsible view of our public position. If that is not too pompous I now pass on to my next point, which I hope is not pompous at all. What is pompous to the noble Lord, Lord Harris, is not necessarily the way in which we would define pomposity in the rest of the House.
So far as my second point is concerned, it can be equally brief. I think that your Lordships may be misled. I tried to make this point at the Committee stage when this amendment was before your Lordships. Your Lordships may be misled into thinking that "special reasons" are reasons advanced on behalf of the party's individual circumstances. They are not. The court cannot in regard to special reasons take into account that the accused earns his living by driving.
Special reasons are defined by the courts as meaning special reasons relating to the offence itself and not in regard to the individual who perpetrates it. I thought that your Lordships ought to know that, and therefore know that, regardless of any point that may have been made perfectly properly in this debate about the individual circumstance of the accused, your Lordships may feel that, once you have the safeguard that mitigating factors in regard to the offence itself can be taken into account, it is quite proper to pass this amendment.
The Earl of Caithness
My Lords, this is an emotive issue and I am sure that we all have sympathy with the intentions behind the amendment. As the noble Lord, Lord Monson, has said, his amendment would increase from one to two years the minimum period of disqualification for the offence of causing death by reckless driving. He rightly argues that this is a serious offence and that the courts should deal severely with those who commit it. I would not argue 395 with that, but I have to say that I agree with the noble Lord, Lord Mishcon, that there really is no evidence that the courts are not taking these matters seriously.
I shall turn in more detail to disqualification in a moment. First, I should remind your Lordships that disqualification is not the only penalty available for this offence. The maximum penalty on conviction on indictment for causing death by reckless driving is five years' imprisonment. In 1985, 95 people were sentenced to immediate imprisonment for this offence. Of those 95, 35 received sentences of between one and two years; one received a sentence of between two and three years; and five received sentences of between three and five years.
The courts have also used their powers of disqualification to the full. One year is the minimum period of disqualification, yet nearly 90 per cent. of those people disqualified were disqualified for more than two years and over 30 per cent. were disqualified for more than five years. So the evidence indicates that courts do take a serious view of this offence.
This is a difficult area in which we would be reluctant to interfere with the discretion of the courts to sentence as they see fit. I took note of the remarks made in Committee when this issue was raised on an earlier occasion and I have thought very carefully about it since. I have also listened with great care to what your Lordships have said this evening. I find the argument that there should be a difference in the maximum penalty for reckless driving and for causing death by reckless driving persuasive and I am swayed by the strength of the opinions expressed. I am prepared to accept Lord Monson's amendment.
§ Lord Monson
My Lords, that is a most gratifying reply. I should like to say how grateful I am to noble Lords in all quarters of the House who have spoken in favour of the amendment and to the noble Earl and the Government for accepting it. I think that the general public, who have recently demonstrated such anguish and concern over this problem, will also be very grateful to the Government. Once again, I thank the noble Earl and all those who have supported the amendment.
§ On Question, amendment agreed to.
§ Clause 62 [Forfeiture—general]:
The Earl of Caithness moved Amendment No. 57.
Page 41, line 17, at end insert ("and").
§ The noble Earl said: My Lords, I beg to move Amendment No. 57 and to speak to Amendment No. 58. These amendments remove from Clause 62 the link between the value of the item to be forfeited and the maximum fine the court could impose for the offence.
§ I accept the argument put forward by the noble Lord, Lord Irvine of Lairg, in Committee that the link is not necessary or even an altogether desirable one, and that the magistrates' power to make a forfeiture order should not be restricted in the way envisaged in the clause.396
§ The purpose of the provision is to deprive the offender of the tools of crime or of unlawfully held property. That may be a right and proper course to take even if the value of the property forfeited exceeds the maximum fine for the offence. Indeed, as the noble Lord pointed out in Committee, the connection between the offence and the forfeited property may in some cases be indirect. When we debated this matter in Committee I was concerned that unless some restriction was retained, we might see excessive forfeiture orders being made. However, on reflection, I find the noble Lord's arguments the stronger. I therefore brought forward these amendments. I beg to move.
§ Lord Morton of Shuna
My Lords, I should like to say thank you on behalf of my noble friend Lord Irvine whose arguments in Commitee appear to have been persuasive.
§ On Question, amendment agreed to.
The Earl of Caithness moved Amendment No. 58:
Page 41, line 21, leave out from ("making)") to end of line 28.
§ On Question, amendment agreed to.
§ [Amendments Nos. 59 to 61 not moved.]
§ Clause 82 [Compensation.]:
Lord Morton of Shuna moved Amendment No. 62.
Page 61, leave out lines 16 to 30.
§ The noble Lord said: My Lords, I should like to speak to Amendment No. 62 in the name of my noble friend, and also speak to Amendments Nos. 63, 64 and 65. The amendments raise the question of what happens when there is an acquittal by a jury or on appeal after a forfeiture order has been made.
§ The Government's position is that there should be no power for compensation unless there has been serious default by the investigating or prosecuting authorities. I suggest that that is mean-minded and misguided. The amendments are directed to removing that barrier. If, in the end, the person is acquitted, it is a necessary consequence that the law regards them as innocent. It is wrong that an innocent person should suffer loss at the hands of the Government for something for which he is not responsible. For that reason Amendment No. 64 provides for the case where a defendant, although acquitted, brings suspicion on himself and allows the court to deprive him of compensation. Short of that, I suggest that an acquittal is an acquittal and it should be recognised as such. That is the purpose of the amendments. I beg to move.
§ The Earl of Arran
My Lords, the noble Lord's proposition is that anyone who is acquitted and has suffered loss as a result of the processes of justice should be entitled to the opportunity of seeking compensation. But the Government do not believe it would be in the best interests of justice to adopt this radically new approach to the issue of compensation. The noble Lord is saying that any acquitted person 397 deserves the chance of compensation. We are saying that an acquittal is an acquittal and let no one doubt it.
§ Lord Morton of Shuna
My Lords, if the noble Earl will give way, I am not saying that any acquitted person is entitled to compensation. We are saying that any acquitted person who has had his property taken possession of by the Government is entitled to compensation.
§ The Earl of Arran
My Lords, I thank the noble Lord for clarifying that point. But we do not accept the proposition that all acquitted persons should be able to secure compensation from public funds. We do not think it right that the person whose prosecution failed on a technicality should be entitled to benefit in this way, nor the person who by his actions brought prosecution upon himself. This is why Clause 82, like the Drug Trafficking Offences Act before it, establishes the test of "serious default".
I wonder whether the noble Lord does not in fact accept that case at least in part, for his amendments would seem to suggest so. They suggested that there should be a general entitlement to compensation, but that this should be qualified by a power of the High Court to refuse or reduce compensation if someone has invited prosecution by bringing suspicion upon themselves. I should like to pause for a moment on the implications of this. The danger, it seems to me, is that it will put the High Court in the quite unacceptable and invidious position of distinguishing between classes of acquitted person. The High Court could be drawn into having to pass judgment on the judgment of the court which acquitted the defendant. An advantage of the "serious default" criterion is that it avoids this wholly undesirable situation. It concentrates the High Court's attention, properly, on the issue of whether the prosecution, through recklessness or error, was responsible for a state of affairs which should never have been allowed to happen. It does not make the High Court address the question whether someone really deserved to be acquitted or not.
The second point concerns "substantial loss". It would be for the High Court to say what is "substantial", but it is not the intention to exclude losses which are relatively small but have a serious effect on the loser. However, we think it important to exclude minor and wholly opportunistic claims and that is the purpose of the word "substantial".
Against that background I believe that the present criteria in Clause 82 are the right ones. They ensure that there is an opportunity for compensation where something has gone seriously awry with the investigation or prosecution causing substantial loss, but they do not extend to other cases. I hope that the noble Lord will accept that on this matter there is a difference of view between us and that we think it would be wrong to depart from the established principles. Nevertheless, I hope that he will feel able to withdraw the amendment.
§ Lord Morton of Shuna
My Lords, the established principles, of course, were established as far back as 1986 in the Drug Trafficking Offences Act. This is 398 rather like saying, "This tradition will start from tomorrow". But if the noble Earl considers that my amendment will give difficulty to the court, what does he think about serious default? Does he not think that any lawyer worth his salt would have tremendous fun in court wondering whether the fault of the prosecution was serious or trivial? Lawyers would have great fun with that. However, on the basis that this may be a matter to which we shall return on another day, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 63 to 65 not moved.]
Lord Mishcon moved Amendment No. 66:
After Clause 96, insert the following new
§ ("Compensation for miscarriage of justice.
§ . The Secretary of State shall make provision for the payment of compensation to any person who has by a final decision been convicted of a criminal offence and whose conviction has subsequently been reversed, or who has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.").
§ The noble Lord said: My Lords, I can be very brief and say to your Lordships that we are now dealing with a rather different matter from the preceding amendment, however meritorious that amendment might be. We are dealing with the question of miscarriage of justice, in which there has been a final conviction and thereafter as a result of an inquiry or new evidence it has been found that the person concerned was completely innocent of the alleged crime of which he was convicted. We are asking in justice that compensation should be available in those cases. At this late hour I very much hope that this very reasonable amendment can be accepted, so that we can terminate our proceedings on a happy and proper note. I beg to move.
§ Lord Monson
My Lords, I put my name down to this amendment because it expressed a feeling that I have had for some time. I wonder whether the Government would consider the provision of a modest—and I stress the word "modest"—degree of compensation to all those who are wrongfully arrested or detained and not only to those who are wrongfully convicted. That would reconcile the public to the greater number in toto of wrongful arrests and detentions that take place today as an inevitable consequence of greater police and Customs and Excise activity, which is itself an inevitable consequence of the more dangerous times that we live in compared, for example, with the 1950s.
The Earl of Caithness
My Lords, the noble and learned Lord, Lord Elwyn-Jones, moved an identical amendment to this one in Committee. I indicated then that the Government would be willing to look sympathetically at the case for an amendment for these purposes and on that basis the noble and learned Lord was willing not to press the matter. The purpose of such an amendment, as is the purpose of this one, would be to enact the provisions of Article 14(6) of the International Covenant on Civil and Political Rights.
399 The speeches made in Committee made fully clear to me the strength and urgency of your Lordships' feelings on this matter. I am therefore ready and able to give the undertaking sought from me at that time and can confirm that the Government will bring forward an amendment for the purpose of enacting the provisions of the article to which I have referred.
There was a further undertaking that I believe your Lordships sought from me, which was to introduce an amendment before the Bill left this House. I regret to say that I am not optimistic that this can be achieved. I alluded to the difficulties during Committee. Essentially they are that the drafting of a suitable amendment will be more complex than might appear to be the case from the noble Lord's amendment, and will require discussion with a variety of interests within government.
We need to give careful consideration to the meaning of the words—I quote from the article—"final decision" and to the making of detailed arrangements, which, in the amendment before us, are not addressed as directly as they would need to be. I believe your Lordships will accept that for an amendment of this nature and with the purposes envisaged it would not be appropriate simply to make general provision for the payment of compensation. We must consider carefully exactly how that provision should be made.
I therefore think it unlikely that the amendment can be ready by Third Reading and I am sorry that this should be so. I can however assure your 400 Lordships that we shall definitely bring forward the necessary provision in another place and, if it is adopted, there will, of course, be an opportunity for your Lordships to consider it when the Bill returns to this House. I am sorry that I cannot go further than that, but I hope that on that relatively happy note the noble Lord, Lord Mishcon, will be satisfied.
§ Lord Mishcon
My Lords, relatively happy is the right term and I readily thank the noble Earl for his courtesy in the way he has dealt with this amendment, which was originally moved, as he rightly said, by my noble and learned friend Lord Elwyn-Jones. We look forward to the possibility of the Government's amendment being available by Third Reading, but if that is not so the undertaking is perfectly satisfactory and I am obliged to the noble Earl. I beg leave to withdrawn the amendment.
§ Amendment, by leave, withdrawn.
§ Moved accordingly, and, on Question, Motion agreed to.